Rexco Industries, Inc. (Commission decision, April 14, 1980)

Plain-English summary

Rexco was the general contractor building a hospital in Yauco, Puerto Rico. It put up a scaffold system large enough that the Commission described it as an auxiliary structure attached to the building: three parallel rows of interlocking metal shoring running from the ground to the sixth floor, the first row flush against the building and ten foot gaps between the rows. Two levels were planked, at the fourth and sixth floors. The sixth floor deck carried the concrete work and was not cited. The citation concerned the fourth floor deck, and charged a serious violation of 29 C.F.R. § 1926.500(d)(1), which requires a standard railing on every open sided floor or platform six feet or more above the level below.

Compliance officer Rabames Santisteban found part of the fourth floor's lengthwise planking missing, leaving an L-shaped surface. The planking ran 18 feet out at the base of the L but only 8 feet out where it met the building, so an 8 foot gap opened between the edge of the planks and the next row of supports. Nothing guarded the edge, the shoring stood too far back to stop a fall, and the deck was reachable through a four foot wall opening with no barrier across it.

During the inspection Santisteban saw one employee, Rafael Sepulveda, step onto the deck and walk six to eight feet in to pick up a piece of wood. Called as the Secretary's witness, Sepulveda said he was helping a carpenter close a hole in a wall on the fifth floor and was told to get wood but not told where. He knew a warehouse 75 to 100 feet away held wood, but he had never gone there for supplies and did not know the procedure. He said nobody was working on the fourth floor deck, he had received no instructions about it, and he never went on it before or after that day. The pieces of wood he saw were lying loose on top of the planking, not part of it. Rexco's safety engineer said walking the deck was awkward because you had to curve around the metal supports and climb over obstacles, and its vice president for safety and claims, who looked at the deck the day after the inspection, said it posed no risk because it was not a work area and obstacles blocked the way in.

Administrative Law Judge Paul L. Brady found that no employees were assigned duties on the deck, held it was therefore not a working space for persons within the definition of platform at 29 C.F.R. § 1926.502(e), and concluded the guarding standard simply did not apply. He also found no evidence the employer knew the employee was there, and said holding an employer liable for a wholly independent employee act would amount to strict liability. He vacated the citation.

Former Commissioner Moran directed review without naming any issue, so the Commission took up the issue the Secretary raised in his petition. Neither side filed a brief.

The Commission affirmed the vacatur on the narrow ground that the deck was not a working space for persons. It drew on the Second Circuit's reading of the identically worded general industry definition of platform, which declined to treat every flat surface as a working surface merely because employees might someday stand on it, and said an elevated flat surface does not become a platform just because employees occasionally set foot on it while working. Here nothing showed that anyone was assigned to work on the fourth floor deck, that any work was going on there, or that Rexco knew or could have anticipated that this employee would step onto it to fetch wood when a warehouse on site stocked it. Aside from that one instance no employee had ever gone onto the deck. With the standard inapplicable, the Commission did not resolve the conflicting testimony about whether barriers blocked the opening, and did not reach the Secretary's five other assignments of error, including his challenges to the judge's knowledge and strict liability reasoning.

Commissioner Cottine dissented. He objected that the majority blended the definition of platform with employer knowledge and employee access, and passed over Commission precedent without distinguishing it. In his view an employer must anticipate the hazards its employees may encounter, and a general contractor responsible for safety across the worksite could reasonably have been expected to block the wall opening or tell employees to stay off a large, obviously unguarded structure. He noted that the Secretary need not even prove actual exposure, only accessibility, yet here one employee was actually exposed and the company admitted it had no work rule against going out there. He also faulted the majority for leaving unclear whether it now accepts a court of appeals holding that had reversed a unanimous Commission decision, since an agency charged with a uniform national policy need not acquiesce in conflicting circuit views. He would follow the Commission's own line treating a platform where employees actually perform work as a working space for persons, and would affirm the violation.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.500(d)(1)
• Outcome: Vacated. The judge's order vacating the citation is affirmed.
• Key point: The guarding standard turns on whether a surface is a working space for persons, and a single employee stepping onto a scaffold deck to grab a board does not make it one.

Full text (OSHRC public release)

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EN-US
X-NONE
X-NONE

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY
OF LABOR,

Complainant,

v.

OSHRC
DOCKET NO. 15350

REXCO
INDUSTRIES, INC.,

Respondent.

April 14, 1980

DECISION

BEFORE CLEARY, Chairman; BARNAKO and COTTINE,
Commissioners.

BY THE COMMISSION:

A decision of Administrative Law Judge Paul L. Brady is before the Commission for review under section 12(j) [1] of the Occupational Safety and Health Act of 1970, 29 U.S.C.  651�678 (�the Act�). In his decision Judge Brady vacated a citation issued by the Secretary of Labor (�the Secretary�). This citation alleged that Respondent, Rexco Industries, Inc., violated the construction standard published at 29 C.F.R. 1926.500(d)(1) [2] by failing to guard an open-sided platform adjacent to the fourth floor of a hospital under construction in Yauco, Puerto Rico. For the reasons that follow, we affirm the decision of the judge.

Respondent served as the general contractor for the building of a hospital. In the course of construction, a scaffold system was erected. [3] The scaffold system, which amounted to an auxiliary structure attached to the building, consisted of three parallel rows of interlocking metal shoring extending from the ground to the sixth floor level. The first row of shoring was placed flush against the building. There was a 10-foot gap both between the first and second rows of shoring and between the second and third rows. Two levels of the scaffold system, at the fourth and sixth floors, were planked. [4]

Compliance Officer Rabames Santisteban of the
Occupational Safety and Health Administration testified that during his inspection of Respondent�s worksite the fourth floor surface of the scaffold system was missing part of its lengthwise planking, making the surface L-shaped. At the base of the �L�, the planking, which extended from the edge of the building to beyond the second row of shoring, was 18 feet wide. The planking that was placed against the edge of the building was only 8 feet wide. There was, therefore, an 8-foot gap between the edge of the planking and the next row of metal supports. Santisteban testified that the fourth floor surface of the scaffold system was unguarded and that the shorings of the scaffold did not provide protection because they were too far from the edge of the planking to prevent an employee from falling. The compliance officer stated that entry to the fourth floor surface was through a 4-foot-wide wall opening. He also stated that the opening was not blocked by a barrier, railing, or any other obstruction.

During his inspection, Santisteban observed an employee, Rafael Sepulveda, go onto the fourth floor planked surface to a point near its edge in order to obtain a piece of wood. Aside from this incident, Santisteban did not observe any work being performed on the fourth floor surface.

As a witness for the Secretary, Sepulveda admitted that he was Respondent�s employee. He testified further that at the time of the inspection he was assisting a carpenter on the fifth floor and that he was instructed to obtain a piece of wood to close a hole in a wall on the fifth floor. He was not instructed where to get the wood. Although he knew that a warehouse containing wood was located 75 to 100 feet from the building, he had never gone there for supplies and he did not know what procedure to follow to get wood from the warehouse. Sepulveda indicated that there were no employees working on the fourth floor planked surface and that he had received no instructions concerning the surface. He stated that he never went on the fourth floor planking either before or after this particular incident.

Sepulveda confirmed the compliance officer�s testimony that the planked surface was unguarded. He stated that there were no barriers preventing access to the surface, which was about one foot below the wall opening. He admitted that he walked six to eight feet into the planking in order to get the piece of wood. There were several pieces of wood on the planked surface; this wood was not part of the surface but was lying on top of it.

Roberto Raffucci, Respondent�s safety engineer, testified that walking on the planked surface was difficult because one would have to curve around the metal supports and jump over other obstacles. Both Raffucci and Juan Albelo, Respondent�s vice-president of safety and claims, stated that the employees were instructed to obtain wood from the warehouse. Albelo, who did not accompany the compliance officer during the inspection but who examined the planked surface on the following day, testified that the surface presented no risk because the area was not a working platform; the worker had no reason to go on the planked surface; and obstacles blocked entry to the surface. [5]

Judge Brady, finding that Respondent�s employees were not assigned duties on the cited planked surface, vacated the citation on the basis that the fourth floor �platform� was not a �working space for persons� within the meaning of that term as used in the standard at 29 C.F.R. 1926.502(e). [6] Hence, he concluded that Respondent did not violate the terms of section 1926.500(d)(1) since that standard does not apply to the fourth floor planked surface cited by the Secretary. The judge further found that there was no evidence of employer knowledge of the employee�s presence on the fourth floor planking. He concluded that an employer is not liable for a totally independent act of an employee, for to do so would make the employer strictly liable.

On review, the Secretary takes exception to that portion of the judge�s decision and order wherein the judge vacated the citation for a serious violation of 29 C.F.R. 1926.500(d)(1) and the proposed penalty. Although the Secretary filed no brief on review, the Secretary maintains in his petition for discretionary review that the judge erred in concluding that the
�platform� was not a �working space for persons� within the meaning of 29 C.F.R. 1926.502(e). [7] Respondent filed no brief on review.

We agree with Judge Brady that the evidence is insufficient to establish that the cited planked surface was a �working space for persons� within the meaning of 29 C.F.R.  1926.502(e). In General Electric Company v. OSHRC, 583 F.2d 61 (2d Cir. 1978), the Second Circuit construed the term �platform� as defined in the standard at 29 C.F.R. 1910.21(a)(4). [8] Section 1910.21(a)(4) provides the general industry standard definition of the term �platform� for the application of the general industry requirements for standard railings. The wording of section 1910.21(a)(4) is identical to section 1926.502(e). As such, section 1910.21(a)(4) is the general industry equivalent of the construction industry standard at section 1926.502(e). In General Electric, the Second Circuit concluded as follows:

We do not read
this definition [of �platform�] to apply to every flat surface . . . upon which employees may some day stand while performing some task related to their employment and the operations of their employer. An elevated flat surface does not automatically become a �working surface� and a �platform� merely because employees occasionally set foot on it while working.

583 F.2d at 64.

We find the reasoning of the Second Circuit particularly applicable to the facts in this case. There is no evidence on the record here that any employees were assigned to do work on the fourth floor planked surface. There is no evidence that Respondent�s employees were working on the fourth floor. The single employee who went onto the surface was assisting a carpenter who was working on another floor. There is no evidence that Respondent knew or could have anticipated that this employee might go onto the fourth floor planking to get wood. The employee knew that there was a warehouse on the jobsite where the wood could be obtained. Further, aside from this one instance, there is no evidence that any of Respondent�s employees ever went onto the fourth floor planked surface. The evidence, therefore, is insufficient to establish that the fourth floor planked surface in this case was a �working space for persons� within the meaning of section 1926.502(e). Hence, the standard at 29 C.F.R.  1926.500(d)(1) is inapplicable to the cited conditions. We therefore conclude that Respondent did not violate the Act by failing to comply with the standard at section 1926.500(d)(1).

Accordingly, it is
ORDERED that the judge�s vacating of the citation is affirmed.

FOR THE COMMISSION:

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: APR 14, 1980

COTTINE, Commissioner,
dissenting:

The majority�s disposition of this case is based on a discussion that confuses the definition of �platform� set forth at 1910.21 with employer knowledge of a violation and employee access to a hazard. Their analysis also fails to distinguish or even discuss relevant Commission precedent on these issues.

The Respondent was the general contractor for the construction of a hospital. My colleagues correctly emphasize that the scaffold system in issue was so large that it �amounted to an auxiliary structure attached to the building . . ..� There was access to the fourth floor planked surface of the scaffold through a 4-foot-wide wall opening and this planked surface was totally unguarded.

The Commission has consistently held that an employer has a duty under the Act to anticipate the hazards to which its employees may be exposed and to take the steps necessary to prevent such exposure. Southwestern Bell Telephone Co., 79 OSAHRC 4/G4, 7 BNA OSHC 1058, 1979 CCH OSHD 23,278 (No. 15841, 1979); Automatic Sprinkler Corp. of America, ___ OSAHRC , 7 BNA OSHC 1957, 1979 CCH OSHD 24,077 (No. 76�5271), 1979). See Acchione
& Canuso, Inc., ___ OSAHRC , 7 BNA OSHC 2128, 1980 CCH OSHD 24,174 (No. 16180, 1980).

In view of the obviousness of the hazard posed by this large, unguarded structure and the Respondent�s responsibility as the general contractor for the safety of all employees throughout the worksite, it is reasonable to expect the Respondent to have taken steps to prevent or abate the cited hazard. Marshall v. Knutson Constr. Co., 566 F.2d 596 (8th Cir. 1977). It is also noteworthy that had the Respondent fulfilled its duty to inspect the worksite in order to anticipate hazards, prevention of the cited hazard could easily have been accomplished by either blocking the wall opening or clearly informing employees to avoid the planked structure.

Although the Secretary need not prove actual employee exposure to a hazard, Otis Elevator Co., 78 OSAHRC 88/E5, 6 BNA OSHC 2048, 1978 CCH OSHD 23, 135 (No. 16057, 1978), [***] the record clearly establishes the actual exposure of one employee to the cited hazard. My colleagues avoid discussion of this issue by referring to the fact that at the time of the inspection employees were not assigned to the fourth floor, disregarding the facts that an employee was actually observed on the planking and that the Respondent admitted that it had no workrule forbidding this employee conduct.

Finally, my colleagues conclude that the planking did not constitute a �working space for persons.� They find the reasoning of the U.S. Court of Appeals for the Second Circuit in General Electric Co. v. OSHRC, 583 F.2d 61 (2d Cir. 1978), �particularly applicable to the facts in this case.� The majority fails to clarify for the parties, the Commission�s judges, and the public whether a Commission majority now adheres to the holding of that court which reversed a unanimous Commission decision. General Electric Company, Inc., 77 OSAHRC 88/A2, 5 BNA OSHC 1448, 1977�78 CCH OSHD 21,853 (No. 11344, 1977). (Moran and Cleary; Barnako concurring). The Commission was established to achieve uniformity in occupational safety and health adjudications. Accordingly, the Commission adheres to the principle that an administrative agency charged with the duty of formulating uniform national policy is not bound to acquiesce in the views of U.S. courts of appeals that conflict with those of the agency. S & H Riggers & Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD �23,480 (No. 15855, 1979), appeal filed, No. 79�2358 (5th Cir. June 7, 1979). Thus, I would follow Commission cases generally holding that a platform on which employees are actually performing work constitutes a working space for persons. California Rotogravure Co., 75 OSAHRC 31/A2, 2 BNA OSHC 1515, 1974�75 CCH OSHD 19, 240 (No. 668, 1975), petition denied, No. 75�1743 (9th Cir. Jan. 25, 1977); Weyerhaeuser Co., 77 OSAHRC 9/A2, 4 BNA OSHC 1972, 1976�77 CCH OSHD 21, 465 (Nos. 1231 & 1758, 1977), remanded on other grounds, No. 77�1611, (9th Cir. Jan.3, 1980); General Electric Co., Inc., 75 OSAHRC 50/A2, 3 BNA OSHC 1031, 1974�75 CCH OSHD 19, 567 (No. 2739, 1975), rev�d on other grounds, 540 F.2d 67 (2d Cir. 1976); General Electric Co., Inc., supra, 5 BNA OSHC at 1450 n.3, 1452, 1977�78 CCH OSHD at p. 26,320 n.3, 26,322.

I would affirm the violation because the structure was properly cited under  1926.500(d)(1), the employer could have detected and prevented the hazard, and an employee was exposed to the danger of falling from the platform to the ground four floors below.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY
OF LABOR,

Complainant,

v.

OSHRC
DOCKET NO. 15350

REXCO
INDUSTRIES, INC.,

Respondent.

July 14, 1976

DECISION
AND ORDER

APPEARANCES:

Luis A. Micheli
and Edwin Tyler, Esquires, Office of the Solicitor, Santurce, Puerto Rico, on behalf of complainant.

Anital Irizarry
and Earle Blizzard, Esquires, San Juan, Puerto, on behalf of respondent.

STATEMENT
OF THE CASE

BRADY, Judge:

This proceeding is brought pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq., 84 Stat. 1590 (hereinafter referred to as the Act) to contest a citation issued by the Secretary of Labor (hereinafter referred to as the Secretary) pursuant to section 9(a) of the Act. The citation, which was issued September 19, 1975, alleges that as a result of an inspection of respondent�s workplace located at Ext. 25 de Julio Street, Yauco, Puerto Rico, respondent violated section 5(a)(2) of the Act by failing to comply with an occupational safety and health standard promulgated by the Secretary pursuant to section 6 thereof. A notice of proposed penalty was issued with the citation.

The hearing was held March 4, 1976, at Hato Rey, Puerto Rico, and no additional parties sought to intervene.

The facts are not in dispute that on August 18, 1975, the respondent was engaged in construction work as a general contractor in the construction of a hospital building at the aforementioned construction site. In the course of construction, a scaffold system supporting two platforms was erected on the east side, north wing. One platform was on the fourth floor level which served as support for another platform located on the sixth floor level. The platform on the sixth floor level was completely planked, while the platform on the fourth level contained sections which were not covered and were not a work area.

The citation alleges that respondent violated the standard at 29 C.F.R. 1926.500(d)(1). The regulation states in pertinent part as follows:

(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. . .

It is alleged in the complaint that respondent violated the standard as follows:

On or about August
18, 1975, respondent violated the Safety Standard set forth at 29 C.F.R. 1926.500(d)(1) in that it failed to guard by a standard railing, or the equivalent, as specified in 29 C.F.R. 1926.500(f), an open-sided platform, which was 6 feet or more above adjacent floor or ground level, located at the fourth floor, north wing of its construction project, thereby exposing its employees to a falling hazard.

Mr. Rabames Santisteban, compliance officer, testified that he conducted the inspection of August 18, 1975. He revealed that in the course of the inspection he observed respondent�s employee standing on the open-sided platform on the fourth level as depicted in complainant�s Exhibit C�2. He stated that Mr. Rafael Sepulveda walked to the edge of the platform on the fourth level to obtain a piece of wood and return (Tr. 27, 28). The platform, which did not have guardrails, extended approximately eight feet from the structure (Tr. 17, 21, 22, 71). He contended that the employee on the unguarded open-sided platform was exposed to a hazardous condition (Tr. 78).

Mr. Rafael Sepulveda testified that he was the employee depicted in Exhibit C�2. He indicated that at the time of the inspection he was employed as a carpenter helper at the worksite. He stated that he was in the process of helping a carpenter close wall openings on the fifth floor. At the time of the inspection, he was on the fourth level to obtain a piece of panel (Tr. 86, 89). He was asked to obtain a panel by the carpenter, although he was not directed to a specific location (Tr. 90). He indicated that he knew there was a warehouse which contained the wood for the purpose of closing the openings. However, he did not go there, as he saw the paneling on the fourth level platform (Tr. 92, 93).

He stated that he was not instructed to obtain wood paneling from the warehouse, nor was he instructed to obtain wood from the platform. He was simply told to obtain the particular wood (Tr. 98).

There was no barrier between the building and the platform. However, the platform was about one foot lower than the doorway (Tr. 94, 95).

Mr. Roberto Raffucci, safety engineer for respondent at the time of the inspection, testified that the fourth floor level was an auxiliary structure to support the sixth floor where concrete was being poured. He stated that the sixth floor level measured approximately eighteen by twenty-four feet, and the platform at the fourth floor was approximately twenty by forty feet, which contained four by eight panels, and the shorings were supporting the structure (Tr. 110).

In determining whether the respondent violated the standard as alleged, it must be pointed out that under section 1926.502(e) which contains definitions applicable to this subpart, �platform� is defined as:

�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 evidence of record clearly shows that the platform on the fourth level consisted of a scaffold system erected to support the platform on the sixth level, and the platform area was not a �working space for persons.� The evidence also reveals that the employee went to the fourth floor level to obtain a panel, although he was not specifically directed to do so, nor was he there for the purpose of working. The employee�s testimony also indicated that he knew there was a warehouse containing the type of wood he was asked to obtain.

The record in this case contains no evidence that the employer had knowledge of the employee�s presence on the fourth floor level. Further, the evidence does not indicate that the respondent should in any way be required to provide guardrails on the platform which was used for support purposes.

In order to find an employer in violation of the standard as alleged, it is necessary that complainant show such employer has caused or at least knowingly acquiesced in such violation. The employer cannot be held in violation of the standard for the totally independent act of the employee under the circumstances of this case.

To hold an employer in violation of the standard as alleged, it would in effect make the employer strictly and absolutely liable for all employee actions which are of an unsafe nature.

FINDINGS
OF FACT

1. Rexco Industries, Inc., is a corporation doing
   business at Hato Rey, Puerto Rico, where at all times hereinafter mentioned, it was engaged in general construction work.

2. On August 18, 1975, respondent was engaged in the
   construction of a hospital building in Yauco, Puerto Rico.

3. On August 18, 1975, an authorized representative of
   the Secretary conducted an inspection of respondent�s aforementioned worksite. As a result of such inspection, a citation was issued September 19, 1975, with notice of proposed penalty.

4. The scaffolding system on the east side of the
   construction project was used to support platforms on the fourth and sixth levels.

5. The open-sided platform on the fourth level was not a
   work space, and respondent�s employees were not assigned duties thereon.

6. Respondent was not required to provide standard
   guardrails on the fourth floor platform.

CONCLUSIONS
OF LAW

1. Rexco Industries, Inc., at all times pertinent hereto,
   was an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties and subject matter herein pursuant to section 10(c) of the Act.

2. Respondent is, and at all times pertinent hereto,
   required to comply with safety and health regulations promulgated by the Secretary pursuant to section 6(a) of the Act.

3. On August 18, 1975, respondent was not in violation of
   the regulation at 29 C.F.R. 1926.500(d)(1) as alleged in the citation.

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, and the entire record, it is ORDERED:

The citation alleging violation of the standard at 29 C.F.R. 1926.500(d)(1) is hereby vacated.

Dated this 14th day of
July, 1976.

PAUL L. BRADY

Judge

[1]
29 U.S.C.
661(i). The direction for review issued by former Commissioner Moran did not specify any issues to be considered by the Commission. However, in his petition for review, the Secretary took issue with the judge�s decision. It is that issue, discussed infra, that we consider on review.

[2]
The standard
states in pertinent part:

(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)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall 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.

[3]
The record
does not indicate when the scaffold was erected or how long the scaffold system would remain in place. However, Respondent�s vice-president testified that the shorings for the scaffold existed at the worksite for a period of about four months.

[4]
The sixth
floor level was planked completely to form a surface measuring approximately 20 feet by 40 feet. Conditions on the sixth floor level were not cited by the Secretary. Only issues involving the absence of guardrails on the fourth floor level are before us.

[5]
The
testimony by Raffucci and Albelo conflicted with that of the compliance officer and of Sepulveda as to whether the opening into the planked surface from the building was obstructed by barriers. Although he did not make a specific credibility finding, Judge Brady in his statement of the case stated that there was �no barrier between the building and the platform.� We need not resolve the dispute concerning whether entrance to the planked surface was obstructed by barriers since such a determination is not necessary to our disposition of this case.

[6]
The word
�platform� in the standard at 29 C.F.R. 1926.500(d)(1) is defined at section 1926.502(e). This section reads:

�PlatformA
working space for persons, elevated above ground, such as a balcony or platform for the operation of machinery and equipment.

[7]
In addition,
the Secretary argues that the Judge erred in: (1) finding that Respondent�s employee was not on the �platform� for the purpose of working; (2) finding that respondent should not be required to erect guardrails on the �platform� because it was used for scaffold support purposes; (3) concluding that the Secretary must prove that the employer caused or knowingly acquiesced in the violation; (4) finding that the employee�s actions were �totally independent� of the employer; and (5) concluding that affirmance of the citation would constitute the imposition of strict liability on respondent for the unsafe actions of its employees. We need not decide these contentions in light of our disposition of the case.

[8]
The standard
at 29 C.F.R. 1910.21(a)(4) reads:

1910.21
Definitions

(4) Platform. 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.

[***]
Under Otis,
the Secretary must simply demonstrate that the hazard posed by the violation is accessible to employees.