LAYTON ROOFING COMPANY, INC.

OSHRC Docket No. 2425

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 John J. Morris, dated October 16, 1973, is before the Commission for review pursuant to 29 U.S.C. 661(i). That decision vacated a citation which charged the respondent with a serious violation of 29 U.S.C. 654(a)(2) by failing to comply with an occupational safety and health standard codified at 29 C.F.R. 1926.500(d)(1) while performing work on a flat roof.

The above-cited standard provides in pertinent part that:

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.

The Judge vacated the citation and the penalty proposal of $600.00 on the ground that this standard does not apply to flat roofs.

Subsequent to the Judge's decision in this case, the Commission, with Chairman Moran dissenting, held that 29 C.F.R. 1926.500(d)(1) applies to flat roofs. Secretary v. S.D. Mullins Company, 4 OSAHRC 1415 (1973), petition for review [*2] docketed No. 73-3705 (5th Cir., Nov. 14, 1973). Applying that precedent, which has been followed by the Commission in subsequent cases, we reverse the Judge. Although Chairman Moran agrees to dispose of this case on the basis of that precedent, he continues to adhere to the view that the standard does not apply to flat roofs for the reasons expressed in the Mullins case an in his dissenting opinion in Secretary v. J.F. Probst & Co., 11 OSAHRC 373, 375 (1974).

The evidence at the hearing on the question of the violation reveals that the respondent had not complied with the requirements of the standard. The respondent contended that it could not have completed its work to the edge of the roof if a guardrail were in place. However, this is not a valid defense where, as here, a railing is not used during that part of the work which can be accomplished without removal of the railing. See Secretary v. W.B. Meredith II, Inc., 9 OSAHRC 245 (1974); Secretary v. La Sala Contracting Company, 2 OSAHRC 976 (1973); Secretary v. Jaffie Contracting Company, 2 OSAHRC 466 (1973). Furthermore, although the facts show that the respondent would have had some difficulty [*3] in installing various types of guardrails at the edge of the pre-cast concrete roof, the respondent itself considered that either standpipe railing or railing anchored in the ground 16 feet below could be used. n1

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n1 Commissioner Cleary believes that the respondent could have complied with the standard by requiring its employees to wear safety belts because the term "equivalent," as used in the standard, has reference to the method of guarding persons working on a floor or platform. Although Chairman Moran believes that the use of safety belts might have absolved the respondent in this case, he disagrees with the implication that the failure to wear safety belts constitutes a violation of 29 C.F.R. 1926.500(d)(1). See Secretary v. Industrial Steel Erectors, Inc., 6 OSAHRC 154 (1974).

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The record conclusively establishes that there was a substantial probability that the violation could result in death or serious physical harm and that the employer possessed the requisite knowledge of the hazardous condition. [*4] We therefore find that the violation was serious as defined in 29 U.S.C. 666(j).

Considering the entire record and giving due consideration to the factors enumerated in 29 U.S.C. 666(i), we conclude that a $300.00 penalty is appropriate.

Accordingly, the citation for a serious violation of 29 C.F.R. 1926.500(d)(1) is affirmed, and a penalty in the amount of $300.00 is assessed.

[The Judge's decision referred to herein follows]

MORRIS, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651, et seq., hereafter called the Act) contesting certain Citations issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act.

The Citation alleges that Complainant inspected a workplace under the ownership, operation or control of Respondent, located in Murray, Utah and described as roofing work for a warehouse under construction.

It is further alleged that Respondent violated Section 5(a)(2) of the Act by failing to comply with a certain occupational safety and health standard promulgated by Complainant, pursuant to Section 6 thereof. Immediate abatement [*5] upon receipt of the citation was proposed.

The contested Citation was issued March 9, 1973 as the result of an inspection on February 21, 1973 and it is alleged that the standard violated was duly published in the Federal Register and subsequently recordified in the Code of Federal Regulations at 29 CFR 1926.500(d)(1).

The Citation alleges as follows:

The elevated surface on which employees were working was in excess of 6 feet and the edge of it was not protected by a standard railing or equivalent.

The promulgated standard provides as follows:

1926.500 Guardrails, handrails, and covers.

(a) General provision. This subpart shall apply to temporary or emergency conditions where there is danger of employees or material falling through floor, roof, or wall openings, or from stairways or runways.

(d) Guarding of open-sided floors, platforms, and runways. (1) 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 paratraph (f).

Pursuant to the enforcement procedure as set forth in Section 10(a) of the Act, the Respondent was notified by letter dated March 9, 1973 from [*6] Charles F. Hines, Area Director for the Occupational Safety and Health Administration; U.S. Department of Labor; said Area Director proposed to assess a penalty for the violation alleged herein in the amount of $600.

After Respondent contested this enforcement action, and a Complaint and an Answer having been filed by the parties, the case came on for a hearing in Salt Lake City, Utah on June 20, 1973. Roofers Local Union 91 appeared by its President, Leland B. Helquist, and its Business Agent, Larry T. Jensen. The above employee representatives participated in the trial but did not file any formal pleading. An additional affected employee, John Hernardey, appeared but did not desire to participate.

Notice of the hearing was duly posted.

STATEMENT OF JURISDICTION

The parties filed a written stipulation, indicating in part that Respondent in the course of its business obtains asphalt from Maxfield Asphalt Company, 190 West 5300 South, Murray, Utah, which in turn obtains asphalt from a location in Cody, Wyoming (Stipulation, paragraph 1). Respondent is a corporation with its place of business in Salt Lake City, Utah and engaged in the business of construction and specifically [*7] in roofing and flooring (Complaint, paragraph 1; Answer, paragraph 2).

Under Section 3(3) of the Act, the term "commerce" is defined to mean . . . "commerce, transportation, or communication . . . between a state and any place outside thereof . . ." The above Stipulation of the parties indicates that Respondent is engaged in a business affecting commerce. The Occupational Safety and Health Review Commission accordingly has jurisdiction of the subject matter of this litigation.

STATEMENT OF THE EVIDENCE

Complainant's Evidence

On February 20, 1973 Respondent's employees were working on a building when a fatality occurred. The particular building was described as a concrete deck-type building with a flat roof and firewalls on three sides; the front of the building was six inches to eight inches higher than the rear and some 200 feet in length. On the date of the inspection, February 21, 1973, there was no barrier on the roof nor any guardrails. The foremen at the jobsite had put up a barrier consisting of rolls of felt and a two-by-four piece of lumber on top of the felt, but this was considered to be more of a hazard than a barrier, and it was removed after two or [*8] three hours. One of the witnesses considered the roof to be a "working area." The parties stipulated that the felt and the two-by-four lumber was not a guardrail. The Compliance Officer considered the roof to be a working surface that was a floor or platform. The Compliance Officer was of the view that a barrier could be erected adjacent to the edge of the roof; he felt that with this type of building, an extension could be welded on the edge of the roof.

In proposing a penalty for this alleged violation, the evidence indicated that the unadjusted penalty was $1,000 (Complainant's Exhibit 9). The Compliance Officer allowed a credit of 10% for good faith; 10% for size (less than 19 employees); and 20% for prior history or total credits of 40%, resulting in a $600 proposed penalty. In arriving at the proposed penalty, the Compliance Officer considered the gravity of the violation, the likelihood of injury, and the extent to which the standard was violated.

Respondent's Evidence

Leland Helquist, Respondent's foreman and an officer of the Roofers Union, testified that he had installed many flat-deck roofs. The deceased employee, Graham, was a highly trained roofer, whose work [*9] required that he work out over the edge of the roof. In this witness' opinion, it was not possible to weld on a temporary brace.

The Business Agent for the Local indicated that the roofing industry does not customarily and typically erect roof barriers, and in this particular situation, it would not have been possible to build a barrier except from the ground up. This testimony was further substantiated by the President of the Utah Roofing Contractors' Association. He further indicated that it would not be possible to weld in a temporary structure. Further, it would not be possible to install this particular roof with such a barrier in place.

PROCEDURAL MATTERS

As herefore indicated, the parties filed a written stipulation. Paragraph 2 of that stipulation states as follows:

If called to testify in this proceeding, Lynwood Christenson, an officer of LaRies, Inc., would testify that: (a) LaRies, Inc., will in the near future occupy and utilize a facility located at 5450 South 360 West, Murray, Utah, (b) said facility will serve as a central office for its stores located in Utah, (c) LaRies, Inc., sells clothing at retail, (d) LaRies, Inc., receives approximately 90% [*10] of the clothing which it sells to the public, from manufacturers located outside Utah, (e) said out-of-state supplies are shipped to LaRies, Inc., directly from the out-of-state manufacturers, (f) when it moves into the facility at 5450 South 360 West, LaRies will, at that location, receive the out-of-state materials mentioned in paragraph 2(d) hereof.

By entering into the stipulation, neither party waived any objection as to the relevancy, materiality, or competency of any matter set forth therein (Stipulation, page 3). Respondent objected to paragraph 2 as not relevant. This motion was taken as submitted.

At the commencement of the trial, Respondent filed a motion for summary judgment and attached thereto the supporting affidavit of Fred Moosman, President of Respondent. The affidavit recites that the roofing work performed by Respondent was on an essentially flat roof. The motion for summary judgment was taken as submitted.

ISSUES PRESENTED

1. Whether the allegations in paragraph 2 of the stipulation as outlined above are relevant to the cause of action pleaded herein.

2. Whether Respondent was in violation of 29 CFR 1926.500(d)(1).

DISCUSSION

Paragraph 2 [*11] of the stipulation enumerated above is direction to the issue of "commerce" and it clearly refers to a course of activity and conduct that is to occur "in the near future." What might occur in the course of future events cannot be used as an evidentiary factor to establish a jurisdictional basis for the scope and operation of the Act. A review of the Act indicates no such Congressional intent. Accordingly, Respondent's objection to paragraph 2 of the stipulation is sustained, and paragraph 2 of the stipulation is stricken.

The issue of whether 29 CFR 1926.500(d)(1) is applicable to flat roof construction has been ruled adversely to Complainant in the following Review Commission decisions:

Secretary of Labor v. S. D. Mullins, Secretary of Labor v. Diamond Roofing Company, Secretary of Labor v. Hawkins Construction Company, Secretary of Labor v. Heyse Sheet Metal and Roofing Company, Secretary of Labor v. J.F. Probst and Company, [*12] Secretary of Labor v. Lance Roofing Company, Secretary of Labor v. Moser Heating and Roofing Company,

By and large, the principle in the above-cited cases is that 29 CFR 1926.500(d)(1) does not require guardrailings around the perimeter of a "roof." The basic rationale of these decisions is that 29 CFR 1926.500(d)(1) as presently drafted does not encompass "roofs." Further, to adopt the construction urged by Complainant and require perimeter scaffolding for roofs under this section would render meaningless 29 CFR 1926.451(u)(3), which does require such protection for "roofs more than sixteen feet from the ground to eaves with a slope greater than four inches in 12 inches without a parapet . . ." To adopt the position urged by Complainant would negate the latter regulation.

This judge concurs with the views as expressed in the foregoing cases and the Citation for the alleged violation of 29 CFR 1926.500(d)(1) should be vacated and the proposed civil penalty of $600 should likewise be vacated. Respondent's motion for summary judgment with supporting affidavit correctly [*13] raised the defense, and Respondent's motion for summary judgment should be sustained.

FINDINGS OF FACT

1. Respondent, Layton Roofing Company, Inc., is a corporation of the State of Utah and is an employer engaged in the business of construction, specifically in roofing and flooring.

2. Respondent, in the course of his business, uses asphalt which is obtained by another company from a location in Cody, Wyoming (Stipulation, paragraph 1).

3. On the date of the inspection, there were seven employees of Respondent working on a roof with no barrier or guardrails.

4. The roof in question was a concrete deck-type flat roof, consisting of one level, with the front six to eight inches higher than the rear.

5. The roof under construction was essentially a flat roof (Affidavit attached to motion for summary judgment).

6. The roof to the ground level measured 16, feet, 2 inches.

CONCLUSIONS OF LAW

1. Respondent is, and was at all times relevant to the issues herein, engaged in a business affecting commerce within the meaning of Section 3 of the Occupational Safety and Health Act of 1970 (Facts, paragraphs 1, 2).

2. Respondent is, and was at all times herein mentioned, an employer [*14] within the meaning of Section 3(5) of the Act, subject to the provisions of paragraph 4-a and 5-a of the Act, and the standards promulgated under Section 6 thereof (Facts, paragraphs 1, 2, 3).

3. Respondent did not violate 29 CFR 1926.500(d)(1) for the reason that the cited standard does not apply to roof perimeters.

4. Inasmuch as Complainant has failed to establish a violation of 29 CFR 1926.500(d)(1), the Citation for the alleged serious violation thereof should be vacated and the proposed civil penalty of $600 should likewise be vacated.

5. Respondent's motion for summary judgment should be sustained.

ORDER

Based on the foregoing findings of fact and conclusions of law, it is hereby adjudged and ordered that:

1. Respondent's motion for summary judgment is sustained.

2. Citation number 2 for the alleged serious violation of 29 CFR 1926.500(d)(1) is vacated.

3. The proposed civil penalty of $600 for the violation alleged in the preceding paragraph is vacated.

So ordered.