UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76-2332
FLEETWOOD HOMES OF TEXAS, INC.,
Respondent.

September 30, 1980

DECISION

Before: CLEARY, Chairman; BARN KO and COTTINE, Commissioners.

BY THE COMMISSION:

A decision of Administrative Law Judge Dee C. Blythe is before the Commission pursuant to section 12(j)[1] of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’). Judge Blythe affirmed a citation alleging that Respondent, Fleetwood Homes of Texas, Inc. (‘Fleetwood’), violated section 5(a)(2)[2] of the Act by failing to install guardrails on open-sided, elevated work planks (called ‘spanners’) as required by the standard at 29 C.F.R. § 1910.23(c)(1).[3] At issue is whether the judge erred in classifying the spanners, which were more than four feet—but less than ten feet—above ground level, as ‘platforms’ rather than ‘scaffolds.’[4]

Following an inspection of Respondent’s manufacturing facility in Waco, Texas, the Secretary of Labor (‘the Secretary’) issued a citation alleging failure to comply with certain safety standards promulgated by the Secretary. Respondent timely contested only the item now on review.[5] Thereafter, a complaint and an answer were filed with the Commission and a hearing was held before Judge Blythe. The judge affirmed the citation and assessed the $95 penalty which the parties had previously stipulated would be appropriate in the event that the violation were sustained. Commissioner Barnako granted Respondent’s petition for discretionary review. Our holding that the spanners here were ‘scaffolds’ obviates the need to respond to the remaining issues raised in Respondent’s petition.[6]

Fleetwood manufactures mobile homes. On the production line, the homes are aligned end to end at varying intervals and are advanced through successive assembly stations (e.g., electrical, sheet metal, doors and windows, molding, finishing). At each station, ‘lateral work decks’ are positioned along both sides of each mobile home. Each of these lateral work decks is a single-level, raised work surface supported by a steel frame of horizontal, vertical and diagonal braces. The outward sides of the lateral work decks, facing away from the production line, are equipped with guardrails, while the inward sides are open to permit the employees to work on the homes on the line.[7] The lateral work decks are seventy to eighty feet long, approximately two to three feet wide, and mounted on casters. When work has been completed at all of the assembly stations, the lateral work decks are manually rolled aside about three feet from the homes in order to prevent them from scratching or doing other damage to the homes as the ‘lead’ mobile home is pulled off the line and the remaining homes are pulled forward in turn to undergo the next assembly stage.

In order for Fleetwood’s employees to work on the ends of the mobile homes, aluminum planks, called ‘spanners’, are placed by hand across the gulf between the lateral work decks, forming work bays. The planks are light enough so that a worker can lift them unaided. They are approximately fourteen feet long and twenty-four to thirty inches wide. Fleetwood’s mobile home models come in three lengths: fifty-six feet, sixty-six feet, and seventy-six feet. Consequently, these spanners cannot be located at fixed and uniform intervals on the line; their placement depends upon the length of the mobile home being worked on at the particular assembly stage. Every two hours, the spanners must be removed and then repositioned when the mobile homes on the production line are advanced.

During the course of his inspection, compliance officer Moore observed two mobile homes under construction, each with spanners at both ends. At the sheet metal station, Moore measured the elevation of the spanner and found it to be approximately seven feet above the concrete floor. At the trim station, the spanner was four feet two inches above the floor. At neither assembly station did the spanner have any guardrail. In Moore’s opinion, the absence of the guardrail presented the hazard of a fall to the floor below, Moore observed a Fleetwood employee working on one of the spanners and ascertained that they were used regularly during the manufacturing process.

At the hearing, Respondent contended that scaffolds are portable, movable, and temporary. Thus, it argued, the spanners are ‘scaffolds’, as defined at 29 C.F.R. § 1910.21(f)(27)[8] and 29 C.F.R. § 1910.21(g)(15),[9] not ‘platforms’, as defined at 29 C.F.R. § 1910.21(a)(4).[10] Consequently, Respondent argued that guardrails are not required where, as here, the elevation of the spanner scaffolds does not exceed ten feet.[11]

The Secretary contended that the scaffolding standard applies only to temporary structures. He further argued that the spanners are not temporary; they are never dismantled, replaced or removed from the plant. Moreover, they are an integral part of the production process, permanent parts of the assembly line. In his view, this use brings them within the meaning of the platform definition, section 1910.21(a)(4). Consequently, the Secretary maintained that guardrails are required where, as here, the elevation of the spanner-platforms exceeds four feet.[12]

In affirming the citation as an other than serious violation of the Act, Judge Blythe rejected Fleetwood’s characterization of the spanners as temporary. The judge determined that the work performed on the spanners was of a continuing nature; even though the spanners were repositioned several times a day, there was nothing temporary about them. Accordingly, the judge concluded that they were platforms and that guardrails were required under the cited standard.

II.

We disagree with the judge’s conclusion.[13] At the outset, we note that it is the nature of the spanners, not that of the lateral work decks, which is before us. The Commission confronted this same issue—and virtually identical facts—in Prowler Travel Trailers of New York, Inc., 77 OSAHRC 207/A2, 6 BNA OSHC 1134, 1977–78 CCH OSHD ¶22,397 (No. 15636, 1977). There, too, another subsidiary of Fleetwood’s parent company, Fleetwood Enterprises, contested a citation alleging noncompliance with section 1910.23(c)(1) for failure to equip the open sides of two spanners, fifty-three inches above the floor, with guardrails. Prowler’s plant was arranged in a similar configuration and followed production procedures similar to those used by Fleetwood. The only substantial difference between the relevant conditions in the two plants is that Prowler’s lateral work decks were permanently installed in fixed positions, whereas Fleetwood’s are mounted on casters and must be adjusted each time the product is moved to the next assembly stage. In Prowler the two sitting Commissioners divided an, thus, left the judge’s vacation of the citation undisturbed.

The Secretary’s standards differentiate platforms and scaffolds based on whether they are permanent or temporary working surfaces, respectively. What must be resolved here is whether this ‘permanent—temporary’ distinction applies to the nature of the structure itself, as asserted by Fleetwood, or to the use of the structure, as asserted by the Secretary.[14]

We conclude that the ‘permanent—temporary’ distinction relates to the construction and placement of the device, not to the frequency or regularity of its use in the employer’s operation. When and how a device is used does not change it from a ‘scaffold’ to a ‘platform.’ For example, a scaffold used to support a crew of window-washers does not become a ‘platform’ if the employer chooses to wash the windows every two hours (as the spanners were deployed here). The fact that the spanners might be characterized as an integral part of fabrication, processing, assembling or similar work functions is not significant. The structural—not the functional—attributes are determinative.[15]

The cited standard does not apply to these spanners. The record indicates that the structures are continually repositioned on the production line. They are not invariably set down in the same location. Their placement depends upon the length of the mobile home. The size and weight of the spanners permits them to be handled by a single employee. Indeed, the controlling fact here is the portability of the spanners; they are not fixed, permanent, immovable parts of the assembly line. Thus, the evidence showing that the spanners are portable and are moved to fit the needs of the job establishes that they are scaffolds within the meaning of the definition at 29 C.F.R. § 1910.21(f)(27). See Ringland-Johnson, Inc., 76 OSAHRC 63/A2, 4 BNA OSHC 1343, 1976–77 CCH OSHD ¶ 20,801 (No. 3028, 1976), aff’d, 551 F.2d 111m (8th Cir. 1977).

Our finding that the spanners are scaffolds and therefore that the cited standard is inapplicable disposes of the case.[16] Accordingly, we reverse the judge’s decision and vacate the citation and notification of proposed penalty. SO ORDERED.

FOR THE COMMISSION:

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: SEP 30, 1980

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76-2332
FLEETWOOD HOMES OF TEXAS, INC.,
Respondent.

FINAL ORDER DATE: August 2, 1978

DECISION AND ORDER

Appearances:

Richard L. Collier, Esq., of Dallas, Texas, for the complainant.

Phillip E. McCleery, Esq., of Waco, Texas, for the respondent.

STATEMENT OF THE CASE

BLYTHE, Judge:

This is a proceeding brought before the Occupational Safety and Health Review Commission (‘the Commission’) pursuant to § 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651, et seq. (‘the Act’), contesting one citation issued by the complainant, the Secretary of Labor (‘the Secretary’), to the respondent, Fleetwood Homes of Texas, Inc. (‘Fleetwood’), under authority vested in the Secretary by § 9(a) of the Act.

As the result of an inspection conducted on April 22, 1976, of a workplace at 2801 Gholson Road, Waco, Texas, where Fleetwood manufactures mobile homes, one citation was issued to Fleetwood on May 5, 1976, alleging that it violated § 5(a)(2) of the Act in that it failed to comply with certain safety standards promulgated by the Secretary. Fleetwood on May 17, 1976, gave timely notice of contest of one item,[19] and thereafter a complaint and an answer were filed with the Commission.

A hearing was convened at Waco, Texas, on April 5, 1978. No affected employee or representative of affected employees participated in this proceeding. Both of the parties have submitted post-hearing briefs, and Fleetwood has submitted proposed findings of fact and conclusions of law.

Fleetwood admitted the jurisdictional allegations of the complaint and stipulated (Tr. 6) that, if it should be found in violation, the proposed penalty of $95 is appropriate. The only issue remaining to be determined is whether Fleetwood was in nonserious violation of 29 CFR 1910.23(c)(1)[20].

DISCUSSION AND OPINION

This case is a sequel to Prowler Travel Trailers of New York, Inc., 77 OSAHRC 207/A2, 6 BNA OSHC 1134, 1977–78 CCH OSHD ¶ 22,397 (No. 15636, 1977), in which a two-member Commission was unable to agree[21] on whether ‘spanners’ resting on two permanently-installed, parallel catwalks were ‘platforms’ requiring or ‘scaffolds’ not requiring guardrails, due to their heights.[22]

Prowler, like Fleetwood, is a wholly-owned subsidiary of Fleetwood Enterprises, Inc., which operates 62 similar manufacturing plants throughout the United States and Canada (Tr. 50, 58). Since its assembly lines are essentially identical in all these plants, the issue here involved is of considerable importance to the parent company. At Fleetwood’s request, the Commission stayed proceedings in the present case until after Prowler was decided and did not assign it to a Judge until February 7, 1978.

Although Prowler involved travel trailers instead of mobile homes, the two cases are indistinguishable factually, with one possible exception: In the present case the catwalks supporting the spanners were caster-mounted whereas both the Commission’s and the Judge’s decisions in Prowler indicate that the catwalks were in fixed positions, the Commission describing them as ‘permanently installed’ and ‘a permanent supporting structure’ and the Judge finding them to be ‘two fixed runways’.[23]

If the caster-mounted catwalks here involved could be classified as mobile scaffolds, Fleetwood’s case would be strengthened because the Secretary’s contention that the spanners were platforms depends to some extent upon the degree of permanence of the installation. However, as previously noted, the guardrail requirements are the same for scaffolds generally [§ 1910.28(a)(3)] and mobile scaffolds [§ 1910.29(a)(3)(vii)]; that is, no guardrails would be required in the present case since the spanners were less than 10 feet above floor level.

‘Platforms,’ as used in § 1910.23, is defined by § 1910.21(a)(4) 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.

‘Scaffold,’ as used in § 1910.28, is defined in § 1910.21(f)(27) as

Any temporary elevated platform and its supporting structure used for supporting workmen or materials or both. [Emphasis supplied.]

The definition of ‘[m]anually propelled mobile scaffold,’ though misplaced in § 1910.21(f)(17) (pertaining to scaffolds generally), is as follows:

A portable rolling scaffold supported by casters.

This definition is consistent with two definitions found in § 1910.21(g) and applicable to § 1910.29:

(11) Mobile Scaffold (tower). A light, medium, or heavy duty scaffold mounted on casters or wheels.

(12) Mobile. ‘Manually propelled.’

‘Scaffold’ is again defined in 1910.21(g)(15), as used in § 1910.29, as

Any temporary elevated platform and its necessary vertical diagonal, and horizontal members used for supporting workmen and materials. (Also known as a scaffold tower.) [Emphasis supplied.]

Since ‘temporary’ appears in both definitions of ‘scaffold,’ including the one applicable to mobile scaffolds, it must be concluded that a mobile scaffold, too, is temporary. It thus becomes necessary to determine the degree of permanence of the structure here involved. The fact that they were caster-mounted is not controlling.

The plant area involved is Fleetwood’s final assembly line, at two stations of which sheet metal, doors, windows, molding, and finish items are installed on mobile homes of varying lengths (56, 66 and 76 feet) and a uniform width (13 feet 8 inches). Work on the sides of the mobile homes is accomplished from movable caster-mounted catwalks 80 feet long with working surfaces approximately 4 feet or 7 feet above floor level. Every 11/2 to 3 hours, when the mobile homes to 3 hours, when the mobile homes catwalks are pulled back to keep them from scratching the sides of the mobile homes, then rolled back into position adjacent to the next mobile home in the line. These catwalks have guardrails on the open sides away from the mobile homes but not on the other sides due to the work being performed and fall protection provided by the mobile homes themselves.

To enable three employees to work on the ends of the mobile homes at these stations, aluminum spanners 24 or 30 inches wide are placed across the space between the catwalks. These spanners are light enough to be removed and replaced by one employee, who simply slides them far enough to clear the catwalk on one end, then lowers or raises them (depending on whether they are being removed or replaced) and moves them in the opposite direction. This maneuver must be made every time the mobile homes are advanced on the line.

The spanners are not fastened in place. They have no guardrails, but at the ends of the catwalks there are hooks from which horizontal chains are hung if the spanners are in those locations. These chains are only about 24 inches above the spanner (as compared to 42 inches for a standard guardrail) and are intended only to serve as a warning to employees that they are too close to the edge (Tr. 59).

In a period of 8 years, 2 employees fell off these spanners, but apparently suffered no injuries (Tr. 67).

Fleetwood contends that the spanners are scaffolds because they are portable, are laid between mobile scaffolds, and are moved frequently. The Secretary contends that the scaffold standards apply only to structures regularly used in the production process. These positions are essentially those of Commissioner Barnako and Chairman Cleary, respectively, in Prowler.

Commissioner Barnako cited Ringland-Johnson, Inc., 76 OSAHRC 63/A2, 4 BNA OSHC 1343, 1976–77 CCH OSHD ¶20,801 (No. 3028, 1976), aff’d, 551 F. 2d 1117 (8th Cir. 1977), while Chairman Cleary cited General Electric Co., 75 OSAHRC 50/A2, 3 BNA OSHC 1031, 1974–75 CCH OSHD ¶19,567 (No. 2739, 1975), rev’d in part on other grounds, 540 F. 2d 67 (2nd Cir. 1976), and Whirlpool Corp., 77 OSAHRC 36/C11, 5 BNA OSHC 1173, 1977–78 CCH OSHD ¶21, 659 (No. 9224, 1977). These were ‘see’ citations, however, and are not directly in point.

Ringland-Johnson (though a § 5(a)(1) ‘general duty clause’ case) involved the definition of ‘scaffold’ in a construction standard, § 1926.452(b)(27), which is identical to § 1910.21(f)(27), supra, and the Commission majority held that a temporary elevated platform on a structure all of which ‘was portable and moved according to the need of the job’ was a “scaffold’ and not a platform having the degree of permanency suggested by the words ‘operation of machinery and equipment’ by paragraph [1926.] 502(e)’ (which, in turn, is identical to § 1910.21(a)(4), supra).

General Electric and Whirlpool, on the other hand, involved manufacturing operations. General Electric held that large, wheeled stator frames, component parts of turbine generators, were ‘platforms’ under § 1910.253(e)(1)(i) and as defined in § 1910.21(a)(4), supra, pointing out that any other reading of the standard would detract from the Act’s purpose to protect the health and safety of workers and that ‘this purpose is best served by a broad construction of the word ‘platform’ in the standard.’ Here, also, unless there is such a broad construction, the workers will go unprotected against a fall hazard.

In Whirlpool, where the Judge had vacated a § 5(a)(1) ‘general duty clause’ citation on the ground that screens under a system of overhead conveyors were ‘scaffolds’ under § 1910.28(a)(1), supra, the Commission majority said,

We do not agree that § 1910.28(a)(1) applies here. A scaffold is defined at 29 CFR § 1910.21(f)(27) [footnote omitted] as a temporary working surface. The facts indicate that respondent’s need to have work performed on and above the screens is permanent. Thus, any means of providing safety protection to employees must also be permanent. A standard contemplating only temporary structures is therefore not applicable.

Here the work performed on the spanners was of a continuing nature, even though the spanners were removed and the catwalks were rolled back several times a day. There was nothing ‘temporary’ about this structure or operation. Additionally, the catwalks were moved only slightly, and once they were in working positions their wheels were locked and they were linked together in pairs by the spanners.

A situation essentially identical to the present one was decided early on (and in the same way) in Sandler-Bilt Homes, 72 OSAHRC 11/A2, 1 BNA OSHC 3136, 1971–73 CCH OSHD ¶15,227 (No. 367, 1972), where Judge Harris wrote,

The definition of ‘platform’ conveys the meaning that a degree of permanence exists either in the method of construction thereof or the use to which it is put. This is contrasted with the specific reference to temporary erection which appears in the definition of ‘scaffold.’ The former applies to work platforms in a plant which are an integral part of fabrication, processing, assembling and similar work functions while the latter refers to any temporary structure made necessary in repair, alteration, construction and similar work operations, the need for which ends when the repair, construction or alteration is completed. The mere fact that a platform which is used as an integral part of production may be easily dismantled and re-assembled does not operate to render it ‘temporary’ within the meaning of 29 CFR 1910.21(f)(27). The platforms in Respondent’s main assembly plant were regularly used as an integral part of its production of modular homes . . .. The use to which these elevated structures were put, renders them platforms within the meaning of 29 CFR 1910.28(a)(3) and Respondent’s failure to provide them with guardrails and toeboards was in violation of the standard at 29 CFR 1910.23(c)(1).

Unfortunately, Judge Harris’ decision was not reviewed by the Commission or appealed to the Courts, but in the absence of clear Commission precedent to the contrary it is entitled to some precedential weight. It is consistent with General Electric and Whirlpool and can be reconciled with Ringland-Johnson on the basis that a repetitive manufacturing process, unlike construction, is not ‘temporary’ in nature. I find that the work structures here involved were ‘platforms’ as cited and that they were required by § 1910.23(c)(1) to have guardrails.

Fleetwood also contends, in accordance with Commissioner Barnako’s views in Prowler, that the scaffold standards are more specific than the ‘platform’ standard and that the former are applicable. It seems to me that once the ‘platform v. Scaffold’ question is solved the problem of general v. specific standard becomes moot. A scaffold is certainly a type of platform, by definition, but the scaffold standards are really no more specific than § 1910.23(c)(1), as far as guardrails are concerned.

Finally, Fleetwood contends that, due to the ‘platform v. scaffold’ definition controversy the standards are unenforceably vague. It does not specifically claim that any one of these standards is invalid for this reason. The question is, or should be, whether the cited standard, § 1910.23(c)(1) is unenforceable vague. I hold that it is not.

There was some testimony at the hearing that Fleetwood had experimented with various methods of guarding the spanners with rails and chains but found them all to be infeasible (Tr. 52–57, 60–65). It has not pleaded the affirmative defense of impossibility of compliance and has not argued it in its brief except to state (Br. pp. 11–12) that to require such guardrails would necessitate ‘a complete plant re-design.’ This is hardly sufficient to raise the ‘impossibility’ defense, but in any event Fleetwood has at most proved impracticability of compliance, which is not a defense. General Steel Fabricators, 77 OSAHRC 165/E14, 5 BNA OSHC 1768, 1977–78 CCH OSHD ¶22,164 (No. 13646, 1977). In fact, the compliance officer suggested one means of compliance which Fleetwood had not tried: A metal guardrail assembly which could be clamped to the edges of the catwalks adjacent to the spanners (Tr. 65, 71). I find this means of compliance feasible.

CONCLUSIONS OF LAW

1. The Commission has jurisdiction of the parties and of the subject matter of this proceeding.

2. On April 22, 1976, Fleetwood was in nonserious violation of § 5(a)(2) of the Act and 29 CFR 1910.23(c)(1).

ORDER

On the basis of the foregoing findings of fact and conclusions of law, it is ORDERED that:

1. Item 1 of citation 1, for nonserious violation of 29 CFR 1910.23(c)(1), be and it hereby is AFFIRMED ant that a penalty of $95 be and it hereby is ASSESSED.

2. Respondent’s requested findings of fact and conclusions of law, to the extent that they are inconsistent with this decision, be and they hereby are DENIED.

3. This proceeding be and it hereby is terminated.

DEE C. BLYTHE

Administrative Law Judge

Date: July 3, 1978

[1] 29 U.S.C. § 661(i).

[2] 29 U.S.C. § 654(a)(2).

[3] Section 1910.23(c)(1) provides:

(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.

[4] Had these structures been deemed to be ‘scaffolds’, they would have been governed by the standard at 29 C.F.R. § 1910.28(a)(3) and guardrails would not have been required under the circumstances. Section 1910.28(a)(3) provides:

(a) General requirements for all scaffolds.

(3) Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor except: (i) Scaffolding wholly with in the interior of a building and covering the entire floor area of any room therein and not having any side exposed to a hoistway, elevator shaft stairwell, or other floor openings, and (ii) Needle-beam scaffolds and floats in use by structural iron workers. Guardrails should all be 2 x 4 inches or the equivalent, installed no less than 36 inches or not more than 42 inches high, with a midrail, when required, of 1- x 4- inch lumber or equivalent. Supports should be at intervals not to exceed ten feet. Toeboards shall be a minimum of 4 inches in height.

[5] Other items alleging other than serious violations of the Act due to failure to comply with 29 C.F.R. § 1903.2(a) and 29 C.F.R. § 1910.22(a)(1), .26(c)(2)(vii), .107(e)(4), .157(a)(5), .157(c)(3)(i), .212(a)(2), .212(a)(5), .213(c)(3), .219(d)(1) and .219(e)(3)(i) and a serious violation of the Act based on noncompliance with 29 C.F.R. § 1910.213(h)(1) were not contested and have become final orders of the Commission by operation of section 10(a) of the Act, 29 U.S.C. § 659(a).

[6] Fleetwood raised the following additional issues on review:

1. Whether, taken as a whole, the standards and accompanying definitions relating to scaffolds and platforms are unenforceably vague;

2. Whether Respondent was erroneously cited under a general standard regarding platforms when the more specific standard regarding scaffolds should have controlled here [based on assumption that both standards are applicable];

3. Whether it is significant for purposes of classifying the spanners that the work structures which supported the spanners were caster-mounted and, therefore, portable, mobile and moved to fit the needs of the job—all characteristic of scaffolds; and

4. Whether the judge’s finding that the means of compliance suggested by the compliance officer was feasible is so against the great weight and preponderance of the evidence as to be clearly wrong.

[7] Judge Blythe noted in his decision that the presence of the mobile home itself provides fall protection on the unguarded, inward side of the lateral work deck.

[8] Section 1910.21(f)(27) provides:

Scaffold. Any temporary elevated platform and its supporting structure used for supporting workmen or materials or both.

[9] Section 1910.21(g)(15) provides:

Scaffold. Any temporary elevated platform and its necessary vertical, diagonal, and horizontal members used for supporting workmen and materials. (Also known as a scaffold tower.)

[10] Section 1910.21(a)(4) provides:

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.

[11] See note 4 supra.

[12] See note 3 supra.

[13] On review, the parties renewed the arguments which they made before the judge. Respondent also contended that the judge’s finding as to the feasibility of compliance was clearly wrong. See note 6 supra. The Secretary did not file a brief on review, relying instead upon his brief filed in Prowler, infra, Judge Blythe’s decision and order, and the record of the hearing below.

[14] More specifically, the Secretary argued in his brief in Prowler, see note 13 supra, that ‘[t]o be properly classified as a scaffold a platform must be temporary both in construction and its use.’ (emphasis added). However, he then stressed the use of the structures at issue.

[15] Commissioner Cottine notes that in Gil Hugan, d/b/a Haugan Construction Co., 79 OSAHRC 107/A2, 7 BNA OSHC 2004, 1979 CCH OSHD ¶24,105 (Nos. 76–1512 & 76–1513, 1979) a functional analysis was applied to determine whether a tractor performing lifting functions must be in compliance with a safety standard applicable to cranes or derricks. The Commission held that the cited standard applies to machines used to perform lifting functions usually performed by cranes or derricks, regardless of whether the cited machines were designed for that purpose. The Commission was interpreting a standard that did not include specific definitions of its terms. It was also confronted with determining whether a hazardous condition that would otherwise be unregulated was covered by the cited standard. The Commission stated that in making its determinations, ‘we look to the purposes of the Act and of the standard.’ Pursuant to the statutory purpose of assuring a safe and healthful workplace, the Commission majority determined that ‘any ambiguity in the standard should be resolved in favor of eliminating the hazard.’

Commissioner Cottine observes that, in contrast to the standards considered in Haugan and the cases following it, the relevant terms in the standards involved in this case are specifically defined. Therefore, the Commission must determine which of the two standards is applicable to the cited structure in this case. In Commissioner Cottine’s view, there is no lack of definition or ambiguity of these terms that necessitates an interpretation based on the similarity of hazards, the intent of the drafters, or the remedial purposes of the Act as there was in Haugan.

Although Commissioner Barnako joins in the remainder of the lead decision, he continues to adhere to the position he stated in Gil Haugan, d/b/a Haugan Constr. Co., supra (concurring and dissenting opinion) and thus does not join in Commissioner Cottine’s analysis of that case here. In Gil Haugan, Commissioner Barnako stated his interpretation of the standard at 29 C.R.R. § 1926.550 and concluded that the performance of a lifting function was not a sufficient basis on which to apply the standards governing cranes to equipment that did not possess the structural attributes of cranes. He interprets the standard at issue in this case in the same manner. Thus, Commissioner Barnako concludes that the spanners are structurally scaffolds and must be governed by the scaffold standards. In his view, even if the spanners could be characterized as performing the same functions as a platform, this would not be a sufficient basis for bringing these scaffolds within the ambit of the platform standard.

[16] See note 4 supra.

[17] Fleetwood Enterprises’ Corporate Safety Manager testified that its plants share similar manufacturing configurations.

[18] Judge Blythe identified this case as a ‘sequel’ to Prowler Travel Trailers, and deemed the two cases indistinguishable factually, with one possible exception: here, the structures supporting the spanners are caster-mounted, whereas those in Prowler were in fixed positions. Nevertheless, the judge concluded that this fact was not controlling. I agree. The presence of the locking casters may ease the periodic, three-foot movement and repositioning of these work platforms on the production line, but it does not render them transportable away from the line to another location, any more than caster-mounted office chairs are thereby transportable.

[19] Other items alleging nonserious violations of 29 CFR 1903.2 and 29 CFR part 1910 §§ 22(a)(1), 26(c)(2)(vii), 107(e)(4), 157(a)(5), 157(c)(3)(i), and 212(a)(2), were not contested and have become final orders of the Commission by operation of § 10(a) of the Act.

[20] 29 CFR 1910.23(c)(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.

[21] The Commission, though equally divided, affirmed the Judge’s decision vacating the citation under 29 CFR 1910.23(c)(1).

[22] Two of the spanners here involved were 50 inches above the floor and two more were 7 feet above the floor, and they had no fall protection. If they were ‘platforms,’ § 1910.23(c)(1), supra, n. 2, requires them to be guarded on all open sides by standard railings. If, as Fleetwood contends, they were ‘scaffolds’ or ‘mobile scaffolds,’ the applicable standard would be § 1910.28(a)(3) or § 1910.29(a)(3)(vii), which do not require guardrails unless the work level is 10 feet or more above the ground or floor.

[23] ‘Runways’ they were not; § 1910.21(a)(5) defines ‘runway’ as ‘A passageway for persons, elevated above the surrounding floor or ground level, such as a footwalk along shafting or a walkway between buildings.’ They really aren’t catwalks, either, but since the Commission used that term in Prowler it will be used here in order to avoid the ‘platform’ and ‘scaffold’ terminology in dispute.