Future Home Technology, Inc.

Plain-English summary

Future Home Technology manufactures modular housing in Port Jervis, New York. After inspections in early 1999, OSHA issued the company a nine-item serious citation and a one-item "other" citation. The company settled all but one item through a partial settlement. The remaining contested item alleged a fall-protection violation under 29 C.F.R. 1910.23(c)(1), with two subitems: an employee installing roofing shingles while kneeling near an unguarded gap about 11.75 feet above a concrete floor, and a plumber standing on an unguarded movable platform about 8.25 feet up. The company argued its movable platforms were mobile scaffolds exempt from fall protection below 10 feet, and that the roofing worker was not near the edge. Chief Administrative Law Judge Irving Sommer rejected both arguments. He found the movable platforms were a permanent part of the production line and were "platforms," not scaffolds, so the guarding standard applied, and that the roofing employee had been right up against the edge. He affirmed both subitems as serious violations and assessed the proposed penalty of $1,625.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.23(c)(1)
• Outcome: Both subitems (1a and 1b) of Serious Citation 1 affirmed; total penalty of $1,625 assessed. The other citation items had been resolved by an earlier partial settlement.
• Key point: Permanent movable work platforms built into a production line are "platforms" subject to the guarding standard, not mobile scaffolds exempt from fall protection below 10 feet.

Full text (OSHRC public release)

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United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-3419

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC DOCKET NO. 99-1300
:
FUTURE HOME TECHNOLOGY, INC., :
:
Respondent. :

Appearances:

              Marc G. Sheris, Esquire                         John W. Willmot
              New York, New York                              Port Jervis, New York
              For the Complainant.                            For the Respondent, pro se.

Before: Chief Judge Irving Sommer

                                   DECISION AND ORDER

      This proceeding is before the Occupational Safety and Health Review Commission (“the

Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 651 et seq. (“the Act”). The Occupational Safety and Health Administration (“OSHA”)
inspected the facility of Respondent, Future Home Technology, Inc. (“FHT”), located in Port Jervis,
New York, on February 17, 1999 and April 9, 1999. As a result of the inspection, OSHA issued FHT
a nine-item serious citation and a one-item “other” citation. FHT contested all of the citation items,
which, with one exception, were resolved by a partial settlement agreement and order dated October
18, 1999. The remaining item requiring resolution, Item 1 of Serious Citation 1, alleges violations of
29 C.F.R. 1910.23(c)(1), which provides as follows:
Every open-sided floor or platform 4 feet or more above adjacent floor or ground
level shall be guarded by a standard railing (or the equivalent as specified in paragraph
(e)(3) of this section) on all open sides except where there is entrance to a ramp,
stairway, or fixed ladder.
The hearing in regard to this item was held on May 18, 2000, in New York, New York. Both
parties have filed post-hearing submissions.
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                                         Background
    FHT manufactures modular housing, and the subject facility consists of about 7800 square

feet of manufacturing space. Within this space are two fixed platforms that are parallel to each other
and 60 feet apart; these platforms run the length of the production line along which the modular home
units move as they are assembled and worked on. Spanning the 60 feet between the fixed platforms
are movable platforms that are situated on both sides of the lengths of the modular home units as they
go down the production line. Employees use both the fixed and the movable platforms to work on
the modular home units, and they work on top of the units as well. (Tr. 9-10; 15-18; 22).
OSHA compliance officer (“CO”) Michael Levy conducted the inspection accompanied by
John Willmot, FHT’s safety manager. On February 17, 1999, as they were walking through the
facility, the CO and Willmot observed employee Keith Biccum putting shingles on the flat wooden
surface of a modular home unit.1 The units are usually 60 feet long and thus span the length between
the two fixed platforms; however, the unit Biccum was working on was only 42 feet long and there
was an 18-foot gap between one end of the unit and the fixed platform on that side. Biccum was
working in a kneeling position 6 to 12 inches from the gap without fall protection, which exposed him
to a fall of 11.75 feet to the concrete floor below. The CO photographed the scene and pointed out
the hazard to Willmot.2 He then spoke to Biccum, who said that normally an aluminum “pick” was
put between the two movable platforms when work was done on a shorter modular home unit; the
pick was situated about 3.5 feet below the gap, such that a fall from the unit would be only that
distance. Willmot told the CO that this was the best method, and the CO observed this method in use
when he returned to the facility on April 9, 1999. (Tr. 13-27; C-1-2).
During his inspection on April 9, 1999, the CO and Willmot saw employee Pete Rodgers
standing on one of the movable platforms looking at the modular home unit in front of him; Rodgers,
a plumber, later told the CO he was checking the unit’s plumbing fittings. The platform was about
3 feet wide, and Rodgers, who was about 1.5 feet from the edge, had no fall protection and was

    1
     After a modular home unit is shipped to its final destination, the flat wooden surface sections

are raised up to form a peaked roof and are then affixed to the unit. (Tr. 15).
2
The CO also drew C-4, a diagram showing this scene. (Tr. 21-25).
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exposed to a backwards fall of 8.25 feet to the floor below. The CO photographed Rodgers on the
platform and discussed the hazard with Willmot, who indicated that stanchions with chains should
have been put on the platform and that he did not know why they had not been.3 (Tr. 27-37; C-3).
The Alleged Violations
Item 1a of the citation alleges that on February 17, 1999, the employee installing roofing
material was exposed to a fall hazard of approximately 11.75 feet. FHT contends the employee was
not near the edge of the roof of the modular home unit, noting the CO’s photos and his testimony that
he did not measure the roof area and that the other employees he saw working near roof edges at the
facility were protected by the portable picks. (Tr. 56). However, FHT’s representative asked the CO
at the hearing whether it was “possible” the employee was 2 to 3 feet from the edge, and the CO
specifically testified that it was not possible and that the employee himself had told him that he was
“right up” against the edge. (Tr. 56). FHT makes no other contentions in regard to this item and
offered no evidence to rebut the CO’s testimony, which establishes the alleged violation.4 This item
is accordingly affirmed, and, since an 11.75-foot fall onto a concrete floor could result in serious
injury or even death, the violation was serious. (Tr. 48-49).
Item 1b alleges that on April 9, 1999, the employee checking plumbing fixtures was on an
unguarded platform at a height of approximately 8.25 feet. FHT contends the cited standard does not
apply to the movable platform that is the subject of this item; according to FHT, the platforms are
mobile scaffolds or mobile work platforms which, pursuant to 29 C.F.R. 1910.29(3)(vii), do not
require fall protection unless the work level is 10 feet or above. In support of its contention, FHT
notes that 29 C.F.R. 1910.21(f)(17) defines the term “manually propelled mobile scaffold” as a
“portable rolling scaffold supported by casters.” FHT further notes that 29 C.F.R. 1910.23(g)(12)
defines “mobile” as “manually propelled” and that 29 C.F.R. 1910.23(g)(13) defines “mobile work

   3
    C-4, the CO’s diagram, also depicts this scene. (Tr. 35-37).
   4
     FHT does not dispute the applicability of the cited standard. Regardless, I agree with the

Secretary that the definition of “platform” set out at 29 C.F.R. 1910.21(a)(4), together with the
Commission’s decision in Clement Food Co., 11 BNA OSHC 2120, 2126 (No. 80-607, 1984),
establishes that the cited standard applies to the working surface that is the subject of Item 1a.
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platform” as “[g]enerally a fixed work level one frame high on casters or wheels, with bracing
diagonally from platform to vertical frame.”
The Secretary contends that the cited standard does apply to FHT’s movable platforms, noting
first the definition of “platform” set out at 29 C.F.R. 1910.21(a)(4), as follows:
A working space for persons, elevated above the surrounding floor or ground; such
as a balcony or platform for the operation of machinery and equipment.
The Secretary also notes the case law that has recognized her interpretation of “platform”
under 1910.21(a)(4) as “any elevated surface designed or used primarily as a walking or working
surface, and any other elevated surfaces upon which employees are required or allowed to walk or
work while performing assigned tasks on a predictable and regular basis.” See Superior Elec. Co. v.
OSHRC, 123 F.3d 199 (8th Cir. 1997), and cases cited therein. Finally, the Secretary notes that the
movable platforms at FHT’s facility do not have “bracing diagonally from platform to vertical frame,”
as required by 1910.23 (g)(13), supra, and that they are a permanent part of the operation and thus
do not meet the definition of “scaffold” set out at 29 C.F.R. 1910.21(g)(15), as follows:
Any temporary elevated platform and its necessary vertical, diagonal, and horizontal
members used for supporting workmen and materials.
I agree with the Secretary that the cited standard applies, based on the CO’s testimony, which
FHT did not rebut, and on R-1-9, various photographs of the movable platforms in the facility.
According to the CO, the platform system was designed specifically for FHT’s operations and cannot
be used anywhere else. The movable platforms are supported by two vertical members that have no
diagonal or other bracing, and the main weight-bearing load is on the ends of the platforms, where
they are attached by wheels to tracks in the fixed platforms. The vertical members of the movable
platforms have wheels that sit in grooves on the floor, and employees manually push the platforms
up and down the production line as part of the manufacturing process; however, the platforms can
only move backwards and forwards in the grooves, parallel to the fixed platforms, and otherwise
remain in place in the facility. In addition, employees are up on the movable platforms daily to work
on the home units; as the CO put it, they are “constantly” on the platforms. (Tr. 38-42; 54-61).
In view of the record, I conclude that the movable platforms are a permanent part of FHT’s
manufacturing process, that they are “platforms” rather than “scaffolds” within the meaning of the
relevant OSHA regulations, and that the Secretary has cited the appropriate standard in regard to this
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item. I further conclude that the record establishes the alleged violation and that the violation was
serious in that an 8.25-foot fall onto a concrete floor could cause serious injury or death. (Tr. 48-49).
This citation item is therefore affirmed as a serious violation.5
Turning to the assessment of an appropriate penalty, these two subitems were grouped with
a total proposed penalty of $1,625.00. The CO rated the severity of the violations as high, since a fall
from either platform could have caused death or permanent disability, but he rated the probability of
an injury occurring as low because there was nothing on the platforms on which the employees might
have tripped. The CO accorded the company reductions for size and good faith but not for history
due to a prior inspection that had resulted in a citation. (Tr. 52-53). I find the proposed penalty of
$1,625.00 to be appropriate, and it is accordingly assessed.
Conclusions of Law
1. Respondent, Future Home Technology, Inc., is engaged in a business affecting commerce
and has employees within the meaning of section 3(5) of the Act. The Commission has jurisdiction
of the parties and of the subject matter of the proceeding.
2. Respondent was in serious violation of 29 C.F.R. 1910.23(c)(1).
Order
On the basis of the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:
1. Items 1a and 1b of Serious Citation 1 are AFFIRMED, and a total penalty of $1,625.00
is assessed.

                                                            /s/
                                                     Irving Sommer
                                                     Chief Judge

Date: 27 JUL 2000

    5
    In affirming Item 1b, I have noted the CO’s testimony about how the condition could have

been abated and the Secretary’s assertion that FHT did not prove infeasibility of compliance.
Although there is nothing in the record to indicate FHT is actually asserting such a defense, the CO’s
testimony clearly shows there was a feasible means of complying with the standard. (Tr. 42-46; C-5).
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