ENTERPRISE ROOFING & SHEET METAL CO.; ANNING-JOHNSON COMPANY; FRANK BRISCOE COMPANY, INC.; TRI-STATE ROOFING & SHEET METAL COMPANY, INC.;

OSHRC Docket No. 7862; 8952; 9478; 10387

Occupational Safety and Health Review Commission

July 8, 1976

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

William Kloepfer, Assoc. Regional Solicitor

Marshall H. Harris, Regional Solicitor

Francis V. LaRuffa, Regional Solicitor

B. Gary McBride, for the employer

Steven H. Adelman, for the employer

Louis J. Williams, Acting Chief Engineer, FRANK BRISCOE COMPANY, INC.

Ira J. Smotherman, Jr., for the employer

OPINIONBY: MORAN

OPINION:

DECISION

MORAN, Commissioner: Each of the above-captioned cases are before this Commission for review pursuant to 29 U.S.C. 661(i). n1 In each case, a Review Commission Judge held that the respondent violated 29 U.S.C. 654(a)(2) by failing to install perimeter guarding on a flat roof in contravention of 29 C.F.R. 1926.500(d)(1). n2

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n1 Since the controlling question is common to all cases listed in the caption, they have been consolidated for decisional purposes pursuant to Commission Rule 9, 29 C.F.R. 2200.9.

n2 In Docket Number 7862, the Judge also found that the respondent had not complied with 29 C.F.R. 1926.450(a)(10), but assessed no penalty therefor. The respondent admitted this violation in the proceedings below, and the propriety of the Judge's finding thereon is not before us on review.

[*2]

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1926.500(d)(1) does not apply to flat roofs. That decision is dispositive of 1926.500(d)(1) charges in the instant cases.

Accordingly, the citations for violations of 29 C.F.R. 1926.500(d)(1) and the penalties assessed therefor are vacated in all four cases. The citation for a violation of 29 C.F.R. 1926.450(a)(10) is affirmed in Docket No. 7862.

CONCURBY: CLEARY (In Part)

DISSENTBY: CLEARY (In Part)

DISSENT:

CLEARY, Commissioner, CONCURRING IN PART AND DISSENTING IN PART:

I concur in the lead opinion insofar as it applies the Commission's divided opinion in Central City Roofing Co., Inc., No. 8173 (June 4, 1976), to the roofing industry in Nos. 7862, 8952, and 10387. I would not, however, extend Central City to other construction work tasks, as the majority does in Frank Briscoe Company, Inc., No. 9478.

Frank Briscoe was a general contractor engaged in the construction of a passenger terminal at Newark Airport. When the compliance officer arrived the frame of the building was complete. There was [*3] work in progress on a nearly road, the top floor or roof, and in the interior. The compliance officer saw two workers, identified as Frank Briscoe's employees, throw a coil of rope off an unguarded roof or top floor. Briscoe argues, and the evidence indicates, that these employees were laborers, and not engaged in roofing.

The case is significantly different from Nos. 7862, 8952, and 10387, Central City Roofing, and the two relevant Courts of Appeals decisions, Diamond Roofing Co., Inc. v. O.S.H.R.C., 528 F.2d 645 (5th Cir. 1976), and Langer Roofing and Sheet Metal, Inc. v. Secretary of Labor, 524 F.2d 1377 (7th Cir. 1975), all of which deal with the roofing industry. It is clear that roofers have had difficulty in complying with 1926.500(d)(1). Central City Roofing Co., Inc., No. 8173 (June 4, 1976) (Cleary, Commissioner, dissenting) 4-5. Centainly, general construction employers, or other specialty subcontractors, do not face these same problems when engaged in tasks on a roof that are performed at all levels of a building under construction. There is no justification for denying an employee the protection of 1926.500(d)(1) just because he may be for example [*4] sweeping the top floor or roof rather than a lower floor.

Further, it is likely that non-roofing employees will be less conscious of the dangers of an unprotected roof than those who are accustomed to working in that area. Diamond Roofing Co., 528 F.2d at 650 n.11, Langer Roofing, 524 F.2d at 1338 n.1.

For these reasons and because the purpose of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., is to ensure the safety of American working men and women, I do not concur with that part of the lead opinion that, solely on the basis of location, would deny an employee the protection from falling accorded by 1926.500(g)(1).