GENERAL ELECTRIC COMPANY
OSHRC Docket No. 76-2879
Occupational Safety and Health Review Commission
October 30, 1981
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Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
COUNSEL:
Office of the Solicitor, USDOL
Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor
Roland C. Radice, Paul S. Zonderman, and Edward J. Cummings, Jr., General Electric Company for the employer
OPINION:
DECISION
BY THE COMMISSION:
A decision of Administrative Law Judge Abraham Gold is before the Commission for review under section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). Judge Gold vacated two items of a citation issued by the Secretary of Labor ("the Secretary"). These items, subitems 1(b) and 1(h) of citation 7, each alleged that Respondent, General Electric ("GE"), violated the Act by failing to comply with the standard at 29 C.F.R. § 1910.23(c)(1). n1 Commissioner Cleary directed review on the following issue:
Whether the Administrative Law Judge erred in vacating items 1(b) and 1(h) of citation number 7 alleging failures to comply with the standard at 29 C.F.R. § 1910.23(c)(1) during performance of work on cast turbine shells.
For the reasons that follow, we affirm the judge's vacation of the two items.
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n1 The standard states:
§ 1910.23 Guarding floor and wall openings and holes.
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(c) Protection of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph(e)(3) of this section) on all open sides except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a toeboard wherever, beneath the open sides,
(i) Persons can pass,
(ii) There is moving machinery, or
(iii) There is equipment with which falling materials could create a hazard.
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The items at issue allege that, contrary to 29 C.F.R. § 1910.23(c)(1), GE failed to provide a standard railing for employees working 4 feet or more above the ground on the joints of two halves of cast turbine generator shells. Both halves were lying on their backs with their interiors facing upward. The outside edge or joint of the shells is a flat surface approximately 18 to 24 inches wide. Item [*3] 1(b) involved an employee who was performing a drilling operation sitting on a joint 8 feet 6 inches above the floor with his feet inside the shell. Item 1(h) involved an employee with a grinder in his hand sitting on a joint 7 feet 3 inches above the ground. GE did not provide a standard railing in either instance. Scaffolding was constructed in the interior of the shell at issue in item 1(b). A mobile ladder stand was near the shell at issue in item 1(h).
Judge Gold held that, under the Commission's decision in Allis-Chalmers Corp., 76 OSAHRC 50/F8, 4 BNA OSHC 1227, 1228, 1975-76 CCH OSHD P20,666, P. 24,750 (No. 5210, 1976) ("Allis-Chalmers"), the surface of a product being manufactured is not a "platform" within the definition at 29 C.F.R. § 1910.21(a)(4), n2 and is therefore not covered by 29 C.F.R. § 1910.23(c)(1). The judge also denied a motion by the Secretary in his post-hearing brief to amend the citation to allege in the alternative a violation of 29 C.F.R. § 1910.28(a)(1), the scaffolding standard. n3 The judge denied the motion because it would have significantly changed the factual issues after trial and deprived GE of its right to due process. He vacated [*4] both items.
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n2 The standard states:
§ 1910.21 Definitions.
(a) As used in § 1910.23, unless the context requires otherwise, floor and wall opening, railing and toe board terms shall have the meanings ascribed in this paragraph.
* * *
(4) Platform. A working space for persons, elevated above the surrounding floor or ground; such as a balcony or platform for the operation of machinery and equipment.
n3 The standard states:
§ 1910.28 Safety requirements for scaffolding.
(a) General requirements for all scaffolds. (1) Scaffolds shall be furnished and erected in accordance with this standard for persons engaged in work that cannot be done safely from the ground or from solid construction, except that ladders used for such work shall conform to § 1910.25 and § 1910.26.
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In his brief on review, the Secretary argues that Allis-Chalmers was wrongly decided. He contends that the proper test of whether a surface is a platform is not the nature of the surface but whether the surface presents an objective [*5] fall hazard to employees who walk or work on that surface. Citing to two Commission decisions involving the same employer, General Electric Co., 75 OSAHRC 50/A2, 3 BNA OSHC 1031, 1974-75 CCH OSHD P19,567 (No. 2739, 1975), rev'd in part on other grounds, 540 F.2d 67 (2d Cir. 1976); and General Electric Co., 77 OSAHRC 88/A2, 5 BNA OSHC 1448, 1977-78 CCH OSHD P21,853 (No. 11344, 1977), rev'd, 583 F.2d 61 (2d Cir. 1978), the Secretary points out that stator frames and the tops of bake ovens are considered platforms within 29 C.F.R. § 1910.21(a)(4). He maintains that it would therefore be unreasonable to deprive employees of protection merely because they perform work on structures that have the same permanence of location and position but are manufactured parts. The Secretary also renews the motion he made in his post-hearing brief that, in the alternative, the Commission should amend the citation to allege noncompliance with 29 C.F.R. § 1910.28(a)(1). The Secretary argues that GE presented evidence in regard to the presence of scaffolds and mobile ladder stands and "that the issue of whether scaffolds could and should have been provided was fully litigated by both [*6] parties."
In its brief on review, GE contends that under the Commission's decision in Allis-Chalmers, the cited work surfaces are not platforms and thus do not require compliance with 29 C.F.R. § 1910.23(c)(1). GE argues that even if the standard applies to manufactured parts, it is inapplicable for another reason. It maintains that under the Commission decision in General Electric, No. 2739, supra, an elevated working surface constitutes a platform only if work is required to be performed on it, it is over ten feet high, and feasible alternative protection is available but not provided. It argues that here the surfaces were less than ten feet high, that the work was not required to be performed from the joints, and that feasible alternative protection was provided.
It is unnecessary to decide here whether Allis-Chalmers should be overruled as urged by the Secretary. We conclude that the joints of the turbine half shells are not platforms within the meaning of 29 C.F.R. § 1910.21(a)(4), and that 29 C.F.R. § 1910.23(c)(1) therefore does not apply to the cited work surfaces. A primary purpose of the standards in Subpart D of Part 1910 is to prevent falls. Although [*7] employees working on the cited surfaces could be exposed to a fall hazard, it would be incongruous to characterize a narrow ledge less than two feet wide on a turbine shell as a "platform" requiring guardrails. To require compliance with the scaffolding standard, 29 C.F.R. § 1910.28(a)(1), or the standard governing mobile ladder stands, 29 C.F.R. § 1910.29, n4 would be more appropriate and would protect employees. Under the former standard, scaffolds must "be furnished [if] . . . work cannot be done safely from the ground or solid construction . . . ." It also appears that ladder stands may be an acceptable alternative to scaffolds. We therefore conclude that section 1910.23(c)(1) is inapplicable here.
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n4 The standard states:
§ 1910.29 Manually propelled mobile ladder stands and scaffolds (towers).
(a) General requirements -- (1) Application. This section is intended to prescribe rules and requirements for the design, construction, and use of mobile work platforms (including ladder stands but not including aerial ladders) and rolling (mobile) scaffolds (towers). This standard is promulgated to aid in providing for the safety of life, limb, and property, by establishing minimum standards for structural design requirements and for the use of mobile work platforms and towers.
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Under Rule 15(b) of the Federal Rules of Civil Procedure amendment of pleadings to conform to the evidence is permissible when the parties have expressly or impliedly consented to the trial of the unpleaded issue. n5 Evidence adduced by both parties establishes that scaffolding was present in the interior of one shell and that a mobile ladder stand was in the vicinity of the other shell. Section 1910.28(a)(1) states that "[s]caffolds shall be furnished and erected . . . ." Similar language in section 1910.28(a)(12) -- that "[a]n access ladder or equivalent safe access shall be provided" -- has been interpreted by the Commission to require an employer to provide scaffolding. Kennecott Copper Corp., 76 OSAHRC 81/A2, 4 BNA OSHC 1400, 1976-77 CCH OSHD P20,860 (No. 5958, 1976), aff'd, 577 F.2d 1113 (10th Cir. 1977). Despite Kennecott, the Secretary contends that amendment is proper because the issue of whether scaffolding was required to be used was tried by and with the consent of GE. However, the issues of whether employers must require the use of scaffolds under section 1910.28(a)(1) [*9] and whether GE required their use were not clearly drawn in this case. Evidence regarding mobile ladder stands and scaffolds was introduced to show only that equivalent protection within the meaning of 29 C.F.R. § 1910.23(c)(1) was available. Although the presence of GE's employees on the joints demonstrated that scaffolds and mobile ladder stands were not in use, we cannot find that GE was aware or should have been aware that an issue in this case involved a requirement that scaffolds be used. Thus, GE did not impliedly consent to try violations of 29 C.F.R. § 1910.29(a)(1) and 29 C.F.R. § 1910.28(a). See Mississippi Power and Light Co., 79 OSAHRC 109/D12, 7 BNA OSHC 2036, 2040-2041, 1980 CCH OSHD P24,146 pp. 29,341-29,342 (No. 76-2044, 1979). The judge's denial of the amendment is therefore affirmed.
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n5 Rule 15(b) provides in part:
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues . . . .
The Federal Rules of Civil Procedure apply to our proceedings in the absence of a specific Commission rule governing the situation. 29 C.F.R. § 2200.2(b).
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Accordingly, items 1(b) and 1(h) of citation 7 are vacated.
SO ORDERED.
CONCURBY: ROWLAND
CONCUR:
ROWLAND, Chairman, concurring:
I agree with my colleagues on the disposition of this case. I would further hold that the Administrative Law Judge properly applied the definition of a "platform" as set forth by Commissioner Moran in Allis-Chalmers Corp., 76 OSAHRC 50/F8, 4 BNA OSHC 1227, 1228, 1975-76 CCH OSHD P20,666, p. 24,750 (No. 4210, 1976).