Clarence Wall and Ceiling, Inc.

Plain-English summary

Clarence Wall and Ceiling was erecting metal roof framing at a New York construction site when OSHA found an angle grinder without its designed guard, an excessively worn grinding wheel, and an aerial work platform without a building-side guardrail. The judge affirmed the grinder-guard item because the tool manual required guarding for grinding, a smaller grinder was a feasible alternative, and the company's safety program lacked a relevant guarding rule. He allowed the Secretary to amend the abrasive-wheel item from an inapplicable ANSI provision to the general requirement that tools be maintained safely, finding no prejudice because the citation had always challenged the unsafe worn wheel. The platform item was also affirmed because the employee was not credibly shown to be tied off and the 16-inch gap beside the building created a serious fall hazard. All three serious items were affirmed, with penalties of $675, $675, and $1,125.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.300(a), 1926.300(b)(1), 1926.303(d), and 1926.500(d)(1).
• Outcome: Affirmed. Three serious items were affirmed as amended, with combined penalties of $2,475.
• Key point: A citation may be amended to the standard matching the tried unsafe condition when the employer understood the issue and suffered no prejudice, and industry practice does not replace an applicable OSHA guardrail rule.

Full text (OSHRC public release)

                               UNITED STATES OF AMERICA
       OCCUPATIONAL SAFElY AND HEALTH REVIEW COMMISSION
                                One Lafayette Centre
                          1120 20th Street, N.W. - 9th Floor
                             Washington, DC 200364419

iSgig?=
SECRETARY OF LABOR
Complti&
v. OSHRC DOCKET
NO. 934824
CLARENCE WALL & CEIIJNG, INC.
Respondent.

                         NOTICE OF DOCKETING
                   OF ADMINIST&ITIVE LAW JUDGE’S DECISION
           The Administrative Lstw Judge’s Report in the above referenced case was
      docketed with the Commission on December 2, $994. The decision of the Judge
      will become a final order of the Commissionon Jannary4, 1995 unless a
      Commissionmember directsreviewof the decisionon or before that date. ANY
      PARTY DESIRING REVIEW OF THE JUDGE’SDECISIONBY THE
      COMMISSIONMUST FILE A PETII’ION FOR DISCRETIONARY REVIEW.
      Any such petitionshouldbe received by the ExecutiveSecretary on or before
      December22, 1994in order to permitsufkiet time for its review. See
      .CommissionRtie 9l,29 C.F.R. 2200.91.
        AU furtherpleadingsor commmicationsregarding this case shall be
      addressedto:
                            Executive Secretary
                            Occupational Safety and Health
                             Renew Commission
                            ll20 20th St.N.W., Suite 980
                            Washhg$on, D.C. 20036-3419
      Petitioningpartiesshallalso mail a copy to:
                            Daniel J. Mick,Esq.
                            Counselfor Regional Trial IAi tion
                            Office of the Solicitor, U.S. DOY
                            Room S4004
                            200 Constitution Avenue, N.W.
                            Washingto~ D.C. 20210
      If a Directionfor Review is issuedby the Commission, then the Counsel for
      Regional Trial Uigation willrepres&t the Departmentof Labor. Any pq
      havingQuestionsabout rtiew nghtsmay contact the Commission’sExecutive
      Secretaryor call (202) 606SOO.




      Date: December 2, 1994

DOCKET NO. 93-0824
NOTICE IS GIVEN TO THE FOUOWING:

Daniel J. Mick, Esq.
Counsel for Regioti Trial Iiti ation
Of&e of the Solicitor, U.S. DOc
Room S4004
200 ConstitutionAve., N.W.
Washington, D.C. 20210

Patricia Rodenhausen, w a
Re ‘onal Solicitor
OfEke of the Solicitor U.S. DOL
201 Varick, Room 70?
New York, NY 10014

Joseph A Matteliano, Esq.
Davis, Augello, Mitteliano &
Gersten
17 Court street
.Buf%lo, NY 14202 3204

Rkhard DeBenedetto
AdmmtrativeLawJu e
Om~~tional Safety anff He&h
Review Commimon
McCormack Post Of& and
Courthouse, Room 420
Boston, MA 02109 4501

00114099682:02
 UNITE0 S?PJESOf AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
JOHN W. McCORMACK POST OFFICE AND COURTHOUSE
ROOM 420
BOSFDN, MASSACHUSETTS02109-4501

                                                                                                         FAX
                                                                                                         coM(617)223-4004
                                                                                                         Fls a34004




    . SE-TARY          OF LABOR,
                      Complainant,
                                                               l
                                                               .




                     v.                                        l
                                                               l        OSHRC Docket No. 93-824

     CLARENCE WALL AND CEILING,                   INC.9
                      Respondent.



     APPEAIUNCES:


               Rebecca Rae Stem, Esquire                                Joseph Matteliano, Esquire
                 Off& of the Solicitor                                     Davis, Angello, Matteliano & Gersten
                 U. S. Department of Labor                                 Buff&lo,New York
                      For Complainant                                            For Respondent


     Before:      Administrative Law Judge Richard DeBenedetto


                                          DECISI0N AND ORDER


               Clarence Wall and Ceiling, Inc. (Clarence), was cited on February 3,19!33, for serious
     violations of three construction    safety staidards:     29 C.F.R. 8 1926.300@)(l), which requires
     that power-operated      tools be equipped with guards when designed to accommodate                  such
     guards; 8 1926.303(d), which requires- that all abrasive wheels and tools meet applicable

.
requirements of the American National Standard Institute (ANSI), B7.1-1970, Safety Code
.for the Use, Care and Protection of Abrasive Wheels; 5 1926eSOO(d)(l), which calls for
. guarding every open-sided floor or platform 6 feet or more above floor or ground level. The
Secretary proposes that a penalty of $675 be assessed for each of the two items relating to
the power-operated tool and $1,125 for the alleged fall hazard. .
The three-item citation stems from an inspection conducted by OSHA on
December 21 and 22, 1992, at a construction site in Clarence, New York, where Clarence
was engaged in the process of erecting a metal framework for a new roof. In the course of
his inspection on December 21, the OSHA compliance officer climbed the roof where he
observed in the work area a 7-inch Black & Decker angle sander/grinder. The compliance
officer noted that the tool was not equipped with a guard and that its grinding wheel “was
worn past the permissible limit,” the limit being marked or indicated on the tool by the
manufacturer, according to the compliance officer (Tr. 13-14, 27-28).
The absence of a guard and a worn grinding wheel on the same power tool constitute
the first two items of the citation. The third item of the citation--an open-sided work
platform--was not observed until the following day, December 22, when the compliance
officer returned to continue his inspection of the worksite (Tr. 46).

                            The Alleged Violation of the
                              Tool Guarding Standard

   As previously noted, the standard at 0 1926.300(b)(l) calls for the guarding of the

tool when designed to accommodate such guards, The instruction manual for the tool in
question repeatedly instructs and cautions the use of “proper guarding” whenever the tool
is used for grinding (Exh. C-2 at pgs. 2, 4, 7).
During the hearing and in its posthearing briec Clarence makes a faint effort to turn
the course from a grinding operation to “sanding” where apparently a guard would not be
appropriate according to the instruction manual. However, in its answer to the Secretary’s
complaint, Clarence admitted using the tool as a grinder (section A of affirmative defense);
and its own job foreman described his use of the tool as a “grinder” (Tr. 214, 216).
Clarence defends on several grounds. The claim is made that use of a guard would
have created “a greater safety hazard since its use would block [the foreman’s] vision of the
work.” (Clarence’s Brief at 13). An employer seeking to be excused from implementing a
cited standard’s abatement measure on the basis of its infeasrbility has the burden of

                                      2

establishing that there was no feasible alternative measure. Seibel hdbdem Mfg. & WeIding
Cop., 15 BNA OSHC 1218, 1228, 1991 CCH OSHD li 29,442 (No. 88-821, 1991).
Clarence’s foreman testified that he was able to use the tool with the appropriate
half-moon guard when cutting the top flange of the metal stud but not the lower flange (Tr.
216). The foreman’s testimony was directly contradicted by the compliance officer whose
work experience included over thirteen years as an ironworker (Tr. 8, 21-22, 162-163).
Moreover, the compliance officer testified that the work on the lower flanges could have
been accomplished by using a “smaller tool” in the form of a 4%-&h grinder (Tr. 120).
Clarence offered no evidence to dispute the compliance officer’s testimony as to such
alternative means of abatement.
Clarence also contends that it had no knowledge that its foreman used the tool in
violation of the OSHA standard, and that it should not be held responsible for the
unguarded tool because the improper use of the tool was not authorized and was a violation
of Clarence’s own safety policy for which the foreman was disciplined (Tr. 315) (Clarence’s
Brief at 3-4,7-8). The argument raises two issues: employer knowledge and unpreventable
employee misconduct. These two issues are closely related.
The employer’s duty under the Occupational Safety and Health Act must be one
which is achievable. Nathal Realty & ConstructionCo. v. OSHRC, 489 F.Zi 1257, 1266
(D.C. Cir. 1973). Thus, the Secretary is required to show that an employer knew or should
have known of the existence of a violation. Brennan v. OSHRC (Raymond Hendrick), 511
F.2d 1139, 1145 (9th Cir. 1975). Under Commission law, the supervisor’s knowledge of a
violation, both actual and constructive, is imputable to the employer for the purpose of
proving employer knowledge of the violation unless the employer establishes that it took all
necessary precautions to prevent the violation, includingadequate instruction and supervision
of its supervisor. Consolidated FreightwaysCorp., 15 BNA OSHC 1317, 1321, 1991 CCH
OSHD li 29,500, p. 39,810 (No. 86-351, 1991).
With respect to the issue of employee misconduct, the Secretary points out that it is
an affirmative defense and argues that it should be stricken because it was not raised in the
answer to the complaint, as required by the Commission. Rule 36(b), 29 C.F.R.
8 2200.36(b). This argument loses its force when one considers that the employer’s burden
of defending against imputing the foreman’s knowledge of a violation to the employer closely
parallels his burden of establishing the unpreventable employee misconduct defense:
Once the Secretary has made a prima facie showing of employer knowledge
through its supervisory employee, the employer can rebut that showing by
establishing that the failure of the supervisory employee to follow proper
procedures was unpreventable. In particular, the employer must establish that
it had relevant work rules that it adequately communicated and effectively
enforced.

Consolidated Frei@tways,supra, 15 BNA OSHC at 1321.
As the Secretary notes in his posthearing brief at pages 8 through 9, Clarence failed
to establish that it had a work rule relevant to guarding power-operated tools (Tr. 233-237).
In fact, Clarence’s president testified that when the foreman was given a warning notice
following the OSHA inspection, it was not for the failure to use the tool with a guard but
because “he was not using the tool for the purpose it was intended to be used at the site”
(Tr. 3 15).
Evidence that a supervisor was involved in misconduct is strong evidence that the
employer’s safety program was lax. Daniel Constn~tion Co., 10 BNA OSHC 1549, 1552,
1982 CCH OSHD ll 26,027, p. 32,672 (No. 16265, 1982). The compliance officer’s credible
testimony that Clarence’s own safety director had observed, and apparently did not object
to, the tool being used without a guard (Tr. 15), is further evidence of the inadequacy of
Clarence’s safety program.
So tenuous are Clarence’s other contentions that they need not be discussed. The
compliance officer’s testimony concerning the serious nature of the potential hazards to
which the employee was exposed from the unguarded tool is sufficient to sustain a serious
citation (Tr. IS-la>, and the proposed penalty of $675 is consistent with the penalty criteria
of 29 U.S.C. 5 666(j).

                           The Alleged Violation of the
                            Abrasive Wheel Standard

Clarence was cited for allegedly violating the abrasive wheel standard at 29 C.F.R.
8 1926.303(d), which incorporates by reference the ANSI safety guidelines for abrasive
.wheels. In both the citation and the complaint, the Secretary maintained that Clarence
failed to comply with section 9.11 of the ANSI requirement, which provides that “all
spindles, adapters, flanges, or other machine parts on which wheels fit be periodically
inspected and maintained to size.” The Secretxuy’s description of the violation specified that
the grinding wheel (of the Black & Decker sander/grinder) used to grind the metal studs was
worn below the permissible level of usage.
During the course of the hearing, it became evident that the ANSI provision did not
apply to the grinding wheel. The Secretary accordingly moved, under Rule 15(b) of the
Federal Rules of Civil Procedure, to amend the charge by substituting therefor, the general
standard at 3 1926.300(a) which provides, in pertinent part, that “[a]ll hand and power
tools l l l shall be maintained in a safe condition” (Tr. 107). Clarence opposed the
amendment at the hearing’ and continues to oppose it on the grounds that it presents a
new issue which was not raised by the pleadings nor tried by the express or implied consent
of the parties, as required by Fed.R.Civ.P. 15(b). Clarence makes the following argument:
The issue raised by the Secretary’s initial citation concerned whether or not
the wheel was maintained to size pursuant to the regulations cited. On the
other hand, the Secretary seeks to amend to assert that the wheel was not
maintained in a safe condition. A determination of whether or not a wheel
was maintained to size involves a separate issue than would a determination
as to the safety condition of the entire hand and power tool in question.
Indeed, even if the wheel was not maintained to size (pursuant to a specific
regulation which, if one exists, the Secretary has failed to cite), it is clear that
the hand and power tool, as used, could have been maintained in a safe
condition. Testimony on this was precluded by the fact that the Secretary did
not seek to amend prior to the Hearing and did not articulate specific hazards
which Respondent could have researched prior to the Hearing.

Clarence’s Brief at 15.

            Under Rule 15(b), a liberal provision    is made for amendments to conform the

pleadings to the evidence. The fact that it involves a change in the legal theory of the action

1 A ruling on the Secretary’s
motionto amendthe citation to conformto the evidence was resented

                                                 5

is immaterial so long as the opposing , party has not been prejudiced in presenting his case.
Moore’s Federal Practice, ll 15.13[2].
One problem with Clarence’s iargument is that it requires us to draw a distinction
between a wheel maintained “to size” and one maintained “in a safe condition.” This
position can only be sustained by ignoring the thrust of the Secretary’s charge. The very
definition of an OSHA standard automatically injects the question of ‘%afety” into all
enforcement proceedings:
The term “occupational safety and health standard” means a standard which
requires conditions, or the adoption or use of one or more practices, means,
methods, operations, or processes, reasonably necessary or appropriate to
provide safe or healthful employment and places of employment.

29 U.S.C. 5 652(S).
At the pleading stage, Clarence was well aware that the Secretary called into question
nothing more nor less than the safety of the wheel which was described in the citation as
being “worn below the permissible level of usage.” The amendment merely substitutes a
standard befitting the cited condition of the tool. Indeed, Clarence’s answer to the
complaint addresses the very issue raised by the amendment:
B, Citation 1 - Item 2 - CFR 1926.303(d)
We deny that this tool was used in a manner which would violate the standard
which was cited. The sanding wheel used in this manner in no way created a
hazard for any employee. It was not worn down below any permissible limits.
In addition, it is a synthetic wheel which is designed by the manufacturer not
to shatter and all employees are required to wear safety glasses and were, in
fact, doing so when in use.

    It is significant to note that in its answer to the first item of the citation dealing with

a guard for the tool in question, Clarence pleaded essentially the same affirmative defenses:
the hazard with safety flanges are designed to protect employees from is
;iit of flying pieces of the wheel in case of breakage. This hazard does not
exist when the employee of Clarence Wall & Ceiling Inc. was using the Black
and Decker heavy duty angle sander, Ser. #13451. This piece of equipment
uses a synthetic wheel which has been designed by the manufacturer not to
shatter. In addition, all employees are required to wear protective eyewear
when in use.
Clarence did not present any evidence relating to the alleged shatterproof “synthetic wheel”
in defense of either the first or second item. But even if Clarence did present evidence on
this point, the alleged hazard would not be entirely eliminated.
The compliance officer testified that using the overly worn wheel in a grinding
operation could cause the wheel to move in an unpredictable or unstable manner, resulting
in serious lacerations of the operator’s hands. In addition, he mentioned the shattering
effects of the wheel on the operator’s face, particularly the eyes. On cross-examination,
Clarence’s counsel questioned the compliance officer in connection with the abrasive wheel
and the possible benefits of wearing “protective eye wear.” Counsel also questioned the
compliance officer concerning the gravity of the hazard stemming from the use of the cited
condition of the wheel (Tr. 102-104). This cross-examination occurred after Clarence’s
counsel called into question the applicability of the initially cited ANSI provision. Counsel’s
own witness, foreman Zwolinski, gave testimony concerning the wearing of personal
protective equipment and work clothing, including goggles, hard hat, heavy jacket, and work
pants, gear that would apparently be equally relevant to both the first and second items of
the citation, with or without the amendment.
1 a,m able to see no way in which Clarence’s case would be prejudiced by granting the
Secretary’s motion to amend the second citation item. Its main line of defense on this item
was essentially the same as the first item. But, more importantly, the Secretary’s basic .
charge againstClarence is not significantly changed by the amendment; therefore, the
amendment is granted.
The compliance officer’s testimony as to the hazardous nature of the worn wheel was
straightforward and unequivocal, and was informed by over thirteen years’ experience as an
ironworker, including operating grinding wheels similar to the one in question (Tr. 8, 40).
The wearing of protective gear or clothing is not a valid defense for using a power tool in
an unsafe manner. Personal protective equipment “depends upon the-vagaries of human
behavior [and] are inherently less reliable than well-maintained mechanical methods.” 43
Fed. Reg. at 52,990~
The lack of stability of the worn abrasive wheel exposed the operator to the potential
hazard of sustaining severe laceration of the hands; therefore, the charge is properly

                                           7

classified as a serious violation within the meaning of the Occupational Safety and Health
Act and a penalty of $675, as proposed by the Secretary, is warranted.
The Alleged Violation of the
Fall Protection Standard at d 1926SOO(d)(l~

   When the compliance officer returned to the construction site on the following day,

he absented one of the employees, Alonson Striven, standing on the platform of an aerial
lift which was elevated about 12 feet above the ground. The platform had guardrails along
three sides; the side which was open faced the upper wall of the building and roof level.
The compliance officer testified that 16 inches of space existed between the edge of the
open platform and the wall of the building, and that the employee was not wearing a safety
belt (E&s. C-3, C-4, C-S; Tr. 48, 55-56, 64).
Clarence was cited for serious violation of 9 1926.500(d)(l), the fall protection
standard which requires that every open-sided floor or platform 6 feet or more above
adjacent floor or ground level shall be guarded by a standard railing, or the equivalent.*
Clarence’s defense against this item goes in all directions. In its answer to the complaint,
Clarence denied that a fall hazard existed because the gap between the open-sided platform
and the wall was claimed to be less than 12 inches and too narrow to fall through, that there
was another aerial lift platform on the other side of the wall “which would have acted as a
catch platform,” and that placing guardrails on the open side of the platform would have
made it impos&le to perform the work.
During the hearing and in its posthearing briec Clarence’s defense took several new
turns by claiming that the violative condition was caused by employee misconduct, that the
6 1!326.5OO(d)(l) standard did not apply to the aerial lift, and that the employee was
protected from falling by the use of a safety belt. These defenses have no substance.
While there may be some merit to a strategy of pleading inconsistent defenses, it
raises serious credl%ility questions where, as here, it is infused into the testimony of the
witnesses. If the employee, who had been seen by the compliance officer working on the

• A standard railing consists of a 42.inch high top raiJ, intermediate rail, and toeboard. 29 CER
  Q 1926.500(f)(1).

                                            8
  

  lift platform, had in fact been wearing a safety belt properly tied off to some anchorage
  point, it would likely be the first line of defense, simply because of its obvious application
  to the fall hazard in questiofi. In fact, the safety belt defense does not surface until after the
  matter was raised during the hearing when Clarence’s foreman, Zwolinski, was testifying as
  to the difficulties of erecting the pitched roof with the guardrails installed on the platform.
  When the foreman was asked about the use of a safety belt as an alternative method of
  abatement, there was no response (Tr. 225).
  The improvisatorial nature of the safety belt defense is clearly displayed by Clarence’s
  attempt to converge two separate events in order to overcome the compliance officer’s
  testimony and photographic evidence. After the compliance officer observed the employee
  working on the elevated platform, he took a series of three photographs (Exhs. C-3, C-4,
  C-5) before he reached the employee’s work station, all of which show no signs that the
  employee was wearing a safety belt, When the employee S&en was questioned by the
  compliance officer, he was informed that it was the employer’s policy to permit working on
  the platform without the guardrails so long as it was “up tight to the building” (Tr. 60).
  On direct examination, &riven testified that when the compliance officer observed
  him on the platform, he had only been checking the height of the platform and he did not
  actually do any work on the platform until after he put on a safety belt (Tr. 256-258).
  Striven claimed that two of the three photographs (Exhs. C-4, C-5) depict him working with
  a safety belt, which he suggested was obscured by his winter clothing. This testimony is
  simply incredible in light of the rather bulky dimensions of a safety belt which could not
  possibly be entirely hidden in the folds of a person’s work clothes, to say nothing about the
  lanyard and the hardware attached thereto.
  The record actually reflects that Striven had not been wearing a safety belt the entire
  time he was observed and photographed by the compliance officer working on the platform,
  and that upon being questioned by the compliance officer, he left the platform and did not
  return to his work of installing trusses until, in his own words, “after we were instructed to
  go back up with safety belts” (Tr. 258).
  Clarence’s affirmative defense of employee misconduct regarding the platform charge
  was not raised in the pleadings; however, it manages to make a weak appearance in its

                                           9
  

  posthearing brief at 18. This defense does not warrant any serious comment but it is
  noteworthy when juxtaposed to Clarence’s argument that the platform standard at 500(d)(l)
  is not applicable to the cited working condition, and that, instead, the ANSI safety
  requirements for scaffolding should govern, specifically 4.5.9 of ANSI Al0.8 - 1988, which
  in relevant part provides that “[g]uardrail systems shall not be required on the building side
  when the platform is less than 16 inches from the building....“3
  Both Clarence’s foreman and safety director testified that it was common practice to
  use the aerial platform without a guardrail on the side “close to the working wall” (Tr. 227,
  292-93). In its brief, at 11, Clarence makes the following argument in behalf of the ANSI
  requirement:
  An analogy to a scaffold situation is appropriate in the
  instant case. The use of the I& in question is similar to the
  type of use a scaffold would have (143). Indeed, Mr. Striven
  and Mr. Scime indicate that in the instant case, the Lift served
  the same function as would a scaffold (294).
  The difficulty here is that Clarence ignores or overlooks OSHA’s own standard for
  scaffolding at 5 1926.451(a)(4) which provides the “[gluardrails and toeboards shall be
  installed on all open sides and ends of platforms more than 10 feet above the ground or
  floor....” This standard does not provide an exception for a platform which is less than 16
  inches from the building. The ANSI requirement does not displace the OSHA standard.
  In its posthearing brief at 9, Clarence counters the 500(d)(l) charge by claiming that
  OSIIA’s own definition of platform as a working space “for the operation of machinery and
  equipment’” requires dismissal of the Secretary’s case because “the platform in question
  was not being used for the operation of machinery and equipment.” The case law does not
  support this argument.

3According to Clarence, the gap between the platform and the wall of the building ranged from 12 inches
(Clarence’s answer) to 13 or 14 inches (Alonson &riven’s testimony at 263). The compliance officer actually
measured the distance at 16 inches. The M-inch distance is accepted as the correct one.

k’Platfoms* is defined by 29 CF.R 0 1926.502(e) as:

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

                                                10

Although an early Commission case does suggest that an elevated surface is not a
platform unless it is erected and designed for use by employees while operating machinery
and equipment, see Allis-ChalmersCop., 4 BNA OSHC 1227,1228 (No. 5210,1976); Globe
hdw., Inc., 10 BNA OSHC 1596, 1599 n.7 (No. 77-4313, 1982), then Chairman Rowland,
apparently the last proponent of this reasoning, later adopted a less restrictive view of the
“platform” definition. In Clement Food Co., 11 BNA OSHC 2120, 2126 n.6 (No. 80-607,
1984), he concluded that where the work of the employees is “analogousto the operation
of machinery and equipment”, the activity being performed on the surface is regular and
frequent, and the employer intends the surface to be used as one from which to work,,the
sufface can be considered a “platform” for the purposes of 0 191023(c)(l). (Emphasis
added).’
In Supetior Electric Cu., 16 BNA OSHC 1494, 1496 (No. 91-1597, 1993), the
Commission held that a 3-foot catwalk erected as a walkway for workmen requiring access
to equipment located above the ceiling (10 feet above the ground floor) so that the
equipment could be serviced or repaired constitutes a platform as defined at 5 1926.502(e).
Because the evidence indicated that the catwalk was installed for employees to walk on to
reach the equipment and to stand on while they services or repaired it, the Commission
found “without reservation that this catwalk was an elevated working space for persons and;
as such, a platform... Because the whole purpose of installing the catwalk was to enable
workmen to get to and service or repair the equipment located above the ceiling, the
catwalk cIearly falls within the definition contained in 29 C.F.R. 5 1926.502(e).”
Although a narrower view of the “platform” definition was applied by the D.C
Circuit in Donovan v. William Entepiws, Ii., 744 F.2d 170 (D.C. Cir. 1984, nevertheless,
the Court’s definition was broad enough to encompass the activities on the aerial platform
in question. The Court noted that in order to be considered a platform under 8 1926.502(e),
a construction-related task must be performed on the surface in question, “one that requires
employees to work from the [surface] or to remain on it for some time.” In this respect, the

%he general industry standard at 29 CFR. 5 191023(c)(l) for ‘Protection of open-sided floors, platforms
and runways” is essentially the same as the 5 1926500(d)(l) ux~~tnrction standard, and the word ~platform”
has the same meaning for the generalindustry. 29 CER Q 1910.21(a)(4).

                                               11

court held that a bridge used by employees merely to transport decking materials was not
a platform. Id, at 176. Had the employees, however, used the bridge as a surface from
which to install the decking, the court noted that it could properly *beconsidered a platform.
Id., n.9.
In its answer and during the hearing, Clarence briefly addressed the matter of a
second aerial platform located on the other side of the wall which was alleged to have served
as a “catch platform.” Inasmuch as the Secretary did not allege, and no evidence was
presented to show, that any employee was exposed to a hazard of falling over “the other
side of the wall,” the defense has no relevancy to this case. Other matters which Clarence
has argued in its brief have not been overlooked, but are without substance or merit and
require no fixther comment.
The M-inch space between the platform and the wall was large enough to pose a
substantial threat of serious physical harm, and, therefore, the classification of this violation
as serious is justified. Applying the statutory criteria of 29 U.S.C. 8 666(j), a penalty of
$1,125, as proposed by the Secretary, is appropriate.
Based upon the foregoing tidings and conclusions, it is ORDERED that the three-
item citation is affirmed, as amended, and penalties totaling $2,475 are assessed.

                                           Judge, OSHRC

Dated: 1
Boston, Massachusetts

                                             12