“Secretary of Labor,\t Complainant\t v.\t OSHRC Docket No. 05-1145SALCO Construction, Inc.,\t Respondent.\t Appearances: Lindsay Wofford, Esq., U. S. Department of Labor, Office ofthe Solicitor, Dallas, Texas For Complainant Robert N. Aguiluz, CSP, The Barnes Law Firm, P.C., Dallas,Texas For Respondent Before: Administrative Law Judge Ken S. WelschDECISION AND ORDER SALCO Construction Inc. (SALCO) was erecting the steel for anew Verizon Wireless retail store in Baton Rouge, Louisiana, when theproject was inspected by the Occupational Safety and HealthAdministration (OSHA) on April 29, 2005. As a result of OSHA\u2019sinspection, SALCO received serious and repeat citations on June 14,2005. SALCO timely contested the citations. The serious citation alleges SALCO violated 29 C.F.R. \u00a71926.760(a)(1) for failing to ensure an employee exposed to a fallhazard of more than 15 feet was protected by fall protection. Theserious citation proposes a penalty of $3,000.00. The repeat citation alleges SALCO violated 29 C.F.R. \u00a71926.451(c)(2)(v), (Item 1) for failing to secure a platform occupied bytwo employees to the forks on a Gradall Telehandler; and 29 C.F.R. \u00a71926.451(g)(1) (Item 2) for failing to protect two employees on theplatform from a fall hazard of more than 10 feet. Each alleged repeatviolation proposes a penalty of $1,200.00. The hearing was held in Baton Rouge, Louisiana, on January12, 2006. Jurisdiction and coverage are stipulated (Tr. 6). The partiesfiled post hearing briefs. SALCO denies the alleged violations. SALCO asserts theemployee on the steel beam was a connector and fall protection was notrequired. With regard to the two employees on the platform supported bythe forks on the Gradall Telehandler, SALCO argues the scaffoldstandards in \u00a7 1926.451 do not apply and are preempted by the steelerection standards at \u00a7 1926.750. Also, SALCO claims the GradallTelehandler and the platform are not covered by the cited standards. For the reasons discussed, the alleged violations of \u00a71926.760(a)(1) and \u00a7 1926.451(c)(2)(v) are affirmed. The allegedviolation of \u00a7 1926.451(g)(1) is vacated. \/\/\/\/Background SALCO, a construction company, is in the business of steelerection. It employs 50 employees (Tr. 62, 114). SALCO contracted toerect the steel for a new single story Verizon Wireless store in BatonRouge, Louisiana (Exh. C-8). On April 29, 2005, four SALCO employees were on site;leadman Raub, equipment operator Merrill Myers, and two employees, Rocheand Bodreaux (Tr. 113-114). Merrill Myers operated the GradallTelehandler by JLG Industries (Exh. R-1). The forks attached to theGradall Telehandler were used to support an elevated platform foremployees to work. The platform had guardrails on three sides. The sidefacing the eaves of the building under construction was open withoutguardrails (Exhs. C-2, C-3; Tr. 25-26, 28). To hold the platform, theforks slid into two pieces of channel iron underneath the platform (Exh.C-4). OSHA compliance officer Raymond Loupe, after finishing lunchacross the street from the project, observed two employees on anelevated platform and one employee on a steel beam. Leadman Raub andemployee Roche were standing on the platform installing flashing to theeaves of the building (Tr. 30, 114). According to the building\u2019sblueprints, the eaves was at a height of 15 feet, \u00be inches (Tr. 36, 94).Only Roche was wearing a safety harness but it was not attached (Tr. 27,114). CO Loupe estimated the platform was approximately 13 feet abovethe ground (Tr. 58, 120). Also, CO Loupe testified he saw the wheels onthe Gradall move with the Raub and Roche still on the elevated platform(Tr. 24-25, 26-27, 29-30, 60). In addition to the employees on the platform, CO Loupeobserved employee Bodreaux standing and sitting on a steel beam in theinterior of the building while bolting in purlins Footnote (Exh. C-1; Tr. 30,35). Bodreaux was not utilizing any fall protection (Tr. 35). From theeaves which was at a height of 15 feet, \u00be inches, according to theblueprints, the steel beams went to a height of 22 feet (Tr. 36). COLoupe estimated Bodreaux was approximately 18 feet above the concretefloor (Tr. 41). \/\/\/ \/Based on CO Loupe\u2019s inspection and observations, theserious and repeat citations were issued to SALCO.\/\/Discussion\/\/ In order to establish a violation of an Occupational Safetyor Health Standard, the Secretary has the burden of proving:(a) the applicability of the cited standard, (b) the employer\u2019snoncompliance with the standard\u2019s terms, (c) employee access to theviolative conditions, and (d) the employer\u2019s actual or constructiveknowledge of the violation (\/i.e., \/the employer either knew or, withthe exercise of reasonable diligence could have known, of the violativeconditions). \/Atlantic Battery Co., \/16 BNA OSHC 2131, 2138 (No.90-1747, 1994). For the most part, this case does not involve factualdisputesas to CO Loupe\u2019s observations.Also, SALCO does not dispute itsknowledge of the conditions and the employees\u2019 exposure to the citedconditions, if violations are found. SALCO\u2019s primary dispute involves the application of thestandards cited and the repeat classification. Also, SALCO challengesLoupe\u2019s estimate of the height of the platform and whether the platformwas moved with employees on it.Serious Citation No. 1 – Alleged Violation of 29 C.F.R. \u00a7 1926.760(a)(1) The citation alleges SALCO failed to ensure an employee on asteel beam exposed to a fall hazard of more than 15 feet was protectedby fall protection. Section 1926.760(a)(1) provides:Except as provided by paragraph (a)(3) of this section, each employeeengaged in a steel erection activity who is on a walking\/working surfacewith an unprotected side or edge, more than 15 feet (4.6m) above a lowerlevel shall be protected from fall hazards by guardrails systems, safetynet systems, personal fall arrest systems, positioning device systems orfall restraint systems. It is undisputed the employee on the steel beam wasperforming steel erection. Bodreaux was bolting purlins to the steelbeam (Exh. C-1; Tr. 30, 35). Bolting in purlins is a steel erectionactivity. 29 CFR \u00a7 1926.751(b)(1). There is no dispute the steelerection standards at Subpart R, 29 C.F.R. \u00a7 1926.750, apply. There is also no dispute Bodreaux was not utilizing any fallprotection (Exh. C-1; Tr. 35). According to the blueprints of thebuilding, the height of the eaves was 15 feet, \u00be inches. The steel beamon which Bodreaux was higher (Tr. 36). Based on his observation, COLoupe estimated Bodreaux was approximately 18 feet above the concretefloor (Tr. 41). SALCO\u2019s knowledge of Bodreaux\u2019s lack of fall protection isestablished through Raub, the leadman. As leadman, Raub was givensupervisory responsibility over the worksite. Bodreaux was in plain viewon the steel beam and in relative proximity to Raub who was on theplatform at the eaves. \/Hamilton Fixture\/, 16 BNA OSHC 1073, 1089, 1097(No. 88-1720, 1993) (the supervisor could have seen what the complianceofficer did see). An employer is chargeable with knowledge of conditionswhich are plainly visible to its supervisory personnel. \/A.L.Baumgartner Construction Inc\/., 16 BNA OSHC 1995, 1998 (No 92-1022,1994). Raub\u2019s knowledge is imputed to SALCO. Under \u00a71926.760(a)(1), two exceptions to the 15-feet fall protectionrequirement are; (1) the employee is a connector, or (2) the employee isworking in a controlled decking zone (CDZ). 29 C.F.R. \u00a7 1926.760(a)(3).There is no dispute the area where Bodreaux was working was not a CDZ. The Connector Exception SALCO argues Bodreaux in bolting in the purlins was workingas a connector. SALCO contends the connector exception applies andpursuant to \u00a7 1926.760(a)(3), Bodreaux was not required to tie off below30 feet. According to SALCO, the purlins had been individuallypositioned with a forklift. SALCO agrees it had completed the initialconnections and Bodreaux was in the process of making subsequentconnections (Resp. Brief, p. 17). A \u201cconnector\u201d is defined as \u201can employee who, working withhoisting equipment, is placing and connecting structural members and\/orcomponents.\u201d 29 C.F.R. \u00a7 1926.751. Section 1926.760(b)(3) requiresprotecting connectors from fall hazards in the same manner as\u00a71926.760(a)(1) only when the connector is working above 30 feet or twostories above a lower level, whichever is less. SALCO argues connecting for the purpose of applying theexception does not just include the time when the employee is actuallymaking the connection or when the hoisting equipment is in place. Italso includes moving on the steel to and from initial and subsequentconnection points. SALCO\u2019s argument is rejected. Thedefinition of a connector is specific. By definition, the connectingwork must be done in conjunction with hoisting equipment. There is noevidence in this case Bodreaux was working with any hoisting equipment. As set forth in the Federal Register, 66 Fed. Reg. 5196,5203 (January 18, 2001), the drafters state:The definition is very specific; connecting is distinguished from othersteel erection activities by the elements in the definition. Forexample, spreading and securing bar joists by hand would not beconsidered connecting, since that work is not done \u201cwith hoistingequipment.\u201d Therefore, an employee is a \u201cconnector\u201d only when workingwith \u201choisting equipment.\u201d This includes placing components as they arereceived from hoisting equipment, and then connecting those componentswhile hoisting equipment is overhead. OSHA\u2019s CPL 2-1.34, \u201c\/Inspection Policy and Procedures forOSHA\u2019s Steel Erection Standards for Construction\/,\u201d and an OSHAInterpretation letter dated April 5, 2005, \/\u201cEvaluation if movingpoint-to-point on concrete wall to make initial connections ofstructural steel is \u201cconnecting\u201d work; landing loads onsystems-engineered metal building\/,\u201d are consistent in that the work isdone in conjunction with hoisting equipment (Exh. C-14, Interpretationletter attached to Secretary\u2019s Brief). In the question and answersection of OSHA\u2019s CPL 2-1.34 p. 4-11 (Exh. C-14), OSHA states:\/Question 34\/: If workers are on a one story building that is 20’tall(top of steel) and the joists require horizontal bridging, is fallprotection required for employees installing this bridging? \/Answer: \/Normally, yes. Fall protection by use of a guardrail system,safety net system, personal fall arrest system, positioning devicesystem or fall restraint system is required by \u00a7 1926.760(a)(1) to beprovided at heights more than 15 feet above a lower level. Therequirements in \u00a7 1926.760(a)(1) apply irrespective of whether thebuilding is single or multi-story. The connector exception will notnormally apply in situations like this. Horizontal bridging is noterection bridging. These workers typically will not be working withhoisting equipment when installing horizontal bridging. So employeesinstalling horizontal bridging at a height of 20 feet, on a single storybuilding, working without hoisting equipment, would be required to havefall protection in accordance with \u00a7 1926.760(a)(1). In this case, the purlins had been laid out prior to theOSHA inspection and Bodreaux was simply placing additional bolts (Resp.Pre-Hearing, p. 5). Bodreaux at the time of the citation was not actingas a connector as defined by OSHA and should have been utilizing fallprotection since he was at a height in excess of 15 feet. FootnoteSALCO\u2019s Infeasibility Defense Although SALCO asserted infeasibility as an affirmativedefense in its answer and prehearing exchange, SALCO did not address thedefense in its post hearing brief.The alleged defense is thereforedeemed abandoned because of SALCO\u2019s failure to brief the issue. See\/Georgia-Pacific Corp\/., 15 BNA OSHC 1127, 1130 (No. 89-2713, 1991). Even if not abandoned, the record fails to support aninfeasibility defense.Footnote CO Loupe testifiedfall protection could have been provided from equipment currentlyavailable on the market (Tr. 37). He specifically identified the use ofa beamer which is spring-loaded device that slides along the steel beam(Tr. 37). The beamer fits around the beam and has a D-ring where alanyard attaches. Loupe also discussed the use of a wire sling, meshsling, ladder, scissor lift or manlift (Tr. 39-40). The photograph showsBodreaux stationary and sitting on the steel beam (Exh. C-1). SALCO failed to offer evidence showing Bodreaux could nothave utilized fall protection when bolting in the purlins. There was noshowing SALCO considered different fall arrest systems available on themarket or made a determination prior to initiating work that suchsystems were infeasible. SALCO\u2019s reliance on an OSHA safety and healthbulletin (SHIB 09-22-03) entitled \u201c\/Compatibility of Personal FallProtection Systems Components\/\u201d is misplaced (Exh. R-2). The SHIB merelywarns employers to check the compatibility of the components of fallarrest systems before the arrest system is utilized. The SHIB does notinstruct employers not to require fall arrest systems. Also, SALCO didnot show how the conditions described in the bulletin were analogous tothe Verizon store worksite or how it was impossible for SALCO to avoidan accident similar to the one discussed in the bulletin. It is noted SALCO has only objected to fall arrest systems.The fall protection standard, however, allows the employer to utilize aguardrail system, safety net system, positioning device system or fallrestraint system which were not discussed by SALCO.The Serious Classification The violation of \u00a7 1926.760(a)(1) is classified as serious.A violation is serious under section 17(k) of the Occupational Safetyand Health Act (Act) (29 U.S.C. \u00a7 666(k)), if it creates a substantialprobability of death or serious physical harm and the employer knew orshould have known of the violative condition. The issue is not whetheran accident is likely to occur; but rather, whether the result wouldlikely be death or serious harm if an accident should occur.\/Whiting-Turner Contracting Co\/., 13 BNA OSHC 2155, 2157 (No. 87-1238,1989). It is undisputed Raub was the designated leadman on theproject. Raub was present on the project and was aware Bodreaux was onthe steel beam without utilizing fall protection. As a supervisor,Raub\u2019s knowledge is imputed to SALCO. \/Todd Shipyards Corp.\/, 11 BNAOSHC 2177, 2179 (No. 77-1598, 1984). The record is also undisputed that Bodreaux was subject to afall hazard of approximately 18 feet to the cement floor below. If sucha fall occurred, it is clear the employee would have been seriously injured. SALCO\u2019s serious violation of \u00a7 1926.760(a)(1) is established.Repeat Citation No. 2 Footnote\/\/Application of Subpart R, Steel Erection Standards – \u00a7 1926.760(a) As a preliminary matter, the parties dispute the applicationof the scaffold standards at Subpart L, \u00a7 1926.450 \/et seq.\/ to theelevated platform holding the two employees engaged in steel erection.OSHA cited SALCO under the scaffold standards for failing to secure theplatform to the forks and for the lack of fall protection. The parties agree the employees on the platform were engagedin steel erection activities. The employees were installing flashing(Tr. 94). \/See\/ 29 C.F.R. \u00a71926.750(b). CO Loupe testified he observedno violations of the steel erection standards regarding the elevatedplatform (Tr. 96). SALCO argues the steel erection standards in Subpart R, \u00a71926.760(a) \/et seq.\/, preempt the applicability of the scaffoldingstandards in Subpart L, \u00a7 1926.450 \/et seq\/. when the employees areengaged in steel erection. SALCO maintains it is necessary that SubpartR specifically provide for the incorporation of other standards such asthe scaffold standards to be applicable. In support its position, SALCOrefers to the scope section of the steel erection standards which states\u201c…the requirements of this Subpart apply to employers engaged in steelerection unless otherwise specified.\u201d 29 C.F.R. \u00a7 1926.750(a). Thescaffold standards requirements are not specifically incorporated intosteel erection standards. SALCO\u2019s preemption argument is also based on a statement bythe drafters of the new steel erection standards when they stated\u201c[t]his revision [of the steel erection standards] clarifies that steelerection is covered \/exclusively\/ by Subpart R\u201d (emphasis added). 66Fed. Reg. 5196, 5200 (January 18, 2001). SALCO argues Subpart R wasmeant to be exclusive and comprehensive for all conditions related tosteel erection. In its notice announcing the intent to revise the steelerection standards, OSHA also stated \u201c[t]he comments received to datehave convinced the Agency to develop a separate proposed rule [that]will provide comprehensive coverage for protection in steel erection.\u201d53 Fed. Reg. 2048, 2053 (January 26, 1988). The compliance directive forSubpart R states steel erection is \u201calways\u201d covered by Subpart R (Exh.C-14 – CPL 2-1.34, p. 2-1; Tr. 94). SALCO\u2019s interpretation as to the exclusivity of Subpart R isrejected. A review of current Review Commission decisions shows SALCO\u2019sexclusivity argument has not been addressed since the new steel erectionstandard became effective on January 18, 2002. 66 Fed Reg 37137(July 17, 2001). However, earlier Review Commission decisions rejectedthe exclusivity of Subpart R. See e.g. \/Peterson Brothers Steel ErectionCo\/., 16 BNA OSHC 1196, 1198 (No. 90-2304, 1993) (Commission reaffirmsposition that Subpart R does not provide exclusive fall protectionrequirements for employees engaged in steel erection). The ReviewCommission rejected arguments the fall protection requirements ofSubpart R were exclusive because they were not comprehensive and wereonly intended to cover interior falls on multi-tiered buildings.According to SALCO, the revision of Subpart R remedied these shortcomings. Unlike SALCO\u2019s interpretation, the application of the fallprotection requirements of Subpart L involving scaffolds is onlyexcluded if specifically listed as excluded in the steel erectionstandards. This was not done by OSHA. The exclusivity sentence by thedrafters relied upon by SALCO must be read in context. The paragraphstates:In addition to revisions to Subpart R, Steel Erection, this rulemakingmakes necessary revisions to Subpart M of this Part, Fall Protection,for the purposes of consistency. Currently \u00a7 1926.500(a)(2)(iii) states:\u201cRequirements relating to fall protection for employees performing steelerection work are provided in \u00a7 1926.105 and in Subpart R of this part.\u201dThis final rule revises the language of \u00a7 1926.500(a)(2)(iii) to read:\u201cFall protection requirements for employee performing steel erectionwork (except for towers and tanks) are provided in Subpart R of thispart.\u201d This revision [of the steel erection standards] clarifies thatsteel erection is covered exclusively by Subpart R.\u201d 66 Fed. Reg. 5196,5200 (January 18, 2001). This paragraph shows the drafters were interested in makingchanges in the fall protection provisions of Subpart M, 29 C.F.R.\u00a7 1926.500 \/et seq.\/, for consistency purposes. Subpart M is the generalfall protection requirements applicable to all construction activities.There were no revisions to the scaffold standards under Subpart L. Subpart R and Subpart L are vertical standards. Subpart Lincorporates the scaffold standards which govern the equipment andactivities involved in scaffolds utilized during construction. Thescaffold standards address the hazards to employees working on ascaffold platform. Subpart R, the steel erection standards, govern steelerection activities. The steel erection standards are silent as to theuse of scaffolds and the protection provided to employees utilizingscaffolds during steel erection. Because the scaffold standards directlyconfront the creation of the hazard, working on an elevated scaffoldplatform, and resolves the hazard, requiring the scaffold platform to besecurely attached to the forks and fall protection to be provided toemployees on the scaffold at heights above 10 feet, the scaffoldstandards more specifically apply to the unsafe conditions cited. \/JohnQuinlan t\/a Quinlan Enterprise\/, 15 BNA OSHC 1780, 1781 (No. 91-2131,1992) (\u201cwhen more than one provision governs a particular hazard, themore specifically applicable provision prevails\u201d). TheSecretary discusses the applicability of standards in 29 C.F.R.\u00a7 1910.5(c)(2) which states, in part:….any standard shall apply according to its terms to any employmentand place of employment in any industry, even though particularstandards are also prescribed for the industry, as in Subpart B orSubpart R of this part, to the extent that none of such particularstandards applies. To illustrate, the general standard regarding noiseexposure in \u00a7 1910.95 applies to employments and places of employment inpulp, paper, and paperboard mills covered by \u00a7 1910.261. There is no showing OSHA intended scaffolds to be governedby the revised steel erection standards or that Subpart L is subsumedwithin Subpart R. While Subpart R contains specific provisions relatedto the use of personal fall arrest systems and safety net systems, thereare no provisions specific to scaffolds. There is simply no languageeither within the steel erection standards or the Federal Register,which shows any intention to abrogate the application of the scaffoldstandard. Subpart L governs the use of all scaffolds in theconstruction industry, while Subpart R fails to mention scaffolds.SALCO\u2019s attempt to use of the terms \u201cwalking\/working surface\u201d to showthat a steel erection standard, \u00a7 1926.760(a)(1), covers scaffolds ismisplaced. While the steel erection standards fail to define\u201cwalking\/working surface,\u201d they do define \u201cunprotected sides or edges\u201dand give examples such as a floor, roof, ramp, and runway. They do notinclude scaffolds in the definition. 29 C.F.R. \u00a7 1926.751. Also, it isnoted the same definition of \u201cunprotected sides or edges\u201d is found inSubpart M, 29 C.F.R. \u00a7 1926.500(b). In revising Subpart R, the drafters attempted to make itsprovisions consistent with Subpart M where possible. The scaffoldrequirements for fall protection are specifically exempted from SubpartM application. 29 C.F.R. \u00a7 1926.500(a)(2)(i); 66 Fed. Reg. 5196, 5247(January 18, 2001). A comparison to structure and terminology of SubpartL and R to the general fall protection standards found in Subpart Mdemonstrates that Subpart L is more specifically applicable to employeesworking from a scaffold. This conclusion is supported by a review of the drafters\u2019intent in adopting fall protection standards for steel erection. Thedrafters noted \u201c[s]teel erection differs from general construction inthree major respects – the narrowness of the working surface, itslocation above, rather than below the rest of the structure, and aminimum distance of approximately 15 feet to the next level.\u201d66 Fed. Reg. 5196, 5243 (January 18, 2001). These unique elements do notexist when an employee is working on a scaffold platform as in thiscase. The drafters only discuss fall protection systems for an employeephysically working on the structure, not from a platform supported by aforklift. 66 Fed. Reg. 5196, 5243-5247 (January 18, 2001). The draftersin discussing the 15-foot height requirement stated:While some general contractors and large industrial steel erectors maybe providing fall protection below 15 feet, the data are unclear withrespect to how much of a need there may be for requiring fall protectionin steel erection at those lower heights. Also, many situations in steelerection do not permit connecting fall protection below 15 feet. Inaddition, steel erection work that is done between 6 and 15 feet isoften performed from ladders, scaffolds, or personnel work platforms (63FR 43479). Therefore, OSHA has decided not to require conventional fallprotection in steel erection below 15 feet. 66 Fed. Reg. 5196, 5245. SALCO\u2019s argument of preemption leads to unsafe results. Inessence, contractors would have no obligation to securely attach ascaffold to a forklift and provide fall protection to employees 10 feetabove the ground on the scaffold. Under SALCO\u2019s interpretation none ofthe requirements in Subpart L would be applicable to scaffolds used byemployees engaged in steel erection while on scaffolds including properbracing and planking. There is no language, either within the standards or withinthe Federal Register, which signifies any intention to abrogate theapplication of the scaffold standards. Indeed, Subpart R does notaddress the use of scaffolds. The scaffold standards are not preemptedby the steel erections standards.Item 1 – Alleged Violation of 29 C.F.R. \u00a7 1926.451(c)(2)(v) The citation alleges SALCO failed to securely attach theplatform to the Gradall Telehandler\u2019s fork attachment (Item 1). Section1926.451(c)(2)(v) provides that:Fork-lifts shall not be used to support scaffold platforms unless theentire platform is attached to the fork and the fork-lift is not movedhorizontally while the platform is occupied. There is no dispute the Gradall Telehandler on site was usedto elevate a platform which held two employees installing flashing atthe eaves (Exhs. C-2, C-3). Footnote CO Loupe estimatedthe height of the platform above the ground was 13 feet (Tr. 58-59). Tohold the platform, the forks attached to the Gradall\u2019s boom slid intotwo pieces of channel iron underneath the platform (Exhs. C-4, C-5;Tr. 45). Although the channel iron prevented the platform from fallingoff to either side or toward the Gradall, the platform was not securedto the forks so that it could slide off the front (Tr. 44, 46, 113).There was no chain or sling securing the platform to the frame and therewere no pins securely attaching the platform to the forks (Tr. 45-46).Given the forks are not stationary, operator error or mechanical failurecould result in the forks rotating downwards, causing an unsecuredplatform to tumble to the ground (Tr. 46, 113). Moreover, the operatorcould inadvertently catch the platform on an object such as the eaves ofthe building and reverse the Gradall causing the platform to slide offthe forks (Tr. 46). CO Loupe also testified he saw the wheels of the Gradallmove with the employees on the platform (Tr. 25, 46, 61). Loupe said hewitnessed the Gradall reverse and reposition into another location whenhe first arrived on worksite prior to opening the inspection (Tr. 24-25,61). Equipment Operator Myers\u2019 testimony that he never moved the Gradallwith employees on the platform is considered less credible (Tr. 130).Additionally, as noted by the Secretary, the manufacturer\u2019s manual showsthat the boom can telescope outwards and move vertically, up and down.There is no indication the boom can move horizontally, sideways to thecab (Exh. R-1). Therefore, to work along the eaves, the GradallTelehandler must be repositioned to move the platform.The Gradall Telehandler Operated as a Forklift OSHA refers to the Gradall Telehandler as a forklift. SALCOargues the Gradall Telehandler and attached personnel work platform areregulated by 29 C.F.R. \u00a7 1926.453 as an aerial lift and not a forkliftunder \u00a7 1926.451. SALCO maintains although the Gradall Telehandler has afork attachment, it is more accurately classified as an extensible boomplatform, particularly when used to position personnel on a workplatform. Extensible boom platforms are regulated under \u00a7 1926.453 forconstruction and \u00a7 1910.67 for general industry. Although SALCO contendsthe vehicle itself never actually moved with personnel on the platformand that only the boom moved, \u00a7 1926.453(b)(viii) allows the extensibleboom lift truck itself to be moved with personnel on the platform solong as the boom is not elevated in the working position or if it meetscertain criteria under \u00a7 1926.453. Section 1926.453 provides \u201caerial lifts include thefollowing types of vehicle-mounted aerial devices used to elevatepersonnel to job-sites above ground: (i) Extensible boom platforms…\u201dAn extensible boom platform is defined by OSHA at \u00a7 1910.67 as \u201canaerial device (except ladders) with a telescopic or extensible boom.Telescopic derricks with personnel platforms attachments shall beconsidered to be extensible boom platforms when used with a personnelplatform.\u201d With the fork attachment, the Gradall Telehandler functionedmore as a forklift in supporting the platform. The forks were used tohold the separate platform. The platform was not an integral orpermanent part of the fork attachment. It is noted JLG, the manufacturerof the Gradall Telehandler, advises purchasers that OSHA requires allrough terrain forklift operators to be trained according 29 C.F.R. \u00a71910.178(l). It is noted the manufacturer does sell a personnel workplatform as an attachment for the Gradall. However, SALCO was using thefork attachment and not the personnel work attachment. Also, throughoutthe testimony of equipment operator Myers, SALCO\u2019s counsel and Myersreferred to the Gradall Telehandler as a forklift (Tr. 130).Scaffold Platform SALCO contends the platform was not a scaffold platformwithin the meaning of the standard. SALCO argues the term \u201cscaffoldplatform\u201d indicates a particular type of platform. As noted by SALCO,the standard does not use the word platform alone but rather uses it inconjunction with scaffold. Not all work platforms are scaffoldplatforms. SALCO claims its platform is not a scaffold platform. SALCO\u2019s argument misconstrues the clear meaning of \u201cascaffold platform.\u201d A scaffold is defined as \u201cany temporary elevatedplatform (supported or suspended) and its supporting structure(including points of anchorage), used for supporting employees ormaterials or both.\u201d 29 C.F.R. \u00a7 1926.450(b). A platform is defined as a\u201cwork surface elevated above lower levels. Platforms can be constructedusing individual wood planks, fabricated planks, fabricated decks, andfabricated platforms.\u201d 29 C.F.R. \u00a7 1926.450(b). Clearly, a scaffoldplatform refers to the work surface on the scaffold. The platform is acomponent of a scaffold system. According to an OSHA Interpretation letter dated November27, 2001 entitled \u201c\/Applicable Standards to Lifting Personnel on aPlatform Supported by a Rough-Terrain Forklift\/,\u201d OSHA makes clear theplatform supported by a forklift is a scaffold within the meaning of thescaffold standards (Exh. C-7; Tr. 42-44; 61 Fed. Reg. 46043 (August 30,1996). Also, see \/Armstrong Steel Erectors\/, 17 BNA OSHC 1385, 1389 (No.92-262, 1995), (whether a working surface is considered a scaffoldplatform is dependent on the temporary versus permanent nature of thestructure).Repeat Classification The citation classifies SALCO\u2019s violation of\u00a71926.451(c)(2)(v)(Item 1) as a repeat violation. Under \u00a7 17(a) of theAct, a violation is a repeat violation if, at the time of the violation,there was a Commission final order against the same employer for asubstantially similar violation. \/Potlatch Corp\/., 7 BNA OSHC 1061, 1063(No. 16183, 1979). The Secretary establishes substantial similarity inseveral ways including showing the violations are of the same standardor if different standards, by showing similar hazards and means ofabatement. \/Monitor Construction Co.\/, 16 BNA OSHC 1589, 1594 (No.91-1807, 1994). There is no dispute that in July 2004, OSHA cited SALCO fora serious violation of \u00a71926.451(c)(2)(v) as a result of an inspectionconducted by OSHA inspector John Watkins on May 6, 2004 (Exhs. C-12; Tr.49, 61, 125-126). SALCO did not contest the citation and paid theassessed penalty (Tr. 127). The citation became a final order byoperation of law on August 10, 2004 (Tr. 127). The standard cited in theprevious citation is the same standard at issue in this case. SALCO argues the violation is not properly classified asrepeat. The fall hazard alleged in the prior citation is 22 feet whichexceeds the 15-feet trigger for steel erection. But, the fall hazard inthis case at issue is only 13 feet. Although the hazards are the same,SALCO argues the results of a fall from the respective distances do nothave the same effect. In promulgating Subpart R and deciding on a15-feet trigger height, SALCO claims OSHA could not establish there wasa significant risk of serious injury or death between 6 and 15 feet.But, such risk is present at heights between 15 and 25 feet. SALCO\u2019s reliance on the 15-feet trigger height under thesteel erection standards is misplaced. The standard cited involves ascaffold standard which has a 10-feet trigger height. The injurieslikely to be suffered from a fall from either height are serious(Tr. 48, 127). The violation of \u00a7 1926.451(c)(2)(v) is properly classifiedas repeat. Item 2 – Alleged Violation of 29 C.F.R. \u00a7 1926.451(g)(1) The citation alleges SALCO failed to equip employees on ascaffold platform installing flashing and exposed to a fall of 13 feetwith a fall arrest system. Section 1926.451(g)(1) provides that:Each employee on a scaffold more than 10 feet (3.1 m) above a lowerlevel shall be protected from falling to that lower level. Paragraphs(g)(1)(i) through (vii) of this section establish the types of fallprotection to be provided to the employees on each type of scaffold.Paragraph (g)(2) of this section addresses fall protection for scaffolderectors and dismantlers. There is no dispute two employees on the platform supportedby the Gradall Telehandler were not utilizing fall protection (Exhs.C-2, C-3). Roche was wearing a safety harness but it was not attached(Tr. 27, 114). Leadman Raub and employee Roche were installing flashingon an outside of the eaves (Tr. 30, 114). The platform had suitableguardrails only on three sides (Tr. 26). There was no guardrail alongthe front of the platform; the side facing the eaves (Tr. 28). Accordingto the building blueprints, the eaves was 15 feet, 3\/4 inch (Tr. 36, 50,94). CO Loupe estimated the height of the platform was approximately 13feet because the top of the eaves was at the employees\u2019 waists (Exhs.C-2, C-3; Tr. 58-59, 120). SALCO argues the height of the platform was less than 10feet because the citation states the wall bracing was at the height of12 feet (Tr. 68). SALCO states the platform was therefore at least 3feet below that level or less than 9 feet above the ground. During hisinspection, Loupe took no measurements (Tr. 69). He testified the12-foot figure was the bottom of the wall brace and speculated theplatform was positioned so the employees \u201ccould install the bottomportion and the top portion of the brace\u201d (Tr. 68). Loupe determined the13-foot fall distance because \u201cthey had put the platform halfway betweenthe bottom and the top of the wall bracing\u201d (Tr. 120). SALCO\u2019s argument the platform was at a height of less than10 feet is rejected and contrary to the record. The blueprints shown toCO Loupe identified the height of the eaves as 15 feet 3\/4 inches (Tr.36, 117). The blueprints identified the height of the steel structure;not the finished building (Tr. 74). The photographs taken by Loupe showthe flashing being bolted to the eaves was somewhere at or below thewaist levels of the employees (Exhs. C-2, C-3). Loupe consistentlytestified the height of the platform where the employees were installingflashing was approximately 13 feet (Tr. 58-59, 120). The operative factsalleged in the citation and Loupe\u2019s testimony are consistent.Considering the height of the eaves and the photographs, CO Loupe\u2019sestimate of a 13-foot fall hazard is credible (Tr. 60). However, it is noted when the platform was placed next tothe eaves, the record does not show an exposure to a fall hazard. Theplatform had suitable guardrails on three sides, the unprotected sidewas guarded by the eaves (Exhs. C-2, C-3). The Secretary argues theplatform was not abutted to the eave during repositioning and SALCOcannot claim the building itself protected the employees from a fall tothe ground below (Tr. 60). Subpart L does not require all sides of a platform haveguardrails in order to protect employees. Section 1926.451(b)(3) onlyrequires a guardrail system or personal fall arrest system to protectemployees from falling if the platform is greater than 14 inches from ahorizontal or vertical surface. CO Loupe did not know the distancebetween the platform and the eaves and agreed the eaves along theotherwise open end could constitute protection from falls (Tr. 115). Theside of a platform is only defined by Subpart L as an open end if thespace between the platform and a horizontal or a vertical surface isgreater than 14 inches. Based on the photographs, Loupe\u2019s failure totake measurements and his inability to know the distance between theplatform and the eaves, the Secretary did not meet her burden toestablish an open end. Also, the record is silent as to how theemployees were elevated to the eaves. Therefore, the court is unable toascertain whether the employees were exposed to a fall hazard. The alleged violation of \u00a7 1926.451(g)(1) is not established. Penalty Determination The Commission is the final arbiter of penalties in allcontested cases. In determining an appropriate penalty, the Commissionis required to consider the size of the employer\u2019s business, history ofprevious violations, the employer\u2019s good faith, and the gravity of theviolation. Gravity is the principal factor to be considered. SALCO is a medium size employer with less than 50 employees(Tr. 65). SALCO is not entitled to credit for history because itreceived serious citations in the proceeding three years. Also, nocredit is given for good faith because SALCO made no showing of a safetyprogram or safety training. A penalty of $2,000.00 is reasonable for a serious violationof \u00a7 1926.760(a)(1). One employee was exposed to a fall hazard in excessof 15 feet to a cement floor without fall protection. A penalty of $1,000.00 is reasonable for a repeat violationof \u00a7 1926.451(c)(2)(v). Two employees including the leadman were on aplatform supported by forks. The platform was not adequately secured tothe forks to prevent it from falling off.FINDINGS OF FACT ANDCONCLUSIONS OF LAW The foregoing decision constitutes the findings of fact andconclusions of law in accordance with Rule 52(a) of the Federal Rules ofCivil Procedure. ORDER Based upon the foregoing decision, it is ORDERED: 1. Citation No. 1, Item 1, alleged serious violationof 29 C.F.R. \u00a7 1926.760(a)(1), isaffirmed and a penalty of $2,000.00 is assessed. 2. Citation No. 2, Item 1, alleged repeat violationof 29 C.F.R. \u00a7 1926.451(c)(2)(v), isaffirmed and a penalty of $1,000.00 is assessed. 3. Citation No. 2, Item 2, alleged repeat violationof 29 C.F.R. \u00a7 1926.451(g)(1), isvacated and no penalty is assessed. \/s\/Ken S. Welsch KENS. WELSCH Judge Date: April 24, 2006”