“SECRETARY OF LABOR,Complainant,v.SCHIAVONE CONSTRUCTION COMPANY,Respondent.OSHRC Docket No. 80-0914_DECISION _Before: BUCKLEY, Chairman, and CLEARY, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionon remand from the United States Court of Appeals for the ThirdCircuit. The Commission is an adjudicatory agency, independent of theDepartment of Labor and the Occupational Safety and HealthAdministration. It was established to resolve disputes arising out ofenforcement actions brought by the Secretary of Labor under the Act andhas no regulatory functions. See section 10(c) of the Act, 29 U.S.C. ?659(c). At issue in this case is whether the administrative law judgeproperly affirmed three items of a citation issued to SchiavoneConstruction Company (\”Schiavone\”) following the Secretary’s inspectionof a subway station construction project in Jamaica, New York, whereSchiavone was engaged as the prime contractor._Item 10: Electrical extension cord_Citation-item 10 alleged that Schiavone violated section 1926.402(a)(8),which provides:Cable passing through work areas shall be covered or elevated to protectit from damage which would create a hazard to employees.At the hearing, the judge granted the Secretary’s motion toalternatively plead a violation of section 1926.402(a)(11), which states:Extension cords shall be protected against accidental damage as may becaused by traffic, sharp corners, or projections and pinching in doorsor elsewhere.The compliance officer testified that he observed electrical cords\”strung along the floor in a haphazard manner.\” The cords were in damplocations or puddles of water approximately 1\/2 to 3\/4-inch deep andwere covered by lumber and debris. Some of the lumber had protrudingnails and employees working in the area of the cords at times stood onthis lumber. In the compliance officer’s opinion, electrical shock orburns could result if the wires became cut or frayed by the lumber ordebris and contacted the water or employees. According to thecompliance officer, this hazard could be avoided if the cords wereelevated or placed in plastic tubing. Schiavone’s witnesses testifiedthat the cords were waterproof, heavy-duty extension cords that weremade for use in construction work and could withstand \”abrupt bangings\”without being damaged if lumber were dropped or placed on them.The judge concluded that a serious violation of section 1926.402(a)(8)was established because \”the electrical cable was in a pool of water andcapable of causing electrical shock to [Schiavone’s] employees.\” Healso found that the cables presented a tripping hazard. He did notaddress the alternatively pleaded section 1926.402(a)(11) allegations.The parties now agree that the judge erred in applying section 1926.402(a)(8) because section 1926.402(a)(11) more specifically addressesextension cords. Schiavone asserts that, although section1926.402(a)(11) applies, there was no violation because that standarddoes not prohibit extension cords in water. Schiavone also contendsthat by using heavy-duty cords it complied with the standard’srequirement that extension cords be protected against accidentaldamage. The Secretary asserts that the judge should have found aviolation of section 1926.402(a)(11). The Secretary argues thatalthough the judge did not expressly resolve whether the extension cordscould be damaged, the judge \”[i]n essence\” credited the complianceofficer’s testimony that such damage could occur over the contrarytestimony of Schiavone’s witness.We agree that section 1926.402(a)(11) more specifically applies to thecited extension cords. The judge’s finding of a violation of section1926.402(a)(8) must therefore be set aside. We further conclude,however, that a violation of the extension cord standard was provenbecause the insulation of these cords could have been damaged by nearbylumber with protruding nails. The possibility of such damage, however,was remote because the extension cords were heavy duty and specificallymade for the use to which they were put. The Commission hascharacterized violations as de minimis when the record establishes thatthe possibility of injury was too remote and too speculative to warrantthe imposition of a penalty or the entry of an abatement order. DanielConstruction Co., 81 OSAHRC 107\/D2, 10 BNA OSHC 1254, 1982 CCH OSHD ?25,840 (No. 80-1224, 1981), aff’d, 692 F.2d 818 (1st. Cir. 1982). Inview of the remote possibility of injury, this violation is found to bede minimis. Accordingly, citation-item 10 is modified to a de minimisnotice._Item 19: Underground fires in cut-and-cover excavations_.Citation-item 19 alleges a violation of 29 C.F.R. ? 1926.800(e) (1)(ix), which states that, \”[f]ires shall not be built underground.\” Thequestion presented is whether this standard applies to a subway stationbuilt using the cut-and-cover method of construction. The first stage ofthe cut-and-cover method employed by Schiavone was the excavation of alarge hole 1300 feet long, 65 feet wide and extending 65 feet down tothe lowest level subway tunnel to be served by the station. Thecompleted excavation was covered with wooden beams to allow a normaltraffic flow on the surface. Both the standard and Subpart S of Part1926, in which the cited standard is located, lack scope and applicationprovisions. Subpart S is entitled \”Tunnels and Shafts, Caissons,Cofferdams and Compressed Air;\” section 1926.800 is entitled \”Tunnelsand Shafts.\” The standards in section 1926.800 use terms suggestingthat they primarily were intended to apply \”underground\” and to \”tunnels.\”The compliance officer observed three fires, one built in a 55-gallondrum and two built in smaller cans. Employees had built the fires forwarmth. According to the compliance officer, the fires were hazardousbecause they could deplete the available oxygen in the subterraneancavity, create smoke, and trigger a large fire. Schiavone’s witnessestestified that the drums containing the fires were located on a concretedeck at the bottom of the cavity, approximately 50-60 feet below theoverhead timber. According to these witnesses, there was \”no possibleway\” for the fires to consume the available oxygen because the cavitywas ventilated by 5-7 ventilation grates in the overhead timber, atleast 15 openings to the surface for concrete pours, 5-6 stairwayopenings to the surface, and the subway tunnels at either end of theworksite. These witnesses also testified that the metal drums were onconcrete decks and presented no risk of spreading or exploding, andthat, in contrast to a tunnel, ample means existed for emergency exit ifa fire did occur.The administrative law judge, relying on his decision in a companioncase, Schiavone Construction Co., OSHRC Docket No. 80-2731, found thatthe subway station in question was a \”tunnel\” and that Subpart Stherefore applied. The judge based his ruling on the Commission’sdecision in Shea-Ball, A Joint Venture, 76 OSAHRC 133\/A2, 4 BNA OSHC1753, 1976-77 CCH OSHD ? 21,206 (No. 4892, 1976). In Shea-Ball, adivided Commission applied Subpart S to a cavity excavated underexisting buildings that was to be used as a subway station.Schiavone and an amicus curiae, the General Contractors Association ofNew York, Inc., contend that the requirements of Subpart S, includingits prohibition against underground fires, do not apply to thecut-and-cover method of excavation used by Schiavone, since theresulting excavation is entirely different from that of tunnels andpresents no similar hazards. Schiavone contends that \”tunnel\” is atechnical term of art that does not apply to cut-and- cover operationslike Schiavone’s and that, Shea-Ball is distinguishable because themethod of construction used there was not cut-and-cover.The Secretary argues that Subpart S applies to the subway station herebecause it was \”essentially a tunnel-like chamber.\” The Secretaryfurther argues that he \”has consistently taken the position that SubpartS regulations apply to cut-and-cover operations and clearly expressedhis intent in OSHA Instruction STD 3-17.3….\” Instruction STD 3-17.3[[1]] states in pertinent part:In addition to Subpart P of 29 CFR 1926, Subpart S shall be applicableto any phase of cut-and-cover construction operations being conductedduring, and as a part of, the construction of tunnels when a cover,temporary or permanent, extends over the top of a cut or excavation soas to create situations in which hazards, such as those existing intunnel operations, may be present. Examples of applicable situationsinclude those where there is limited access or egress of employees, thelimited movement of air, and limited natural daylight illumination atthe worksite.The Secretary argues that he is not required to prove that the firespresented a hazard because the standard unequivocally prohibitsunderground fires. The Secretary asserts alternatively that the judgecorrectly found that a hazard has been proved.Chairman Buckley and Commissioner Cleary disagree on the disposition ofthis item.[[2]] Like the judge, Commissioner Cleary would find thestandard applicable to Schiavone’s cut-and-cover operations. InShea-Ball, the Commission fully considered whether the method ofexcavation of an underground cavity determines whether it is subject tosection 1926.800. It clearly held that the method of excavation isirrelevant and that the standards apply to underground cavities, howevercreated, in the shape of a tunnel, i.e., an enclosed, subsurface workarea that is longer than it is wide. See 4 BNA OSHC at 1754-5, 1756,1976-77 CCH OSHD at pp. 25,498-99, 25,500 (lead and concurringopinions). Moreover, while section 1926.800 frequently refers to\”tunnels,\” it also employs the term \”underground,\” indicating a broaderapplication than to \”tunnels\” alone. Commissioner Cleary wouldtherefore hold that this subway station, like that in Shea-Ball, wasgoverned by the standard. A test that would apply the tunnelingstandards in piecemeal fashion, only to those hazards existing in theparticular excavation, is unworkable. Such an approach would requireemployers to make innumerable decisions about excavations, applyingtunneling standards in some instances while not in others.In Commissioner Cleary’s view, there is no question that Schiavoneviolated the standard’s prohibition against underground fires byallowing fires to be built in metal cans. The judge found that overheadlumber and lumber strewn on the ground near the cans increased thepossibility that a fire could spread. The record, however, shows thatthe overhead timbers, which formed the roof of the cavity, were locatedapproximately 60 feet above these cans. The record also shows that thescrap lumber on the ground was not in close proximity to the fire andwas being cleaned up by Schiavone’s crew. There were also 5-7ventilation grates in the overhead timber, at least 15 openings to thesurface for concrete pours, 5-6 stairway openings to the surface andsubway tunnels at both ends of the station. In view of the remotenessof the possibilities that the fire would ignite this lumber and spreadthroughout the worksite, or would deplete the available oxygen,Commissioner Cleary would characterize this violation as de minimis.Chairman Buckley would vacate this citation-item because he finds thatsection 1926.800(e)(1)(ix) does not apply to Schiavone’s operation. Theissue before the Commission is a simple question of statutoryconstruction. Whether the provisions of 29 C.F.R. ? 1926.800, entitled\”Tunnels and Shafts,\” apply to Schiavone’s cut-and-cover operationdepends on whether the cited area was a \”tunnel\” within the meaning ofthe standard.In interpreting standards, the Commission must follow the rules ofstatutory construction. Ohio-Sealy Mattress Mfg. Co., 83 OSAHRC 27\/C14,11 BNA OSHC 1377, 1380-81, 1983-84 CCH OSHD ? 26,528, p. 33,805 (No.79-5600, 1983). The objectof statutory construction is to determine and give effect to the intentof the lawmakers who enacted it. See, e.g., National Railroad PassengerCorp. v. National Association of Railroad Passengers, 414 U.S. 453, 458(1974); 2A C. Sands, ed., Sutherland on Statutory Construction ? 45.05(4th ed. 1973). \”There is, of course, no more persuasive evidence ofthe purpose of a statute than the words by which the legislatureundertook to give expression to its wishes.\” Griffin v. OceanicContractors, Inc., 458 U.S. 564, 571 (1982), quoting United States v.American Trucking Assns., 310 U.S. 534, 543 (1940).Schiavone asserts that the term \”tunnel\” has a commonly understoodmeaning in its industry that does not include cut-and-cover operations. The amicus brief notes that tunnels had been excavated radiating outfrom the cited station, arguing that even a non-technical interpretationof the standard’s language suggests that subway stations are nottunnels. The Secretary counters that the term does not have arestrictive meaning and may fairly encompass Schiavone’s operation.[[3]] Assuming arguendo the validity of the Secretary’s argument that\”tunnel\” does not have a restrictive, technical meaning and that asubway station can be considered a tunnel, there remains an issue as towhat excavations not commonly defined as tunnels were intended to beincluded within the scope of the standard.Both parties refer the Commission to the Secretary’s interpretation ofthe standards issued in 1979 as a guide to the scope of the regulationand to support their contrary conclusions. Indeed, the Secretaryacknowledges that Instruction STD 3-17.3 exactly sets forth the intendedscope of the standard. Accepting the plain language of Instruction STD3-17.3 as an indication of the intent of the Secretary leads to theconclusion that Subpart S was not intended to apply to cut-and-coveroperations unless \”a cover … create[s] situations in which hazards,such as those existing in tunnel operations, may be present.\” (Emphasissupplied.)[[4]] Yet, those hazards do not exist here.Section 1926.800(e), in which the cited standard appears, is entitled\”Fire prevention and control.\” The Secretary argues that theprohibition against underground fires in section 1926.800(e)(1)(ix) isaimed at preventing the hazards that arise from uncontrolled fire andfrom smoke in tunnels and shafts. The only evidence that the firescontained in the metal drums posed a hazard was elicited from thecompliance officer. In his view, the fires were hazardous because theywould deplete the available oxygen in the cavity. Inasmuch as therecord shows that fresh air was supplied to the cavity by the subwaytunnels located at either end of the station, and by a series ofventilation grates and other openings to the surface, the complianceofficer’s opinion as to the hazard of oxygen depletion is unfounded. The compliance officer also considered the fires hazardous because theycould trigger a larger fire in the cavity. Here again, however, therecord shows otherwise. It was highly unlikely that the cited fireswould ignite timbers 60 feet overhead. The scrap lumber in the area wasnot close enough to the fire to be ignited. The record also shows that,unlike a tunnel created by classic tunneling methods, this cavity hadseveral exits to the surface and into tunnels that would allow employeeescape should it become necessary. Chairman Buckley would thereforefind that the evidence does not establish the existence here of a hazardsimilar in kind or magnitude to the hazards present in tunnels and wouldhold that the standard was not intended to and does not apply here.In view of the Commissioners’ divergent views on the merits, ChairmanBuckley joins with Commissioner Cleary in affirming this violation as deminimis in order to allow the parties to conclude this litigation. SeeLife Science Products Co., 77 OSAHRC 200\/A2, 6 BNA OSHC 1053, 1977-78CCH OSHD ? 22,313 (No. 14910, 1977), aff’d sub nom. Moore v. OSHRC, 591F.2d 991 (4th Cir. 1979); Marshall v. Sun Petroleum Products Co., 622F.2d 1176 (3d Cir. 1980) (affirmance of administrative law judge’sdecision by equally divided Commission constitutes final, reviewable order)._Item 15: Guardrails_Item 15 of the citation alleged the following violations of theguardrail standard, 29 C.F.R. ? 1926.500(f)(1)(iv),[[5]] at fourdifferent locations at the worksite:The anchoring of posts and framing of members for railings was not ofsuch construction that the completed structure was capable ofwithstanding a load of at least 200 pounds applied in any direction atany point on the top rail with a minimum of deflection. . . .At the hearing, the judge granted a motion by the Secretary to amenditem 15 to allege in the alternative a violation of section1926.500(f)(1)(i).[[6]] Item 12 of the same citation alleged thatSchiavone violated a different guardrail standard, section1926.500(b)(1), at five locations. Section 1926.500(b)(1) requires thatfloor holes be guarded by \”a standard railing and toeboards or cover.\” Schiavone contested item 12 but later withdrew its notice of contest asto that item.[[7]] The locations of at least three of the violationscited in item 15 are the same as those cited in item 12.The compliance officer testified that the midrails of guardrails atthree of the cited locations were made of 1×4’s instead of 1×6’s. Healso testified that at a fourth location, 1×4’s were used as toprailsand were nailed to the tops of pallets. According to the complianceofficer, the pallets were not fastened to the concrete. When he pushedthe toprail at this location, he concluded that the rail could notwithstand 200 pounds of pressure as required by section1926.500(f)(1)(iv). The compliance officer conceded that some of theguardrail locations cited in item 12 also were cited in item 15, butnoted that item 12 concerned areas where there were no guardrails orcovers, while item 15 was directed to the inadequate construction ofguardrails that were in place. Several of Schiavone’s witnessestestified that the railings in the cited areas were actually constructedof 2×6’s and not 1×4’s as claimed by the compliance officer. They alsotestified that the pallets supporting the railing were fastened to theconcrete floor.The judge found that section 1926.500(f)(1)(iv) had been violated andaffirmed item 15. Although the judge summarized the evidence pertainingto both sections 1926.500(f)(1)(i) and (iv) at all locations, he did notexpressly find that Schiavone had violated subsection (i) by usingundersized lumber at three of the four locations. His discussionfocussed on subsection (iv) of the standard and on the location where1x4’s were alleged to have been used as toprails. The judge relied onthe compliance officer’s testimony that he could shake the rail and on aphotograph of that location. The judge found a violation but modifiedthe item, finding that it was other than serious, and assessed no penalty.Schiavone argues that items 15 and 12 should have been merged because aviolation of the \”overall railing regulation\” at the same locationscited in item 15 was established when they withdrew their notice ofcontest as to citation-item 12. Schiavone submits that it would beduplicative to find that the guardrails cited in item 15 could notwithstand the 200-pound force when it had conceded that \”standardrailings\” were not in place at the same locations. According toSchiavone, the judge’s resolution of this item was colored by hismistaken belief that item 12 had been withdrawn by the Secretary.The Secretary asserts that the judge did not err in declining to mergeitems 15 and 12 because the conditions cited in each item weredissimilar and because abatement of the conditions cited in item 12would not correct the deficiencies cited under item 15. The Secretaryalso suggests that, although the condition cited at the second locationin item 15 was properly found to be a violation of section1926.500(f)(i)(iv), the judge’s decision should be modified becauseSchiavone’s use of undersized lumber at three cited locations violatedsection 1926.500(f)(1)(i) and not section 1926.500(f)(1)(iv), as foundby the judge.Chairman Buckley and Commissioner Cleary disagree on whether item 15should be affirmed or vacated. Commissioner Cleary would affirm thejudge’s disposition of item 15. He notes that in neither itspost-hearing brief before the judge, its petition for discretionaryreview before the Commission, nor its brief on remand did Schiavoneargue that violations of sections 1926.500(f) (1)(i) and (iv) were notestablished. It argued only that the violations alleged in items 12 and15 are duplicative. In its order of May 10, 1983, the Commission statedthat it would \”consider all issues raised by the petition to theCommission for discretionary review.\” Commissioner Cleary thereforeconcludes that whether violations of either standard occurred is notbefore the Commission.Commissioner Cleary would reject Schiavone’s argument that item 15should be vacated because it is duplicative of item 12. The hazardaddressed in item 15 was the inadequacy of the construction ofguardrails that were in place. On the other hand, the hazard addressedin item 12 was the total absence of guardrails or the absence ofrequired components of guardrails, such as toeboards and midrails. Employers are required to comply with and may be cited for violations ofall standards applicable to a hazardous condition even though a singleaction may bring the employer into compliance with all of the violatedstandards. H.H. Hall Construction Co., 81 OSAHRC 91\/D12, 10 BNA OSHC1042, 1046, 1981 CCH OSHD ? 25,712, p. 32,056 (No. 76-4765, 1981). Allowing the abatement requirement of item 15 to stand therefore cannotbe unfair to Schiavone. As to penalties, the Commission has discretionto assess a consolidated penalty to prevent any unfairness. Id. Yet,the Secretary has not sought and the judge did not assess a penalty forthe violations alleged in item 15. Accordingly, Commissioner Clearywould not vacate item 15 on the duplicativeness ground argued by Schiavone.Chairman Buckley would vacate this item. In Chairman Buckley’s view,the merits of the alleged violation clearly are before the Commission. The Third Circuit’s order specifies that \”the entire case\” is remandedto the Commission for its consideration. Schiavone Construction Co. v.Donovan, No. 81-2017, (3d Cir. October 30, 1981). As with a case inwhich review is directed by a Commissioner, the entire \”report of thehearing examiner\” is \”reviewed by the Commission.\” See section 12(j) ofthe Act, 29 U.S.C. ? 661(i).[[8]] Schiavone argued at the hearing thatthis citation item was issued as a result of the compliance officer’smistaken belief that all parts of a guardrail must withstand a 200-poundload, and not just the top rail as the standard specifies. In theChairman’s view, the compliance officer’s testimony that he could shakethe guardrail does not establish that it could not withstand the load of200 pounds specified in section 1926.500(f)(1)(iv). The recordotherwise contains no evidence that the guardrail was tested todetermine whether it could withstand such a load. Accordingly, ChairmanBuckley would reverse the judge’s ruling that a violation of section1926.500(f)(1)(iv) was established at the second location.As to the Secretary’s alternative allegation that Schiavone violatedsection 1926.500(f)(1)(i) by using undersized lumber for its guardrailsat three locations, the Chairman also would find that a violation wasnot proven. Although the judge neither addressed this question norresolved the conflict in the testimony as to whether the citedguardrails were constructed with undersized lumber, the Commission hasthe authority to address this question for the first time on review. See C. Kaufman, Inc., 78 OSAHRC 3\/C1, 6 BNA OSHC 1295, 1298, 1977-78 CCHOSHD ? 22,481, p. 27,100 (No. 14249, 1978). The compliance officertestified that he observed 1×4 pieces of lumber at locations where thestandard requires 1×6’s. He conceded that at one location he did notmeasure the lumber, and it is unclear from his testimony whethermeasurements were made at the other locations. Several of Schiavone’switnesses who worked at the site and were familiar with the constructionof the guardrails testified that the allegedly undersized guardrailswere actually 2×6’s, which would comply with the standard. In view ofthe consistent testimony of Schiavone’s better informed witnesses,Chairman Buckley concludes that the Secretary failed to prove thatundersized lumber was used. Since the Secretary failed to prove aviolation of either standard, Chairman Buckley would vacate this item.In sum, the Commissioners modify item 10 to a de minimis notice. Theyare divided on whether the judge erred in affirming violations of items15 and 19. Under section 12(f) of the Act, 29 U.S.C. ? 661(e),official action can be taken by the Commission with the affirmative voteof at least two members. To resolve their impasse and to permit thislitigation to proceed to a conclusion, they have agreed to affirm thefinding of a violation with respect to items 15 and 19 and agree tomodify item 19 to a de minimis notice. The judge’s decision as to items15 and 19 is accorded no precedential value. See Life Science ProductsCo., 77 OSAHRC 200\/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD ? 22,313 (No.14910, 1977), aff’d sub nom. Moore v. OSHRC, 591 F.2d 991 (4th Cir. 1979).FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: DEC 19 1984————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ) telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386). FOOTNOTES:[[1]] Instruction STD 3-17.3, previously designated by OSHA asInstruction STD 3.1, originally was issued on December 10, 1979, beforethis inspection. On March 8, 1982, Instruction STD 3.1 was re-numberedas Instruction STD 3-17.3 but not otherwise amended. 1981-82 CCHDevelopments Binder ? 12,482. According to the Instruction,clarification of the standard was needed because \”[t]he construction ofmajor new subways, subway stations and tunneling systems has resulted infrequent application of cut-and-cover construction on such projects. Frequent confusion regarding the application of the constructionstandard, 29 CFR 1926, Subparts P and S, has been prevalent.\” Id. at p.15,786.[[2]] As established by the Act, the Commission is composed of threemembers. Section 12(a) of the Act, 29 U.S.C. ? 661 (a). Currently, theCommission has two members, as the result of a vacancy.[[3]] It is well settled that a word commonly used as a term of art in aparticular discipline should be construed accordingly where the statuteor regulation being construed applies to the particular discipline. See, e.g., United States v. Cuomo, 525 F.2d 1285, 1291 (5th Cir. 1976)and cases cited therein; 2A C. Sands ed., Sutherland on StatutoryConstruction ?? 45.08 at 23, 47.27 at 137, 47.29 at 150 (1973). Schiavone’s argument is persuasive that the term tunnel, as understoodin the industry, does not encompass cut-and-cover excavations. Similarly, the Secretary has consistently drawn a distinction betweencut and cover excavations and \”tunnel operations,\” suggesting that thecommon understanding of the word tunnel does not include suchexcavations. However, it is unnecessary to speculate whether the termis inapplicable to any underground chamber excavated by thecut-and-cover method, because it is clear from the record that theregulation was never intended to apply to an operation such asSchiavone’s in this case.[[4]] Both parties’ arguments misinterpret the significance ofInstruction STD 3-17.3. Contrary to Schiavone’s argument, it is not aregulation and confers no rights or liabilities. It is significant,however, as an indication of the Secretary’s intent in issuing SubpartS, given the Secretary’s position in this case that the instruction is aprecise summary of the standard’s reach as envisioned by the drafters. Post-adoption statements of intent are not dispositive, but may beaccepted as an aid in interpreting a standard, particularly where, ashere, both parties agree that the instruction is a useful guide to theSecretary’s interpretation of the standard.[[5]] Section 1926.500(f)(1)(iv) states:The anchoring of posts and framing of members for railings of all typesshall be of such construction that the completed structure shall becapable of withstanding a load of at least 200 pounds applied in anydirection at any point on the top rail, with a minimum of deflection.[[6]] Section 1926.500(f)(1)(i) states:For wood railings, the posts shall be of at least 2-inch by 4-inch stockspaced not to exceed 8 feet; the toprail shall be of at least 2-inch by4-inch stock; the intermediate rail shall be of at least 1-inch by6-inch stock.[[7]] In his decision, the judge erroneously stated that item 12 of thecitation was withdrawn when, in fact, Schiavone had withdrawn its noticeof contest of this item.[[8]] In its discretion the Commission may request briefs on all, oronly some, aspects of a judge’s decision and may limit its review anddecision to certain aspects of the case. See Commission Rules 92(c) and93(a), 29 C.F.R. ?? 2200. 92(c) and 2200.93(a). This is, however, amatter of judicial economy and not a jurisdictional bar.”