L.I. DUMONT, INC.

OSHRC Docket No. 4196

Occupational Safety and Health Review Commission

August 28, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINION:

BY THE COMMISSION: This matter is before the Commission for review of a January 24, 1974 decision of Judge James D. Burroughs pursuant to 29 U.S.C. 661(i). At issue is whether under the circumstances of this case, the standard at 29 C.F.R. 1926.500(d)(1) is applicable to the respondent. Also at issue is whether, assuming the standand to be applicable, respondent's employees were exposed to any hazard as a result of respondent's failure to observe the requirements of the above cited standard.

In accordance with prior Commission decisions, Judge Burroughs concluded that the standard at 29 C.F.R. 1926.500(d)(1) was applicable to the respondent's worksite. Heyse Sheet Metal and Roofing Co., S. & H. Guide para. 16,804 (Rev. Com'n., 1973); S.D. Mullins Co.) and Diamond Roofing Co., Docket Nos. 364 and 459 (consolidated cases), BNA 1 O.S.H.R. 1364, CCH Employ. S. & H. Guide para. 16,803 (Rev. Com'n., 1973). He also concluded that respondent's employees were exposed to a hazard by reason of noncompliance with the cited standard. In affirming the [*2] violation, the Judge assessed a $50 penalty.

We have reviewed the entire record and find no prejudicial error in the Judge's decision. We therefore affirm the Judge's decision in all respects.

Chairman Moran would reverse for the reason set forth in his dissenting opinion in S.D. Mullins Co., et al supra.

[The Judge's decision referred to herein follows]

BURROUGHS, JUDGE, OSAHRC: This proceeding arises under section 10(c) of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq., 84 Stat. 1590 (hereinafter referred to as the Act.) Respondent seeks review of a citation issued to it on July 24, 1973, by the complainant pursuant to section 9(a) of the Act and of a penalty proposed pursuant to section 10(a) of the Act for the alleged violation set forth in the citation.

The citation and notification of proposed penalty were issued as the result of an inspection on July 23, 1973, of a workplace, under the operation or control of the respondent, located at the Westgate Shopping Village, Mobile, Alabama. Respondent was engaged in the installation of a roof on the Winn-Dixie store building at the time of the inspection.

The citation alleges that respondent [*3] violated section 5(a)(2) of the Act by failing to comply with the safety standard set forth at 29 CFR 1926.500(d)(1). The alleged violation was described by complainant as follows in the citation.

Failure to guard open sided floor some 20 feet above adjacent ground level by a standard railing, or the equivalent, where employees were at work applying hot asphalt and felt on roof deck. Alleged violation on northeast side of Winn-Dixie building roof.

The notification of proposed penalty proposed a penalty of $50.00 for the alleged violation.

Respondent, by letter dated August 14, 1973, timely notified the complainant that it desired to contest the citation and proposed penalty. The complainant timely advised the Commission of the notice of contest and a complaint was received by the Commission on August 28, 1973. The case was assigned to this Judge on October 31, 1973, for purposes of conducting a hearing pursuant to section 10(c) of the Act. The hearing was held in Mobile, Alabama, on December 5, 1973. No additional parties desired to intervene in the proceedings.

JURISDICTION AND ISSUES

Respondent concedes that at all times material to this proceeding it was [*4] engaged in a business affecting commerce within the meaning of the Act and that the Commission has jurisdiction of the parties and of the subject matter herein (Pars. I and II, Complaint and Answer).

The following issues are determinative of this proceeding:

1. Did respondent fail to comply with the safety standard published at 29 CFR 1929.500(d)(1) and thereby violate section 5(a)(2) of the Act?

2. What penalty, if any, should be assessed for any violation of the Act?

FINDINGS OF FACT

The evidence of record has been carefully considered and evaluated in its entirety. The facts hereinafter set forth are specifically determined in resolving the issues in this case.

1. Respondent, L.I. Dumont, Inc., is a corporation engaged in the roof installation business. It employes less than 10 persons. At all times pertinent to this proceeding, it was engaged in the installation of the roof for the Winn-Dixie Food Store located in the Westgate Shopping Village, Mobile, Alabama (Par. II, Complaint and Answer; Tr. 7-8, 45).

2. The Winn-Dixie building is a one story structure measuring approximately 150 X 200 feet (Tr. 9). The roof is approximately 20' 8" from the ground level [*5] and has a slight slope for drainage purposes (Exs. A-D; Tr. 9-10). A parapet, varying in height from 12 to 18 inches above roof level at the front to approximately 36 inches at the back of the roof, extends above the roof on both sides of the building (Exs. A, E; Tr. 23-24, 27). The parapet is githt inches thick (Tr. 27).

3. The complainant, through a duly authorized compliance officer, conducted an inspection on July 23, 1973, of the workplace of respondent at the Winn-Dixie Food Store building, Westgate Shopping Village, Mobile, Alabama (Tr. 8, 41).

4. Respondent had five employees at the jobsite on the date of the inspection. Only three or four employees were actually working on the roof (Tr. 10, 15). One employee always remained on the ground to tend the kettle from which the hot asphalt was pumped (Tr. 15, 21-22).

5. The employees were applying asphalt, asbestos felt, gravel and waterproofing materials to the roof structure which had previously been constructed (Tr. 10-12).

6. At the time of the inspection, respondent's employees were working approximately 25 feet from the edge of the roof (Tr. 9, 13-14). The edge of the roof, including the area around [*6] air conditioning vents close to the edge, was completed on the previous day (Tr. 19-20).

7. Employees commenced working at a point approximately 10 feet from the edge of the roof on the day the inspection was conducted (Tr. 20). The compliance officer observed no employee closer than six feet to the edge of the roof (Tr. 52-53).

8. No guardrails or any type of barricade were ever placed around the edge of the roof (Tr. 25). A dirt surface was beneath the roof on all sides of the building (Tr. 26).

9. Complainant proposed an unadjusted penalty of $200.00 for the alleged violation. A 50 percent reduction, consisting of 20 percent for good faith, 20 percent for previous history and 10 percent for size, was allowed against the unadjusted penalty. A further reduction of 50 percent was allowed for abatement credit (Ex. 1; Tr. 44-45).

LAW AND OPINION

Complainant alleges that respondent violated section 5(a)(2) of the Act by failing to comply with the standard published at 29 CFR 1926.500(d)(1). This standard provides as follows:

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 [*7] 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.

Complainant contends that the standard was violated by the absence of guardrails around the edge of the structure of the roof of a Winn-Dixie Food Store building while employees were installing a roof composed of asbestos felt, asphalt and gravel on the roof structure.

The roof surface was essentially flat. The evidence is undisputed that there were no guardrails aroung the edge of the roof. The question of whether the terms "floor" and "platform" as used in the standard is applicable to a flat roof was resolved by the Commission in the case of Secretary of Labor v. Diamond Roofing Company, Inc. [*8] as used in 29 CFR 1926.500(d)(1) included a flat roof. The Commission decision in Diamond Roofing states, in part, as follows:

Of course, it is not strange that the terms [floor and roof] 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.

The decision of the Commission is dispositive of the question of the applicability of 29 CFR 1926.500(d)(1) to the facts of this case.

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n1 The case was consolidated with Secretary of Labor v. S.D. Mullins Company, Inc., The decision was issued on October 24, 1973.

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The ultimate determination of whether there was a violation of 29 CFR 1926.500(d)(1) must be decided by ascertaining if respondent's employees were exposed or affected by the hazards resulting from the absence of the railings and toeboards. The compliance officer testified that he observed an employee within six feet of the edge of the roof. The manager of the respondent testified that the edge of the roof had been completed prior to the inspection of the compliance officer and that no protection of any type had ever been placed around the edges of the roof. These facts clearly reflect that there was a realistic exposure of employees to an accidental fall. Accordingly, it is concluded that respondent was in violation of 29 CFR 1926.500(d)(1).

PENALTY DETERMINATION

Once a notice of contest is served, the authority to asses civil penalties under the Act resides exclusively with the Commission. The Commission, by section 17(j) of the Act, is expressly required to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer and the history of previous violations [*10] in determining the assessment of an appropriate penalty. See Secretary of Labor v. Nacirema Operating Company, Inc., In Nacirema the Commission stated that the four criteria to be considered in assessing penalties cannot always be given equal weight. It indicated that the principal factor to be considered in assessing an appropriate penalty for a violation is the gravity of the offense.

In Secretary of Labor v. National Realty and Construction Company, Inc.,

Three or four employees were exposed to the possibility of an accidental fall over the roof. The record does not reflect how long the exposure was at the edge of the roof where the probability of an occurrence of an [*11] accident would be the highest. Since the roof was essentially flat, the probability of an accidental fall over the edge of the roof would be less as the work progressed from the edge of the roof. The exposure around the edges must be viewed of short duration when considered in relation to the job as a whole.

The record does not reflect that any precautions were taken to prevent an accidental fall. The parapet on the sides of the building would have offered some protection to employees since it protruded above the roof some 12 to 18 inches at the lowest point. The parapet was easily visible and would have served as some warning to an employee that he was near the edge of the roof.

After due consideration of all factors provided by section 17(j) of the Act, with particular emphasis on the gravity of the violation, it is concluded that a penalty of $50.00 is fair and appropriate for the violation in this case.

CONCLUSIONS OF LAW

1. The respondent was at all times material hereto engaged in a business affecting commerce within the meaning of section 3(5) of the Act.

2. The respondent was at all times material hereto subject to the requirements of the Act and the standards [*12] promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter herein.

3. The terms "floor" and "platform" used in 29 CFR 1926.500(d)(1) include a flat roof.

4. Respondent had three or four employees working on a flat roof without guardrails or other protective equipment in violation of the safety standard published at 29 CFR 1926.500(d)(1) and was thereby in violation of section 5(a)(2) of the Act.

5. A penalty of $50.00 is fair and appropriate for the violation.

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, it is

ORDERED: That the citation and notification of proposed penalty issued July 24, 1973, are affirmed.