LINBECK CONSTRUCTION CORPORATION

OSHRC Docket No. 13569

Occupational Safety and Health Review Commission

August 4, 1977

[*1]

Before: BARNAKO, Chairman; and CLEARY, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Regional Solicitor, U.S. Department of Labor

Tom M. Davis, Jr., for the employer

OPINION:

DECISION

BY THE COMMISSION: The respondent was cited for failure to install a "standard railing or the equivalent" around the perimeter of the flat roof of a building under construction, an alleged violation of the requirements of 29 C.F.R. 1926.500(d)(1). n1 The evidence at the hearing established that perimeter guarding would have interfered with the work being done by the roofers at the time of the inspection. However, the complainant's attorney declined to amend the citation to allege a violation of another standard, such as 29 C.F.R. 1926.28(a) for failure to provide personal protective equipment, contending only that the respondent was in violation of 29 C.F.R. 1926.500(d)(1). The Judge found that perimeter guarding was infeasible. He found the respondent in violation of 29 C.F.R. 1926.500(d)(1), nevertheless, for he concluded that the respondent could have required the use of safety belts and that safety belts were the "equivalent" of a standard railing and [*2] therefore required by the regulation. n2

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n1 The cited standard, 29 C.F.R. 1926.500(d)(1), provides as follows:

"Every opensided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(1) 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 standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard."

n2 Thereafter, the case was directed for review by former Commissioner Moran pursuant to 29 U.S.C. 661(i).

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Subsequent to the Judge's decision in this case, the Commission rejected the interpretation of 1926.500(d)(1) which the Judge applied. In Secretary v. Warnel Corporation, 76 OSAHRC 41/C5, 4 BNA OSHC 1034, 1975-96 CCH OSHD, para. 20,576 (No. 4537, 1976), the Commission held as follows:

Section 500(d)(1) [*3] speaks of a 'standard railing, or the equivalent, as specified in paragraph (f)(1) of this section.' Section 500(f) is entitled 'standard specifications' and contains requirements for the materials and dimensions to be used in the construction of a standard railing. Inasmuch as 500(f) contains only requirements for the construction of physical barriers, then the 'equivalent' of a standard railing to which 500(d)(1) refers must mean a physical barrier which, while not conforming to the precise specifications in 500(f), provides the same protection. Thus, safety belts cannot be considered the 'equivalent' of a standard railing within the meaning of 500(d)(1).

Moreover, in Secretary v. Central City Roofing Company, 76 OSAHRC 61/A2, 4 BNA OSHC 1286, 1976-77 CCH OSHD para. 20,761 (No. 8173, 1976), a divided Commission held that 29 C.F.R. 1926.500(d)(1) does not apply to flat roofs. Those decisions are dispostive of the instant case. n3

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n3 The complainant declined an opportunity to file a brief on the dispositive issues.

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Accordingly, the Judge's decision is reversed, and the citation and penalty assessment are vacated.