EDWARD M. REAM, INC.

OSHRC Docket No. 1504

Occupational Safety and Health Review Commission

May 27, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINION:

BY THE COMMISSION: A decision of Review Commission Judge Abraham Gold, dated March 27, 1973, has been before this Commission for review pursuant to 29 U.S.C. 661(i) for more than two years. Rather than further delaying the disposition of this case until a third member is appointed to the Commission, the Commission as presently constituted agrees to dispose of the case at this time.

Accordingly, the decision of the Judge is affirmed by an equally divided Commission. This decision has no precedential weight. Neil v. Biggers, 409 U.S. 188 (1972).

Chairman Moran finds that no other standard was tried by consent and would affirm for the reasons set forth in the Judge's opinion.

Commissioner Cleary's views are set forth in his separate opinion.

CLEARY, COMMISSIONER: In this case, respondent was cited for a serious violation of section 5(a)(2) of the Act for its alleged non-compliance with the occupational safety and health standard published at 29 C.F.R. 1926.105(a) [hereinafter 105(a)]. Judge Gold concluded that the above standard did not apply to solidly surfaced flat roofs such as respondent's worksite and vacated [*2] the citation.

Assuming arguendo that the judge is correct in his conclusion that 105(a) n1 does not apply n2 I disagree with his vacation of the citation. I find that the evidence indicates that respondent failed to comply with the standard at 29 C.F.R. 1926.500(d)(1) [hereinafter 500(d)(1)]. Accordingly, I would amend the pleadings to allege non-compliance with this standard.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 This standard provides: Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.

n2 Compare Brennan v. Southern Contractors Service, 492 F. 2d 498 (5th Cir. 1974) with Brennan v. OSHRC (Ron M. Fiegen, Inc.), No. 74-1643 (8th Cir., April 18, 1975).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Commission has consistently held that 500(d)(1) n3 requires perimeter guarding on open-sided flat roofs which are six feet or more above ground level. Heyse Sheet Metal & Roofing Co., [*3] No. 681 (October 24 1973); S.D. Mullins Co. and Diamond Roofing Co., Nos. 364 and 459 (October 24, 1973) (consolidated cases), petition for review docketed, Nos. 73-3704 and -3705 (5th Cir., Nov. 14, 1973); J.F. Probst & Co., No. 963 (September 3, 1974), petition for review docketed, No. 74-1826 (7th Cir., Oct. 11, 1974). On the date of inspection respondent's employees, without the aid of any protective equipment n4 were covering the surface of the roof in question with stone, tar, and tarpaper. The uncontroverted evidence also establishes that the roof was in excess of 100 feet above ground level and was not guarded by any form of railing about its perimeter. n5 Thus, the record clearly indicates that 500(d)(1) applied to respondent's worksite and was, in fact, not complied with by respondent.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 In pertinent part, the standard provides: 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, as specified in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. . . .

n4 Respondent's employees were not using safety nets, catch platforms, safety lines or safety belts.

n5 There was a parapet around the perimeter of the roof. This parapet varied in height between three and nine inches and was clearly not "a standard railing, or the equivalent," as required by 29 C.F.R. 1926.500(d)(1). See note 3 supra and 29 C.F.R. 1926.500(f)(1).

[*4]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Furthermore, 500(d)(1) allows respondent to use safety belts as an alternative to perimeter guarding. The phrase "or the equivalent" in 500(d)(1) cannot be construed to modify the term "standard railing" because provisions for equivalent types of railing construction appear in another subsection, (f)(1), which is limited in its scope to railing specifications. Therefore the phrase as used in 500(d)(1) can only be given meaning if interpreted to refer to an equivalent means of protecting employees from falling. Such a liberal interpretation, moreover, is consistent with the obvious purpose of the standard to prevent the hazard of a fall and effectuates the remedial purposes of the statute. See Breannan v. OSHRC (Gerosa, Inc.), 491 F.2d 1340 (2d Cir. 1974) and Southern Contractors, supra note 2.

Although the record establishes respondent's non-compliance with 500(d)(1), neither the citation nor the complaint were amended, at or before the hearing, to allege respondent's failure to comply with this standard. Thus, before respondent's non-compliance with this standard can be adjudged [*5] a violation of section 5(a)(2) of the Act, the record must be examined to determine whether respondent's non-compliance with the standard was litigated with the express or implied consent of the parties so as to enable the Commission to amend the pleadings pursuant to Rule 15(b) of the Federal Rules of Civil Procedure. n6 Upon examination of the record, I find the requisite consent present and would therefore amend the complaint so as to allege respondent's non-compliance with 500(d)(1). n7

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n6 Rule 15(b), in pertinent part, provides: 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 as 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. . . .

n7 Once the requisite consent is found in the record, the Commission has the authority to make a sua sponte amendment of the pleadings to conform to the evidence. See., e.q., Hartwell Excavating Co., No. 853 (September 26, 1974), petition for review docketed, No. 74-3275 (9th Cir., Nov. 26, 1974); Gertsner Electric, Inc., No. 997 (August 1, 1974); Advance Air Conditioning, Inc., No. 1036 (April 4, 1974) and Rule 15(b) of the Federal Rules of Civil Procedure, supra note 6.

In addition to the authority to make such amendments, the Commission has an affirmative duty to determine issues which are presented by the evidence. Indeed, the court in Underwriters Salvage Co. v. Davis & Shaw Furniture Co., 198 F.2d 450, 453 (10th Cir. 1952) stated: Under Rule 15(b), 28 U.S.C.A., a liberal provision is made for amendments to conform the pleadings to the evidence and in such cases it is the duty of the court to consider issues raised by evidence received without objection even though no formal application is made to amend (emphasis added).

[*6]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Implied consent to the trial of an issue not alleged in the pleadings may be found where one party introduces evidence which is material to the opposing party's unpleaded case. Vogrin v. Hedstrom, 220 F.2d 863 (8th Cir.), cert. denied, 350 U.S. 845 (1955). At the hearing, respondent introduced evidence that the American National Standards Institute (ANSI) Committee n8 never intended the standards to require perimeter guarding by means of "roof barricading." Upon direct examination of Lewis C. Barbe, respondent's own safety expert, the following colloquoy took place:

Q. Did they ever interpret these regulations concerning nets or perimeter guarding by nets or barricading to apply to roofs?

A. No, they did not.

Q. Did an ANSI Committee specifically treat recently the problem of roof barricading?

A. Yes, they did. They notified the Department of Labor that these rules and regulations are inapplicable and do not apply to roofs.

Such testimony as to "roof barricading" pertains only to 500(d)(1) since 105(a) does not refer to any protective equipment that could even arguably [*7] be regarded as a "barricade." Thus, this testimony concerns the applicability of 500(d)(1) to flat roofs and as such may be deemed implied consent to a trial of the 500(d)(1) issue.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n8 This committee originally formulated the standards that the Secretary subsequently promulgated pursuant to section 6(a) of the Act as national consensus standards.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Even though implied consent may be found in a given case, the complaint may not necessarily be amended if such amendment would prejudice the respondent. RPM Erectors, Inc., No. 1114 (September 3. 1974). Prejudice resulting from an amendment may negate a respondent's implied consent. As the court stated in Monod v. Futura, Inc., 415 F.2d 1170, 1174 (10th Cir. 1969):

The test of consent should be whether the defendant would be prejudiced by the implied amendment, i.e., whether he had a fair opportunity to defend and whether he could offer any additional evidence if the case were to be retried on a different theory. n9

- - - - - - - - - - - - - - [*8] - - - -Footnotes- - - - - - - - - - - - - - - - - -

n9 See also United States v. 47 Bottles, More or Less, Etc., 320 F.2d 564, 573-74 (3dCir.), cert. denied, 375 U.S. 953 (1963).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Respondent did not object to the admission of photographic exhibits which clearly establish respondent's failure to comply with 500(d)(1). I am unable to perceive any possible defense to the physical circumstances depicted in the photographs. Respondent's major contention at the hearing was that flat roofs require no perimeter protection of any form. As noted above, the possible defense of the inapplicability of 500(d)(1) to flat roofs was in fact raised by respondent. Thus, applying the Monod test, I find that Respondent would not be preudiced by an amendment of the complaint to allege its non-compliance with 500(d)(1) and that respondent impliedly consented to the trial of the 500(d)(1) issue.

Accordingly, I would amend the citation to allege respondent's failure to comply with 500(d)(1) and affirm the citation as amended.

[The Judge's decision referred to herein follows]

GOLD, JUDGE: This action arose [*9] under Section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590 et seq.; 29 USC 651 et seq. ) and came on for hearing on January 30, 1973, at Harrisburg, Pennsylvania.

A Citation for one serious violation, issued by the Secretary of Labor on September 14, 1972, pursuant to Section 9(a) of the Act, charges Respondent with noncompliance with 29 CFR 1926.28(a) and 29 CFR 1926.105(a). A single penalty of $750 was proposed.

The Citation specifies that Respondent "did not require the wearing of appropriate protective equipment (lifelines or other effective safety means) nor were safety nets provided for employees working on the roof of #2 Turbine Building (with the perimeter unguarded), more than 25 feet above adjacent surfaces, where they were exposed to the hazardous condition of falling." The Citation directed immediate abatement.

A Complaint, issued on October 5, 1972, alleges that the violation occurred on September 1, 1972.

The cited safety standards read:

1926.28 Personal protective equipment.

(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure [*10] of hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

1926. 105 Safety nets.

(a) Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.

The workplace is #2 Turbine Building Roof on the Peach Bottom Atomic Power Station, a generating plant owned jointly by four electric utility companies and located at Delta, Pennsylvania. The energy generated at this station will flow into several states. Respondent regularly receives and handles materials and products which have moved across state lines.

On August 18, 1972, David Burke, who had been employed by Respondent for only three weeks, fell from said roof, landing on an auxiliary roof about 36 feet below. He died about nine days later.

Overall the roof is approximately 700 feet long, 100 feet wide, and over 100 feet above the ground. The deceased was in the act of pulling loose a light plastic material which apparently was glued to the metal decking; he is said to have [*11] been backing up when he fell over the edge of the roof.

Respondent was engaged, as a subcontractor, in the installation of the roof covering. At the time of the accident, the roof had a solid surface, consisting of concrete 6 to 9 inches thick on top of some type of corrugated sheeting, and was being covered with stone, tar and tarpaper.

Richard Frazier, a Compliance Officer with the Occupational Safety and Health Administration, Department of Labor, conducted an inspection of the site on September 1, 1972. He described the roof as flat, with a pitch of "maybe one inch in ten feet." He noted a parapet of 3-4 inches at the point where the deceased fell, and a parapet of 6-9 inches in height elsewhere. The witness observed about 18 employees of Respondent working on the roof; one was pouring pitch, two were mopping, one was casting and two were raking stones; the moppers were less than a foot from the edge of the roof, the stone men were up to the edge, and the man pouring pitch was about 3 to 4 feet from the edge.

The Compliance Officer testified that there were no safety belts, safety lines, safety nets, or any safety equipment to prevent the roofers from falling off the roof; [*12] that the men had safety helmets and gloves, and wore the protective clothing of roofers.

An operating engineer who operated a hoist on the roof was the only employee of Respondent wearing a safety belt; this was provided because he had to lean over the edge of the roof in order to watch his load and because he had to reach out to bring in the boom by hand; the lifeline was attached at one point to a large barrel of tar and at the other end of the roof it was attached to a permanent stack.

Safety and health regulations pertaining to construction are found in 29 CFR Part 1926, which contains specific standards applicable to the dangers of falling through a roof and falling off a roof.

29 CFR 1926.500(a), a general provision, declares that this subpart includes applicability to the danger of falling through a roof. The method of protection against falling through a skylight opening is spelled out in 1926.500(b)(4).

Specific provisions dealing with protection against falling off roofs are found in 1926.451(u)(3). At the time of issuance of the Citation 451(u)(3) read: n1

(3) A catch platform shall be installed below the working area of roofs more than 10 feet from the [*13] ground to eaves with a slope greater than 3 inches in 12 inches without a parapet. In width, the platform shall extend 2 feet beyond the projection of the eaves and shall be provided with a guardrail, midrail, and toeboard. This provision shall not apply where employees engaged in work upon such roofs are protected by a safety belt attached to a lifeline.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 36 Fed. Reg. 7379 (April 17, 1971), formerly 1518.451(u)(3); republished 37 Fed. Reg. 27541 (1972).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

This subsection was amended on December 2, 1972, n2 and now requires a catch platform only where the slope is greater than four in 12. In addition, the height above which catch platforms must be used for sloped roofs was raised from 10 feet to 16 feet.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 37 Fed. Reg. 25712.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

A catch platform qualifies as an acceptable means of protection insofar as either 451(u)(3) or 105(a) is concerned. Since [*14] a catch platform is not required by 451(u)(3) unless the roof has no parapet and has a slope greater than four in 12, certainly 105(a) cannot logically be intended to require a catch platform for an unsloped parapeted roof.

Moreover, 105(a) can be satisfied by the use of a temporary floor; in the instant case we have a flat roof, made permanent with 6-9 inches of concrete and corrugated sheeting, -- such solid surface is more protective than a temporary floor.

A hearing was held on July 26, 1972, in connection with the proposed amendment of 451(u)(3), and the Assistant Secretary of Labor made this comment when publishing the amendment: n3

The requirements for catch platforms apply where the slope of a roof exceeds 3 inches in 12 inches without a parapet. The greatest number of comments indicated the belief that this slope did not present any significant danger of falling. Accordingly, the Committee has recommended and I have decided to adopt a standard of 4 inches in 12 inches without a parapet.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 37 Fed. Reg. 25712 (December 2, 1972); republished 37 Fed. Reg. 27600 (December 16, 1972).

[*15]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Any lingering thought that 105(a) may have been intended to apply to a flat roof is dispelled by this acknowledgment by the Assistant Secretary that only when the slope exceeds 4 in 12 is there "any significant danger of falling" off a roof.

As the worksite in this case was a flat, parapeted roof with a solid surface, a violation of 105(a) has not been sustained.

As to 1926.28(a), this is a general provision which is adjunctive in nature. Its language lacks the indispensable ingredient of particularity; standing alone it can have no effective thrust as a standard but must draw its vitality from a specific standard with which it is combined in a citation.

1926.28(a) consists of two parts. The second part speaks of the need for protective equipment as indicated in Part 1926. The first portion, however, is bottomed on the expression "hazardous conditions;" as a general duty clause it would contravene Section 5(a)(1) of the Act, which limits the general responsibility of employers to furnish work areas free from "recognized hazards." I do not presume that the Assistant Secretary improperly attempted [*16] to legislate, but instead I regard the first part of 28(a) as relating to the hazards spelled out in specific standards in Part 1926.

Inasmuch as a violation of 105(a), to which 28(a) is geared in the citation, has not been established, it follows that 28(a) must fail.

FINDINGS OF FACT

1. Respondent is and at all times pertinent herein has been a Pennsylvania corporation, with its principal office at York, Pennsylvania, engaging in installation of roofing and waterproofing, regulally receiving and handling materials which have moved across state lines in interstate commerce, and is an employer engaged in a business affecting commerce.

2. At all times relevant to this action Respondent has under its operation or control a workplace located at the Peach Bottom Atomic Power Station, Delta, Pennsylvania, where Respondent was engaged in the installation of roof covering on #2 Turbine Building.

3. The roof on #2 Turbine Building was about 700 feet long, about 100 feet wide and was over 100 feet above ground level.

4. About 18 employees of Respondent were working on the roof at the time of an inspection on September 1, 1972; an operating engineer who operated a hoist [*17] on the roof was the only employee provided a safety belt; no other employee of Respondent used or was provided protective equipment other than helmet, gloves and the usual clothing of roofers.

5. No safety nets, catch platforms, safety lines, or safety belts were provided by Respondent at the worksite for its roofers.

6. At all times pertinent herein the roof had a solid surface, consisting of 6-9 inches of concrete and corrugated sheeting.

7. The roof had a parapet around its perimeter, and had a slope of perhaps one inch in 10 feet.

CONCLUSIONS OF LAW

1. The Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter within the contemplation of Sections 3 and 4(a) of the Occupational Safety and Health Act of 1970.

2. The standard at 29 CFR 1926.105(a) is not applicable to a solidly surfaced flat roof.

3. On September 1, 1972, Respondent did not fail to comply with 29 CFR 1926.105(a) and 1926.28(a), and therefore was not in violation of Section 5(1)(2) of the Act.

ORDER

It is ORDERED that the Citation for Serious Violation and the penalty proposed therefor be and the same hereby are VACATED.