“SECRETARY OF LABOR, Complainant, v. PATENT SCAFFOLDING CO., Respondent.OSHRC DOCKET NO. 89-0559ORDEROn January 23, 1991, the Secretary filed a Notice of Withdrawal in theabove-captioned case. The Commission acknowledges receipt of theSecretary’s Notice of Withdrawal and sets aside the Judge’s Decision andOrder affirming Item 1(a) of the citation and assessing a $200 penalty.There being no matters remaining before the Commission requiring furtherconsideration, the Commission orders the above-captioned case dismissed.Edwin G. Foulke, Jr.ChairmanVelma Montoya CommissionerDonald G. Wiseman CommissionerDated: February 14, 1991————————————————————————RODERICK A. DeARMENT, ACTING SECRETARY OF LABOR, Complainant, v. PATENTSCAFFOLDING CO., Respondent.Docket No. 89-0559NOTICE OF WITHDRAWALThe Acting Secretary of Labor hereby notifies the Commission and theparties that he has withdrawn Citation No. 106462492, which is at issuein this litigation. 29 C.F.R. ? 2200.102 (1990). See generally, CuyahogaValley Ry. Co. v. United Transportation Union, 474 U.S. 3 (1985)(Secretary of Labor retains prosecutorial discretion at all stages oflitigation.)Respectfully submitted.ROBERT P. DAVISSolicitor of LaborCYNTHIA L. ATTWOODAssociate Solicitor forOccupational Safety and HealthDANIEL J. MICKCounsel for Regional LitigationLAURA V. FARGASAttorneyU.S. Department of LaborCERTIFICATE OF SERVICEI hereby certify that on this 23rd day of January 1991, a copy of theforegoing Notice of Withdrawal was served by certified mail, returnreceipt requested, upon the following counsel of record:Robert D. PetersonRobert D. Peterson Law CorporationLAURA V. FARGAS AttorneySECRETARY OF LABOR, Complainant, v. PATENT SCAFFOLDING COMPANY, Respondent.OSHRC DOCKET NO. 89-0559APPEARANCES:For the Complainant:Dane C. Dauphine, Esq., Office of the Solicitor,U. S. Department of Labor, Los Angeles, CAFor the Respondent:Robert D. Peterson, Esq., Sunset Whitney Ranch, CADECISION AND ORDERBarkley, Judge:This proceeding arises under the Occupational Safety and Health Act of1970 (29 U.S.C., Section 651, et. seq, hereafter referred to as the Act).Respondent Patent Scaffolding maintains its principle place of businessin Carson, California where it is engaged in scaffold erection anddisassembly. At all times pertinent hereto respondent maintained aworksite at 9465 Beverly Boulevard, Beverly Hills, California where itemployed four employees. Respondent admits it is engaged in a businessaffecting commerce and is therefore subject to the Act’s requirements.On September 27, 1988, the Occupational Safety and Health Administration(OSHA) conducted an inspection of respondent’s workplace (Tr. 12). As aresult of that inspection, respondent was issued Serious citation 1,items 1a and 1b alleging violations of 29 CFR 1926.28(a) and1926.451(d)(10) respectively. A penalty of $640.00 was proposed.Citation 1a was amended in the complaint to allege violation of ?1926.105(a). Respondent timely contested the violations and proposedpenalties.A hearing was held on August 15, 1989 in Los Angeles, California. At thehearing, the Secretary’s counsel stated that the Secretary was allegingviolations only for the exposure of one (1) of respondent’s employees,Elliot (Tr. 39). Counsel further stated that the two violations wereintended to be alleged in the alternative (Tr. 39-40). The parties havesubmitted briefs and the matter is now ready for decision.FACTSThe citation in this case involves the disassembly of tubular weldedscaffolding, which had been erected across one end of a multi-storybuilding. The scaffolding was approximately 3 feet wide and had beenplaced approximately 18 to 24 inches from the building (Tr. 99). It had\”lifts\” or working platforms at six foot intervals rising to a height ofapproximately 110 feet (Tr. 24-25). Employees gained access to thevarious lifts by way of a stairway which was part of and attached to thescaffolding but was on the exterior side of the lifts opposite thebuilding. The stairway protruded approximately six feet beyond the lifts(Tr. 114-115).On the day of the inspection, four of respondent’s employees weredismantling the scaffold (Tr. 12-13, 25; Ex. C-1, C-2). The foreman, Mr.Zamora, was working on the top lift, taking apart the various pieces ofthe scaffold. Zamora passed the pieces down one lift to a Mr. Elliot(Tr. 14-20, 176-177). The pieces included planks and parts of thescaffold in sizes up to 6’6\” by 5′ (Tr. 185-186). Zamora’s dutiesrequired that he travel the length of the scaffold (Tr. 18-19).Elliot’s work platform, which had been constructed on the lift below,consisted of planks that had been placed across the horizontal membersof the stairwell (Tr. 26, 32, 177). The work platform was approximately6′ by 7′ (Tr. 26, 32, 117, 177), and was guarded by a guardrail on oneside, a top rail on the front but no guarding on the other side; thebackside nearest the scaffold was guarded by a cross brace (Tr. 29-31;Ex. C-3, C-4). A pully was attached to a structural member whichprotruded approximately one foot past Elliot’s work platform (Tr. 31,117; Ex. C-3).Upon receiving scaffolding parts and planks from Zamora, Elliot wouldtie the material to a sling attached to the rope and pulley (Tr. 14-20,117, 177) whereupon the material was then lowered to the ground (Tr. 14-20, 177).Elliot was not provided with a safety belt, safety nets or any otherfall protection, other than the partial guardrails noted above (Tr. 33,119). OSHA’s Compliance Officer (CO) testified that Elliot could havefallen from the unguarded or partially guarded portion of the platformand sustained serious injury, including death (Tr. 32).On the day of the inspection, the CO was told by the foreman, Zamora,that safety belts were not being used because of an exemption fordismantling (Tr. 33), but that Elliot could be tied off (Tr. 34). In asubsequent conversation with respondent’s superintendent, Balmer, the COwas again told that Elliot could be tied off in the future (Tr. 35).However, at the hearing, Mr. Balmer testified that safety belts couldnot have been used on the dismantling job, because the 6′ lanyardprescribed by OSHA was too short to allow movement to all portions ofthe platform, and because a lanyard hooked to the scaffolding frameabove a horizontal member would be waist high at most and would presenta tripping hazard (Tr. 125, 171-172). He had not seen safety belts andlines used in the industry during scaffold dismantling (Tr. 173). Mr.Hamilton stated that, while he had seen a stationary safety line usedwith \”climbing\” scaffolds, he had never known belts and lanyards to beused with scaffolds of the sort involved here (Tr. 184-187).BaImer also testified that the use of safety nets would \”impede\” thedismantling process, preventing the lowering of materials through thenet (Tr. 164-165). He stated that in his five years in the industry, henever observed safety nets used during scaffold dismantling (Tr. 164).Respondent’s Branch Manager, Mr. Charles W. Hamilton, with 30 years inthe scaffolding industry, similarly testified (Tr. 178-179).The CO made no comment on the feasibility of safety nets, but testifiedthat a safety belt and lanyard could have been attached to the scaffoldframe or to a stationary safety line anchored to the roof of thebuilding and run to the ground between the scaffold and the building(Tr. 92-93, 96-97). Alternatively, in order to facilitate work on theouter edge, a line from the roof could be extended out through a boomand then dropped down the front of the scaffold (Tr. 100).Mr. Salvatore Jimenez, a safety supervisor with over 12 years experiencewith OSHA and 3,000 inspections to his credit, testified for theSecretary (Tr. 122-123). Mr. Jimenez had seen safety nets used duringscaffold dismantling, but did not specify how the problem of loweringmaterial to the ground was dealt with (Tr. 136). Rather, he recommendedthe use of an independent safety line extending down the outside of thescaffolding from a roof mounted outrigger beam (Tr. 124). Mr. Jimenezpointed out that tying the lanyard to the safety line above the worklevel would avoid the tripping hazard. He testified that he had assistedemployers in the scaffold industry in designing configurations forsafety lines and had seen them used successfully (Tr. 129).Finally, respondent introduced into evidence a 1986 decision of theCalifornia Occupational Safety and Health Appeals Board. Considering asimilar case involving this respondent, the Board refused to construeCalifornia’s general fall protection provision to cover erection anddismantling of scaffolding where standards specifically applicable toscaffolding failed to provide such protection (Tr. 171; Ex. R-5).Alleged Violation of ? 1926.105(a)Section 1926.105 states:Safety nets. (a) Safety nets shall be provided when workplaces are morethan 25 feet above the ground or water surface, or other surfaces wherethe use of ladders, scaffolds, catch platforms, temporary floors, safetylines, or safety belts is impractical.The Citation alleges:(a) 9465 Wilshire Blvd., Bank of America Building-Employee handlingdismantled scaffolding material on work platform without fallprotection; exposing employee to fall hazards of approximatelyone-hundred-and-ten (110) feet. Personal protective equipmentrequired-safety belt and lanyard.ISSUES1. Whether the Complaint was properly amended to allege violation of ?1926.105(a);2. Whether the Secretary has established, by a preponderance of theevidence a violation of ? 1926.105(a);a. Whether, in order to prove a violation of ? 1926.105(a), requiringsafety nets, the Secretary must first show that none of the alternativefall protections listed were practical;3. Whether respondent has proved the affirmative defense ofunfeasibility or impossibility;4. Whether respondent may rely on a decision by the CaliforniaOccupational Safety and Health Appeals Board to excuse its compliancewith federal regulations.CONCLUSIONS1. Respondent’s challenge to the propriety of the Secretary’s amendmentof the Complaint is without merit. Section 2200.35(f) of theCommission’s Rules of Procedure allows the Secretary to amend thecitation \”once as a matter of course in the complaint before an answeris served.\” Complainant’s amendment was properly made.2. The Commission has held that a prima facie violation of ? 1926.105(a)is made out when it is proved that employees are exposed to fall hazardsin excess of 25 feet and none of the safety devices listed in thestandard is used. National Industrial Constructors, Inc., 9 BHA OSHC1871 (No. 76-891 and 76-1535, 1981). The record adequately demonstratesthat respondent’s employee, Elliot, was exposed to a fall hazard ofapproximately 110 feet, and none of the safety devices listed in thestandard were used. The Secretary has established her prima facie caseand, at this point, need make no additional showing regardingalternative methods.[[1]]3. In order to establish a defense of impossibility or unfeasibility, anemployer must demonstrate, by a preponderance of the evidence, thatcompliance with a standard’s literal requirements is not possible orwould preclude performance of the employer’s work. If proven, the burdenshifts to the Secretary to show that alternative means of protectionwere available to the employer. Dun-Par Engineered Form Co., 12 BNA OSHC1949, 1953 (No. 79-2553, 1986), rev’d, 843 F.2d 1135 (8th Cir. 1988).The testimony of respondent’s witnesses to the effect that the use ofsafety nets during disassembly of scaffolding would prevent the loweringof materials to the ground was uncontradicted. However, this judge findsthat respondent could have employed a safety harness and lanyard toprotect Mr. Elliot. In so finding, I place particular reliance on twofactors. First, I find the pre-litigation statements by Zamora andBalmer that Elliot could be tied off to be convincing. Second, althoughthe use of a lanyard would somewhat restrict movement, Elliot’s workplatform was a confined area which in itself restricted movement. Aminimum of mobility is required for Elliot’s tasks and the use of asafety belt and lanyard is both feasible and practicable. The trippinghazard noted by respondent is easily eliminated by tying off above theworking level.4. Respondent may not rely on the existence of a California AppealsBoard interpretation of State regulations to excuse it from compliancewith federal law. It is true that under 29 C.F.R. 1954.3(d)(1)(i), whileconcurrent jurisdiction exists, \”Federal enforcement proceedings willnot be initiated where an employer is in compliance with a Statestandard which has been found to be at least as effective as thecomparable Federal standard…\” However, an official interpretationwhich renders an approved standard less effective than its Federalcounterpart will be afforded no deference.Moreover, employers are presumed to be familiar with standards thataffect their business; ignorance or misinterpretation of the standardsdoes not excuse noncompliance. Hallmark Excavating, Inc., 6 BNA OSHC1898 (No. 77-3306, 1978).ClassificationThe Secretary cited this violation as serious. Section 17(k) of the Actprovides that a violation shall be deemed \”serious\” if there is a\”substantial probability that death or serious physical harm\” couldresult from a condition which exists in the workplace unless theemployer could not, with the exercise of reasonable diligence, know ofthe violation. There is no question that a 110 foot fall would result inprobable death. Likewise, there is no question that respondent had therequisite knowledge required for a serious violation by virtue ofZamora’s knowledge that Elliot was not provided fall protection.At hearing, however, respondent introduced evidence of the existence ofa proposed rule which would excuse employers from providing fallprotection for scaffolding workers involved in dismantling (Ex. R-2).Respondent argues, and the Secretary’s Compliance officer agreed, thatthe Secretary’s internal policy is to cite as \”de minimus\” currentviolations where the employer is in compliance with a proposed rule (Tr.110; Ex. R-4). Respondent contends that the above violation should,therefore, be affirmed as a ”de minimus\” violation.The Act provides for the classification of a violation as de minimuswhere said violation has \”no direct or immediate relationship to safetyor health.\” 29 U.S.C. 658(a). It is clear that the failure to providefall protection for workers 110 feet above the ground has a directrelationship to employee safety. The cited violation cannot, therefore,be classified as de minimus. The Secretary’s internal policy cannotchange this conclusion since such policies \”do not have the force andeffect of law, nor do they accord important procedural or substantiverights to individuals.\” FMC Corp., 5 BNA OSHC 1707, 1710 (13155, 1977);See also, GAF Corp., 6 BNA OSHC 1206 (No. 77-616, 1977).The violation was properly classified as serious.PENALTYNo evidence was adduced at hearing regarding the size of the employer orany history of safety violations. Nor was any evidence introducedreflecting adversely on respondent’s good faith. Rather, it appears thatrespondent relied, albeit erroneously, on official interpretations ofparallel California regulations. However, the gravity of the violationis high. Taking into consideration the relevant factors, a penalty of$200.00 is found to be appropriate, and will be assessed.Alleged Violation of ? 1926.451(d)(10)The cited standard applies to tubular welded frame scaffolds and states:(10) Guardrails made of lumber, not less than 2×4 inches (or othermaterial providing equivalent protection), approximately 42 inches high,with a midrail, of 1×6 inch lumber (or other material providingequivalent protection), and toeboards, shall be installed at all opensides and ends on all scaffolds more than 10 feet above the ground orfloor. Toeboards shall be a minimum of 4 inches in height. Wire meshshall be installed in accordance with paragraph (a)(6) of this section.Complainant’s counsel stated at the hearing that the two allegedviolations were intended to be alleged in the alternative. Counselfurther stated that the two alleged violations resulted from the sameexposure (Elliot’s) and that either abatement (safety belts orguardrails) would eliminate the hazard (Tr. 39-40). Having held thatsafety belts are required as proposed by complainant’s alternativetheory, it is unnecessary to consider this alleged violation, which isduplicative if upheld. Accordingly, serious citation 1, item 1b will bevacated.Findings of Fact and Conclusions of LawAll findings of fact and conclusions of law relevant and necessary to adetermination of the contested issues have been found specially andappear in the decision above. See Rule 52(a) of the Federal Rules ofCivil Procedure. Proposed Findings of Fact or Conclusions of Law thatare inconsistent with this decision are denied.Order1. Serious citation 1, item 1a alleging violation of ? 1926.103(a) isAFFIRMED and a penalty of $200.00 is ASSESSED.2. Serious citation 1, item 1b alleging violation of ? 1926.451(d)(10)is VACATED.James H. BarkleyJudge, OSHRCDated: February 8, 1990FOOTNOTES:[[1]] A recent D.C. Circuit case, Century Steel Erectors, Inc. v.Elizabeth Dole, OSHRC Docket no. 87-1348, slip opinion (D.C. Cir.October 8, 1989), places the burden on the Secretary to show thatalternative methods are practical where safety nets are shown to beinfeasible Century Steel Erectors has not been adopted by the Commissionand thus is not binding in this matter. In any event, this judge findsit would be inequitable to apply retroactively a ruling affectingburdens of proof.”