MARTIN E. KELLER ROOFING CO., INC.  

OSHRC Docket No. 15265

Occupational Safety and Health Review Commission

April 27, 1977

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Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, USDOL

Martin E. Keller, MARTIN E. KELLER ROOFING CO., INC., for the employer

James G. Bradt, Safety Director, Eastern New York Construction Employers, Inc., for the employer

OPINION:

DECISION

This case is before the Commission pursuant to a sua Sponte order for review.   The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review.   Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest.   Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in   [*2]   this case describes no compelling public interest issue.

The Judge's decision is accorded the significance of an unreviewed Judge's decision.   Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.  

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A.   For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.

APPENDIX A

DECISION AND ORDER

Francis V. LaRuffa, Regional Solicitor, United States Department of Labor and Ian P. Spier, for complainant

Eastern New York Construction Employers, Inc, for respondent

DeBenedetto, J.:

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. et seq., hereinafter called the Act) stemming from a citation issued by complainant against respondent under authority provided by section 9(a) of the Act.

The citation (and notification [*3]   of proposed penalty) was issued on September 23, 1975, alleging serious violation of 29 CFR §   1926.500(d)(1) in that "[e]employees working on an opensided floor were exposed to the hazard of falling approximately 17 feet to ground level." The citation is based on an inspection made on September 22, 1975, of a construction site described as a sewerage treatment plant in Rensselaer, New York.   A penalty of $650.00 is proposed.

OCCUPATIONAL SAFETY AND HEALTH STANDARDS

§   1926.500(d)(1) provides:

"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)(i)[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."

§   1926.500(f)(1) states in pertinent part:

"A standard railing shall consist of top rail, intermediate rail, toeboard, and posts, and shall have a vertical height of approximately 42 inches   [*4]   from upper surface of top rail to floor, platform, runway, or ramp level . . .   The intermediate rail shall be halfway between the top rail and the floor, platform, runway, or ramp . . .   Minimum requirements for standard railings under various types of construction are specified in the following paragraphs:

"(i) For wood railings, the posts shall be of at least 2-inch by 4-inch stock spaced not to exceed 8 feet; the top rail shall be of at least 2-inch by 4-inch stock; the intermediate rail shall be of at least 1-inch by 6-inch stock.

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"(iv) The anchoring of posts and framing of members for railings of all types shall be of such construction that the completed structure shall be capable of withstanding a load of at least 200 pounds applied in any direction at any point on the top rail, with a minimum of deflection."

§   1926.28(a) provides:

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

Respondent timely filed a notice of contest, a complaint and answer [*5]   were filed by the parties, and the case came on for a hearing in Albany, New York, on January 8, 1976.   No affected employee or authorized employee representative elected to participate as a party in the case.

MOTION FOR SUMMARY JUDGMENT

On December 22, 1975, respondent filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure n1 "on the grounds that there is no genuine issue as to any material fact and that the respondent is entitled to a judgment as a matter of law, since 29 CFR §   1926.500(d)(1) does not apply to essentially flat roofs." An affidavit in support of the summary judgment motion deposed that the alleged violation "related to work performed by respondent on an essentially flat roof." The citation and complaint refer to an "open-sided floor." Also submitted in support of the summary motion were copies of photographs showing a parapet along the edge of the working surface.   When questioned by the Court regarding the significance of the photos respondent's representative stated: "Well, we feel it [the parapet] offers some protection, thus limiting exposure" (Tr. 6).   The record reveals that respondent did not furnish complainant [*6]   with a copy of its motion for summary judgment until the day of the hearing (Tr. 4), therefore, complainant could not have served an opposing response prior thereto.   A ruling on the motion was reserved (Tr. 5).   The granting of summary judgment is never warranted except on a clear showing that no genuine issue as to any material fact remains for trial.   Even in the absence of a genuine issue as to any material fact a summary judgment may only be granted where the moving party is entitled to it "as a matter of law." Respondent has relied on the recent case of Langer Roofing & Sheet Metal, Inc., v. Secretary of Labor, 524 F.2d 1337 (7th Cir. 1975), which rejected the Commission's (and the Secretary's) construction of the word "floor," as used in 29 CFR §   1926.500(d)(1), to encompass "flat roofs" that are used as working surfaces.   The Commission is not bound by Langer outside the Seventh Circuit and until the Langer doctrine is adopted by the Commission for application in all Federal judicial circuits or is applied by the Second Circuit Court, the rule set down in Langer remains unsettled for purposes of the case at hand.   Moreover, before and during the hearing [*7]   the following factual issues were pressented which could not have been determined on motion for summary judgment, therefore, were subject to evidentiary proof: whether the roof, which respondent asserted to be "essentially flat," was sloped sufficiently to bring it within the provisions of 29 CFR §   1926.451(u)(3); whether respondent's employees were exposed to a fall hazard; whether a fall hazard was increased by the installation of perimeter guarding; and whether respondent may be charged with failure to provide its employees with personal protective equipment.   For the foregoing reasons, respondent's motion for summary judgment is denied.

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n1 There being no applicable rule in the procedural rules of the Commission, the procedure for obtaining a summary judgment is governed by the Federal Rules of Civil Procedure. See Rule 2(b) of the Commission's procedural Rules.   Rule 56 of the Federal rules provides, in pertinent part:

"A party against whom a claim . . . is asserted . . . may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof. . . .   The motion shall be served at least 10 days before the time fixed for the hearing.   The adverse party prior to the day of hearing may serve opposing affidavits.   The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . . Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.   Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. . . .   When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.   If he does not so respond, summary judgment, if appropriate, shall be entered against him."

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MOTION TO AMEND THE PLEADINGS

At the close of his case, complainant moved to amend the pleadings to include, as an alternative to the perimeter guarding requirements of 29 CFR §   1926.500(d)(1), the charge that respondent violated the safety standard 29 CFR §   1926.28(a) by failing to provide its employees with personal protective equipment to prevent a fall hazard (Tr. 56).   Respondent objected to the motion.   A ruling thereon was reserved.   In its post hearing argument, respondent cites Secretary v. PPG Industries, Inc., No. 13562 (December 10, 1975), as authority for denying complainant's motion to amend the pleadings.   PPG Industries, Inc., is distinguishable from the present case.   In the former there was an attempt by both parties, as part of a pre-hearing settlement agreement, to amend the citation "to allege a violation completely foreign to, and in lieu of, that alleged in the [original] citation." In the instant case there was a full hearing on the merits.   Rule 15(b), Federal Rules of Civil Procedure, provides in part:

"When issues not raised by the pleadings are tried by express [*9]   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; . . ."

On presentation of its case, respondent elected to include testimony relating to the question of personal protective equipment.   The allegation which appears in the citation (i.e., "[e]mployees working on an opensided floor were exposed to the hazard of falling . . .") is sufficiently broad to encompass personal safety equipment.   Accordingly, complainant's motion to amend the pleadings to include, as an alternate charge, n2 noncompliance with the safety standard 29 CFR §   1926.28(a), is granted.   See Secretary v. Colorado Pipe Lines, Inc., d/b/a CPL Constructors, No. 2805 (December 31, 1975); Secretary v. Brisk Waterproofing Co., Inc., 3 OSAHRC 1132 (1973).

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n2 Rule 8(e)(2), Federal Rules of Civil Procedure, which is applicable herein, permits statements of a claim in the alternative.

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ADMISSIONS

Respondent admitted that it conducted business in the State of New York and purchases materials and supplies from sources outside the State of New York (response to complainant's request for admissions).

Testimony of Garret Westerveld, Compliance Safety and Health Officer.

When the witness inspected the worksite on September 22, 1975, he observed respondent's foreman and two other employees working on the roof, one of whom was "working at the edge of the roof," installing "tar paper or felt leading up to a small parapet" (Exh. C-1, Tr. 13-19).   The drop from the roof was about 17 feet, there was no perimeter guarding, and the employee at the edge of the roof was not wearing personal protective equipment (Tr. 17).   He considered this to be a serious violation because a fall from the roof could have resulted in serious injury or death.   Respondent had no history of previous safety violations, it had "an average safety program" and it employed a total of 25 employees, with only 4 or 5 working at the construction site (Tr. 23-25).   On cross-examination, he stated that the parapet   [*11]   along the edge of the roof measured about 14 inches in height (Tr. 43) and the roof was flat (Tr. 45).

Testimony of Martin E. Keller, President and Manager of Respondent Corporation.

Mr. Keller stated that the jobsite in issue involved a flat roof where respondent's employees performed work for a period of 3 days including "a good part of a day" spect working at the roof's edge. The roof had a parapet which measured about 18 inches (Tr. 64).   He related further that installing guardrails along the perimeter of the roof would have been unfeasible primarily because the roofing included installation of "base flashing" starting at the top of the parapet (Tr. 62-68).   It is not common practice to use safety belts while working on a roof because of the nature of the work.   Safety belts would create a hazard for roofers because workers constantly cross over one another's paths in performing their job which included applying hot asphalt (Tr. 64-68).   Since the OSHA inspection in September 1975 his employees used safety belts while working on roofs (Tr. 75), but, he subsequently stated (Tr. 90):

"We don't use them in all cases.   In most cases, we try to use them.   Our association   [*12]   is trying to find a way of complying with it.   We are not in the habit of trying to get around things, but it has to be a very practical one."

Testimony of Richard Benson, Respondent's Foreman

Mr. Benson, who has been engaged in the roofing trade for about 7 years, was working on the roof in question at the time of the OSHA inspection along with 2 other experienced journeymen employed by respondent (Tr. 80-81).   On the day of the inspection they were at the edge of the roof working generally in a crouched position (Tr. 84).   When asked his opinion concerning the merits of using a safety belt while working on a roof he stated (Tr. 84):

"To me, I think it is more hazardous with one than without one, because all day long, you are working in the hot sun, and the ropes you get will get stuck, and the rope will fling up and burn the guy.   You got the mop here, and the guy follows you up with the mop.   He got a rope on him.   I got one on me, and then I came around to the shrimp boat, n3 and they will get criss-crossed right up."

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n3 A small metal cart used for storing hot asphalt (Tr. 91, Exhs. C-1, C-2).

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DISCUSSION

In its post-hearing brief respondent challenges the citation on two principal grounds: (a) "[t]he required job operation could not be performed if the OSHA regulation was strictly complied with," and (b) "[i]mpossibility of erecting guardrails that would meet OSHA strength requirement of 200 pounds pressure and any attempt to do so would expose employees to a greater hazard."

At the time of the alleged violation, respondent had 3 employees at the worksite engaged in laying a roof on a sewerage treatment plant, some 17 feet above adjacent ground level. The job was completed in 3 days.   Less than one day was spent working in the vicinity of the roof's edge which was bounded by a 14-inch (or 18-inch) parapet. The testimony and the photographs clearly demonstrate that the work of installing the roof required employees to perform their operations at the very edge of the parapet. It is equally manifest that the presence of perimeter guardrails would have obstructed performance of the work.   To require the installation of guardrails only to have them removed when work was to be performed [*14]   in the vicinity of the roof's edge would be to engage in a futile safety practice.   It is well settled that noncompliance with the requirements of a safety standard is justified when necessary to permit the accomplishment of required work.   Secretary v. Consolidated Engineering, Inc., 12 OSAHRC 490, 492 (1974).

The unrebutted testimony of Mr. Benson and Mr. Keller reflects that the use of safety belts would not have promoted safety for the roofers.   Their testimony indicates that the lifelines would have become tangled as a result of workers crossing each other's paths while performing their tasks thereby creating a tripping or falling hazard, that their use would not have afforded the freedom of movement necessary to do their job, especially when laying hot asphalt, and that it was not common practice for roofers to use safety belts. Although it is true the testimony reveals that since the September 1975 OSHA inspection, respondent's employees have used safety belts during roofing operations, this does not permit the inference that safety belts would have provided an effective safeguard on the jobsite in issue inasmuch as Mr. Benson testified that they were not being used [*15]   "in all cases" but only when feasible.   Working conditions may vary from workplace to workplace.   Complainant offered no evidence which would cast doubt upon the assertions made by respondent's witnesses regarding the disadvantages of using safety belts on the jobsite in question, and no evidence whatsoever was presented to suggest that the benefits of using safety belts at the jobsite would have offset the risks described by respondent's witnesses.   In Secretary v. Industrial Steel Erectors, Inc., 6 OSAHRC 154, 156 (1974), the Commission stated:

". . . While concededly employers have an obligation to comply with applicable standards, in a given situation, we do not read section 5 [of the Act] so literally as to require a form of compliance that will diminish rather than enhance the safety of employees.   As Judge Learned Hand once observed, there is no more likely way to misconstrue the language of the statute than to read the words literally and forget its purpose.   Central Hanover B & T Co. v. Commissioner of Internal Revenue, 159 F.2d 167, 169 (2d Cir. 1947). The text of section 5 of the Act must be construed in light of the essential purpose of the Act as expressed in [*16]   section 2 thereof: i.e., to assure so far as possible every working man and woman safe and healthful working conditions.   Thus the purpose of the statute is to augment and not to reduce the safety of working conditions.   Employers and employees alike should not be required to comply with a standard so sedulously as to follow a course of conduct that is shown by the weight of the evidence to be less safe than an existing work practice" (emphasis added).

Those remarks are applicable to the case at hand.

FINDINGS OF FACT

1.   Respondent, a roofing contractor, had 3 employees engaged in laying a roof 17 feet above adjacant ground level.

2.   The roof was flat and had a 14-foot (or 18-foot) high parapet along the open sides.

3.   The presence of a guardrail on the roof's open sides would have impeded respondent's work.

4.   The use of safety belts would have increased the risks attending respondent's operations at the jobsite in issue.

CONCLUSIONS OF LAW

1.   At all times relevant herein, respondent has been engaged in a business affecting commerce within the meaning of section 3 of the Act.

2.   Respondent did not violate 29 CFR §   1926.500(d)(1) or 29 CFR §   1926.28(a).   [*17]  

ORDER

It is hereby ORDERED that:

1.   The citation issued on September 23, 1975, and complaint alleging serious violation of 29 CFR §   1926.500(d)(1), are amended to include, as an alternative allegation, serious violation of 29 CFR §   1926.28(a).

2.   The citation issued on September 23, 1975, charging serious violation of either 29 CFR §   1926.500(d)(1) or 29 CFR §   1926.28(a) and the penalty proposed therefor are vacated.

RICHARD DeBENEDETTO, JUDGE, OSAHRC

Dated: March 24, 1976

New York, New York