Pace Construction Corporation

Plain-English summary

Pace was the general contractor for an 18-story building and extended a personnel hoist to the roof so workers could carry tools and materials safely. At the roof landing, the company used a single 2-by-4 gate about 3.5 feet high instead of the required 6.5-foot hoistway door, and the short runway from the hoist lacked side railings. The Commission affirmed the hoist-door violation because the standard applied even though its drafting history showed confusion about the door requirement's purpose. It reclassified that item as nonserious and assessed no penalty because the existing gate substantially protected against a fall and the record did not establish the gravity of any falling-object hazard. Pace did not challenge the runway item, which the Commission affirmed as serious with a $100 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.552(c)(4) and 1926.500(d)(2)
• Outcome: Hoist-door item modified to nonserious with no penalty; runway-guarding item affirmed as serious with a $100 penalty.
• Key point: A standard remains enforceable even when its drafting history reveals an apparent mismatch between the required door and the omitted hoistway enclosure.

Full text (OSHRC public release)

Docket No. 85-1362

SECRETARY OF LABOR,

Complainant,

v.

PACE CONSTRUCTION CORPORATION,

Respondent.

OSHRC DOCKET NO. 85-1362

DECISION

Before: BUCKLEY, Chairman, and AREY, Commissioner.

BY THE COMMISSION:

The Secretary of Labor alleges that Pace Construction Corporation committed a serious
violation of an OSHA safety standard governing personnel hoists used in construction work.
According to the Secretary, Pace violated 29 C.F.R. � 1926.552(c)(4) by failing to erect
6� foot high doors at the hoistway entrances on the roof level of a building under
construction. We conclude that Pace violated the standard but that the violation should be
classified as nonserious.

Pace was the general contractor for the construction
of an 18-story building in Atlanta. The company erected a personnel hoist adjacent to the
building's perimeter to carry workers to the building's upper levels. Until about two
weeks before the alleged violation occurred, the hoist extended only to the level of the
highest floor, but not to the roof level. However, reacting to subcontractor complaints
that it was dangerous for workers carrying tools and materials to climb ladders to reach
the roof, Pace extended the hoist to the roof level for the use of those workers.

Pace allegedly violated 29 C.F.R. � 1926.552(c)(4),
which provides:

� 1926.552 Material hoists, personnel hoists, and elevators.

*             *
             *

(c) Personnel hoists .

*             *
             *

(4) Hoistway doors or gates shall be not less than 6 feet 6 inches high and shall be
provided with mechanical locks which cannot be operated from the landing side, and shall
be accessible only to persons on the car.

On the floors below the roof, Pace had erected sturdy plywood doors, 6� feet high,
at each location where a hoist car met the floor, that is, at each "entrance" to
the "hoistway" or "hoistway shaft." However, on the roof level, Pace
did not erect such doors. Instead, Pace erected gates consisting of single lengths of 2 x
4 Lumber set in notches about 3� feet high. These gates were located at gaps in fencing
that Pace had erected around the roof perimeter to provide fall protection to the workers
on the roof. The OSHA compliance officer who inspected the worksite testified that the
gates did not provide adequate fall protection for workers on the roof.

Before the administrative law judge, Pace contended
that the standard did not apply because the hoist was not used as a personnel hoist at the
roof level. The judge, noting that the hoist was regularly used to carry workers carrying
tools and materials to the roof, rejected this argument. We agree with the judge's
reasoning. Pace also argued that erection of 6 � foot doors on the roof would
be infeasible because the high winds that existed on the worksite could blow the doors off
the roof and endanger workers below. In rejecting this argument, the judge observed that
doors containing large areas of fencing would alleviate the problem that concerned Pace.
We agree, and note that the standard specifically permits doors of that
construction.[[1/]] We therefore affirm the judge's finding that Pace violated the cited
standard.

Pace argues that a 6� foot high door on the roof of
a building would be an "unnecessary, superfluous appendage." We cannot decline
to enforce a standard because we believe it imposes an unnecessary requirement. We note,
however, that the record demonstrates confusion over the purpose of the standard that is
at issue here. Our examination of the standard's history reveals that the confusion arises
from an apparent mistake that occurred when the standard was promulgated.

The OSHA compliance officer who inspected Pace's
worksite was concerned that the 2 x 4's Pace was using as hoistway gates did not provide
adequate fall protection to employees on the roof. The compliance officer noted that the
gates were about the height of the top rail of a standard railing, but believed the fall
protection was inadequate because the gates lacked the midrails required of standard
railings.[[2/]] Thus, the compliance officer did not state that a 6� foot high barrier
was necessary to provide fall protection; the only concern he expressed was based on the
absence of midrails.

The compliance officer's testimony suggests that a 6 �
foot high barrier on the roof is not needed for fall protection. In seeking to determine
what purpose it would serve, we have examined the history of the standard. Our examination
reveals that the doors were originally meant to be openings in a full-height barrier
separating the hoistway from the building. When closed, the doors would be part of the
barrier; when open, they would provide access to and from the hoist. The 6� foot height
requirement was to provide adequate clearance for employees entering and leaving the hoist
cars, not to provide a 6� foot high barrier for fall protection.

The standards for personnel hoists were first
promulgated by the Secretary under the Construction Safety Act, 40 U.S.C. � 333. They
were adopted as OSHA standards under 29 U.S.C. � 655(a), which gave the Secretary the
authority to summarily adopt established federal standards as OSHA standards within two
years of the Occupational Safety and Health Act's effective date.

The Secretary, in drafting the standard for
promulgation under the Construction Safety Act, used as a model a voluntary standard
adopted in 1963 by the American National Standards Institute ("ANSI"). The ANSI
standard, A10.4-1963, "Safety Requirements for Workmen's Hoists,"[[3/]]
contained the following provision:

4-4. Hoistway Door and Door Locking Devices

4-4.1 Height, Material, and Installation.
Hoistway doors shall be not less than 6 ft. 6 in. high . . . .

4-4.2 Door Locking Devices. Landing
doors shall be provided with any of the locking devices specified in Part I, Section 111
of American National Standard

A17.1-1960, or they may be provided with any means
that will lock the doors mechanically so that they cannot be opened from the landing side.
Locking devices shall be so located as to be inaccessible from outside the hoistway. . . .

This section obviously served as the model for
section 1926.552(c)(4), the standard Pace allegedly violated. The ANSI standard also
contained a requirement for hoistway enclosures.

4-3.2 Hoistway Enclosures. Hoistways shall. be
enclosed throughout their height.

EXCEPTION. For towers located outside a building, the enclosures, except those at the
landing, may be omitted on the sides where there is no floor or scaffold adjacent to the
hoistway. Enclosures on the entrance and exit side of the hoistway shall be full height.
Other enclosures, where required, shall be not less than 10 ft. high.

The 1963 ANSI standard did not define
"hoistway" or "hoistway enclosure," but definitions can be found in a
later version of the standard, ANSI A10.4-1975, "Safety Requirements for Personnel
Hoists."

3.15 Hoistway. A temporary shaftway; the space
traveled by the car.

3.15.1 Hoistway Enclosure. The structure which
isolates the hoistway from all other parts of the building and on which the hoistway doors
or gates, and door or gate assemblies are installed. (Emphasis added.)

Thus, as envisioned by the ANSI standard, a personnel
hoist located outside a building would have a barrier at the perimeter of the building to
isolate the hoistway from the building. This barrier would contain 6� foot high doors to
permit access to and from the cars.

When drafting the Construction Safety Act standards,
the Secretary kept the requirement for 6� foot doors but omitted the requirement for the
hoistway enclosures the doors were supposed to be installed in. This was evidently
inadvertent. The Secretary included the following provision:

� 1926.552 Material hoists, personnel hoists, and
elevators.

(C) Personnel hoists.

(1) Hoist towers outside the structure shall be
enclosed for the full height on the side or sides used for entrance and exit to the
structure. At the lowest landing, the enclosure on the sides not used for exit or entrance
to the structure shall be enclosed to a height of at least 10 feet . . . .

This provision, which requires the enclosure of hoist
towers is similar to the ANSI provision requiring enclosure of hoistways,and was
apparently intended to accomplish the same purpose as the ANSI requirement for hoistway
enclosures. However, a hoist tower is not a hoistway. The 1975 version of the ANSI
standard, which contained the definitions of "hoistway" and "hoistway
enclosure" quoted earlier, contains the following definition of "tower."

3.35 Tower. A vertical structure which supports and
guides the car (and the counterweight and overhead when used) within the tower structure.

Thus, the ANSI standard required hoistway enclosures,
with doors in the enclosures to permit access to and from the hoist cars. The OSHA
standard requires tower enclosures, but no hoistway enclosures. It does, however, retain
the ANSI requirement for hoistway doors even though it does not require the hoistway
enclosures ANSI intended for the doors to be installed in.[[4/]]

The hoistway enclosures with installed doors or
gates, as envisioned by the ANSI standard, serve two important safety purposes. First,
they prevent people working or walking on the floor where the hoistway entrance is located
from falling into the opening to the bottom of the shaft. This is the hazard that
concerned the compliance officer in this case. However, if that were the only hazard
presented at the entrance to the hoistway, it is not evident why the gates Pace had
erected would not have been sufficient to eliminate the hazard. Those gates substantially
complied with OSHA's requirements for material hoist gates,[[5/]] and there is no apparent
reason why the hazard of falling through the entranceway to a personnel hoist is different
than the hazard of falling through the entranceway to a material hoist.

The second purpose the hoistway enclosure serves is to protect the employees who ride the
hoist by preventing tools, materials, and debris from falling into the hoistway shaft and
striking employees while they are entering, leaving, or riding the hoist at lower
levels.[[6/]] Even if the hoistway is not totally enclosed, doors or gates at the hoistway
entrances will prevent objects from falling into the shaft and endangering employees
below. Exhibit C-3 in this case is a photograph showing the sturdy plywood doors Pace
erected at the hoistway entrances on all of the floors except the roof, and those doors
would protect against objects falling into the hoistway shaft almost as well as a full
enclosure.[[7/]]They would also, of course, provide fall protection to employees working
on the floors where the doors are located.

Thus, the requirement for 6� foot high doors or
gates at each hoistway entrance serves the same safety purposes, albeit not to the same
extent, as the full hoistway enclosures that the ANSI standard required but that the OSHA
standard does not require. Pace violated section 1926.552(c)(4) by failing to erect such
doors or gates at the hoistway entrances on the roof. We conclude, however, that the
violation was not proven to be serious as alleged. The only hazard discussed at the
hearing was the hazard of falling off of the roof edge into the hoistway shaft. As we have
noted, Pace's bar gates substantially conformed to the standard for material hoist gates
and would apparently have been adequate to protect against that hazard. We also note that
Pace provided perimeter protection around the entire roof even though there is no general
requirement for such protection.[[8/]] The absence of 6� foot high doors did present a
potential hazard to employees riding the personnel hoist, but the compliance officer did
not discuss this hazard, and there is no evidence in the record that would allow us to
independently assess the scope or degree of this hazard.[[9/]] Since the Secretary failed
to establish the gravity of the violation, we classify the violation as nonserious and
assess no penalty.

The violation we have just affirmed was alleged as
item 1a of the serious citation. Item 1b alleged violation of another standard, 29 C.F.R.
� 1926.500(d)(2).

The judge affirmed both items as serious and assessed
a combined penalty of $200. Pace has not taken exception to the judge's affirmance of item
1b. We therefore affirm item 1b as a serious violation, and assess a penalty of $100, half
of the combined penalty assessed by the judge. We affirm item 1a, the section
1926.552(c)(4) item, as a nonserious violation and assess no penalty for that item.

FOR THE COMMISSION

DATED: April 27, 1989

SECRETARY OF LABOR Complainant, v. PACE CONSTRUCTION CORPORATION, Respondent.

OSHRC Docket No. 85-1362

APPEARANCES: Larry A. Auerbach, Esquire, Office of
the Solicitor, U. S. Department of Labor, Atlanta, Georgia, on behalf of complainant.

R. Daniel Douglass, Esquire, and J. D. Humphries, III, Esquire, Varner, Stephens,
Wingfield, McIntyre and Humphries, Atlanta, Georgia, on behalf of respondent.

DECISION AND ORDER

SPARKS, Judge: An inspection was conducted of the
construction site of a 19-story[[1/]] building where respondent was the general contractor
to determine compliance with the Occupational Safety and Health Act. Respondent contested
a serious citation charging it with violating 29 C.F.R. � 1926.552(c)(4)[[2/]] and 29
C.F.R. � 1926.500(d)(2).[[3/]] The citation alleges that the personnel hoist had an
inadequate gate at the roof level and the hoist runway lacked standard railings at the
same Respondent has raised several defenses to the charges. At the conclusion of the
hearing, the parties were invited to submit briefs, and proposed findings of fact and
conclusions of law.

I

FINDINGS OF FACT

During the period October 15 through October 18,
1985, compliance officer Jonathan Worrell conducted an inspection of the construction
project at 1000 Abernathy Road, Atlanta, Georgia, known as the North Park Project (Ex. C-
4; Tr. 8, 44-45).

2. Respondent was the general contractor on the project at the time of the inspection.

3. During the course of the inspection, the
   compliance officer inspected each level of a building being constructed at the site,
   consisting of 19 floor levels and a roof level, and was accompanied by respondent's job
   superintendent. and safety director (Tr. 23-25).

4. During the inspection of the above building, the
   compliance officer used a hoist on the outside of the building to gain access to the roof
   level of the building. At the roof level, the hoist was approximately 15 to 18 inches from
   the edge of the building, and at lower floor levels the hoist was approximately 2 feet
   from the edge of the building (Tr. 26, 48, 72).

5. A three-foot let-down ramp extended from the hoist
   and overlapped the edge of the building at the roof level. The ramp did not have standard
   railings or other similar fall protection. A hoistway gate was constructed in the
   perimeter protection around the roof (Tr. 97-28, 47-50, 71).

6. The gate in the perimeter protection at the roof
   level consisted of a single 2-x-4-inch lumber bar with bracing, and notch-type bracing on
   either end of the gate to hold it in place. The bar was sturdily constructed and capable
   of withstanding the weight of a 200-pound person. The gate had to be lifted out of the
   notch-type bracing to be opened. But, as the gate did not have a midrail or other interior
   protection such as safety fence, a person could fall through the gate (Ex. C-1, C-2; Tr.
   50, 74).

7. Perimeter protection consisting of three to three and a half foot high safety fence
   surrounded the perimeter of the roof, recessed from the edge of the roof (Ex. C-1, C-2;
   Tr. 50, 72).

8. The hoist was used only for the lower 19 floor
   levels of the building until two weeks prior to the inspection, at which time the hoist
   was extended to the roof level of the building at the request of certain subcontractors to
   provide a means of carrying materials and tools to the roof level. The gate in the roof
   level perimeter protection was constructed after the hoist was extended to the roof, and
   prior to that time, there existed standard perimeter protection (Tr. 17, 53-56, 73-74).

9. The regular access to the roof of the building by
   employees was by ladder access from the lower floor level, both before and after the hoist
   was extended to the roof. Hoist operators were instructed to let off employees at the
   floor level below the roof, and only the hoistman and persons carrying hand tools and
   small materials were permitted to ride the hoist, to the roof level (Tr. 17, 55, 58,
   64-65, 75).

10. Workers carrying hand tools or small materials to
    the roof were required to use the hoist as it was a violation of company policy to use the
    ladder while carrying objects (Tr. 55-56, 57, 58, 64).

11. At. the time of the inspection, no employees were
    performing work on the roof within six feet of the perimeter protection or the hoist gate.
    The workers on the roof were approximately 30 feet from the edge of the building Tr. 30,
    51, 71).

12. The hoist was used as a personnel hoist on the lower floor levels of the building, and
    every hoist entrance on every lower floor level complied with the cited OSHA standards
    (Ex. C-3; Tr. 25-26, 52-53, 70-71).

13. Following the inspection of the roof level and
    prior to the compliance officer leaving the site, respondent erected a six-and-a-half-foot
    plywood door and guardrails at the roof level hoistway entrance as an abatement measure
    for the alleged violation (Tr. 60-61, 75-76).

14. The roof of the building has experienced winds
    strong enough to halt work on occasion and strong enough so that plywood doors could be
    blown down (Tr. 59-60, 78).

15. Respondent and its safety director were aware of
    the change to permit the hoist to go to the roof and visited the roof twice between the
    time the change was made and the inspection (Tr. 62-63, 65, 66).

16. A fall from the roof would result in death or
    serious injury.

II

The burden of proof is upon the Secretary of Labor,
Astra Pharmaceutical Products, Inc., 82 OSAHRC 55/E9, 9 BNA OSHC 2126, 1981 CCH OSHD �
25,578 (No. 78-6247, 1979).

The first issue is whether the hoist was a personnel
or material hoist because, if it was the latter as contended by respondent, there were no
violations.

Although the normal means of entrance to the roof for
employees was by a ladder, employees carrying small tools and small materials were
required to use the hoist. In fact, it was a violation of Pace's rule for a person
carrying such items to use the ladder. In addition, the hoist operator regularly rode the
hoist and at times delivered materials.

The Policy of permitting or requiring employees
carrying tools or materials to ride the hoist from the 19th floor to the roof is in direct
conflict with OSHA standards for the operation of material hoists. Section
1926.552(b)(1)(i) requires posting of a notice on the hoist car that "No Riders
Allowed." Section 1926.552(b)(1)(ii) provides as follows:

No person shall be allowed to ride on material hoists
except for the purposes of inspection and maintenance.

It is clear that respondent's hoist was not a
material hoist as envisioned in OSHA standards. Because the hoistman and employees were
permitted to ride to the roof level, respondent was required to meet the standard relating
to personnel hoists at that level.

Respondent contends that the erection of a hoistway
door or gate six feet, six inches, high would create a greater hazard because the door
would be subject to being blown off the building by high winds which have buffeted the
building at times. The affirmative defense of greater hazard requires respondent to
establish the following elements:

In order to establish a greater hazard defense, the
employer must prove that (1) the hazards created by compliance with the requirements of
the cited standard are greater than those resulting from noncompliance, (2) alternative
means of protecting employees are unavailable, and (3) a variance application under
section 6(d) of the Act would be inappropriate.

M. J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA
OSHC 1140, 1144, 1979 CCH OSHD � 23,330 at p. 28,227 (No. 15094, 1979); Marion Power
Shovel Co., 80 OSAHRC 110/A2, 8 BNA OSHC 2244, 1980 CCH OSHD � 24,915 at p. 30,730 (No.
76-4114, 1980).

Respondent's contention is bottomed on the premise
that the standard requires the erection of plywood doors with a large flat surface, as on
the floors below, which cannot be adequately anchored on the upper side at the roof level
(Ex. C-3). Respondent chose to erect a large plywood door, but the standard does not
require such a door. No reason is advanced why a gate or door containing large areas of
fencing would fail to meet the requirements of the standard. A gate of that design would
not be subject to the force of the high wind and the hazard described by respondent would
not be present. Accordingly, respondent's claimed defense that compliance with the
standard would create a greater hazard was not established.

Respondent suggests the Secretary did not prove that
it had knowledge of the conditions. The Secretary must prove that Pace knew or could have
known with the exercise of reasonable diligence of the noncomplying condition. General
Electric Co., 81 OSAHRC 42/A2, 9 BNA OSHC 1722, 1981 CCH OSHD � 25,345 (No. 13732, 1981);
Dunlop v. Rockwell International, 540 F.2d 1283 (6th Cir. 1976); Brennan v. OSHRC (Alsea
Lumber Co.), 511 F.2d 1139 (9th Cir. 1975); Prestressed Systems, Inc., 81 OSAHRC, 43/D5, 9
BNA OSHC 1864, 1981 CCH OSHD � 25,358 (No. 16147, 1981); Scheel Construction Co., 76
OSAHRC 138/86, 4 BNA OSHC 1825, 1976-77 CCH OSHD � 21,263 (No. 8687, 1976). It is not
necessary that respondent realize that the conditions are in violation of a standard but
only that it know of the operative circumstances. The evidence shows that Pace's
management called in the rigging subcontractor to make the change in the hoist so that it
could take employees with small tools and materials to the roof level. The change in the
perimeter guarding, by removing the regular fencing and installing a gate, was performed
by Pace employees. Respondent's safety director was on the roof twice during the two-week
period between the time the hoist limit was changed and the inspection (Tr. 62-63). It is
clear that respondent's management was aware of the conditions and indeed had created
them.

Lastly, respondent contends that employees were not
exposed to a direct and immediate risk of death or serious bodily injury. Respondent
contends that there was no evidence to show that the hoist was ever used as a personnel
hoist. The evidence is irrefutable that employees carrying tools and materials used the
hoist and was the reason the hoist was extended to the roof level (Tr. 62-65). The fact
that employees were carrying tools or materials does not make the hoist a material rather
than a personnel hoist. Pace further contends that the gate and rampway present at the
time were adequate protection and prevented exposure of employees to any significant risk
of death or serious bodily injury. A fall from the roof would almost certainly result in
death or serious bodily injury, and, if no protection were present, the hazard would be
obvious. Respondent contends the gate on the roof was substantial and could withstand the
force of a 200-pound man. Although lacking a lock of the type specified for personnel
doors, the gate was recessed into a grove which required intentional action to move.
However, as shown in exhibits C-1 and C-2, there was no "gate" at the roof other
than the single 2-x-4-inch piece of lumber. A person could easily fall under the railing
as there was no fencing or midrail to prevent such falls. A person is clearly subject to a
fall hazard at the gate. Pace also notes that, although the three-foot runway which
bridged the distance between the hoist car and the roof was not equipped with a side rail,
the distance between the car and edge of the roof was only 15 to 18 inches which would be
easily crossed in one step. However, there was no protection to prevent a fall from the
side of the runway as would be afforded by the standard railings.

Having concluded that the hoist was for personnel,
respondent clearly had not complied with the requirements at 29 C.F.R. � 1926.552(c)(4)
and 29 C.F.R. � 1926-550(d)(2). The measures taken by respondent by erecting the single
2-x-4-inch board and the runway (without standard railings) do provide some measure of
protection and are better than nothing, they do not comply with the standards nor provide
protection equivalent to that required by the standards.

Employees were exposed to hazards of death or serious injury and, therefore, the
violations were serious. The gate consisting of the single piece of 2-x-4-inch lumber
would allow a person to fall through the opening below the 2-x-4 as it had neither fencing
material or a midrail to prevent such a fall.

Although the runway between the hoist and roof floor
covered an opening of 15 to 18 inches, no protection of any type was afforded for the
sides of the runway which would also permit a fall. If such an accident occurred, death or
serious injury would result. Accordingly, respondent was in serious violation of the
standards as alleged.

The record is convincing that the violations were not the result of intentional actions or
unconcern. Pace has a good safety program and is a safety-conscious employer (Tr. 19-20,
22). In this instance, it erred by considering the hoist a material rather than a
personnel hoist and erecting protection accordingly.

Considering the gravity of the violations and giving
particular weight to the good faith and history of the respondent, a penalty of $200 is
reasonable and appropriate.

CONCLUSIONS OF LAW

1. Respondent is an employer subject to the Act and
   this proceeding.

2. Respondent violated 29 C.F.R. � 1926.552(c)(4)
   and 29 C.F.R. � 1926.500(d)(2) under conditions constituting serious violations.

ORDER It is ORDERED:

1. Items 1a and 1b of the serious citation are
   affirmed.

2. Penalties of $200 are assessed.

Dated this 21st day of July, 1986.

JOE D. SPARKS Judge

FOOTNOTES:

[[1/]] Section 1926.552(c)(16) provides that
materials and components for personnel hoists must meet the specifications of American
National Standard A10.4-1963, "Safety Requirements for Workmen's Hoists."
Sections 4-3.2.1 and 4-4.1 of A10.4-1963 provide that hoistway doors may be constructed of
openwork material meeting certain specifications.

[[2/]]The specifications for standard railings are
found at 29 C.F.R. � 1926.500(f). A standard railings consists of a toprail about 42
inches high, a midrail, and a toeboard. The railings must meet certain specifications for
materials and strength.

[[3/]] The Secretary's brief states that this ANSI
standard was the source of the present OSHA standards.

[[4/]] We note that both the Secretary and Pace
apparently agree that the OSHA standards for personnel hoists do not require construction
of a hoistway enclosure. Pace did not enclose the hoistway along the side of the building,
and the Secretary did not cite Pace for failing to enclose the hoistway.

[[5/]] Section 1926.552 is captioned "Material
hoists, personnel hoists, and elevators." Subsection (b) of this section governs
"material hoists" while subsection (c) governs "personnel hoists." The
standard cited in this case is contained in section 1926.552(c). Its counterpart in
subsection (b) provides as follows:

(b) Material hoists .

*             *
             *

(2) All entrances of the hoistways shall be protected by substantial gates or bars which
shall guard the full width of the landing entrance. All hoistway entrance bars and gates
shall be painted with diagonal contrasting colors, such as black and yellow stripes.

(1) Bars shall not be less than 2- by 4-inch wooden bars or the equivalent located 2
feet from the hoistway line. Bars shall be located not less than 36 inches nor more than
42 inches above the floor.

Pace contends that its hoistway gates complied with the requirements for material
hoists. The testimony and photographic evidence suggests that this is substantially true,
except that the photographs indicate that the bars were not painted with diagonal
contrasting colors.

[[6/]] Material hoists do not require similar
protection. Section 1926.552(b)(1)(ii) provides: "No person shall be allowed to ride
on material hoists except for the purposes of inspection and maintenance." Thus,
instances in which employees ride material hoists are rare.

[[7/]] Similarly, a door or gate containing large
areas of fencing, as discussed in the judge's decision, would prevent objects from falling
into the hoistway shaft.

[[8/]] The standard requiring perimeter guardrails
for open-sided floors and platforms, 29 C.F.R. � 1926.500(d)(1), does not apply to flat
roofs. Central City Roofing Co. , 76 OSAHRC 61/A2, 4 BNA OSHC 1286, 1976-77 CCH OSHD
� 20,761 (No. 8173, 1976). Perimeter protection during built-up roofing work is required
by 29 C.F.R. � 1926.500(g), but there is no indication that such work was being performed
at Pace's worksite.

[[9/]] For example, there is no evidence on the size
or extent of tools, materials or debris that were in use or present on the roof. Thus, we
cannot find that such objects were close enough to the hoistway to fall into the shafts.

[[1/]] There was some confusion regarding the number
of floors in the building. There were 18 floor levels plus the roof; but as there was no
13th floor, they are numbered 1 through 19 (Tr. 70).

[[2/]] Section 1926.552(c)(4) of 29 C.F.R. states as
follows:

Hoistway doors or gates shall be not less than 6 feet 6 inches high and shall be
provided with mechanical locks which cannot be operated from the landing side, and shall
be accessible only to persons on the car.

[[3/]] Section 1926.500(d)(2) of 29 C.F.R. provides as follows:

Runways shall be guarded by a standard railing, or the equivalent, as specified in
Paragraph (f) of this section, on all open sides, 4 feet or more above floor or ground
level. Wherever tools machine parts, or materials are likely to be used on the runway, a
toeboard shall also be provided on each exposed side.