“Docket No. 89-0559 SECRETARY OF LABOR, Complainant, v. PATENT SCAFFOLDING CO.,Respondent.OSHRC DOCKET NO. 89-0559ORDEROn January 23, 1991, the Secretary filed a Notice of Withdrawalin the above-captioned case. The Commission acknowledges receipt of the Secretary’s Noticeof Withdrawal and sets aside the Judge’s Decision and Order affirming Item 1(a) of thecitation and assessing a $200 penalty. There being no matters remaining before theCommission requiring further consideration, the Commission orders the above-captioned casedismissed.Edwin G. Foulke, Jr.ChairmanVelma Montoya CommissionerDonald G. Wiseman CommissionerDated: February 14, 1991RODERICK A. DeARMENT, ACTING SECRETARY OF LABOR, Complainant,v. PATENT SCAFFOLDING CO., Respondent.Docket No. 89-0559NOTICE OF WITHDRAWALThe Acting Secretary of Labor hereby notifies the Commissionand the parties that he has withdrawn Citation No. 106462492, which is at issue in thislitigation. 29 C.F.R. ? 2200.102 (1990). See generally, Cuyahoga Valley Ry. Co. v. UnitedTransportation Union, 474 U.S. 3 (1985) (Secretary of Labor retains prosecutorialdiscretion at all stages of litigation.)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 copyof the foregoing Notice of Withdrawal was served by certified mail, return receiptrequested, 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, CA DECISION AND ORDERBarkley, Judge:This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C.,Section 651, et. seq, hereafter referred to as the Act).Respondent Patent Scaffolding maintains its principle place ofbusiness in Carson, California where it is engaged in scaffold erection and disassembly.At all times pertinent hereto respondent maintained a worksite at 9465 Beverly Boulevard,Beverly Hills, California where it employed four employees. Respondent admits it isengaged in a business affecting commerce and is therefore subject to the Act’srequirements.On September 27, 1988, the Occupational Safety and HealthAdministration (OSHA) conducted an inspection of respondent’s workplace (Tr. 12). As aresult of that inspection, respondent was issued Serious citation 1, items 1a and 1balleging violations of 29 CFR 1926.28(a) and 1926.451(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 proposed penalties.A hearing was held on August 15, 1989 in Los Angeles,California. At the hearing, 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 were intended to be alleged in thealternative (Tr. 39-40). The parties have submitted briefs and the matter is now ready fordecision. FACTSThe citation in this case involves the disassembly of tubularwelded scaffolding, which had been erected across one end of a multi-story building. Thescaffolding was approximately 3 feet wide and had been placed approximately 18 to 24inches from the building (Tr. 99). It had \”lifts\” or working platforms at sixfoot intervals rising to a height of approximately 110 feet (Tr. 24-25). Employees gainedaccess to the various lifts by way of a stairway which was part of and attached to thescaffolding but was on the exterior side of the lifts opposite the building. The stairwayprotruded approximately six feet beyond the lifts (Tr. 114-115).On the day of the inspection, four of respondent’s employeeswere dismantling the scaffold (Tr. 12-13, 25; Ex. C-1, C-2). The foreman, Mr. Zamora, wasworking on the top lift, taking apart the various pieces of the scaffold. Zamora passedthe pieces down one lift to a Mr. Elliot (Tr. 14-20, 176-177). The pieces included planksand parts of the scaffold 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 planksthat had been placed across the horizontal members of the stairwell (Tr. 26, 32, 177). Thework platform was approximately 6′ by 7′ (Tr. 26, 32, 117, 177), and was guarded by aguardrail on one side, 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). Apully was attached to a structural member which protruded approximately one foot pastElliot’s work platform (Tr. 31, 117; Ex. C-3).Upon receiving scaffolding parts and planks from Zamora, Elliotwould tie 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 anyother fall protection, other than the partial guardrails noted above (Tr. 33, 119). OSHA’sCompliance Officer (CO) testified that Elliot could have fallen from the unguarded orpartially guarded portion of the platform and 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 for dismantling (Tr.33), but that Elliot could be tied off (Tr. 34). In a subsequent conversation withrespondent’s superintendent, Balmer, the CO was again told that Elliot could be tied offin the future (Tr. 35).However, at the hearing, Mr. Balmer testified that safety beltscould not have been used on the dismantling job, because the 6′ lanyard prescribed by OSHAwas too short to allow movement to all portions of the platform, and because a lanyardhooked to the scaffolding frame above a horizontal member would be waist high at most andwould present a tripping hazard (Tr. 125, 171-172). He had not seen safety belts and linesused in the industry during scaffold dismantling (Tr. 173). Mr. Hamilton stated that,while he had seen a stationary safety line used with \”climbing\” scaffolds, hehad never known belts and lanyards to be used with scaffolds of the sort involved here(Tr. 184-187).BaImer also testified that the use of safety nets would\”impede\” the dismantling process, preventing the lowering of materials throughthe net (Tr. 164-165). He stated that in his five years in the industry, he never observedsafety nets used during scaffold dismantling (Tr. 164). Respondent’s Branch Manager, Mr.Charles W. Hamilton, with 30 years in the scaffolding industry, similarly testified (Tr.178-179).The CO made no comment on the feasibility of safety nets, buttestified that a safety belt and lanyard could have been attached to the scaffold frame orto a stationary safety line anchored to the roof of the building and run to the groundbetween the scaffold and the building (Tr. 92-93, 96-97). Alternatively, in order tofacilitate work on the outer edge, a line from the roof could be extended out through aboom and then dropped down the front of the scaffold (Tr. 100).Mr. Salvatore Jimenez, a safety supervisor with over 12 yearsexperience with OSHA and 3,000 inspections to his credit, testified for the Secretary (Tr.122-123). Mr. Jimenez had seen safety nets used during scaffold dismantling, but did notspecify how the problem of lowering material to the ground was dealt with (Tr. 136).Rather, he recommended the use of an independent safety line extending down the outside ofthe scaffolding from a roof mounted outrigger beam (Tr. 124). Mr. Jimenez pointed out thattying the lanyard to the safety line above the work level would avoid the tripping hazard.He testified that he had assisted employers in the scaffold industry in designingconfigurations for safety lines and had seen them used successfully (Tr. 129).Finally, respondent introduced into evidence a 1986 decision ofthe California Occupational Safety and Health Appeals Board. Considering a similar caseinvolving this respondent, the Board refused to construe California’s general fallprotection provision to cover erection and dismantling of scaffolding where standardsspecifically applicable to scaffolding 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 more than 25 feet abovethe ground or water surface, or other surfaces where the use of ladders, scaffolds, catchplatforms, temporary floors, safety lines, or safety belts is impractical.The Citation alleges:(a) 9465 Wilshire Blvd., Bank of America Building-Employee handling dismantled scaffoldingmaterial on work platform without fall protection; exposing employee to fall hazards ofapproximately one-hundred-and-ten (110) feet. Personal protective equipmentrequired-safety belt and lanyard. ISSUES1. Whether the Complaint was properly amended to allegeviolation of ? 1926.105(a);2. Whether the Secretary has established, by a preponderance ofthe evidence a violation of ? 1926.105(a);a. Whether, in order to prove a violation of ? 1926.105(a), requiring safety nets, theSecretary must first show that none of the alternative fall protections listed werepractical;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 compliance with federalregulations. CONCLUSIONS1. Respondent’s challenge to the propriety of the Secretary’samendment of the Complaint is without merit. Section 2200.35(f) of the Commission’s Rulesof Procedure allows the Secretary to amend the citation \”once as a matter of coursein the complaint before an answer is served.\” Complainant’s amendment was properlymade.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 hazards inexcess of 25 feet and none of the safety devices listed in the standard is used. NationalIndustrial Constructors, Inc., 9 BHA OSHC 1871 (No. 76-891 and 76-1535, 1981). The recordadequately demonstrates that respondent’s employee, Elliot, was exposed to a fall hazardof approximately 110 feet, and none of the safety devices listed in the standard wereused. The Secretary has established her prima facie case and, at this point, need make noadditional showing regarding alternative methods.[[1]]3. In order to establish a defense of impossibility orunfeasibility, an employer must demonstrate, by a preponderance of the evidence, thatcompliance with a standard’s literal requirements is not possible or would precludeperformance of the employer’s work. If proven, the burden shifts to the Secretary to showthat alternative means of protection were available to the employer. Dun-Par EngineeredForm Co., 12 BNA OSHC 1949, 1953 (No. 79-2553, 1986), rev’d, 843 F.2d 1135 (8th Cir.1988).The testimony of respondent’s witnesses to the effect that theuse of safety nets during disassembly of scaffolding would prevent the lowering ofmaterials to the ground was uncontradicted. However, this judge finds that respondentcould have employed a safety harness and lanyard to protect Mr. Elliot. In so finding, Iplace particular reliance on two factors. First, I find the pre-litigation statements byZamora and Balmer that Elliot could be tied off to be convincing. Second, although the useof a lanyard would somewhat restrict movement, Elliot’s work platform was a confined areawhich in itself restricted movement. A minimum of mobility is required for Elliot’s tasksand the use of a safety belt and lanyard is both feasible and practicable. The trippinghazard noted by respondent is easily eliminated by tying off above the working level.4. Respondent may not rely on the existence of a CaliforniaAppeals Board interpretation of State regulations to excuse it from compliance withfederal law. It is true that under 29 C.F.R. 1954.3(d)(1)(i), while concurrentjurisdiction exists, \”Federal enforcement proceedings will not be initiated where anemployer is in compliance with a State standard which has been found to be at least aseffective as the comparable Federal standard…\” However, an official interpretationwhich renders an approved standard less effective than its Federal counterpart will beafforded no deference.Moreover, employers are presumed to be familiar with standards that affect their business;ignorance or misinterpretation of the standards does not excuse noncompliance. HallmarkExcavating, Inc., 6 BNA OSHC 1898 (No. 77-3306, 1978). Classification The Secretary cited this violation as serious. Section 17(k) ofthe Act provides that a violation shall be deemed \”serious\” if there is a\”substantial probability that death or serious physical harm\” could result froma condition which exists in the workplace unless the employer could not, with the exerciseof reasonable diligence, know of the violation. There is no question that a 110 foot fallwould result in probable death. Likewise, there is no question that respondent had therequisite knowledge required for a serious violation by virtue of Zamora’s knowledge thatElliot was not provided fall protection.At hearing, however, respondent introduced evidence of theexistence of a proposed rule which would excuse employers from providing fall protectionfor scaffolding workers involved in dismantling (Ex. R-2). Respondent argues, and theSecretary’s Compliance officer agreed, that the Secretary’s internal policy is to cite as\”de minimus\” current violations where the employer is in compliance with aproposed 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 deminimus where said violation has \”no direct or immediate relationship to safety orhealth.\” 29 U.S.C. 658(a). It is clear that the failure to provide fall protectionfor workers 110 feet above the ground has a direct relationship to employee safety. Thecited violation cannot, therefore, be classified as de minimus. The Secretary’s internalpolicy cannot change this conclusion since such policies \”do not have the force andeffect of law, nor do they accord important procedural or substantive rights toindividuals.\” FMC Corp., 5 BNA OSHC 1707, 1710 (13155, 1977); See also, GAF Corp., 6BNA OSHC 1206 (No. 77-616, 1977).The violation was properly classified as serious. PENALTYNo evidence was adduced at hearing regarding the size of theemployer or any history of safety violations. Nor was any evidence introduced reflectingadversely on respondent’s good faith. Rather, it appears that respondent relied, albeiterroneously, on official interpretations of parallel California regulations. However, thegravity of the violation is high. Taking into consideration the relevant factors, apenalty 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 scaffoldsand states:(10) Guardrails made of lumber, not less than 2×4 inches (orother material providing equivalent protection), approximately 42 inches high, with amidrail, of 1×6 inch lumber (or other material providing equivalent protection), andtoeboards, shall be installed at all open sides and ends on all scaffolds more than 10feet above the ground or floor. Toeboards shall be a minimum of 4 inches in height. Wiremesh shall be installed in accordance with paragraph (a)(6) of this section.Complainant’s counsel stated at the hearing that the twoalleged violations were intended to be alleged in the alternative. Counsel further statedthat the two alleged violations resulted from the same exposure (Elliot’s) and that eitherabatement (safety belts or guardrails) would eliminate the hazard (Tr. 39-40). Having heldthat safety belts are required as proposed by complainant’s alternative theory, it isunnecessary to consider this alleged violation, which is duplicative if upheld.Accordingly, serious citation 1, item 1b will be vacated.Findings of Fact and Conclusions of LawAll findings of fact and conclusions of law relevant andnecessary to a determination of the contested issues have been found specially and appearin the decision above. See Rule 52(a) of the Federal Rules of Civil Procedure. ProposedFindings of Fact or Conclusions of Law that are inconsistent with this decision aredenied.Order1. Serious citation 1, item 1a alleging violation of ?1926.103(a) is AFFIRMED 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, OSHRCDocket no. 87-1348, slip opinion (D.C. Cir. October 8, 1989), places the burden on theSecretary to show that alternative methods are practical where safety nets are shown to beinfeasible Century Steel Erectors has not been adopted by the Commission and thus is notbinding in this matter. In any event, this judge finds it would be inequitable to applyretroactively a ruling affecting burdens of proof.”