Docket Nos. 364; 459 (consolidated)

S. D. MULLINS COMPANY, INC. AND DIAMOND ROOFING COMPANY, INC.

OSHRC Docket Nos. 364; 459 (consolidated)

Occupational Safety and Health Review Commission

October 24, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission upon my order directing review of decisions rendered by Judge John J. Larkin in the above-captioned consolidated cases. In each case the Judge vacated a citation for non-serious violation of the standard prescribed by 29 CFR 1926.500(d)(1) n1 and of the Occupational Safety and Health Act of 1970, 29 U.S.C.A. 652, et seq. (hereinafter "the Act") n2. In reaching his decision the Judge determined that the standard does not apply to an open-sided flat roof.

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n1 29 C.F.R. 1926.500(d)(1) provides:

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 paragraph (f)(i) 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 In Docket No. 459 Judge Larkin affirmed a citation for non-serious violation of 29 C.F.R. 1910.314(d)(4) for Respondent's failure to ground a power saw. We concur. Accordingly, our review is limited to those matters that pertain to the alleged violations of 29 C.F.R. 1926.500(d)(1).

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We have reviewed the record including the Judge's decision and the briefs filed by the parties. For the reasons given hereinafter we reverse in No. 364 and adopt the decision in No. 459 only to the extent that it is consistent with the following.

The relevant facts are not in dispute. Employees of both Respondents were constructing a flat roof approximately twenty five feet above ground on a structure located at 6000 Boat Rock Boulevard, Atlanta, Georgia. The outside perimeter or edge of the roof was unguarded, and the employees were affected by said condition.

The question presented is whether the standard cited by Complainant applies in the circumstances. Respondents argue that it does not because the word "roof" does not appear among the terms of the standard. The standard, they say, was not intended to apply to flat roofs. We think otherwise.

The core of the problem involves the question of whether the terms "floor" and "platform" as applied to a building or other structure under construction, alteration, or repair include a flat roof. We think they do. As Judge David H. Harris points out in Secretary of Labor v. Psaty & Fuhrman, Inc.,

Clearly, in the erection of a multi-storied structure, each floor temporarily serves as ceiling and roof for the floor beneath and it is not strange to find "floor" and "roof" being used interchangeably during the erection of a building as each story is added" (Slip opinion at pg. 11).

Of course, it is not strange that the terms can be used interchangeably. By definition, the term "floor" means "the surface or the platform of a structure on which to walk, work, or travel" (Webster's Third New International Dictionary, 873 (1971)). Certainly, a flat roof being constructed by employees and upon which they walk during the course of their work is a "floor" rather than a roof to such employees. The problem with Respondents' argument is that it focuses on the end use of the roof, i.e., a cover. The argument ignores the fact that during construction the roof may be used as a floor or platform.

Similarly, Respondents' argument that the standard was not intended to cover flat roofs is unmeritorious. We are told that it was derived from an American National Standards Institute (hereinafter "ANSI") standard, n3 and that the ANSI standard was not intended to apply to roofs. However, that may be, the standard before us is not the ANSI standard. Rather, it is a federal standard adopted according to the rule-making authority of the Construction Safety Act (P.L. 91-54, 40 U.S.C. 333) following notice and public participation. It is therefore deemed to be a safety standard of this Act as provided for by section 4(b)(2), n4 find is an established Federal standard adopted under section 6(a). n5 Accordingly, it is the language of and intent for the federal standard that must control our determination. n6

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n3 ANSI A12.1-1967, Safety Requirements for Floor and Wall Openings, Railings, and Toeboards.

n4 Section 4(b)(2), in relevant part, provides as follows:

Standards issued under [Public Law 91-54, Act of August 9, 1969 (40 U.S.C. 333)] and in effect on or after the effective date of this Act shall be deemed to be occupational safety and health standards issued under this Act, as well as under such other Acts.

29 CFR Part 1926 originally issued as Part 1518 on April 17, 1971 (36 F.R. 7340 et seq. )

n5 Section 6(a) provides as follows:

Without regard to chapter 5 of title 5, United States Code, or to the other subsections of this section, the Secretary shall, as soon as practicable during the period beginning with the effective date of this Act and ending two years after such date, by rule promulgate as an occupational safety or health standard any national consensus standard, and any established Federal standard, unless he determines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees. In the event of conflict among any such standards, the Secretary shall promulgate the standard which assures the greatest protection of the safety or health of the affected employees.

n6 The situation would be otherwise if the standard under consideration was a "national consensus standard" as defined by section 3(9) and promulgated under the authority of section 6(a) of the Act.

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We said above that the practicalities of construction work can make a floor out of a flat roof. The language aspect of the determination is thereby concluded. The issue of intent can be determined by comparing the ANSI standard(s) for floor and wall openings with the federal standards prescribed by subpart M of Part 1926. The word "roof" does not appear in any part of the ANSI standard(s). The same is not true regarding the standards prescribed by subpart M. For example, subsection 500(a) of the subpart prescribes the scope of application of the subpart. The word "roof" appears therein. The corresponding provision of the ANSI standard(s) (entitled "Scope and Purpose") does not contain the word "roof." This difference, standing by itself, is indicative of a specific intent that the federal standards be broader in their scope of coverage than the source standards.

Moreover, subsection 500(b), "Guarding of floor openings and floor holes," does not contain the word "roof." Provisions of this subsection are similar to corresponding provisions of the ANSI standard(s). Thus, the subsection like the ANSI standard(s) requires the guarding of skylight, trapdoor, hatchway and chute floor openings, etc. Unlike the ANSI standard(s) floor holes and floor openings are defined in section 502 of the subpart to include roof holes and openings. Accordingly, the provisions of subsection 500(b) apply to openings in roofs.

Respondents do not argue otherwise. Indeed, they admit that roof holes and openings must be guarded. The danger of falling through a roof, they say, is greater than the danger of falling off of a roof. The difference, they say, is that employees have greater awareness of the edge of the roof than they do of holes or openings in the roof. Therefore, they conclude it was intended that holes and openings be guarded and that outside edges not be guarded.

Their conclusion flies in the face of the practicalities of construction work and is in spite of the obvious intent to include roofs within the scope of the federal standard. Indeed, as Judge Harris observed in Psaty & Fuhrman, n7 the conclusion "does violence to common sense." We agree with this characterization.

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n7 Supra, slip opinion at page 12.

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Accordingly, we conclude that the term "floor" in subsection 500(d)(1) includes a flat roof. Since these Respondents did not guard an open-sided roof and employees were affected thereby they violated the standard and section 5(a)(2) of the Act. We have reviewed the civil penalties proposed by the Complainant. We conclude that in proposing said penalties appropriate consideration was given to the criteria specified by section 17(j) of the Act.

Accordingly, it is ORDERED that:

(1) In No. 364, the decision of the Judge be and the same is hereby set aside; the citation for violation of 29 CFR 1926.500(d)(1) be and the same is hereby affirmed, and a civil penalty in the amount of fifty dollars ($50) be and the same is hereby assessed against the Respondent, S.D. Mullins Company, Inc.; and,

(2) In No. 459, the decision of the Judge to vacate the citation insofar as it alleged a violation of 29 CFR 1926.500(d)(1) be and the same is hereby set aside, the citation for violation of said standard be and the same is hereby affirmed; a civil penalty in the amount of forty-five dollars ($45) be and the same is hereby assessed against Respondent, Diamond Roofing Company, Inc., and the decision of the Judge in all other respects be and the same is hereby affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: That it isn't easy to prove that up is down or that a roof is a floor, is amply demonstrated by this decision's reliance upon an opinion rendered six months ago which is of no force or effect because this Commission has not yet seen fit to adopt it (see footnote 7).

The Commission's conclusion that a "floor" is a "roof" brings to mind the following passage from Lewis Carroll's classic, Alice Through The Looking Glass:

"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean -- neither more nor less."

"The question is," said Alice, "whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be master -- that's all."

This decision not only reflects the contorted logic of Humpty Dumpty but it frustrates the purposes of the Act by obfuscating regulations which require elucidation.

The purpose of the Act is to obtain safe and healthful working conditions. This is to be accomplished through promulgation of occupational safety and health standards which tell employers what they must do to avoid conditions which are hazardous. A roofing contractor is quite unlikely to look at a standard requiring the "guarding of open-sided floors" and be inspired to research the law to see if, by some chance, the word "floor" has been interpreted to include the word "roof." As we said in Secretary v. A.B. Concrete, Inc.,

To strain the meaning of a word to the extent done in this decision, merely for the purpose of inflicting a penalty on two employers whose employees may have been exposed to a hazard, is to delay the day when the job safety regulations will be written in clear and concise language so that all employers will be able to understand and observe them.

The Commission says that the "intent" of the standard is to include flat roofs within the term "floor." Even though this decision gives no hint as to the basis for such conjecture, it really doesn't matter. What may have been intended is of no consequence or meaning when the plain wording of a requirement is clear. Whether a rule or regulation is applicable to a given situation must be determined on the basis of the regulation itself, rather than on an ad hoc appraisal of the subjective expectations of its drafters, its interpreters, or those covered by it.

While it is true that the failure to include roofs within the coverage of 29 CFR 1926.500(d)(1) might allow the existence of a hazard, the function of this Commission is to interpret and apply existing laws and regulations. It has no authority to pass on their desirability, to amend them, or to plug gaps in their coverage. These functions are the exclusive responsibility of the Secretary of Labor under the Act.

This decision tells us that because another regulation dealing with openings in floors and roofs which is codified in 29 CFR 1926.502(b) defines the phrase "floor opening" as including roof openings, any regulations in the same subpart of the regulations which includes the term "floor" should presumptively apply also to roofs. Were this interpretation valid, the separate mention of "floor" and "roof" made in the General Provision of the same subpart, 29 CFR 1926.500(a), would make little sense. A more logical construction is that the drafters intended to group together those openings through which a person might fall, but that roofs and floors should otherwise be regarded as separate and individual classifications, as indeed they are.

The heading of the regulation codified at 29 CFR 1926.500(d), "[g]uarding of open-sided floors, platforms, and runways," is sufficiently definitive in and of itself, so that a reading of 29 CFR 1926.502(b) would appear to be superfluous. Consequently, the application of 29 CFR 1926.500(d)(1) to roofs serves only as a trap to employers, who as laymen acting in good faith could not and should not be expected to make such an inclusive reading.

Even if one were to assume, arguendo, that it is logical to extend the meaning of the word "floor" to include "roof" within its ambit, the standard would still fail as applied to roofs. The employer is entitled to rely on the standards' clear language, uncolored by additional and subjective criteria. Secretary v. California Stevedore and Ballast Co., Had the Secretary of Labor wanted 29 CFR 1926.500(d)(1) to apply to roofs, he would have stated as much. If he wants to do so now, the Act grants him the authority.

Like other statutes and regulations which allow monetary penalties against those who violate them, an occupational safety and health standard must give the employer fair warning of the conduct it prohibits or requires, as well as provide an ascertainable standard of culpability to circumscribe the discretion of the various agents of the enforcing authority. That rule, which embodies the very essence of due process of law, is not observed by the upside-down logic applied in this decision.

Although immaterial to the disposition of these cases, the erroneous nature of the following statement contained in this decision is noted:

We conclude that in proposing said penalties appropriate consideration was given to the criteria specified by section 17(j) of the Act.

The Act requires the Commission to consider such criteria -- not the person "proposing said penalties."

[The Judge's decision referred to herein follows]

LARKIN, JUDGE, OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (referred to as the Act) to review a "Citation" and "Notification of Proposed Penalty" for a violation not of a serious nature in the amount of $50 issued by the Secretary of Labor (referred to as the Secretary) pursuant to Sections 9(a) and 10(a) of the Act.

The trial was held on July 6, 1972, in Atlanta, Georgia, and the case consolidated with Diamond Roofing Company, Inc., Docket No. 459 for purposes of trial and briefing. The Citation issued on December 17, 1971, to Respondent cites the standard and "description of alleged violation" as follows:

29 CFR 1926.500(d)(1) -- No guards on open sided floors (roof) to prevent workers from accidentally falling.

Respondent is a corporation with place of business at 1980 Will Ross Court, Chamblee, Georgia (Answer, Par. II). It is engaged primarily in the installation of roofs for industrial and commercial buildings (Tr. 44-46). Respondent receives supplies interstate, works on facilities occupied by national companies and is an employer "affecting interstate commerce" under the provisions of the Act (Tr. 29-30, 32, 34-40). Respondent has approximately 8 roofing employees (Tr. 71-72, 88).

On December 14, 1971, Respondent was installing a roof approximately 25 feet above the ground at 6000 and 6025 Boat Rock Boulevard, Atlanta, Georgia (Tr. 32, 43, 49-51, 72, 82, 90). The roof perimeter did not contain a safety rail (Tr. 46, 74-75, 89).

Respondent did not have a safety indoctrination or formal safety program (Tr. 88).

OPINION

Respondent admits and the record shows that the roof perimeter did not contain a standard railing. Actually, the primary dispute of the parties is whether 29 CFR 1926.500(d)(1) is applicable. It must be concluded on the basis of this record that 29 CFR 1926.500(d)(1) does not apply to roof perimeters.

The section in dispute provides:

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 by paragraph (f)(i) 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.

Subpart M of 29 CFR 1926.500 is captioned "Floor and Wall Openings, and Stairways." The general provision of Subpart M provides:

Guardrails, handrails and covers.

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

"Employers are entitled to rely on the standard's clear language, uncolored by additional and subjective criteria" (cf. California Stevedoring Company, (OSHRC Docket 72)). See also Johnson v. Udall, 292 Fed. Supp. 738, 750 (CDCAL, 1968) emphasizing that ". . . effect should be given to the natural and plain meaning of words in a rule or regulation."

The Secretary argues that ". . . the term open sided floors, particularly during construction, includes a flat roof." The fallacy with this argument is that the Secretary recognizes a distinction between a floor and a roof as obvious by the use of the two distinct terms in the general provision clause of the section in dispute. Had he intended that Section 500(d)(1) apply to roofs, he very easily could have and should have said so as he did with reference to roof openings in the general provision clause. His mention of roof in the general provision clause and its absence in Section 500(d)(1) can only be accepted as an intent to specifically exclude roofs from the latter section.

The Secretary argues that the Section should be liberally construed to give broad coverage because of the intent of Congress to provide safe and healthful working conditions for employees. Conversely, an employer is entitled to fair treatment in dealing with big government. The record shows that even the Secretary's own supervisory employees differ as to whether the section applies to roof perimeters. It certainly follows that an employer has justifiable ground to reject the section's applicability. Although recognizing that the Act was passed by Congress for the purpose stated by the Secretary, the Secretary as enforcer of the Act, also has the responsibility to unequivocally state what he means in his own standards. Having failed to so state, it must be concluded that 29 CFR 1926.500(d)(1) does not apply to roof perimeters.

DECISION

29 CFR 1926.500(d)(1) does not apply to roof perimeters and Respondent was not in violation of this standard for its failure to provide a safety railing.

It is therefore ORDERED:

That the Citation is vacated with respect to the alleged violation pertaining to 29 CFR 1926.500(d)(1) and no penalty shall be assessed against the Respondent.

LARKIN, JUDGE, OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970 29 U.S.C. 651 et seq. (referred to as the Act) to review a "Citation" and "Notification of Proposed Penalty" for two violations not of a serious nature in the amounts of $45 and $30, respectively, issued by the Secretary of Labor (referred to as the Secretary) pursuant to Sections 9(a) and 10(a) of the Act.

The trial was held on July 6, 1972, in Atlanta, Georgia, and the case consolidated with S.D. Mullins Company, Inc., Docket No. 364 for purposes of trial and briefing. The Citation issued on January 6, 1972, to Respondent cites the standards and "description of alleged violation" as follows:

29 CFR 1926.500(d)(1) -- Employees working on roof with unguarded sides or edges.

29 CFR 1910.314(d)(4) -- Skill saw in shop not equipped with grounded plug.

Respondent is a corporation with place of business at 1676 DeFoor Circle, NW, Atlanta, Georgia (Answer, Par. II). It is engaged primarily in the installation of roofs for industrial and commercial buildings (Tr. 55, 61). Respondent receives supplies interstate, works on facilities occupied by national companies and is an employer "affecting interstate commerce" under the provisions of the Act (Tr. 19-25, 58, 61, 65). The Respondent was formed in May, 1971, and has approximately 12 to 13 roofing employees (Tr. 55, 85).

On December 16, 1971, Respondent was installing a roof approximately 25 feet above the ground at 6000 Boat Rock Boulevard, Atlanta, Georgia (Tr. 52-53, 72-75, 82-83). The roof perimeter did not contain a safety rail (Tr. 64, 74, 75).

The Compliance Officer noted that a hand power saw, lying on the roof, at the job site did not contain a ground plug prong (Tr. 73-74, 114).

Respondent maintained a place for safety meetings but did not have a complete safety program (Tr. 84-85).

OPINION

The section in dispute provides:

Guarding of open sided floors, platforms and runways.

Subpart M of 29 CFR 1926.500 is captioned "Floor and Wall Openings, and Stairways." The general provision of subpart M provides:

Guardrails, handrails and covers.

The record shows that the handskill saw did not contain a grounding prong on the plug, and respondent was in violation of the standard. The saw was relatively new and initially contained a grounding prong. It had been removed unbeknowingly to respondent. When the facts are weighed in the light of the gravity of the violation, the size of respondent, its good faith and history of previous violations, the Secretary's conclusion that no penalty should be imposed for the violation is adopted as the decision of the Commission.

DECISION

29 CFR 1926.500(d)(1) does not apply to roof perimeters and respondent was not in violation of this standard for its failure to provide a safety railing. Respondent committed a violation not of a serious nature by failing to conform with the requirements of 29 CFR 1910.314(d)(4), but when the gravity of the violation, the size of respondent, its good faith and history of previous violations are considered, no penalty shall be assessed.

It is therefore ORDERED:

That the citation is vacated with respect to the alleged violation pertaining to 29 CFR 1926.500(d)(1) and no penalty shall be assessed against the Respondent and the citation for nonserious violation of Section 29 CFR 1910.314(d)(4) is affirmed, but no penalty shall be assessed against the respondent.