Spancrete Northeast, Inc.

Plain-English summary

Spancrete Northeast employees grouted a mezzanine floor about 13 feet, 8 inches above the ground while working near hundreds of feet of unguarded perimeter. The Commission reversed the judge and found a violation of 29 C.F.R. § 1926.500(d)(1). Spancrete's greater-hazard defense failed because it offered no evidence that it sought a variance or that applying for one was inappropriate. The Commission also declined to consider infeasibility because Spancrete did not plead that defense after it became available and the parties did not try it by consent. It classified the violation as serious and repeated based on the likely harm from a fall and a prior final order under the same standard. The Commission conditionally assessed the Secretary's proposed $800 penalty while allowing Spancrete time to present arguments on classification and penalty issues that the judge had not reached.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.500(d)(1)
• Outcome: Serious, repeated guardrail violation conditionally affirmed with an $800 penalty.
• Key point: A greater-hazard defense requires proof concerning a variance, and an infeasibility defense must be timely pleaded or tried by consent.

Full text (OSHRC public release)

Docket No. 86-0521

SECRETARY OF LABOR,

Complainant,

v.

SPANCRETE NORTHEAST, INC.,

Respondent.

OSHRC Docket No. 86-0521

DECISION

Before: FOULKE, Chairman, and WISEMAN, Commissioner.

BY THE COMMISSION:

A compliance officer of the Occupational Safety and Health
Administration (OSHA) inspected a construction site in Greece, New York, where Spancrete
Northeast, Inc., had finished installing precast concrete planks that would form the
mezzanine floor of the one-story building under construction. At the time of the
inspection, the planks had been set on metal beams, and Spancrete's employees were
grouting the cracks between the planks to make the floor level. The employees were working
approximately 13 feet, 8 inches above the ground. Because the employees' work took them
within a few feet of the edge of the floor and there was no protection to keep them from
falling off the edge, the Secretary of Labor issued a citation alleging that Spancrete had
committed a repeated violation of the standard at 29 C.F.R. � 1926.500(d)(1)[[1/]].

Spancrete contested the citation, and a hearing was held before
an administrative law judge of this Commission. The judge found that, by failing to erect
guardrails to protect its employees from falling, Spancrete had violated the standard; he
vacated the citation, however, because he found that Spancrete had proved the affirmative
defense of greater hazard. The judge's decision was directed for review, and the case is
before the Commission pursuant to section 12(j) of the Occupational Safety and Health Act
of 1970 ("the Act"), 29 U.S.C. � 661(j).

The issues before the Commission involve: whether Spancrete has
established an affirmative defense so as to escape liability for its failure to comply
with section 1926.500(d)(1), whether the violation was serious, whether the violation was
repeated, and the amount of the penalty.

FACTS

The preformed concrete planks making up the mezzanine floor
were approximately three and a half to four feet wide, forty feet long, and about five
tons in weight. During installation of the planks, Spancrete's employees had to stand at
the edge of the last plank to help place the next one. The work could not be performed
with guardrails in place without the rails continually being moved to the next plank as
work progressed.

At the time of the inspection, however, installation was
complete, leaving an L-shaped mezzanine floor. The mezzanine's western edge, which was
approximately 200 feet long, was enclosed by an exterior wall. The north edge of the
mezzanine, which was approximately 140 feet long, was open, as were the two east edges and
the two south edges, leaving approximately 350 to 400 feet of unguarded perimeter.

The planks were not made with right angles on their sides. They
were slightly wider at the bottom than at the top, so that there were V's between the
planks. When the compliance officer observed Spancrete's employees, they were engaged in
filling these V's with cement and sand mixed with water, which was mixed in a cement mixer
truck and emptied into a wheelbarrow for delivery to the location where it would be used.
There it was put into a bucket and poured into the V's. Some of the employees used
long-handled squeegees to push the excess from the floor into each V and to smooth the
mixture level with the floor. This process was called grouting.

There were five Spancrete employees involved in the grouting, a
foreman and four laborers. The entire grouting operation took approximately five and a
half hours. It therefore took twenty-seven and a half man-hours to perform the grouting
work, of which the Secretary estimated that seven and a half to nine man-hours were spent
near the unguarded edge.

The Secretary asserted that these employees should be protected
from falling off the edge by the use of guardrails. The Secretary proposed the use of
portable metal guardrails that could be erected around the perimeter of the floor.

Once the Secretary has shown that the employer has failed to
comply with a standard, the employer may then show that its failure should be excused by
proving one of several affirmative defenses recognized by the Commission. Spancrete
asserts that it has proved two affirmative defenses, the greater hazard defense and the
unfeasibility defense.

At the hearing, the parties presented conflicting estimates of
how much time it would take to erect these portable railings and take them down, and how
long the employees would be exposed to the hazard of falling off the unguarded edge during
their installation. Spancrete argued that, because of the time it would take to erect and
dismantle these portable guardrails, using the guardrails as the Secretary proposed was
infeasible. Spancrete also asserted that because of the time employees would spend near
the edge of the floor while erecting and dismantling them, the installation of the
guardrails would expose employees to a greater hazard than performing the work without
them.

The administrative law judge found that the use of portable
guardrails was infeasible and would indeed create a greater hazard. On review, Spancrete
argues that the judge was correct in finding that it had proved both the greater hazard
affirmative defense and the affirmative defense of unfeasibility. The Secretary argues
that Spancrete failed to prove one element of the greater hazard defense and that the
unfeasibility defense was not properly raised. For the reasons below, we reverse the judge
and affirm the citation.

THE GREATER HAZARD AFFIRMATIVE DEFENSE

In order to establish the greater hazard defense, an employer
must prove each of the following three elements, namely that: (1) the hazards created by
complying with the standard are greater than those of noncompliance; (2) other methods of
protecting its employees from the hazards are not available; and (3) a variance is not
available or that application for a variance is inappropriate. Walker Towing Corp., 14 BNA
OSHC 2072, 2078, 1991 CCH OSHD � 29,239, p. 39,161 (No. 87-1359. 1991).

The parties have disputed the length of time that employees
would be exposed to falling while performing the grouting, as compared to the time that
they would be exposed while erecting and dismantling the portable guardrails, and the
likelihood of falling during each operation. In addition, the parties have disagreed over
which party has the burden of proving the element of the defense involving the
availability of other means of protection.[[2/]]

We need not inquire whether Spancrete has proved the first two
elements of the defense, because it is clear that the company has introduced no evidence
on the third. The administrative law judge excused that failure because, in his view,
proof of the first two elements of the greater hazard defense makes it inappropriate to
seek a variance. We do not agree with the judge's reasoning. The variance element of the
greater hazard defense has been recognized by the courts of appeals and endorsed by
several of them[[3/]], which makes us unwilling to alter the elements of the affirmative
defense.

Spancrete introduced no evidence at the hearing to show either
that it had applied for a variance or that application for a variance was inappropriate.
The record shows that the activity cited here is an operation Spancrete regularly
performs. Consequently, there can be no argument that the work at this site would be
completed before the Secretary could act on the variance application, since Spancrete
could apply for a continuing variance for this operation. Further, on review, the company
has advanced no explanation for its failure to make such an application. Instead, it
asserts that the variance requirement is not part of the greater hazard defense. However,
the case Spancrete cites in support of its argument relates to the unfeasibility defense,
not the greater hazard defense.

The variance requirement is very much a part of an employer's
burden of proof of the affirmative defense of greater hazard, and the judge erred in
eliminating that element. Consequently, the judge erred in making a finding that the
affirmative defense had been proved, and we reverse that finding.

THE INFEASIBILITY AFFIRMATIVE DEFENSE

When the citation was issued in April 1986, the unfeasibility
defense did not exist. The Secretary's Complaint and Spancrete's Answer were filed in May
1986. At that time, employers could plead only the affirmative defense of impossibility.
See, e.g., M.J. Lee Construction Co., 7 BNA OSHC 1140, 1144, 1979 CCH OSHD � 23,330, p.
28,227 (No. 15094, 1979). Spancrete therefore could not have raised a claim of
infeasibility in its Answer.

On July 30, 1986, two months after Spancrete filed its Answer,
the Commission issued its decision in Dun-Par Engineered Form Co., 12 BNA OSHC 1949,
1986-87 CCH OSHD � 27,650 (No. 79-2553, 1986), which redefined the impossibility defense
as the infeasibility defense. The hearing in this case took place five months later, in
January, 1987.

The Commission's long-standing precedent at the time Spancrete
filed its Answer was that an affirmative defense must be raised during the issue
formulation stage of the proceedings or it is considered to have been waived. Chicago
Bridge & Iron Co., 1 BNA OSHC 1485, 1973-74 CCH OSHD � 17,187 (No. 744, 1974), rev'd
on other grounds, 514 F.2d 1082 (7th Cir. 1975)[[4/]]. In the interval between the time
the Commission's decision in Dun-Par was issued and the hearing, Spancrete failed to amend
its answer to add the infeasibility defense. Nor did it move to amend at the hearing. The
company has therefore never pleaded this affirmative defense.

Failure to plead an affirmative defense excludes that issue
from the case. Dole v. Williams Enterprises, Inc. 876 F.2d 186, 189-90 (D. C. Cir. 1989).

When Spancrete presented evidence at the hearing as to the cost of the portable railings,
the Secretary objected on the grounds that the evidence went to an unpleaded defense, and
the Secretary later renewed that objection. In addition, Spancrete objected when the
Secretary attempted to inquire about its profitability, which would have gone to rebut
Spancrete's claim that the portable metal guardrails were prohibitively expensive. The
issue of feasibility was therefore not fully litigated by the parties, and we find no
express or implied consent by either party to try it. Consequently, the Commission
declines to amend Spancrete's pleadings retroactively under Rule 15 (b) of the Federal
Rules of Civil Procedure. See McWilliams Forge Co., 11 BNA OSHC 2128, 1984 CCH OSHD �
26,979 (No. 80-5868), appeal dismissed, No. 84-3587 (3d Cir. 1984). We therefore will not
consider Spancrete's claim that the use of portable guardrails is infeasible, since that
issue was not raised in a timely manner.

Accordingly, we reject Spancrete's arguments on both
affirmative defenses. We reverse the decision of the judge and find that Spancrete was in
violation of 29 C.F.R. � 1926.500(d)(1).

THE DEGREE OF THE VIOLATION AND THE PENALTY

The Secretary alleged that the violation was both serious and
repeated and proposed a penalty of $800. Because the judge vacated the citation, he did
not make any findings on these issues and the parties have not addressed them on review.
The Secretary suggests that the case should be remanded for the judge to make appropriate
findings. The judge who presided over the hearing in this case and who issued the decision
is no longer with the Commission. It would be an inefficient use of resources to remand
this case because we have thoroughly reviewed the record and are able to make the
necessary determinations here. Because Spancrete has not addressed these issues, we will
make our order conditional in order to allow Spancrete the opportunity to present
arguments if it takes issue with our findings.

The violation was alleged to be serious. Section 17(k) of the
Act, 29 U.S.C. � 666(k), provides that a violation is serious if there is "a
substantial probability that death or serious physical harm could result" from the
violation. The pertinent consideration is not whether an accident is likely to occur;
rather, it is whether the result of an accident would likely be death or serious injury.
Whiting-Turner Contracting Co., 13 BNA OSHC 2155, 2157, 1989 CCH OSHD � 28,501, p. 37,772
(No. 87-1238, 1989).

Spancrete's five employees were working thirteen feet, eight
inches above the ground floor of a construction site which had building materials and
debris below. The OSHA compliance officer who conducted the inspection testified that the
probable result of a fall from the mezzanine floor would be major fractures, which are
serious injuries. We therefore find the violation to be serious. Cf. Walker Towing Corp,
supra, (14-foot fall); Whiting-Turner Contracting Co., supra, (12-foot fall).

The Secretary also alleged that the violation was repeated. To
support that allegation, the Secretary introduced evidence that Spancrete had previously
been cited for violating section 1926.500(d)(1) and that, after a hearing, that citation
had been affirmed.

A violation is repeated if, at the time it occurred, there was
a Commission final order that the employer had committed a substantially similar
violation; and a prima facie showing of similarity is made if it was a violation of the
same standard. Stone Container Corp., 14 BNA OSHC 1757, 1762, 1990 CCH OSHD � 29,064, p.
38,819 (No.88-310, 1990). Because there is evidence that Spancrete has previously been
found in violation of the standard cited here, we find that this violation was repeated.

The Secretary proposed a penalty of $800. In assessing a
penalty for a violation of the Act, the Commission must give due consideration to the size
of the employer's business, the gravity of the violation, the company's good faith, and
its history of previous violations. Section 17(j) of the Act, 29 U.S.C. � 666(j). Having
considered the evidence in the record relating to those factors, we consider the penalty
of $800 proposed by the Secretary to be appropriate.

We find that Spancrete committed a serious repeated violation
of 29 C.F.R. � 1926.500(d)(1) and assess a penalty of $800. Because Spancrete has not
addressed the degree of the violation and the penalty, however, our order is conditional.
We will afford Spancrete twenty days from the date of this order to file with the
Executive Secretary of the Commission a notice that it wishes to present arguments that
the Commission has erroneously found that the violation is serious and repeated or that
the penalty is inappropriate for the offense.

Accordingly, we issue a conditional order reversing the
decision of the administrative law judge, affirming a serious, repeated violation of 29
C.F.R. � 1926.500(d)(1), and assessing a penalty of $800. Should Spancrete notify the
Commission within twenty days of the date of this order that it intends to file arguments
on the matters not addressed by the judge, those arguments must be filed within thirty
days of the date of this decision.

Edwin G. Foulke, Jr. Wiseman

Chairman

Dated: April, 30, 1991

Donald G. Wiseman

Commissioner

SECRETARY OF LABOR,

Complainant

v.

SPANCRETE NORTHEAST, INC.,

Respondent

OSHRC Docket No. 86-0521

APPEARANCES:

For the Complainant

Patricia M. Rodenhausen, Regional Solicitor

U. S. Department of Labor

By: Alan L. Kammerman, Esq.

Peter T. Rodgers, Esq.

Lacy, Katzen, Ryen & Mittleman

DECISION AND ORDER

This case arose under 29 U.S.C., � 651 et seq., of the
Occupational Safety and Health Act of 1970 (the Act). As a result of an inspection by the
Occupational Safety and Health Administration (OSHA) of the Respondent's premises on or
about March 27, 1986, Citation #1 was issued on or about April 7, 1986, charging that the
Respondent violated � 5(a)(2) of the Act by the repeated violation of the standard at 29
C.F.R. �1926.500(d)(1) in that open-sided floors were not properly guarded.

On or about April 23, 1986, the Respondent filed Notice of
Contest to the Citation and the penalty proposed therefor.

The pertinent sections of the Act and the standard are appended to this decision under
appropriate titles.

THE ISSUES

1. Were the Respondent's employees exposed to a hazardous
   condition?

2. Was the proposed correction more dangerous than the alleged
   hazard?

The Respondent is a sub-contractor installing precast planks
for the mezzanine floor of a one-story building. Except for the west side, the jobsite was
an open-sided floor with a perimeter of about 350-375 feet. As the planks are installed at
the mezzanine level, they become a floor on which the Respondent's employees work, placing
the planks into sections and filling grout in the seams between the planks. The last
planks to be brought up from the ground become, in turn, the outer edge of the floor,
which is constantly being extended out from the western side toward the edge of the other
three open sides.

There are 2 phases to the operation: the first, laying the
planks to form a floor; and the second, grouting. The grout, a mortar-like substance, is
poured into the seams and then spread by employees wielding a pushbroom-like utensil
called a "squeegee." In the course of "grouting" the planks, some
employees came within 2 feet of the edge while others came as close as inches. By the date
of the inspection, the planks had all been positioned and the Respondent's employees were
"squeegeeing." They were all experienced construction erectors.... (Tr. 8-12,
17, 24, 86, 89, 115, 116)

The hazard was the possibility of a fall from the floor's edge
to the ground some 13-feet 8 inches below.... (Tr. 12)

There is not much doubt that the condition was a hazardous one; the main question was how,
if at all, it could be abated without exposing the Respondent's employees to greater
danger.

What used to be the affirmative defense of impossibility has
been changed to infeasibility by the Review Commission's ruling in Secretary of Labor v.
Dun-Par Engineered Form Co., 12 OSHC 1949. Under it, once the employer has proven
infeasibility of compliance with specific means of abatement imposed by the standard, the
Secretary must prove other means that are practical and realistic.

Abatement Proposals

The Complainant's witness [Compliance Officer Sargent]
testified that a railing of metal or wood or cables could be placed around the perimeter
of the floor by the use of vertical posts or a portable guardrail system. The vertical
posts would have to be attached to the floor's surface by a clamp. . . . Sargent conceded
that he did not know whether that solution was feasible or not .... (Tr. 41-45)

As concerns the portable guardrail, Sargent said 20 to 40 would
be needed, and it was his opinion that the floor could withstand the weight of the steel
base of the portable guardrail, but conceded that he had not performed any tests to
determine whether the floor could withstand its weight . . . . (Tr. 45, 57) He also
estimated it would take 2 to 3 men an hour to install the steel based posts and rails, but
conceded he had never done such work. . . . (Tr. 60, 61)

As concerns wire cables, he said he had performed no tests to
determine how taut the cables could be made or how many posts would have to be
installed.... (Tr. 47, 48) There would be about 35 or 40 posts, each separated by 8
feet.... (Tr. 47, 48, 50) While placing the posts, the workers would be near the edge of
the floor and be exposed to the danger of falling.... (Tr. 50, 51) Putting up posts would
take about 7 hours, whereas the grouting only takes 5-5 1/2 hours, during which workers
would be near the edge only 25% of the time, or about 1 1/2-1-3/4 hours .... (Tr. 52, 53,
61) He testified that installing any kind of perimeter rails and posts would increase the
time of - employees actually being near the edge ....(Tr. 62) But he also said that the
employee would be taking himself into the zone of danger less than in the grouting
operation .... (Tr. 78)

Engineer Buchman, the Respondent's vice-president, testified
that constructing a rail around the perimeter before the planks were set is not practical
or reasonable because there is nothing to attach it to ....(Tr. 88) After the planks have
been set and grouting begun, the hazard is increased if the employees have to go to the
edge an additional time to install the barrier and another time to remove it.... (Tr. 88,
89) To put the clamp on, a man would have to reach over the edge and fasten a 26-pound
steel bracket to the outside edge of the wall .... (Tr. 94)

Buchman's testimony tended to establish that it would take 8
minutes to set a wooden post to the horizontal floor; and 90 posts would take 12 hours
.... (Tr. 92) To remove the posts then would take 4 minutes a post or 6 additional hours
.... (Tr. 92) He said such an abatement proposal is impractical, unreasonable, infeasible,
and a greater hazard to employees .... (Tr. 95) He also testified that equipment weighing
over 2,000 pounds would have to be brought to the jobsite; and he estimated that the cost
of rental, loading, and unloading of such equipment would come to $16,500-about 22% of the
total contract price. In his opinion, it is not practical or reasonable to install
standard rail guards or the heavy metal-based ones.... (Tr. 102)

The testimony of Schrader, the Respondent's erection foreman, tended to establish that the
grouting operation took about 5 1/2 hours, of which about 8-10% was spent by 3 men doing
the floor's perimeter. In his opinion, there was no hazard because the men knew of the
danger, were experienced, and were extra careful .... (Tr. 116, 117) He testified that,
before the grouting, there is no place to put a railing; and after the floor has been
completed, the clamping method cannot be used because there is no open edge ....(Tr. 119)
He said there is a hazard in installing the posts and more equipment-- electric cords,
drills and a hammer--must be handled by employees than just the squeegee. In his opinion,
installing the posts is not a practical or reasonable solution, and it exposes employees
to a greater hazard of falling off the edge.... (Tr. 120) In addition, a similar operation
would have to be undertaken to remove them.... (Tr. 121).

As concerns the portable rail guard, Schrader said it is heavy
and it is not practical to lift it and move it around the floor.... (Tr. 125).

The Hazard

The Respondent's employees will be exposed to a hazard
regardless of whether the present method of operation is continued or is replaced by one
of the methods described by the Compliance Officer. The only difference [if any] is one of
degree. If employees exercise ordinary care in spreading grout with squeegees, it is not
necessary for them to turn their backs to the floor's edge [the zone of danger] or to come
closer to it than about 2 1/2 feet [the length of the squeegee's handle]. It is also not
necessary for an employee to go near the zone of danger other than once [to spread the
grout]; and then he need have only one implement in his hands, the squeegee. On the other
hand, under the method of rails supported by vertical posts affixed to the floor, some
employees would have to be in the zone of danger twice [once setting the barrier up and
once taking it down] while carrying or working with equipment such as an electric cord,
drill, hammer, etc., used in erecting the barrier. Moreover, if the employee used one type
of clasp-a 26-pound base-the employee would have to lean over the floor's edge to attach
it.... (Tr. 94)

If the portable barrier were used, other unanswered questions
and unsolved problems arise involving how its weight is handled, how it gets moved around
the floor, whether the floor can sustain the weight, how the equipment gets up to the
jobsite, and so on. There simply was not sufficient evidence about the portable barrier to
permit any realistic and practical evaluation of it.

As the Compliance Officer testified about the clamp type of
barrier, he just did not know whether the proposal was feasible or not.... (Tr. 43-45)

Time

There is still another factor to be considered: the time
employees spent in the zone of danger under the present operation as compared to what
would be spent under the proposed system of a barrier. The Complainant's evidence tended
to establish that employees spent 51/2 man-hours in the zone of danger under the present
operation as compared to 7 man-hours that would be spent under the barrier proposal....
(Tr. 52, 53) The Respondent estimated that employees would spend 18 man-hours under the
barrier proposal-12 hours installing the posts and 6 hours removing them--as compared to
51/2 man-hours under present conditions.... (Tr. 92, 116)

Both estimates were, of course, only estimates. However, even
taking the figures most favorable to the Complainant's position, I find that there is no
appreciable difference in the time employees would spend in the zone of danger under
either the present operation or the proposed replacement of it by a barrier.

The Greater Hazard

As concerns the two grouting methods discussed [a standard
railing or none] I find that the standard railing solution creates a greater hazard to
employees than the present method of operation followed by the Respondent [the use of
squeegees and the exercise of ordinary care by the employees].

Variance

Should there have been a request by the Respondent for a
variance?

In the instant case, the Respondent did not ask for one ....
(Tr. 82) The Review Commission has taken the position in several cases that, where the
Respondent claims it was less dangerous to violate the particular standard than to comply
with it, the Respondent must show it was refused a variance or it was inappropriate to ask
for one.

Section 655(d) of the Act says that the Secretary shall grant a
variance application if the methods used by the employer "are as safe and healthy as
those which would prevail if he complied with the standard." As ALJ DeBenedetto
pointed out in the Consolidated Rail case [78-4881], that language of the Act carries with
it a "catch-22" or self-defeating result in that it requires a party seeking a
variance to establish that it is not entitled to it. That is because, once it has been
shown that compliance with the standard is more hazardous than non-compliance, the
alternative method proposed to be used for a variance only has to be "as safe"
as the standard--which was already determined to result in a greater hazard. In those
circumstances, it would obviously be inappropriate to seek a variance.

Alternate Finding

The law on "impossibility" or infeasibility" has
been somewhat unsettled. For that reason, it may be helpful to add an alternate finding.
As such, I find that, whether or not any weight be accorded to financial considerations,
the Respondent has established by a preponderance of the evidence that the Complainant's
proposed method of abatement is neither reasonable nor practical.

FINDINGS OF FACT

Having heard the testimony, observed the witnesses, and
examined the exhibits, the following Findings of Fact are made:

1. At all times concerned, the Respondent regularly received,
   handled or worked with goods which had moved across state lines.

2. As concerns Citation #1, an open-sided floor more than 6
   feet above ground level was not guarded by a standard railing or the equivalent.

3. The conditions described in paragraph 2 above could not be
   corrected without exposing employees to a greater hazard.

4. The conditions described in Citation #1 exposed the
   Respondent's employees to sustaining serious or fatal harm because of the hazard of
   falling.

5. One or more officers or supervisory personnel of the
   Respondent knew of the hazardous conditions described herein and knew that employees were
   exposed to such hazard.

CONCLUSIONS OF LAW

1. At all times concerned, the Respondent was an employer
   engaged in a business affecting commerce within the meaning of the Act; and the
   Occupational Safety and Health Review Commission has jurisdiction over the subject matter
   and the parties.

2. At all times concerned, the Respondent knew, or with the exercise of due diligence
   should have known, of the alleged violation.

3. On the date in question, the Respondent was not in
   compliance with the standard at 29 C.F.R. � 1926.500(d)(1) but compliance would have
   resulted in a greater hazard.

4. The Complainant has not sustained the burden of proving the
   Respondent violated 29 C.F.R. � 1926.500(d)(1) and � 5(a)(2) of the Act (�654).

ORDER

The whole record having been considered, it is ordered:
Citation #1 and the penalty proposed therefor are vacated.

SO ORDERED.

FOSTER FURCOLO

Judge, OSHRC

Dated: April 20, 1987

Boston, Massachusetts

APPENDIX THE ACT

Section 654 [section 5(a)(2)] Employer "...shall comply with occupational safety and
health standards...."

Section 666 [section 17(a)] "...employer who willfully or repeatedly violates...this
Act...may be assessed a civil penalty of not more than $10,000 for each violation."

Section 666 [section 17(b)] "...employer who has received a citation for a serious
violation...of this Act...shall be assessed a civil penalty of up to $1,000 for each such
violation."

Section 666 [section 17(k)] "... a serious violation shall be deemed to exist...if
there is a substantial probability that death or serious physical harm could
result...unless the employer did not, and could not...know of the presence of the
violation."

THE STANDARD

29 C.F.R. � 1926.500(d)(1): "Every open-sided floor or
platform 6 feet or more above adjacent floor or ground level shall be guarded

by a standard railing, or the equivalent...."

FOOTNOTES:

[[1/]] That standard provides:

� 1926.500 Guardrails, handrails, and covers.

(d) Guarding of open-sided floors, platforms, and runways. (1) Every open-sided floor or
platform 6 feet or more above adjacent floor or ground level shall be guarded by a
standard railing, or the equivalent, as specified in paragraph (f)(1) of this section, on
all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The
railing should be provided with a standard toeboard wherever, beneath the open sides,
persons can pass, or there is moving machinery, or there is equipment with which falling
materials could create a hazard.

The standard printed in the Code of Federal Regulations contains a misprint. The version
set out above is the correct version. See 44 Fed. Reg. 8577, 8637 (Feb. 9, 1979). When the
standard was codified, it was incorrectly printed to refer to paragraph
"(f)(1)(i)," and that error has not yet been corrected.

[[2/]] Although the misprint in the Code of Federal Regulations
is misleading, the version of the standard originally printed in the Federal Register
makes it clear that any of the railings described in 1926.500(f)(1)(i) - (vi) would
satisfy the requirements of 1926.500(d)(1). The abatement proposed by the Secretary is
therefore one of several possible methods of complying with the standard, not an
alternative method. This fact is significant in the context of an affirmative defense,
because it means that the employer must prove the elements of that defense with respect to
portable metal railings and that the Secretary does not have the burden of proving them to
be feasible.

[[3/]] See Dole v. Williams Enterprises, Inc., 876 F.2d 186,
188 (D.C. Cir. 1989); Brock v. L.R. Willson & Sons, Inc., 773 F.2d 1377, 1389 n.13
(D.C. Cir. 1985) (found affirmative defense not proved because no evidence of application
for variance); RSR Corp. v. Donovan, 747 F.2d 294, 303 (5th Cir. 1984); Donovan v.
Williams Enterprises, Inc., 744 F.2d 170, 178 n.12 (D.C. Cir. 1984) (greater hazard
defense not possible because company did not apply for variance); True Drilling Co. v.
Donovan, 763 F.2d 1087, 1090 (9th Cir. 1983) (rejected attack on variance requirement);
Modern Drop Forge Co. v. Secretary, 683 F.2d 1105, 1116 (7th Cir. 1982) (variance element
"important"); PBR, Inc. v. Secretary, 643 F.2d 890, 895 (1st Cir. 1981)
(variance requirement necessary to ensure that employees not exposed to hazards because
employer incorrectly assumes its practice safer than complying); H.S. Holtz Construction
Co. v. Marshall, 627 F.2d 149, 152 (8th Cir. 1980) (application for a variance found to be
inappropriate; did not rule on appropriateness of elements of Commission's greater hazard
defense); Voegele Co. v. OSHRC, 625 F.2d 1075, 1080-81 (3d Cir. 1980); Noblecraft Indus.
v. Secretary, 614 F.2d 199, 205 (9th Cir. 1980) (upheld variance requirement); General
Electric Co. v. Secretary, 576 F.2d 558, 560-61. (3d Cir. 1978) (upheld variance
requirement); Irwin Steel Erectors, Inc. v. OSHRC, 574 F.2d 222, 223-24 (5th Cir. 1978).
Cf. Diebold, Inc. v. Marshall, 585 F.2d 1327, 1339 (6th Cir. 1978) (courts look with
jaundiced eye on claims of technological infeasibility raised without first seeking
variance or amendment of standard).

[[4/]] That requirement was subsequently incorporated into Rule
36(b) of the Commission's Rules of Procedure, 29 C.F.R. � 2200.36(b). 51 Fed. Reg.
32,015, 32,021 (1986); 52 Fed. Reg. 13,831 (1987).