Lee Roy Westbrook Construction Company

Plain-English summary

Westbrook was a concrete-framing subcontractor whose employees used a ladder beside an uncovered elevator shaft opening. A fall through the opening would have been about 40 feet. Westbrook argued that the general contractor was contractually responsible for covering the opening, but the Commission found that Westbrook had the materials, personnel, and skill to cover it itself. The serious citation was affirmed. Because exposure was brief and Westbrook relied in good faith on the general contractor's assurance that the opening would soon be covered, the Commission reduced the penalty from $450 to $50.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.500(b)(1)
• Outcome: Serious citation affirmed; penalty reduced from $450 to $50.
• Key point: A subcontractor cannot use the multi-employer defense when it has the expertise, personnel, and available materials needed to abate the hazard.

Full text (OSHRC public release)

Docket No. 84-0009

SECRETARY OF LABOR,

Complainant,

v.

LEE ROY WESTBROOK CONSTRUCTION COMPANY,

Respondent.

OSHRC DOCKET NO. 84-0009

DECISION

Before: BUCKLEY, Chairman, and AREY, Commissioner.

BY THE COMMISSION:

The issue in this case is whether Lee Roy Westbrook Construction Company
("Westbrook"), a concrete framing subcontractor working at a multi-employer
construction site, had a legal obligation or duty under 29 C.F.R. � 1926.500(b)(1)[[1/]]
to protect its employees by guarding or covering a floor opening even though the general
contractor at the site had contractual responsibility for covering the opening. We find
and conclude that Westbrook could and should have covered the floor opening. Accordingly,
we uphold the decision of Administrative Law Judge Stanley M. Schwartz, which affirmed the
citation issued by the Secretary of Labor.

At the time of the alleged violation, Westbrook was
working on the construction of a four-story office building in Dallas, Texas. Its job was
to erect wooden forms (usually consisting of 4-inch by 4-inch or 4-inch by 6-inch lumber)
to hold up metal "pan" containers into which concrete would be poured by the
general contractor, Connell Construction Company. After the concrete had been poured,
Westbrook would remove the forms and pans, leaving the concrete in place.

On Nov. 15, 1983, one of the Secretary's compliance
officers, Jeffrey C. Rucker, inspected the jobsite. While there, he observed a Westbrook
employee, Mosles Gamas, coming down a ladder from the building's fourth floor to the third
floor. Gamas, a laborer, had also used the ladder to get to the fourth floor to observe
how forms he had helped place there were holding up under concrete that was being poured
for the building's penthouse.

The feet of the ladder were positioned along the edge
of one side of an elevator shaft opening on the third floor. The ladder extended upward
across the opening, and the top of the ladder rested against the edge of the opposite side
of a similar opening directly above on the fourth floor. The third floor shaft opening was
6 feet, 3 inches wide and 17 feet long; it was not protected by either a guardrail or a
cover. The ladder had been placed there that morning and had been in place for 2 to 3-1/2
hours before the compliance officer observed Gamas on the ladder. During that time period,
the ladder was the only means of access to the fourth floor.

Westbrook's Gamas, and his foreman, Joseph L. Garcia,
used the ladder several times on the day of the inspection while the third floor opening
was unguarded and uncovered. At a minimum, they used the ladder to get to their fourth
floor workplace that morning, to descend from the fourth floor so that they could go to
lunch, to return to the fourth floor after lunch, and to descend to the third floor during
OSHA's walkaround inspection. The ladder may have been in a different location when the
employees first ascended to their work area in the morning, but the record establishes
that it was positioned next to the unprotected shaft opening on each of the other
occasions. If either employee had fallen through the floor opening while on or near the
ladder, he would have fallen 40 feet to the bottom of the elevator shaft.

Prior to compliance officer Rucker's inspection, the
shaft opening on the building's fourth floor, above the third floor opening, was also not
protected by either a cover or guardrail. However, at some time during the two-hour
interval between the compliance officer's arrival at the worksite and the walkaround
inspection, the general contractor's onsite foreman directed that the fourth floor opening
be covered. Westbrook employees Garcia and Gamas assisted the general contractor in
covering it. Lumber readily available at the job site was used to cover the opening, and
no special equipment or special skills were needed to do the job. During this two-hour
interval, the general contractor's foreman also assured Westbrook foreman Garcia that the
third floor opening was next in line to be covered, and this second opening was in fact
covered within 30 to 45 minutes of the compliance officer's observation of this alleged
violation, after he had pointed it out to representatives both of Westbrook and of the
general contractor.

After the inspection, Westbrook was issued a citation
by the Secretary alleging that Westbrook had violated 29 C.F.R. � 1926.500(b)(1) by not
guarding or covering the third floor elevator shaft opening. [[2/]] The Secretary alleged
that the violation was serious and proposed a $450 penalty.

Commission Judge Schwartz affirmed the citation and
assessed the proposed penalty. He found that there was "no question that a violation
of the [cited] standard existed" and that there was "no question that death or
serious physical injury could occur" if an employee slipped off the ladder.

Judge Schwartz also held that Westbrook had failed to
prove the limited affirmative defense available to some subcontractors on multi-employer
construction sites. See Anning-Johnson Co. , 76 OSAHRC 54/A2, 4 BNA OSHC
1193, 1975-76 CCH OSHD � 20,690 (No. 3694, 1976); Grossman Steel & Aluminum Corp. ,
76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD � 20,691 (No. 12775, 1976). Although
he found that Westbrook did not create the cited hazard, and assumed that the company did
not control the hazard, the judge nevertheless rejected the employer's defense on the
basis of his finding that Westbrook had not taken reasonable alternative measures to
protect its employees from the fall hazard created by the unprotected floor opening. He
stated that "Westbrook should have refused to commence work" until the general
contractor had covered all uncovered elevator shaft openings.

On review before us, Westbrook does not dispute the
judge's finding that the unguarded elevator shaft opening violated the standard. The
opening in question, which meets the Secretary's definition of a "floor
opening," was not guarded by either a guardrail or cover, as required by the cited
standard. Westbrook foreman Joseph Garcia and laborer Mosles Gamas were exposed to the
unguarded floor opening when they used the ladder set up next to the opening to get to and
from their job responsibilities on the fourth floor. Knowledge of the violative conditions
is imputed to Westbrook through foreman Garcia, who not only observed the unguarded floor
opening, but repeatedly used the ladder positioned next to it. We therefore conclude that
the Secretary has met her burden of proving a prima facie violation of the cited standard.
See Dun-Par Engineered Form Co. , 12 BNA OSHC 1949, 1952, 1986-87 CCH OSHD �
27,650 at p. 36,019 (No. 79-2553, 1986), rev'd on other grounds , 843 F.2d 1135 (8th
Cir. 1988) (elements of Secretary's burden). The violation was serious, as alleged, since
a 40-foot fall through the unguarded opening would probably result in death or serious
physical harm.

Westbrook defends against the violation by arguing
that it has proven the multi-employer construction site affirmative defense. In order to
establish that defense, Westbrook must prove, by a preponderance of the evidence, that:

1. It did not create the violative condition; and

2. It did not control the violative condition such
   that it could not realistically have abated the condition in the manner required by the
   standard; and

3. (a) It made reasonable alternative efforts to
   protect its employees from the violative condition; or

(b) It did not have, and with the exercise of reasonable diligence could not have had,
notice that the violative condition was hazardous.

See Anning-Johnson , 4 BNA OSHC at 1198, 1975-76 CCH OSHD at pp. 24,783-84; Grossman
Steel , 4 BNA OSHC at 1189-90, 1975-76 CCH OSHD at pp. 24,791-92.

The first element of Westbrook's defense is not in
dispute. Judge Schwartz found, and the Secretary apparently concedes, that Westbrook did
not create the violative condition. The Secretary does, however, challenge the judge's
resolution of the second element of the defense. Judge Schwartz assumed, without deciding,
that Westbrook also did not control the violative condition. We agree with the Secretary,
however, that Westbrook did in fact control the violative condition and that it has
therefore failed to establish its affirmative defense. [[3/]]

"Control is established when it is shown that an
employer possessed the expertise and personnel to abate a hazard." Union Boiler
Co. , 11 BNA OSHC 1241, 1246, 1983-84 CCH OSHD � 26,453 at p. 33,607 (No. 79-232,
1983), aff'd , 732 F.2d 191 (4th Cir. 1984). Abatement of the hazard caused by the
uncovered third floor shaft opening was accomplished by covering the opening with lumber.
According to the foreman for the general contractor, this task required no special
equipment or special skills, and it took only 30 minutes to complete it. The material used
to cover the opening, 2-inch by 12-inch and 4-inch by 4-inch pieces of lumber, was readily
available at the Jobsite.[[4/]] Two Westbrook employees, foreman Garcia and laborer Gamas,
helped abate a similar hazard when they assisted the general contractor in covering the
unprotected elevator shaft opening on the fourth floor. Since it possessed the expertise
[[5/]] and personnel to abate the hazard, Westbrook has failed to establish its
multi-employer construction site affirmative defense, and the Secretary's citation is
affirmed.

Although this ruling resolves the issues before us,
we have an additional observation. We emphatically agree with Westbrook's argument that
Judge Schwartz erred in holding that Westbrook should have refused to commence work until
the general contractor had covered all uncovered shafts. As Westbrook argues in its brief,
Review commission precedent does not require such a stoppage of work. See Grossman
Steel , 4 BNA OSHC at 1189, n. 7, 1975-76 CCH OSHD at p. 24,791, n. 7. As a general
rule, a non-creating, non-controlling subcontractor is expected to find a means of
protecting its employees against hazards that falls short of removing them from the
worksite entirely.[[6/]] Here, for example, as mentioned above, Garcia had been told by
the general contractor's foreman that the third floor opening would soon be covered. The
record therefore suggests that foreman Garcia might have been able to find work for Gamas
and himself that would not have required them to be near the cited floor opening until it
was covered. We do not believe that the situation here was so exceptional as to justify
the judge's holding that Westbrook should have walked off the job.

We assess a penalty of $50. Only two employees were
exposed to the hazard, and this exposure was only briefly while they used the ladder to go
between the third and fourth floors on the day of the inspection. Furthermore, covering
the shaft openings was the contractual responsibility of the general contractor--not
subcontractor Westbrook--and the general contractor had assured Westbrook that the cited
opening would be covered. Indeed, the general contractor had, with Westbrook's assistance,
covered the fourth floor opening even before the OSHA walkaround began, lending
credibility to Westbrook's argument that it relied in good faith upon the general
contractor's assurance that the third floor opening would soon be covered. Under these
circumstances, we conclude that it would not be "appropriate" to assess a
substantial penalty against Westbrook. See � 17(j) of the Act, 29 U.S.C. � 666(j).

Accordingly, the Secretary's citation alleging that
Westbrook committed a serious violation of section 1926.500(b)(1) is affirmed, and a $50
penalty is assessed.

FOR THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: March 22, 1989

SECRETARY OF LABOR,

Complainant,

v.

LEE ROY WESTBROOK CONSTRUCTION CO.,

Respondent.

OSHRC DOCKET NO. 84-0009

Appearances:

A. Reid Tilson, Esq.

Dallas, Texas

For the Complainant.

John F. McCarthy, Jr., Esq.

Dallas, Texas

For the Respondent

DECISION AND ORDER

SCHWARTZ, Judge:

This is a proceeding brought before the Occupational Safety and Health Review Commission
("the Commission") pursuant to Section 10 of the Occupational Safety and Health
Act of 1970, 29 U.S.C. � 651 et . seq . ("the Act"). Respondent
contests an alleged serious violation of 29 CFR 1926.500(b)(1). A penalty of $450 was
proposed for the alleged serious violation.

An inspection was conducted at Respondent's workplace
on November 7 and 8, 1983. Respondent timely contested the subject citation. A hearing was
held on June 14, 1984, at Dallas, Texas. No additional persons desired to intervene in
this matter. Both parties have filed helpful post-hearing briefs.

The Evidence

On November 7 and 8, 1983, Jeffery C. Rucker
conducted an OSHA inspection of a four story building under construction. The Respondent
was a framing subcontractor at the subject worksite. The general contractor was Connell
Construction Company (T. 8-9; 18; Exh. C-2; Exh. R-1).

Rucker arrived at the worksite at approximately 11:00
a.m. on November 7, 1983. He held an opening conference, broke for lunch, and started his
actual inspection after the employee lunch hour. Rucker inspected the building from the
top to the bottom. A steel stairwell provided access to the third floor. The fourth floor
was only accessible by a wooden ladder. The ladder itself was placed over an open
unguarded elevator shaft. Rucker considered the ladder unsafe and did not use it to
inspect the fourth floor (Tr. 20-24).

Rucker was accompanied throughout the inspection by
Glenn Faries, Connell's foreman at the job. Rucker issued an alleged serious citation for
1926.500(b)(1). He found the wooden ladder at the edge of the elevator shaft opening. The
opening was 17 feet long and 6 feet 3 inches wide. The drop was 40 feet to the elevator
pit below. The pit contained a damper column and was filled with rebar and broken pieces
of wood. The ladder was 36 inches wide and was midway in the opening. It completely
spanned the shaft opening. There were six to seven feet of uncovered shaft space on each
side of the ladder. The subject ladder was 15 feet high (Tr. 24-27; Exh. C-3-5).

Rucker perceived the hazard as an employee losing his
balance with a potential fall of 40 feet to the pit below. The employee could be carrying
tools or a broom while using the ladder. If he slipped, the lack of a cover over the shaft
opening could cause a fatal fall. The most typical way to prevent the hazard would be wood
planking over the hole (Tr. 28-30).

Rucker observed an employee of the general contractor
use the ladder to reach the third floor. After observing this employee, Rucker and Faries
walked over to check the perimeter guarding. He looked back and saw another employee come
down the same ladder. The employee, through an interpreter, was identified as Mosles
Gamas, a Westbrook employee. The interpreter was Joe Garcia who served as Respondent's
foreman at the site.

Gamas told Rucker he had used the ladder two or three times daily. Garcia, in response to
Rucker's question, indicated he too used the ladder (T. 33-37; Exh. C-3). Rucker also
testified the general contractor has overall responsibility for jobsite safety (T. 49).

The Secretary also called Glenn Faries to testify.
Faries was the general contractor's foreman at the subject jobsite. Westbrook had a
contract to pan the floors. At the time of the inspection they were pouring concrete at
the fourth floor level. The subject ladder was the only way to move from the third floor
to the fourth floor. Respondent's workday started at 7:00 a.m. Garcia was in charge of
Westbrook's employees. Faries accompanied Rucker throughout the inspection (T. 54-58).

Faries believed that an employee would use the ladder
three times a day. This would occur in the morning, at lunch, and possibly once or twice
in the afternoon. He indicated any employee working at the fourth level-penthouse would
stay there until lunch. The employee would return after lunch and not leave until quitting
time. The ladder was moved the morning of the inspection to the subject location. Connell
corrected the condition the day of the inspection. Faries used wood planks which were
available and no special skill was required. It took approximately 30 minutes. Faries
considered decking as the general contractor's responsibility (T. 59-61; 63-64; 66).

Faries knew about the uncovered shafts. He testified
the ladder had been in place over the shaft for two-three hours. Prior to Rucker's arrival
on the third floor, Faries was securing the fourth floor opening. He was working his way
down and estimated the third floor would have been completed in another thirty to
forty-five minutes. Garcia's crew helped deck the fourth floor. Faries told Garcia his
crew would finish the decking. Faries chose to deck the fourth floor first because that
was where the majority of the men were working (T. 65; 67; 70).

Respondent called Westbrook's foreman, Joe Garcia. Be
indicated his crew consisted of one employee and himself on that day. They were watching a
concrete pour on the fourth floor at the time of the inspection. Westbrook had been
working on that floor the morning of the inspection. He had helped the general contractor
cover the fourth floor opening (T. 77; 81-82).

Garcia indicated that he came down from the fourth
level to the third level at the time of the inspection because he thought the OSHA
inspector wanted to talk to him. Garcia indicated that he would not have come down the
ladder if the OSHA man had not called him. He also would not allow anyone in his crew to
use an unsafe ladder. Garcia would normally not leave a concrete pour (T. 83-84).

He testified that he used the subject ladder to reach
the fourth floor that morning. He used the ladder once in the morning and also about three
times a day. They used it to come down. He explained why he used the ladder three or four
times a day. He used it when somebody called him at the office or he had something to do
on the job. He also indicated his helper would use it at least two times. They had to use
the ladder one time to watch the pour. His helper used the ladder to follow him down. The
helper came down and asked "what happened." The helper did not know the OSHA
inspector was there (T. 85-86).

Opinion

The Secretary has alleged a serious violation of 29
CFR 1926.500(b)(1). The standard provides as follows:

� 1926.500 Guardrails, handrails, and covers.

(b) Guarding of floor openings and floor holes.

(1) Floor openings shall be guarded by a standard railing and toeboards or cover, as
specified in paragraph (f) of this section. In general, the railing shall be provided on
all exposed sides, except at entrances to stairways.

There is no question that a violation of the standard
existed at the subject worksite. The elevator shaft opening was not covered. Respondent's
employees were exposed to a potential fall of approximately forty feet to the elevator pit
below. The pit contained a damper column as well as rebar. If an employee slipped off the
ladder, there is no question that death or serious physical injury could occur.
Consequently the violative condition must be considered serious within the meaning of the
Act.

Respondent contends that it fulfilled its
responsibilities as a subcontractor in this case. The Commission has long held that if a
hazard remains unabated, the employer who does not create or control the hazard will be
relieved of any responsibility for violating the standard if it can establish that it used
reasonable alternative means to protect its employees or had no actual or constructive
knowledge that the condition was hazardous. Grossman Steel and Aluminum Corp. , 76
OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD � 20,691 (No. 12,775, 1975); Anning-Johnson
Co. , 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 � 20,690 (Nos. 3694 and 4409, 1975).
Whether the alternative methods of protection taken by the noncontrolling employer are
sufficient to establish an affirmative defense is decided on a case by case basis and will
depend on the circumstances at the workplace. J.H. McKay Elec. Co. , 78 OSAHRC
77/B10, 6 BNA OSHC 1947, 1978 CCH OSHC � 23,026 (No. 16110, 1978).

With respect to the planking of unguarded elevator
shafts, Respondent is a framing subcontractor at a multi-employer worksite. Respondent did
not create the fall hazard. For purposes of the decision, I have assumed that Respondent
also did not control the hazard and that the general contractor had complete control of
the hazard. The real question is whether, under the circumstances of this case, Westbrook
took reasonable alternative means to protect its employees.

The first priority is to determine the exact nature
of the hazard involved. In this case a ladder spanned a large elevator opening. The shaft
opening was uncovered exposing employees to a potential fall of forty feet. One slip could
result in a serious injury or death. The hazard could be abated by installing planks over
the opening. The material was readily available at the job. It would take thirty to
forty-five minutes to abate this hazard.

Respondent's foreman, Garcia, was aware of the
hazard. He was helping the general contractor abate the condition on the fourth floor.
However, placed in its true context, Westbrook did not fulfull its responsibility under
the Act to assure the safety of its employees, Garcia and Gamas. My reasons follow.

Garcia was well aware of the danger. He used the
ladder to leave the fourth floor because he thought the OSHA inspector called him. This
single transgression might be forgiven. However, the test is whether Westbrook took
reasonable alternative means to protect its employees from the highly dangerous opening.
Gamas was seen using the ladder by Rucker. Garcia explained that Gamas followed him down
to see what happened. Gamas, according to Garcia, did not know the OSHA inspector was
there. This transgression is the flaw in Westbrook's reasoning. The employee Gamas, at the
very least should have been warned not to use that ladder until the third floor was
planked. Gamas showed no concern for the obvious hazard and Respondent therefore has not
sustained its burden of proof on this defense.

In addition, the record supports a finding that
Garcia and Gamas both used the ladder several times prior to the abatement of the hazard.
Both Gamas and Garcia told Rucker they used the ladder. Faries estimated that Westbrook
employees would use the ladder in the morning and at lunch. Finally Garcia confirmed his
use of the ladder at times other than when he thought the OSHA inspector called him. He
clearly stated that he used the ladder to reach the fourth floor the morning of the
inspection. He also used it approximately three other times. Garcia used it when somebody
called him at tie office or he had something to do at the office. He also testified Gamas
used it at least twice. This evidence, considered as a whole, leads to one finding. I find
as fact that both Garcia and Gamas used the ladder several times prior to the opening
being covered by the general contractor.

The above facts detract from Garcia's statement that
he would not allow anyone to come down an unsafe ladder. Rather it is clear that Garcia
took no alternative methods to protect himself or Gamas from the dangerous condition
existing at the worksite. Westbrook should have refused to commence work until Connell
Construction had covered all uncovered shafts. This small delay was fully justified when
weighed against the seriousness of the violative condition. At the very minimum, foreman
Garcia should have instructed Gamas, in no uncertain terms, to stay off the ladder until
the hazard was corrected. Garcia himself should have followed these same precautions.
Consequently, in view of the above, serious citation number 1 is affirmed.

I now turn to the assessment of an appropriate
penalty in this case. The overriding consideration is the high gravity of the violation.
Two employees were exposed to a forty foot fall to the bottom of the elevator pit. This
pit contained a damper column as well as rebar. There this violation. On balance, I
conclude that the Secretary's proposed penalty of $450 is more than reasonable in light of
the record and the statutory criteria set forth in Section 17(j) of the Act.

Conclusions of Law

1. Respondent, Lee Roy Westbrook Construction Co., 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 this proceeding.

2. On November 7, 1983, Respondent was in serious
   violation of 29 CFR 1926.500(b)(1).

ORDER

On the basis of the foregoing Findings of Fact and
Conclusions of Law, it is ORDERED that:

1 . Item 1 of serious citation number 1 is affirmed and a penalty of; 450 is assessed.

STANLEY M. SCHWARTZ

Administrative Law Judge

Date: October 19, 1984

FOOTNOTES:

[[1/]] Section 1926.500(b)(1) provides:

� 1926.500 Guardrails, handrails, and covers .

*             *
             *

(b) Guarding of floor openings and floor holes. (1) Floor openings shall be guarded
by a standard railing and toeboards or cover, as specified in paragraph (f) of this
section. In general, the railing shall be provided on all exposed sides, except at
entrances to stairways.

[[2/]] General contractor Connell Construction was
similarly cited.

[[3/]] Westbrook incorrectly argues in its brief that
the issue of control is not before us. From the outset, the central issue in this case has
been whether Westbrook met its burden of proving the. affirmative defense established in
the Anning-Johnson and Grossman Steel decisions. We could not sustain that
defense, as Westbrook urges, without first finding that it has established all of
the elements of the affirmative defense. Moreover, the element of "control" was
encompassed in the second of the two issues specified in Chairman Buckley's direction for
review--"Whether the judge erred in finding that Respondent was in violation when
Respondent neither created nor controlled the violative condition." Finally, we note
that the former Review Commission procedural rule pertinent to this issue, rule 92(c) , on
which Westbrook bases its argument that the control issue is not before us, was construed
by the Commission in Hamilton Die Cast, Inc. , 12 BNA OSHC 1797, 1802-1803, 1986-87
CCH OSHD � 27,576 at pp. 35,824-25 (No. 83-308, 1986). In that case, the Commission held
that former rule 92(c) was consistent with its view that the entirety of a case is before
the Commission on review once a direction for review is issued, regardless of the scope of
the issues expressly stated in the direction for review. Current Review Commission
procedural rule 92(a), 29 C.F.R. � 2200.92(a), provides that, unless otherwise specified,
"a direction for review establishes jurisdiction in the Commission to review the
entire case."

[[4/]] The record suggests that this material was
Westbrook's property. Thus, the general contractor's foreman testified that he had
approached Westbrook's foreman about using the materials because Garcia "had the
material readily available" that was needed to cover the openings.

[[5/]] The principal work of the two employees was
the erecting and dismantling of wooden formwork. It is therefore clear that they had
sufficient carpentry skills to cover the cited floor opening.

[[6/]] OSHA's current official enforcement guidelines
for issuing citations on multi-employer worksites take this same position.

OSHA Instruction CPL 2.45A CH-10 (March 27, 1986), para. F.3.d. [citation wiIl not be
issued to noncreating, noncontrolling employer that takes specified precautions, including
"where feasible . . . alternative means of protecting employees from the hazard short
of walking off the job (except when special circumstances require such extreme
action)."]