OSHRC Docket Nos. 15681, 15927 and 76-0002

Occupational Safety and Health Review Commission

December 19, 1977


Before CLEARY, Chairman; and BARNAKO, Commissioner.


Baruch A. Fellner, Office of the Solicitor, USDOL

William S. Kloepfer, Assoc. Regional Solicitor

Kenneth L. Schriber, Schriber Sheet Metal & Roofers, Inc., for the employer




These cases concern the absence of guardrails or alternative safety devices to protect employees working on flat roofs. On virtually identical facts, three separate citations were issued to the respondent (Schriber).   As amended, each citation alleged a serious violation of both the safety standard published at 29 C.F.R. 1926.500(d)(1) n1 and of section 5(a)(1) n2 of the Occupational Safety and Health Act of 1970 (29 U.S.C. section 651 et seq., hereinafter "the Act").   Schriber defended against the charges on the grounds that neither 1926.500(d)(1) nor section 5(a)(1) is applicable to open sided flat roofs. Case Nos. 15927 and 76-0002 were consolidated and tried before Judge Robert N. Burchmore, who vacated the citations in both cases. n3

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n1 Section 1926.500(d)(1) reads:

(d) Guarding of open-sided floors, platforms, and runways.

(1) Every open-sided floor or platform six 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 an entrance to a ramp, stairway, or a fixed ladder.

n2 This section provides that "(e)ach employer - (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." 29 U.S.C. 654(a)(1).

n3 Neither party has taken exception to Judge Burchmore's decision.   As there is no exception taken to the disposition and no compelling public interest in review of the Judge's decision, we will affirm the disposition of cases numbers 15927 and 76-0002 without passing on any of the issues decided by the Judge.   State, Inc., 76 OSAHRC 134/F7, 4 BNA OSHC 1806, 1976-77 CCH OSHD para. 21,209 (No. 5740, 1976).


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In No. 15681, the hearing was waived and the case submitted to Judge Henry K. Osterman upon a joint stipulation of the facts and on the records and transcript of the consolidated cases heard by Judge Burchmore.   In his decision, Judge Osterman, while stating that he was cognizant of the prior contrary decision reached by Judge Burchmore, affirmed the 5(a)(1) portion of the citation and assessed a penalty of $650.   On the same facts he vacated the citation insofar as it alleged a violation of 1926.500(d)(1).

At the time of the inspection Schriber was engaged in the construction of a flat roof approximately 25 feet above the ground.   Five to six of its employees were regularly working close to the edge of the roof. There were no perimeter guardrails along the sides, nor were any other protective devices in use.

Judge Osterman concluded that while the holding of the United States Court of Appeals for the Seventh Circuit in Langer Roofing and Sheet Metal Co., Inc. v. OSHRC, 524 F.2d 1337, (7th Cir. 1975) n4 precluded him from applying the safety standard at 1926.500(d)(1) to flat roofs, he could still [*3]   apply the general duty clause.   He concluded that Schriber violated section 5(a)(1) because its employees faced the danger of slipping and falling over the edge.

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n4 In Langer, the Seventh Circuit held that 1926.500(d)(1), which requires guardrails on all open sided floors or platforms six feet or more above the ground, did not pertain to flat roofs. The Judge additionally relied on a similar holding from the United States Court of Appeals for the Fifth Circuit in Diamond Roofing Co. v. OSHRC, 528 F.2d 645 (5th Cir. 1976).

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Schriber takes exception to the Judge's decision on several grounds.   It asserts that permitting the application of section 5(a)(1) to the present situation would circumvent and effectively nullify the Langer decision.   Schriber reads that decision as relieving an employer from any duty to protect employees working on flat roofs from the danger of falling, and accordingly contends that the general duty clause is not available to the Secretary as an alternative to 1926.500(d)(1).

Schriber [*4]   also maintains that the Secretary failed to establish that the hazard was a "recognized" one within the meaning of National Realty and Construction Company v. OSHRC, 489 F.2d 1257, (D.C. Cir. 1973).   Specifically, Schriber maintains that the Judge's finding that the hazard was "recognized" cannot stand in view of the testimony by respondent's safety engineer and three roofers. These witnesses asserted that working on comparable, elevated flat roofs without side guardrails was not recognized as a hazard within the roofing industry.

Schriber next contends that the citation was not issued with "reasonable promptness" because approximately five working days elapsed between the time of the inspection and the issuance of the citation.

Finally, Schriber avers that the Secretary failed to establish that feasible means for abating the hazard were available.   See National Realty and Construction Co. v. OSHRC, supra.

With respect to the issue of whether the general duty clause could be applied to these facts, Chairman Cleary concludes Schriber's reading of the Langer decision to be overly broad.   In Langer, the Seventh Circuit held only that a specific standard, 1926.500(d)(1),   [*5]   could not be applied to flat roofs and did not address the issue of the practicability of the general duty clause.   The Chairman notes that the Commission's own decision in Central City Roofing Co., Inc., 76 OSAHRC 61/A2, 4 BNA OSHC 1286, 1976-77 CCH OSHD para 20,761 (No. 8173, 1976) states that, in the appropriate circumstances, other standards or section 5(a)(1) may be relied upon to guard against hazardous conditions on open-sided flat roofs. Contrary to the respondent's assertion that section 5(a)(1) should not apply, the clear Congressional purpose was that a general duty should arise under section 5(a)(1) in situations where no duty under a specific standard exists.   See Brisk Waterproofing Co., Inc., 73 OSAHRC 30/E1, 1 BNA OSHC 1263, 1973-74 CCH OSHD para. 16,345 (No. 1046, 1973).

Concerning the contention that the hazard was not within the term "recognized", the Chairman agrees with Judge Osterman's conclusion that the testimony of respondent's witnesses, asserting that the cited conduct is not recognized as a hazard within the industry, is not dispositive of the issue.   He agrees with the Judge's statement that:

it must be obvious to all that an employee who [*6]   must work close to the edge of a flat roof twenty-five feet above ground level without the protection of either perimeter guarding or some other protective device is not functioning in a safe worksite.   Judge's decision at p. 5.

He considers it a matter of common knowledge that a fall of twenty-five feet from an unguarded roof is a hazard, and would take official notice of that fact.   Chairman Cleary also notes that this action is consonant with Usery v. Marquette Cement Manufacturing Company, No. 76-4083, (2d Cir., August 29, 1977), wherein the Second Circuit indicated that, even without evidence of industry recognition, certain conditions are so patently dangerous that they must be classified as a recognized hazard and are within the scope of section 5(a)(1).

As to the argument that the citation was not issued with "reasonable promptness", Chairman Cleary concludes that Schriber has not in any event demonstrated any prejudice from the minimal delay.   Accordingly, its reliance upon Secretary v. Chicago Bridge & Iron Co., 514 F.2d 1082 (7th Cir. 1975) is misplaced.   See Todd Shipyards Corp., 77 OSAHRC 74/F14, 5 BNA OSHC 1012, 1976-77 CCH OSHD para. 21,509 (No. 8500,   [*7]   1977); Par Construction Co., Inc., 76 OSAHRC 133/B11, 4 BNA OSHC 1779, 1976-77 CCH OSHD para. 21,216 (No. 11092, 1976).

Regarding Schriber's contentions that the Secretary failed to show that perimeter guardrails were feasible, Chairman Cleary agrees with the Judge's observation that regardless of the practicability of guardrails, there were alternative means of protection that could have been used by the employer to protect the workers.   Included among these alternatives were devices such as lifelines, catch platforms, and safety nets.

Commissioner Barnako, on the other hand, does find merit in the respondent's assertion that the Secretary did not demonstrate any feasible means of abatement. n5 In his view the record is void of evidence establishing that guardrails are compatible with a roofer's operations when installing a built up roof. n6 Insofar as the alternative devices suggested by Judge Osterman are concerned, these received only passing attention during the hearing and the Secretary did not adduce evidence regarding the practicability of any of these alternatives.   Concluding that the Secretary has failed to describe and demonstrate feasible methods of abatement, and [*8]   therefore failed to sustain the burden of proof imposed upon him by the Act, Commissioner Barnako would reverse the Judge's decision and vacate the citation.   (See National Realty and Construction Co. v. OSHRC, supra.) Commissioner Barnako also notes that, although cases nos. 15927 and 76-0002 are premised on the same evidentiary record as this case, the Secretary has not taken exception to Judge Burchmore's decision to vacate the citations in those cases.   (See n.3, supra.)

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n5 In view of his disposition on the feasibility issue, Commissioner Barnako expresses no opinion on the other issues raised by Schriber.

n6 Commissioner Barnako notes that the record includes evidence to the contrary.   Specifically, Schriber presented evidence showing that the presence of temporary guardrails prevents the installation of built up roofing and composition base flashing underneath the base plates of the guardrails. Therefore, while the roofers were laboring within the zone of danger close to the roof's edge, the guardrails would have to be removed.

Additionally, he notes the uncontradicted testimony that setting up, moving and dismantling the guardrails would place the roofers within a four to six foot distance from the roof's edge for a period two and one-half times longer than that required to simply install the roofing absent guardrails.


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In order to resolve the impasse created by the disagreement as to the proper disposition of case number 15681, the Commission members agree to affirm Judge Osterman's decision.   Life Science Products Co., 77 OSAHRC 200/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD para. 22,313 (No. 14910, Nov. 11, 1977).

As to cases numbers 15927 and 76-0002, the Judge's decision in those cases is affirmed, and is accorded the significance of an unreviewed Judge's decision.   Leone Constr. Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976), appeal withdrawn, No. 76-4070 (2d. Cir. 1976).