“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 15350 REXCO INDUSTRIES, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 April 14, 1980DECISIONBEFORE CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? A decision of Administrative Law Judge Paul L. Brady isbefore the Commission for review under section 12(j)[1] of the Occupational Safetyand Health Act of 1970, 29 U.S.C. ??\u00a0651?678 (?the Act?). In his decisionJudge Brady vacated a citation issued by the Secretary of Labor (?theSecretary?). This citation alleged that Respondent, Rexco Industries, Inc.,violated the construction standard published at 29 C.F.R. ? 1926.500(d)(1)[2] by failing to guard anopen-sided platform adjacent to the fourth floor of a hospital underconstruction in Yauco, Puerto Rico. For the reasons that follow, we affirm thedecision of the judge.??????????? Respondent served as the general contractor for thebuilding of a hospital. In the course of construction, a scaffold system waserected.[3] The scaffold system, whichamounted to an auxiliary structure attached to the building, consisted of threeparallel rows of interlocking metal shoring extending from the ground to thesixth floor level. The first row of shoring was placed flush against thebuilding. There was a 10-foot gap both between the first and second rows ofshoring and between the second and third rows. Two levels of the scaffoldsystem, at the fourth and sixth floors, were planked.[4]??????????? Compliance Officer Rabames Santisteban of theOccupational Safety and Health Administration testified that during hisinspection of Respondent?s worksite the fourth floor surface of the scaffoldsystem was missing part of its lengthwise planking, making the surfaceL-shaped. At the base of the ?L?, the planking, which extended from the edge ofthe building to beyond the second row of shoring, was 18 feet wide. Theplanking that was placed against the edge of the building was only 8 feet wide.There was, therefore, an 8-foot gap between the edge of the planking and thenext row of metal supports. Santisteban testified that the fourth floor surfaceof the scaffold system was unguarded and that the shorings of the scaffold did notprovide protection because they were too far from the edge of the planking toprevent an employee from falling. The compliance officer stated that entry tothe fourth floor surface was through a 4-foot-wide wall opening. He also statedthat the opening was not blocked by a barrier, railing, or any otherobstruction.??????????? During his inspection, Santisteban observed an employee,Rafael Sepulveda, go onto the fourth floor planked surface to a point near itsedge in order to obtain a piece of wood. Aside from this incident, Santistebandid not observe any work being performed on the fourth floor surface.??????????? As a witness for the Secretary, Sepulveda admitted thathe was Respondent?s employee. He testified further that at the time of theinspection he was assisting a carpenter on the fifth floor and that he wasinstructed to obtain a piece of wood to close a hole in a wall on the fifthfloor. He was not instructed where to get the wood. Although he knew that awarehouse containing wood was located 75 to 100 feet from the building, he hadnever gone there for supplies and he did not know what procedure to follow toget wood from the warehouse. Sepulveda indicated that there were no employeesworking on the fourth floor planked surface and that he had received no instructionsconcerning the surface. He stated that he never went on the fourth floorplanking either before or after this particular incident.??????????? Sepulveda confirmed the compliance officer?s testimonythat the planked surface was unguarded. He stated that there were no barrierspreventing access to the surface, which was about one foot below the wallopening. He admitted that he walked six to eight feet into the planking inorder to get the piece of wood. There were several pieces of wood on theplanked surface; this wood was not part of the surface but was lying on top ofit.??????????? Roberto Raffucci, Respondent?s safety engineer, testifiedthat walking on the planked surface was difficult because one would have tocurve around the metal supports and jump over other obstacles. Both Raffucciand Juan Albelo, Respondent?s vice-president of safety and claims, stated thatthe employees were instructed to obtain wood from the warehouse. Albelo, whodid not accompany the compliance officer during the inspection but who examinedthe planked surface on the following day, testified that the surface presentedno risk because the area was not a working platform; the worker had no reasonto go on the planked surface; and obstacles blocked entry to the surface.[5]??????????? Judge Brady, finding that Respondent?s employees were notassigned duties on the cited planked surface, vacated the citation on the basisthat the fourth floor ?platform? was not a ?working space for persons? withinthe meaning of that term as used in the standard at 29 C.F.R. ? 1926.502(e).[6] Hence, he concluded thatRespondent did not violate the terms of section 1926.500(d)(1) since thatstandard does not apply to the fourth floor planked surface cited by theSecretary. The judge further found that there was no evidence of employerknowledge of the employee?s presence on the fourth floor planking. He concludedthat an employer is not liable for a totally independent act of an employee,for to do so would make the employer strictly liable.??????????? On review, the Secretary takes exception to that portionof the judge?s decision and order wherein the judge vacated the citation for aserious violation of 29 C.F.R. ? 1926.500(d)(1) and the proposed penalty.Although the Secretary filed no brief on review, the Secretary maintains in hispetition for discretionary review that the judge erred in concluding that the?platform? was not a ?working space for persons? within the meaning of 29C.F.R. ? 1926.502(e).[7] Respondent filed no briefon review.??????????? We agree with Judge Brady that the evidence is insufficientto establish that the cited planked surface was a ?working space for persons?within the meaning of 29 C.F.R. ?\u00a01926.502(e). In General ElectricCompany v. OSHRC, 583 F.2d 61 (2d Cir. 1978), the Second Circuit construedthe term ?platform? as defined in the standard at 29 C.F.R. ? 1910.21(a)(4).[8] Section 1910.21(a)(4)provides the general industry standard definition of the term ?platform? forthe application of the general industry requirements for standard railings. Thewording of section 1910.21(a)(4) is identical to section 1926.502(e). As such,section 1910.21(a)(4) is the general industry equivalent of the constructionindustry standard at section 1926.502(e). In General Electric, theSecond Circuit concluded as follows:We do not readthis definition [of ?platform?] to apply to every flat surface . . . upon whichemployees may some day stand while performing some task related to theiremployment and the operations of their employer. An elevated flat surface doesnot automatically become a ?working surface? and a ?platform? merely becauseemployees occasionally set foot on it while working.?583 F.2d at 64.\u00a0??????????? We find the reasoning of the Second Circuit particularlyapplicable to the facts in this case. There is no evidence on the record herethat any employees were assigned to do work on the fourth floor plankedsurface. There is no evidence that Respondent?s employees were working on thefourth floor. The single employee who went onto the surface was assisting acarpenter who was working on another floor. There is no evidence thatRespondent knew or could have anticipated that this employee might go onto thefourth floor planking to get wood. The employee knew that there was a warehouseon the jobsite where the wood could be obtained. Further, aside from this oneinstance, there is no evidence that any of Respondent?s employees ever wentonto the fourth floor planked surface. The evidence, therefore, is insufficientto establish that the fourth floor planked surface in this case was a ?workingspace for persons? within the meaning of section 1926.502(e). Hence, thestandard at 29 C.F.R. ?\u00a01926.500(d)(1) is inapplicable to the citedconditions. We therefore conclude that Respondent did not violate the Act byfailing to comply with the standard at section 1926.500(d)(1).?Accordingly, it isORDERED that the judge?s vacating of the citation is affirmed.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: APR 14, 1980?COTTINE, Commissioner,dissenting:??????????? The majority?s disposition of this case is based on adiscussion that confuses the definition of ?platform? set forth at ? 1910.21with employer knowledge of a violation and employee access to a hazard. Theiranalysis also fails to distinguish or even discuss relevant Commissionprecedent on these issues.??????????? The Respondent was the general contractor for theconstruction of a hospital. My colleagues correctly emphasize that the scaffoldsystem in issue was so large that it ?amounted to an auxiliary structureattached to the building . . ..? There was access to the fourth floor plankedsurface of the scaffold through a 4-foot-wide wall opening and this plankedsurface was totally unguarded.??????????? The Commission has consistently held that an employer hasa duty under the Act to anticipate the hazards to which its employees may beexposed and to take the steps necessary to prevent such exposure. SouthwesternBell Telephone Co., 79 OSAHRC 4\/G4, 7 BNA OSHC 1058, 1979 CCH OSHD ? 23,278(No. 15841, 1979); Automatic Sprinkler Corp. of America, ___ OSAHRC ___,7 BNA OSHC 1957, 1979 CCH OSHD ? 24,077 (No. 76?5271), 1979). See Acchione& Canuso, Inc., ___ OSAHRC ___, 7 BNA OSHC 2128, 1980 CCH OSHD ? 24,174(No. 16180, 1980).??????????? In view of the obviousness of the hazard posed by thislarge, unguarded structure and the Respondent?s responsibility as the generalcontractor for the safety of all employees throughout the worksite, it isreasonable to expect the Respondent to have taken steps to prevent or abate thecited hazard. Marshall v. Knutson Constr. Co., 566 F.2d 596 (8th Cir.1977). It is also noteworthy that had the Respondent fulfilled its duty toinspect the worksite in order to anticipate hazards, prevention of the citedhazard could easily have been accomplished by either blocking the wall openingor clearly informing employees to avoid the planked structure.??????????? Although the Secretary need not prove actual employeeexposure to a hazard, Otis Elevator Co., 78 OSAHRC 88\/E5, 6 BNA OSHC2048, 1978 CCH OSHD ? 23, 135 (No. 16057, 1978),[***] the record clearlyestablishes the actual exposure of one employee to the cited hazard. Mycolleagues avoid discussion of this issue by referring to the fact that at thetime of the inspection employees were not assigned to the fourth floor,disregarding the facts that an employee was actually observed on the plankingand that the Respondent admitted that it had no workrule forbidding thisemployee conduct.??????????? Finally, my colleagues conclude that the planking did notconstitute a ?working space for persons.? They find the reasoning of the U.S.Court of Appeals for the Second Circuit in General Electric Co. v. OSHRC,583 F.2d 61 (2d Cir. 1978), ?particularly applicable to the facts in thiscase.? The majority fails to clarify for the parties, the Commission?s judges,and the public whether a Commission majority now adheres to the holding of thatcourt which reversed a unanimous Commission decision. General ElectricCompany, Inc., 77 OSAHRC 88\/A2, 5 BNA OSHC 1448, 1977?78 CCH OSHD ? 21,853(No. 11344, 1977). (Moran and Cleary; Barnako concurring). The Commission wasestablished to achieve uniformity in occupational safety and healthadjudications. Accordingly, the Commission adheres to the principle that anadministrative agency charged with the duty of formulating uniform nationalpolicy is not bound to acquiesce in the views of U.S. courts of appeals thatconflict with those of the agency. S & H Riggers & Erectors, Inc.,79 OSAHRC 23\/A2, 7 BNA OSHC 1260, 1979 CCH OSHD ?23,480 (No. 15855, 1979), appealfiled, No. 79?2358 (5th Cir. June 7, 1979). Thus, I would follow Commissioncases generally holding that a platform on which employees are actuallyperforming work constitutes a working space for persons. CaliforniaRotogravure Co., 75 OSAHRC 31\/A2, 2 BNA OSHC 1515, 1974?75 CCH OSHD ? 19,240 (No. 668, 1975), petition denied, No. 75?1743 (9th Cir. Jan. 25,1977); Weyerhaeuser Co., 77 OSAHRC 9\/A2, 4 BNA OSHC 1972, 1976?77 CCHOSHD ? 21, 465 (Nos. 1231 & 1758, 1977), remanded on other grounds,No. 77?1611, (9th Cir. Jan.3, 1980); General Electric Co., Inc., 75OSAHRC 50\/A2, 3 BNA OSHC 1031, 1974?75 CCH OSHD ? 19, 567 (No. 2739, 1975), rev?don other grounds, 540 F.2d 67 (2d Cir. 1976); General Electric Co., Inc.,supra, 5 BNA OSHC at 1450 n.3, 1452, 1977?78 CCH OSHD at p. 26,320 n.3, 26,322.??????????? I would affirm the violation because the structure wasproperly cited under ?\u00a01926.500(d)(1), the employer could have detectedand prevented the hazard, and an employee was exposed to the danger of fallingfrom the platform to the ground four floors below.\u00a0\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 15350 REXCO INDUSTRIES, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 July 14, 1976DECISIONAND ORDERAPPEARANCES:Luis A. Micheliand Edwin Tyler, Esquires, Office of the Solicitor, Santurce, Puerto Rico, onbehalf of complainant.\u00a0Anital Irizarryand Earle Blizzard, Esquires, San Juan, Puerto, on behalf of respondent.?STATEMENTOF THE CASEBRADY, Judge:??????????? This proceeding is brought pursuant to section 10(c) ofthe Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq., 84Stat. 1590 (hereinafter referred to as the Act) to contest a citation issued bythe Secretary of Labor (hereinafter referred to as the Secretary) pursuant tosection 9(a) of the Act. The citation, which was issued September 19, 1975,alleges that as a result of an inspection of respondent?s workplace located atExt. 25 de Julio Street, Yauco, Puerto Rico, respondent violated section5(a)(2) of the Act by failing to comply with an occupational safety and healthstandard promulgated by the Secretary pursuant to section 6 thereof. A noticeof proposed penalty was issued with the citation.??????????? The hearing was held March 4, 1976, at Hato Rey, PuertoRico, and no additional parties sought to intervene.??????????? The facts are not in dispute that on August 18, 1975, therespondent was engaged in construction work as a general contractor in theconstruction of a hospital building at the aforementioned construction site. Inthe course of construction, a scaffold system supporting two platforms waserected on the east side, north wing. One platform was on the fourth floorlevel which served as support for another platform located on the sixth floorlevel. The platform on the sixth floor level was completely planked, while theplatform on the fourth level contained sections which were not covered and werenot a work area.??????????? The citation alleges that respondent violated thestandard at 29 C.F.R. ? 1926.500(d)(1). ? Theregulation states in pertinent part as follows:(d) Guarding of open-sidedfloors, platforms, and runways. (1) Every open-sided floor or platform 6 feetor more above adjacent floor or ground level shall be guarded by a standardrailing, or the equivalent. . .???????????? It is alleged in the complaint that respondent violated thestandard as follows:On or about August18, 1975, respondent violated the Safety Standard set forth at 29 C.F.R.1926.500(d)(1) in that it failed to guard by a standard railing, or theequivalent, as specified in 29 C.F.R. 1926.500(f), an open-sided platform,which was 6 feet or more above adjacent floor or ground level, located at thefourth floor, north wing of its construction project, thereby exposing itsemployees to a falling hazard.???????????? Mr. Rabames Santisteban, compliance officer, testifiedthat he conducted the inspection of August 18, 1975. He revealed that in thecourse of the inspection he observed respondent?s employee standing on theopen-sided platform on the fourth level as depicted in complainant?s ExhibitC?2. He stated that Mr. Rafael Sepulveda walked to the edge of the platform onthe fourth level to obtain a piece of wood and return (Tr. 27, 28). Theplatform, which did not have guardrails, extended approximately eight feet fromthe structure (Tr. 17, 21, 22, 71). He contended that the employee on theunguarded open-sided platform was exposed to a hazardous condition (Tr. 78).??????????? Mr. Rafael Sepulveda testified that he was the employeedepicted in Exhibit C?2. He indicated that at the time of the inspection he wasemployed as a carpenter helper at the worksite. He stated that he was in theprocess of helping a carpenter close wall openings on the fifth floor. At thetime of the inspection, he was on the fourth level to obtain a piece of panel(Tr. 86, 89). He was asked to obtain a panel by the carpenter, although he wasnot directed to a specific location (Tr. 90). He indicated that he knew therewas a warehouse which contained the wood for the purpose of closing theopenings. However, he did not go there, as he saw the paneling on the fourthlevel platform (Tr. 92, 93).??????????? He stated that he was not instructed to obtain woodpaneling from the warehouse, nor was he instructed to obtain wood from theplatform. He was simply told to obtain the particular wood (Tr. 98).??????????? There was no barrier between the building and theplatform. However, the platform was about one foot lower than the doorway (Tr.94, 95).??????????? Mr. Roberto Raffucci, safety engineer for respondent atthe time of the inspection, testified that the fourth floor level was anauxiliary structure to support the sixth floor where concrete was being poured.He stated that the sixth floor level measured approximately eighteen bytwenty-four feet, and the platform at the fourth floor was approximately twentyby forty feet, which contained four by eight panels, and the shorings weresupporting the structure (Tr. 110).??????????? In determining whether the respondent violated thestandard as alleged, it must be pointed out that under section 1926.502(e)which contains definitions applicable to this subpart, ?platform? is definedas:?A working spacefor persons, elevated above the surrounding floor or ground, such as a balconyor platform for the operation of machinery and equipment.????????????? The evidence of record clearly shows that the platform onthe fourth level consisted of a scaffold system erected to support the platformon the sixth level, and the platform area was not a ?working space forpersons.? The evidence also reveals that the employee went to the fourth floorlevel to obtain a panel, although he was not specifically directed to do so,nor was he there for the purpose of working. The employee?s testimony alsoindicated that he knew there was a warehouse containing the type of wood he wasasked to obtain.??????????? The record in this case contains no evidence that theemployer had knowledge of the employee?s presence on the fourth floor level.Further, the evidence does not indicate that the respondent should in any waybe required to provide guardrails on the platform which was used for supportpurposes.??????????? In order to find an employer in violation of the standardas alleged, it is necessary that complainant show such employer has caused orat least knowingly acquiesced in such violation. The employer cannot be held inviolation of the standard for the totally independent act of the employee underthe circumstances of this case.??????????? To hold an employer in violation of the standard asalleged, it would in effect make the employer strictly and absolutely liablefor all employee actions which are of an unsafe nature.FINDINGSOF FACT??????????? 1. Rexco Industries, Inc., is a corporation doingbusiness at Hato Rey, Puerto Rico, where at all times hereinafter mentioned, itwas engaged in general construction work.??????????? 2. On August 18, 1975, respondent was engaged in theconstruction of a hospital building in Yauco, Puerto Rico.??????????? 3. On August 18, 1975, an authorized representative ofthe Secretary conducted an inspection of respondent?s aforementioned worksite.As a result of such inspection, a citation was issued September 19, 1975, with noticeof proposed penalty.??????????? 4. The scaffolding system on the east side of theconstruction project was used to support platforms on the fourth and sixthlevels.??????????? 5. The open-sided platform on the fourth level was not awork space, and respondent?s employees were not assigned duties thereon.??????????? 6. Respondent was not required to provide standardguardrails on the fourth floor platform.CONCLUSIONSOF LAW??????????? 1. Rexco Industries, Inc., at all times pertinent hereto,was an employer engaged in a business affecting commerce within the meaning ofsection 3(5) of the Occupational Safety and Health Act of 1970, and theCommission has jurisdiction of the parties and subject matter herein pursuantto section 10(c) of the Act.??????????? 2. Respondent is, and at all times pertinent hereto,required to comply with safety and health regulations promulgated by theSecretary pursuant to section 6(a) of the Act.??????????? 3. On August 18, 1975, respondent was not in violation ofthe regulation at 29 C.F.R. ? 1926.500(d)(1) as alleged in the citation.ORDER??????????? Upon the basis of the foregoing findings of fact andconclusions of law, and the entire record, it is ORDERED:??????????? The citation alleging violation of the standard at 29C.F.R. ? 1926.500(d)(1) is hereby vacated.?Dated this 14th day ofJuly, 1976.?PAUL L. BRADYJudge[1]29 U.S.C. ?661(i). The direction for review issued by former Commissioner Moran did notspecify any issues to be considered by the Commission. However, in his petitionfor review, the Secretary took issue with the judge?s decision. It is thatissue, discussed infra, that we consider on review.[2]The standardstates in pertinent part:(d) Guarding ofopen-sided floors, platforms, and runways.(1) Everyopen-sided floor or platform 6 feet or more above adjacent floor or groundlevel shall be guarded by a standard railing, or the equivalent, as specifiedin paragraph (f)(1)(i) of this section, on all open sides, except where thereis entrance to a ramp, stairway, or fixed ladder. The railing shall be providedwith a standard toeboard wherever, beneath the open sides, persons can pass, orthere is moving machinery, or there is equipment with which falling materialscould create a hazard.[3]The recorddoes not indicate when the scaffold was erected or how long the scaffold systemwould remain in place. However, Respondent?s vice-president testified that theshorings for the scaffold existed at the worksite for a period of about fourmonths.[4]The sixthfloor level was planked completely to form a surface measuring approximately 20feet by 40 feet. Conditions on the sixth floor level were not cited by theSecretary. Only issues involving the absence of guardrails on the fourth floorlevel are before us.[5]Thetestimony by Raffucci and Albelo conflicted with that of the compliance officerand of Sepulveda as to whether the opening into the planked surface from thebuilding was obstructed by barriers. Although he did not make a specificcredibility finding, Judge Brady in his statement of the case stated that therewas ?no barrier between the building and the platform.? We need not resolve thedispute concerning whether entrance to the planked surface was obstructed bybarriers since such a determination is not necessary to our disposition of thiscase.[6]The word?platform? in the standard at 29 C.F.R. ? 1926.500(d)(1) is defined at section1926.502(e). This section reads:?Platform??Aworking space for persons, elevated above ground, such as a balcony or platformfor the operation of machinery and equipment.[7]In addition,the Secretary argues that the Judge erred in: (1) finding that Respondent?semployee was not on the ?platform? for the purpose of working; (2) finding thatrespondent should not be required to erect guardrails on the ?platform? becauseit was used for scaffold support purposes; (3) concluding that the Secretarymust prove that the employer caused or knowingly acquiesced in the violation;(4) finding that the employee?s actions were ?totally independent? of theemployer; and (5) concluding that affirmance of the citation would constitutethe imposition of strict liability on respondent for the unsafe actions of itsemployees. We need not decide these contentions in light of our disposition ofthe case.[8]The standardat 29 C.F.R. ? 1910.21(a)(4) reads:? 1910.21Definitions(4) Platform. Aworking space for persons, elevated above the surrounding floor or ground; suchas a balcony or platform for the operation of machinery and equipment.[***]Under Otis,the Secretary must simply demonstrate that the hazard posed by the violation isaccessible to employees.”