Donley's Inc.

Plain-English summary

Donley's Inc. reconstructed a parking garage by removing floor sections and replacing them with formwork and metal pans. Employees worked beside an opening to the floor 12 feet below, where the company used sawhorses as warnings instead of standard guardrails. The Commission reversed the judge's finding that guardrails were infeasible because the adjacent area had already been panned before the inspection and there was ample time to erect rails. It also found that modified rails could have allowed pans and lumber to pass while preserving protection, and that an employer must comply to the extent feasible. The serious violation was affirmed with a $5,000 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.500(b)(1).
• Outcome: Affirmed. The serious floor-opening guardrail violation was affirmed with a $5,000 penalty.
• Key point: An infeasibility defense fails when guardrails could be installed during periods without conflicting work and modified protection could remain in place during material handling.

Full text (OSHRC public release)

                                          UNITED STATES OF AMERICA
              OCCUPATIONAL           SAFETY AND HEALTH REVIEW COMMISSION
                                           One Lafayette Centfe
                                     1120 20th Street, N.W. - 9th Floor
                                        Washington, DC 20036-3419

PHONE:
cuM(202)60&5100
Rs(202)6Ob5100

                                                    ..

SECRETARY OF LABOR, ..
0.
Complainant, .0
..
v. .
l OSHRC Docket No. 92-3868
..

DONLEY’S, INC., ..
..
Respondent. ..
..

                                                 DECISION

Before: WEISBERG, Chairman, FOULKE and MONTOYA, Commissioners.
BY THE COMMISSION:
The issue in this case is whether Donley’s, Inc. (“Donley’s” or the “company”) proved
the affirmative defense of infeasibility that it raised to a serious citation alleging that it
violated 29 C.F.R. 6 1926.500(b)(Q1 by not providing standard guardrails. Administrative
Law Judge James H. Barkley decided it had proved the defense and vacated the citation.

’ 5 1926.500 Guardrails, handrails, and covers.

         ibj &arding of jl oor openings and jloor 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.

         ~~&uadard specijications. (1) A standard railing shall consist of top rail,
         intermediate rail, toeboard, and posts, and shall have a vertical height of
         approximately 42 inches from upper surface of top rail to floor, platform,
         runway, or ramp level.

                                                                                1995 OSHRC No. 22
                                             2

For the reasons that follow, we reverse the judge, affirm the citation, and assess the
proposed penalty of $5000.
Facts
On June 18, 1992, Donley’s was engaged in the reconstruction of a parking garage
in Columbus, Ohio. Donley’s work consisted of cutting and removing portions of the
garage’s existing concrete floor each night and, starting at 6:30 a.m., replacing the floor with
formwork topped with metal pans on which a new concrete floor would be poured. When
the CO arrived at the worksite at 1:OOp.m., the north side of the garage’s P-l level had been
demolished and largely replaced with formwork and metal pans into which concrete had
been poured. According to Mark Sweat, one of Donley’s carpenters, the panned-in area had
been in place since at least the day before. Between this panned-in section and a 9@foot-
long, 11-foot 6-inch-wide strip of the remaining concrete flooring (or “deck”) was an area
that opened onto the floor 12 feet below. Sawhorses had been set up along the northern
edge of the deck to serve as a warning to employees. Donley’s was cited for its failure to
provide standard guardrails along the edge of this deck to protect employees who worked
in the area from falling.
The pans measured 3-foot wide by 5-foot long and weighed about 110 pounds each.
They had been installed on the north side of the deck by employees who either handed the
pans up from the level belog or walked the pans out from the deck over 2-inch by lo-inch
boards extending from the deck to the formwork set up for the pans. According to
carpenter Sweat’ “it would be almost impossible to get the pans and all the material that you
needed” to where the pans were to be placed if there were guardrails along the existing strip
of flooring. Sweat further testified, however, that a stack of pans could be slid under a
guardrail that lacked a midrail because there was “enough of a hole there so that your stack
of pans doesn’t hit the center rail.” He stated that it took him 15 to 20 minutes to erect a
16foot section of standard railing and 10 to 15 minutes to take it down.

’ About 20 of the pans set on the P-l level were handed up from the level below.
3

                                         Discussion
    To establish the affirmative defense of infeasibility, an employer must show that “(1)

the means of compliance prescribed by the applicable standard would have been infeasible,
in that (a) its implementation would have been technologically or economically infeasible or
(b) necessary work operations would have been technologically or economically infeasible
after its implementation, and (2) there would have been no feasible alternative means of
protection.” UP, Shuctures, Inc., 16 BNA OSHC 1873,1874,1994 CCH OSHD ll30,485,
p. 42,109 (No. 91-1167, 1994).
The judge found that Donley’s established its infeasibility defense and vacated the
citation item. Specifically, he determined that Donley’s “established that guardrails on the
north side of the remaining P-l level deck would have prevented the performance of its
work’ panning formwork in preparation for concrete pouring” and that the installation of
guardrails “would unreasonably consume the employer’s time and resources and is not
required where the employer has instituted alternative protective measures.” The judge
found that the sawhorses Donley’s set up along the northern edge of the floor deck “sewed
as a reminder, warning employees away from the extreme edge of the floor” and constituted
adequate alternative protection.
Was Compliance Infeasible?
A.
Donley’s claim of infeasibility is based on the difficulties it allegedly would encounter
in installing pans and formwork with standard guardrails in place. However, the evidence
establishes that these difficulties were not present on the morning of the inspection. Thus,
there was nothing to prevent the company from installing standard guardrails along the
northern edge of the P-l level deck between the 6:30 a.m. starting time of its day shift and
the CO’s arrival at 1:OOp.m. The testimony of carpenter Sweat establishes that the area to
the north of the deck that was panned in when the CO arrived had been panned in at least
since the day before. Yet, standard guardrails had not been erected along the northern edge
of the deck to protect against falls into the open area between the panned section and the
deck. Based on Sweat’s testimony that it would have taken him approximately one and one-
half hours to install 90 feet of standard guardrails’ guardrails could have been installed about
five hours before the CO arrived at the worksite at 1:OOp.m. Instead, the company only put
up sawhorses.
B.
We also find that Donley’s failed to establish that there was “no way to use
[guardrails] for [their] intended purpose without unreasonably disrupting” the installation of
pans and formwork. See Seibel Modem Mfg.& Welding Cop., 15 BNA OSHC 1218, 1227,
1991-93 CCH OSHD ll29,442, p. 39,683 (No. 88-821, 1991)? The evidence of infeasibility
primarily relied on by Donley’s and the judge was Sweat’s testimony that “trying to lift a 110~
pound pan between two handrails that are 20 inches apart is almost impossible.” However,
there is no clear evidence that Sweat or any other Donley’s employee ever attempted to lift
a pan through guardrails. As he explained in his testimony, it was not Sweat’s job as a
carpenter to carry the pans out to where they were set. That was a laborer’s job. Sweat
also testified that a stack of pans4 could be slid under a top guardrail with no midrail
attached. This suggests that individual pans could be passed through a standard guardrail
setup if a slight modification was made in positioning the midrail so that a pan could either
be passed between the midrail and top& or slid on the floor under the midrail with no
toeboard in place. This is not literal compliance with the standard, but we expect an
employer to comply to the extent feasible when it cannot comply with the literal terms of
a standard. Waker Towing, 14 BNA OSHC 2072, 2075, 1991-93 CCH OSHD ll29,239, p.
39,159 (No. 87=1359,1991)(if limited guardrails were feasible, employer should have erected

3 Commissioner Montoya would not reach the feasibility issue because the Commission has
adequately disposed of all liability issues in the preceding paragraph.

4 Although the record does not reveal the height of an individual pan, it suggests that the
pans must have been something less than 20 inches high because carpenter Sweat testified
that trying to lift a pan between two handrails that were 20 inches apart was “almost”
impossible.

5 We note that since many of the llO-pound pans were handed up from the floor below,
it does not appear to us that passing the pans through a toprail and midrail would be any
less feasible than that. Also, since the lumber for the formwork was narrower than the pans,
that too could be passed between rails. Commissioner Montoya does not join in this
observation.
5

them to minimiz e exposure). See Dun-Par Engineered Fomz Co., 12 BNA OSHC 1962,1967,
1986-87 CCH OSHD ll 27,651, p. 36,033.3 (No. 82=928,1986)(section of guardrail could have
been removed during critical operation).
There is no merit to Donley’s argument that sliding the pans underneath guardrails
would require the employees receiving the pans on the other side to bend over while
standing on wooden formwork only a few inches wide. The evidence shows that a walking
surface of 2-inch by lo-inch boards was placed atop the formwork and between the deck and
formwork for employees to walk on while carrying and setting pans.
We find that the record shows that Donley’s had ample time to erect standard
guardrails on the morning of the inspection, but did not do so and that it failed to establish
that it could not have installed its panning and formwork with slightly modified guardrails
in place. We therefore conclude that Donley’s has failed to prove that compliance with
section 1926SOO(b)( 1) was infeasible6 and we affirm the citation item alleging a violation
of that section.
Penally
Donley’s employed about 300 people, 15 of whom worked at the inspected worksite,
four on the inspected shift. The gravity of the violation is moderate as a 12.foot fall to a
concrete floor was involved. Donley’s exhibited a measure of good faith in placing sawhorses
along the edge of the deck. The record does not reveal any history of prior violations.
Based on the statutory criteria in 29 U.S.C. 8 666(j), we assess a penalty of $5000.’

6 Because we find that Donley’s has failed to establish infeasrbility, we need not address the
merits of the Secretary’s claim calling for Donley’s to modify its pan-setting procedures, nor
do we need to determine whether the sawhorses Donley’s had placed along the edge of the
deck constituted a feasible alternative means of protection.

7 Commissioner Montoya notes that Donley’s does not dispute the penalty on review.
6

                                       Order
     The Commission   finds that Donley’s violated section 1926.500(b)(l),   affirms the

pertinent citation item, and assesses a $5000 penalty.

                                                      &g&m& E. %J*
                                                     Stuart E. Weisberg
                                                     Chairman




                                                     Edwin G. Foulke, Jr.
                                                     Commissioner




                                                     Commissioner

Dated: Aori 1 12. 1995
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

PHONE: FAX:
COM (202) 606-5100 COM (202) 6o64050
m@02)6m-6100 m@W-

                                             ..

SECRETARY OF LABOR, ..
..
Complainant, ..
..
v. .. Docket No. 92-3868 .
..
DONLEY’S, INC., ..
..
Respondent. ..
.

                                NOTICE OF COMMISSION DECISION

The attached decision by the Occupational Safety and Health Review Commission was issued on
April 12,1995. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES TO
OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE
APPROPRIATE FEDERAL COURT OF APPEALS WITEIIN 60 DAYS OF THE DATE OF THIS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 5 660.

                                                            FOR THE COMMISSION

April 12, 1995
Date
Docket No. 92-3868

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Benjamin T. Chinni, Esq.
Associate Regional Solicitor
Office of the Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199

F. Benjamin Riek, III
Roetzel & Andress
75 East Market Street
Akron, OH 44308

James Barkley
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 250
1244 North Speer Boulevard
Denver, CO 80204-3582
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

PHONE
COM (202) 6065100 E& (202) 6o&5050
Frs(202)606400 Frs (202) 606-5050

           SECRETARY       OF LABOR
                             Complainant,                                  OSHRC DOCKET
                     v.                                                    NO. 92-3868
           DONLEY’S, INC.,
                              Respondent.


                                 NOTICE OF DOCKETING
                          OF ADMINISTRATIVE LAW JUDGE’S DECISION
                The Administrative Law Judge’s Report in the above referenced case was
           docketed with the Commission on November 19, 1993. The decision of the Judge
           will become a final order of the Commission on December 20, 1993 unless a
           Commission member directs review of the decision on or before that date. ANY
           PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
           COMMISSION MUST FILE A PETITION FOR DISCRETIONARY                      REVIEW.
           Any such petition should be received by the Executive Secretary on or before
           December 9, 1993 in order to permit sufficient time for its review. See
           Commission Rule 91, 29 C.F.R. 2200.91.
              All further pleadings or communications       regarding this case shall be
           addressed to:
                                  Executive Secretary
                                  Occupational Safety and Health
                                   Review Commission
                                  1120 20th St. N.W., Suite 980
                                  Washington, D.C. 20036-3419
           Petitioning parties shall also mail a copy to:
                                  Daniel J. Mick, Esq.
                                  Counsel for Regional Trial Litigation
                                  Office of the Solicitor, U.S. DOL
                                  Room S4004
                                  200 Constitution Avenue, N. W.
                                  Washington, D.C. 20210
           If a Direction for Review is issued by the Commission, then the Counsel for
           Regional Trial Litigation will represent the Department of Labor. Any party
           having questions about review rights may contact the Commission’s Executive
           Secretary or call (202) 6065400.

                                                    FOR THE COMMISSION


          Date: November     19, 1993

DOCKET NO. 92-3868
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

William S. Kloepfer
Assoc. Re ‘onal Solicitor
Office of tit e Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199

F. Benjamin Rick, III, Esq.
55 Public Square
Illuminating Buildin - Suite 1604
Cleveland, OH 4411 s

James H. Barkley
Administrative Law Jud e
Occupational Safety an d Health
Review Commission
Room 250
1244 North S eer Boulevard
Denver, CO ir0204 3582

00018013417:05
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1244 N. SPEER BOULEVARD
ROOM 250
DENVER, COLORADO 80204-3582

PHONE: FAX:
COM (303) 844-2281 COM (303) 844-3759
FTS (303) 844-2281 FTS (303) 844-3759

SECRETARY OF LABOR,
Complainant,

        V.                                                           OSHRC Docket No. 92-3868

DONLEY’S, INC.,
Respondent.

APPEARANCES:

         For the Complainant:
                 Kenneth Walton, Esq., Office of the Solicitor, U.S. Department of Labor, Cleveland, Ohio

         For the Respondent:
                 F. Benjamin Riek, III, Esq., Cleveland, Ohio

Before: Administrative Law, Judge James H. Barkley

                                     DECISION         AND ORDER


         This proceeding     arises under the Occupational           Safety and Health Act of 1970 (29

U.S.C. Section 651 et seq.; hereafter called the “Act”).
Respondent, Donley’s, Inc. (Donley’s), at all times relevant to this action main-
tained a place of business at the Galleria parking garage at 20 South Third Street,
Columbus, Ohio, where it was engaged in the reconstruction of a parking garage.
Respondent admits it is an employer engaged in a business affecting commerce and is
subject to the requirements of the Act.
On June 18, 1992 the Occupational Safety and Health Administration (OSHA)
conducted an inspection of Donley’s South Third Street worksite (Tr. 24). As a result of
the inspection, Do&y’s was issued citations alleging violations of the Act together with
proposed penalties. By filing a timely notice of contest Donley’s brought this proceeding
before the Occupational Safety and Health Review Commission (Commission). ’
On July 20, 1993, a hearing was held in Columbus, Ohio. At hearing the parties
stipulated to the settlement of “serious” citation 1, items 1 through 10 (Tr. 5); Donley’s
withdrew its contest to “other than serious” citation 2 (Tr. 13). Remaining at issue are
“serious” citation 1, item 11 and 12(a), (b) and (c), alleging violations of 29 C.F.R.
@1926.500(b)(l). The parties have submitted briefs on the issues and this matter is
ready for disposition.
Facts
Donley’s work consisted of cutting and removing portions of the parking garage’s
concrete floor each night, and during the day, replacing the floor with forms, wooden
shoring topped with pans, on which a new concrete floor would be poured. On the day
of the inspection, Donley’s was working on the Pl level of the Galleria garage (Tr. 27).
The Pl level was approximately 12 feet above the P2 level below (Tr. 34). In the center
of the level a strip of flooring 11 feet 6 inches wide remained; the rest of the concrete
floor on the level had been removed (Tr. 27, 30, 70, 110). Approximately 45 feet on the
south side of the remaining floor strip was completely open (Tr. 69-70). Pans had been
installed on the north side of the strip in an area that ran about 90 feet (Tr. 27, 69). The
south side of the floor was inadequately guarded; the guardrail had no mid-rail; the verti-
cal members were, respectively, 16 feet, 16 feet and 13 feet apart; the top rail was incap-
able of supporting 200 pounds (Tr. 38, 40-42; Exh. C-4). Warning barricades had been
set up along the north side of the floor strip (Tr. 33; C-2, C-3). OSHA Compliance
Officer (CO), Charles Sampsel, testified that he saw workers walking through and work-
ing on the Pl level, one Donley’s employee stood on the pans on the north side (Tr. 31,
36, 80, 96).
Demolition of the Pl level had been performed during the preceding night shift,
between I 6:00 p.m. and the 6:30 a.m. shift (Tr. 102, 172). Donley’s project manager,
William Maulding, testified that normally guardrails are not erected where the crew
erecting 1the formwork is coming in right behind the demolition crew (Tr. 176). Three

                                                    2

foot by five foot pans, weighing about 110 pounds, are placed atop wood shoring erected
on the floor below, and are walked out by laborers from the remaining Pl deck (Tr. 134.
35). Handrails would obstruct the movement of the pans and must be removed prior to
their installation (Tr. 181; see also; testimony of Alan Newman Tr. 118, 120; Mark Sweat
Tr. 129, 138). Maulding stated that(where
_--- the demolished area is not going to be panned
the next day approved guardrails are installed (Tr. 176; see also; testimony of Mark
Sweat Tr. 139).
Mark Sweat, a journeyman carpenter with Donley’s, testified that it took him 15 to
20 minutes to erect a 16 foot section of standard railing, and 10 to 15 minutes to take it
down (Tr 148-49; Exh. R-2, R-4). Railings are installed after an area is panned (Tr. 144;
Exh. R-2, R-5) .

   BY the 1:00 p.m. inspection pans had been installed on the north side of the Pl

level (Tr. 124, 161; Exh. C-2). Maulding stated that the south area was shored and
panned by the end of the day June 18 (Tr. 182-83; see also, testimony of Alan Newman
Tr. 111-12). Mark Sweat, although unsure whether panning had been completed on the
south, testified that shoring had been installed by the end of his shift (Tr. 143-44, 153,
161, 164). CO Sampsel, however, who was on site until 4:00 p.m., stated that he did not
see Donley’s crew begin work on the south side (Tr. 39, 80, 124; Exh. C-4).
Maulding admitted he knew the railing on the south side was inadequate, but told
the carpenters to leave it because it would have to be removed eventually by the crew
panning the area (Tr. 182; see also, testimony of Mark Sweat, Tr. 155).
Citation 1, item 11
11

   “Serious” citation 1, item 11 alleges:

29 CFR 1926.500(b)(l): Floor openings were not guarded by standard railings and toe-
boards or covers as specified in paragraph (f) of the section:

    a. Job site 20 South Third Street, Columbus, Ohio: Standard guardrailings were

not provided for carpenters and laborers walking and/or working along a 90 foot north
side floor opening of the P-l level thereby exposing the employees to a fall hazard of
approximately twelve feet to the level below.
The cited standard provides:

     (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.

     It is undisputed that the north side of the remaining Pl level was not guarded by a

standard railing. Respondent argues that the cited standard is not applicable’ because
the Pl level constituted a special purpose runway as defined by 51926.500(d)(3). In the
event $1926.500(b)(l) is found applicable, Respondent raises the affirmative defense of
infeasibility.
AJplica bility
Subsection (d)(3) provides that:
Runways used exclusively for special purposes may have the railing on one side
omitted where operating conditions necessitate such omission, providing the falling
hazard is minimized by using a runway not less than 18 inches wide.

     A runway is defined           at 51926.502(f) as “[a] passageway for persons,            elevated

above the surrounding floor or ground level, such as a footwalk along shafting or a walk=
way between buildings.” The area in question was not a runway constructed for the
passage of foot traffic or for some other particular purpose, as contemplated by .502(f);
rather the 12 foot strip was what was left of the garage floor after portions of the floor
had been removed. That the floor remnant was used as a work surface for Donley
employees installing forms, or as an access route to other work areas does not make it a
runway. The fall hazard here clearly falls within the definition of floor openings at
01926.502(b), “[a]n opening measuring 12 inches or more in its least dimension in any
floor, roof or platform, through which persons may fall.” The cited standard is
applicable.

1 Donley’s claim that subsection (d) Guarding of open-sided jloors, platjiorms,and ncnways was more
properly applicable to its Galleria worksite is specious. Section SOO(d)‘s requirements are identical to
those at .500(b), requiring that “[elvery 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. . ..” Donley’s failure to provide
standard guard rails is in violation of either standard.

                                                 4

hfeasibilig
The Commission has held that “[a]n abatement measure must be useable, during
employees’ activities, for its intended purpose of &
protecting employees. If there is no way
to use a measure for its intended purpose without unreasonably disrupting the work
activities, the mere fact that the measure’s installation is physically possible does not in
our view mean that we should compel the employer to install the measure. Seibel
Modern Mfg & We&g Cop, 15 BNA OSHC 1218, 1228, 1991 CCH OSHD 729,442, p.
39,685 (No. 88-821, 1991). “[An] employer seeking to be excused from implementing a
cited standard’s abatement measure on the basis of its infeasibility has the burden of
establishing either that an alternative protective measure was used or that there was no
feasible alternative measure.” Id.
Donley’s has established that guardrails on the north side of the remaining Pl
level deck would have prevented the performance of its work, panning formwork in
preparation for concrete pouring. The installation of semi-permanent guardrails, as
specified in paragraph (f), in areas where panning is being performed, or will
immediately commence, would unreasonably consume the employer’s time and resources
and is not required where the employer has instituted alternative protective measures.
The warning barricades used by Donley on the north edge of the deck served as a
reminder, warning employees away from the extreme edge of the floor. Where, as here,
panning is being performed, temporary barricades amount to adequate alternative pro-
tection.
Donley’s has proven its affirmative defense, and “serious” citation 11 will be
vacated.
Citation 1, item 12
“Serious” citation 1, item 12a alleges:

29 CFR 1926.500(f)(l): Th e intermediate rail or guardrails was not halfway between the
top rail and floor, platform, runway, or ramp:

   a. Job site 20 South Third Street, Columbus, Ohio: The existing guardrailing

along the south side floor opening of the P-l level did not include an intermediate rail
thereby exposing employees walking and/or working in this area to a fall hazard of
approximately twelve feet.

                                                  5
      “Serious” citation 1;‘item 12b alleges:

29 CFR 1926.500(f)(l)(i): The spacing of wood railing posts exceeded eight feet:

    b. Job site 20 South Third Street, Columbus, Ohio: The spacing of wood railing

posts of the guardrailing along the south side floor opening of the P-l level exceeded
eight feet. Post one to post two was sixteen feet, post two to post three was sixteen feet
and post three to post four was thirteen feet. Because of this unsafe condition
employees walking and/or working in this area were exposed to an approximate twelve
foot fall hazard. ..

      “Serious” citation 1, item 12c alleges:

29 CFR 1926.5OO(f)(l)(iv): Th e anchoring of posts and framing of members for railings
was not of such construction that the completed structure was capable of withstanding a
load of at least 200 pounds applied in any direction at any point on the top rail with
minimum of deflection:

   c. Job site 20 South Third Street, Columbus Ohio: The anchoring of posts and

framing members of the guardrailing along the south side floor opening of the P-l level
was not of such construction that it would withstand a load of at least 200 pounds applied
in any direction at any point on the top rail, thereby exposing employees walking and/or
working in this area to a fall hazard of approximately 12 feet to level below.

      Donley’s argues that the Secretary has failed to demonstrate          employee exposure

to the fall hazard on the south side, and again raises the affirmative defense of infeasib-
. .
lllty .

Amendment of the Pleading
As a threshold matter, the undersigned notes that “serious” citation No. 12 is
premised on the assumption that standard guardrails are required on the south side floor
opening under $1926.500(b)(l). No stipulation to that effect is contained in the record.
The issue of 500(b)(l)‘s applicability was tried at the hearing, however, and the pleadings
are hereby amended, in conformance to the evidence, to allege three instances in which
Donley’s failed to comply with 500(b)(l)’ s requirement to provide standard railings “as
specified in paragraph (f).”
Dikussion
This judge finds that the presence of employees on the 12 foot strip, moving three
by five foot pans weighing 110 pounds each, is sufficient to place those employees within
the zone of danger created by the improperly guarded south side.
Moreover, the circumstances surrounding the floor hole on the south side of the
remaining Pl deck differ substantially from those on the north side; under those facts,
this judge finds both that installation of guardrails on the south side was feasible and that
the alternative method of protection provided failed to provide protection from the cited
fall hazard.
According to Donley’s journeyman carpenter, installation of a guardrail on the 45
foot south side of the Pl level would have taken no more than 45 minutes to an hour,
and less to remove. The expenditure of that amount of time is not excessive where
employee exposure to the fall hazard exceeds a full shift. No work necessitating the
removal of guardrails was performed on the south side from the time the night shift left
at 6:30 a.m. until late in the afternoon. Donley’s own practice, in fact, is to guard the
edges of floor holes which will not be panned promptly. A temporary guardrail was
installed on the south edge of the Pl deck. The guardrail, however, was, by Donley’s
own admission, inadequate. The guardrail served to alert employees to the open floor
hole, but allowed employees access to the extreme edge and, by its appearance, which
was much like a standard railing, could have given a false sense of safety to employees.
Donlev’s failed to establish that installation
4
of a guardrail was infeasible. Even if
Donley’s had shown that erection of standard railings was infeasible, its assertion of the
affirmative defense must fail based on its failure to provide adequate alternative
protection.
Pena@
The Secretary has proposed a penalty of $5,000.00. Fifteen employees worked at
the South Third Street site, four on the shift during which the inspection took place (Tr.
44). No evidence was introduced indicating that Donley’s had either a record of prior
OSHA citations, or that it exhibited any bad faith. Accordingly, these factors are
considered neither in mitigation nor aggravation of the penalty amount.

                                                 7
     Based on the relevant factors, this judge finds that the gravity of the violation is

overstated. A penalty of $2,500.00 will be assessed.

                          Findings of Fact and Conclusions of Law
     All findings of fact and conclusions of law relevant and necessary to a determina-

tion of the contested issues have been found specially and appear in the decision above.
See Rule 52(a) of the Federal Rules of Civil Procedure.

                                           ORDER

1. Serious citation 1, item 11, alleging violation of §1926.500(b)( 1) is VACATED.
   2 Serious citation 1, item 12a, b, and c, as amended, alleging three instances in
   violation of §1926.500(b)(l) is AFFIRMED, and a penalty of $2,500.00 is ASSESSED.

Dated: xovm! 12, 1993