YOUNG SALES CORPORATION
OSHRC Docket No. 8184
Occupational Safety and Health Review Commission
June 10, 1977
[*1]
Before BARNAKO, Chairman and CLEARY, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Herman Grant, Regional Solicitor, U.S. Department of Labor
Ira J. Smotherman, Jr., for the employer
Carpenters, District Counsel of Milwaukee County & Vicinity, for the employees
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Commissioner:
On April 7, 1975, Administrative Law Judge George W. Otto issued his decision in this case, vacating a citation and $600 proposed penalty issued to respondent, Young Sales Corporation. The citation alleged a violation of section 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter cited as "the Act"] as follows:
Employer failed to 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, e.g. employer failed to follow the manufacturer of the corrugated asbestos sheets recommendation to use chicken ladders and walk boards on all roof work.
A petition for review excepting to the Judge's decision was filed by the Secretary. The petition was granted. For the reasons given [*2] below, the Judge's decision is reversed.
In April 1974, respondent was engaged in installing corrugated asbestos cement sheets on the roof of an addition to the Ladish Company plant in Cudahy, Wisconsin. During an OSHA safety inspection of the Ladish Company on April 29, the compliance officer saw the body of an employee of respondent lying on the floor. The employee had fallen through the asbestos sheeting 71 feet to his death.
The corrugated asbestos sheeting used by respondent is extremely sensitive to impact. According to the report of tests conducted by the Ladish Company after the accident, the material is able to withstand static loads, but is "very brittle when subject to low impact loads." The major manufacturers of this material, GAF Corporation, n1 Johns-Manville Corporation, and National Gypsum Company, provide written warnings that employees should not be allowed to walk directly on the corrugated sheeting. n2
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N1 The sheeting used at the worksite was purchased from GAF.
n2 For example, the GAF warning reads as follows: "While Ruberoid Corrugated Asbestos possesses ample strength, like any other building material it should not be subjected to overloading or undue shock. Workmen must use proper chicken ladders and walk boards on all roofing work."
That of Johns-Manville reads as follows: "WARNING! Care should be taken never to walk on an exposed corrugated transite roof. Always use planks, chicken laders, or catwalks when working on the roof. Johns-Manville takes no responsibility for any physical or property damage resulting from workmen walking on a transite roof."
[*3]
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Respondent had a policy forbidding employees to walk on the material. It failed, however, to provide any chicken ladders or walk boards. Instead it required its employees to walk on purlins and laps. Despite respondent's policy, there were times when employees had to walk directly on the corrugated sheeting.
The evidence fails to disclose the exact sequence of events which led to the death of respondent's employee. It was established, however, that at the time of the accident the installation of the roof was complete except for placement of an expansion joint over the opening between the old building and the new addition. The employee was directed by the foreman to go to the roof in order to set up some tools. This required crossing a catwalk about 14 inches above the roof surface. Having reached the work area, the employee apparently jumped or stepped off the catwalk onto and through the corrugated sheeting.
Judge Otto found that the combination of the height at which roofers work and the impact sensitivity of the roofing material constitutes a hazard recognized by respondent and by the roofing [*4] industry in general. n3 He vacated the citation, however, based on three considerations. First, he believed that a chicken ladder or walk board would be of questionable stability on corrugated material, thereby creating a new hazard without necessarily materially reducing the hazard. Second, he considered the fact that the roof was only pitched to a 2:12 ratio and concluded that, being relatively flat, there was little risk of am employee slipping and moving suddenly, thus creating an impact sufficient to break the roofing material. Finally, he found that the manufacturers' instructions to use chicken ladders or walk boards were only suggestions not constituting a standard. He concluded that instructions to walk only on the purlins and laps were sufficient to alleviate the hazard presented by the corrugated asbestos sheeting.
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N3 The Judge's ruling as to exactly what constitutes the hazard is unclear because he also found that the evidence fails to establish that the material would fracture merely by walking on it.
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In order to establish a violation of section 5(a)(1) of the Act, the Secretary must prove:
(1) that the employer failed to render its workplace 'free' of a hazard which was (2) 'recognized' and (3) 'causing or likely to cause death or serious physical harm."
National Realty & Construction Co., Inc. v. O.S.H.R.C., 489 F.2d 1257, 1265 (D.C. Cir. 1973); Cormier Well Service, 1975-76 CCH OSHD para. 20,583, 4 BNA OSHC 1085 (No. 8123, 1976). The Secretary must also demonstrate that there were feasible steps that the employer could have taken to reduce the hazard. National Realty & Construction Co., Inc. v. O.S.H.R.C., supra at 1268; Cormier Well Service, supra.
The extreme impact sensitivity of the corrugated asbestos sheeting presents a recognized hazard to employees using the material in roofing work. Furthermore, walking directly on the sheeting could create an impact sufficient to fracture the roofing material and respondent recognized this danger. As previously indicated, the warnings contained in the brochures accompanying the materials clearly indicate that the hazard was recognized by major manufacturers. The warnings were sufficient to put [*6] respondent on notice as to the proper use of the material and to the danger of misuse. Cf. Bay Marina, Inc., 1974-75 CCH OSHD para. 19,336, 2 BNA OSHC 1598 (No. 2102, 1975) (concurring opinion). Indeed, Fred Howe, respondent's division manager, testified that he had read the brochures, thus indicating that respondent had actual knowledge of the hazard. Further, both Mr. Howe and Raymond Slifer, respondent's foreman at the jobsite, testified that employees were constantly warned to walk on the purlins and laps instead of directly on the sheeting. It is, therefore, clear that respondent recognized that walking directly on the roofing material constituted a hazard to its employees. It is obvious that the hazard was likely to cause death or serious physical harm. A failure of the material would have, and indeed did, result in a fall through the roof of over 70 feet.
The judge erred in concluding that respondent's instructions requiring employees to walk on the purlins and laps were sufficient to free the workplace from the hazard. First, the evidence establishes that respondent's instructions failed to keep employees from walking on the sheeting. Mr. Howe testified that [*7] the employees had to be reminded periodically to walk on the purlins and laps. Further, although Mr. Howe indicated that the foremen had primary responsibility for giving safety instructions to the employees, foreman Slifer testified that in order to get off a catwalk located a foot above the roof, he would not hesitate to jump on the sheeting. n4 It is, therefore, clear that respondent's instructions were insufficient to prevent employees from walking directly on the sheeting and failed to impress upon them the danger inherent in such activity.
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n4 In National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257, n.38 (D.C. Cir. 1973) the Court observed that "the fact that a foreman would feel free to breach a company safety policy is strong evidence that implementation of that policy was lax."
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Second, assuming, arguendo, that respondent had effectively enforced its instructions to walk on the purlins and laps, the evidence establishes that the nature of respondent's work at times required employees to [*8] walk directly on the sheeting. When questioned whether employees would ever be required to walk on the sheets, respondent's witness, Slifer, testified as follows:
A. There may be times that you cannot walk right on the lap or purlin, yes.
Q. Well, how far off would you be in those times?
A. Maybe a foot or so.
Q. Okay. How often would this happen?
A. Well, depending on whether a power line comes loose, comes unplugged, lots of things like that can happen on a roof.
Testimony also indicated other circumstances that could result in an employee walking on the sheeting. For example, the compliance officer testified that an employee carrying an asbestos sheet could be knocked off balance by a gust of wind, forcing him off a purlin or lap and onto the sheeting.
The Secretary proved that placing chicken ladders or walk boards over the sheeting was an appropriate form of abatement. Respondent argues that the cleats on chicken ladders would create a tripping hazard. Therefore, walk boards that do not have cleats may be preferable to chicken ladders. However, on roofs where the pitch is such that employees might slip off, the cleats on chicken ladders create a gripping surface [*9] having an advantage not present in walk boards. It is also noted that asbestos sheeting has corrugations that create a tripping hazard without affording the protection of chicken ladders. Therefore, although walk boards may be preferable on relatively flat roofs, chicken ladders would still create a walking surface safer than the uncovered corrugated asbestos sheeting.
Respondent's argument that walk boards are not feasible because they would be wobbly when laid across the corrugated sheeting is not persuasive. Even if wobbly, walk boards would reduce the hazard created by the sheets. Further, respondent's division manager testified that the problem presented by walk boards would be reduced by placing several boards side by side.
Respondent contends that the measures proposed by the Secretary would threaten its economic viability. There is, however, no evidence to indicate this.
Respondent's argument that the death of its employee was the result of unpredictable idiosyncratic behavior in inapposite. Although it was the accident which initiated the inspection, the citation was predicated on respondent's work procedures that required its employees to work on and about the unprotected [*10] corrugated asbestos sheeting. n5
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n5 Respondent has also made several constitutional challenges to the validity of the Act. The Commission is not empowered to review such questions. Georgia Electric Co., 5 BNA OSHC 1112, 1977-78 CCH OSHD para. 21,613 (No. 9339, 1977). We note, however, that the Supreme Court, in Atlas Roofing Co., Inc., v. O.S.H.R.C., 97 S.Ct. 1261 (1977), recently held that the Act's enforcement scheme does not violate the Seventh Amendment.
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We approve the $600 penalty proposed by the Secretary. Respondent had at least a minimal safety program. It held weekly safety meetings and required each employee to read a safety booklet. Respondent has no history of previous violations. It employed only five workers at the site. The gravity of the violation was, however, substantial both in terms of the likelihood of an accident and the probable resulting injury.
Accordingly, it is ORDERED that the Judge's decision is reversed, the citation is affirmed, and a $600 penalty is assessed.
CONCURBY: BARNAKO
CONCUR:
[*11]
BARNAKO, Chairman, Concurring:
I concur. Complainant established the existence of a recognized hazard within the meaning of section 5(a)(1) of the Act (29 U.S.C. 654(a)(1)) and showed that the hazard was preventable. However, I cannot join in all of my colleague's discussion, and I find it necessary to add some matters which he has not addressed.
Specifically, I do not join in his discussion of the recognized hazard as it exists in this case. There is no dispute that the sheeting was impact sensitive such that it was likely to break if an individual jumped onto the center of a panel; Respondent so admits on review. As the judge properly found, Respondent had a safety rule prohibiting jumping onto the sheeting. Accordingly, imposing an impact load by means of a jump which can result in death or serious physical harm such as occurred in this case was a recognized hazard within the meaning of 29 U.S.C. 654(a)(1). n1 Brennan v. OSHRC (Vy Lactos Laboratories, Inc.), 494 F.2d 460 (8th Cir. 1974).
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n1 For this reason and other reasons stated herein, I do not agree that the Judge's determination is unclear as my colleague states in footnote 3.
[*12]
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Similarly, the question as to preventability is simply whether Respondent's safety rule was properly implemented and enforced. Getty Oil Company v. OSHRC, 540 F.2d 1143 (5th Cir. 1976); National Realty, supra; Ross Island Sand & Gravel Company, 76 OSAHRC 131/D14, 4 OSHC 1797, 1976-77 OSHD para. 21,182 (1976). While I agree that the judge erred in his disposition of this question, I must add the following remarks to my colleague's discussion.
The pertinent facts are that the deceased employee had been hired by Respondent just six days before, and he was 18 years old. When he reported to work he, as were all new employees, was given two safety booklets which he was required to read before going onto the roof. He was also orally instructed how to work on a roof, including a warning not to jump and to walk on the sheeting only where it was supported by purlins and laps. n2 He had been on the roof two or three times prior to the day of the accident under the foreman's observation performing such tasks as carrying bolts and copper flashing to be installed over the expansion joints. When [*13] he walked across the roof on these prior occasions he walked on the purlins and laps as he had been instructed.
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n2 Purlins are metal structural members to which the sheeting is bolted. Adjacent sheets are overlapped from four to six inches to that in some places the bolts extend through two thicknesses of sheeting.
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The foreman or his assistant conducted weekly safety meetings which included discussion of safe working practices in general and any unsafe acts which the foreman had observed. Foreman Slifer's superior, division manager Howe, was responsible for the safety instruction of foremen, who in turn had the primary responsibility for the direct instruction of employees. Howe went out into the field to inspect jobs about once every six weeks at which times he would remind foremen of the safety program and the requirement to hold weekly safety meetings. Howe also discussed safe work practices, including those pertaining to working on roofing material, during periodic job progress reports by foremen. When asked [*14] if the foremen followed his instructions, Howe stated that they did so "most of the time."
On these facts Judge Otto found that the deceased employee had been adequately instructed. He therefore concluded that Respondent's safety program was sufficient in relation to the hazard presented and that Respondent could not have foreseen the cause of the fatality. However, the question in cases of this kind is not the foreseeability of the incident as it actually occurred but rather the foreseeability and hence the preventability of the recognized hazard itself. Brennan v. Butler Lime and Cement Company, 520 F.2d 1011, 1017 (7th Cir. 1975); Vy Lactos, supra, 494 F.2d at 463; National Realty, supra, 489 F.2d at 1264-65. That is, the Judge erred in failing to determine whether Respondent took all feasible measures to prevent as a general matter the type of conduct which resulted in the fatality -- jumping onto the sheeting.
As my colleague points out, the foreman by his own admission would have acted in the same circumstances precisely as did the deceased employee. Respondent presented no evidence to show that his statement represented a deviation from the usual [*15] practice of its foreman. Indeed, Howe's testimony indicates that foremen were not adequately supervised in all respects and that effective measures were not taken to discover safety violations committed by supervisory employees. In the circumstances I conclude that Respondent did not take adequate steps to prevent the hazard. Ocean Electric Corporation, 75 OSAHRC 6/C14, 3 OSHC 1705, 1975-76 OSHD para. 20,167 (1975).
In the usual case, nothing more need be said. However, both parties present arguments as to whether Respondent should be required additionally to use walkboards and chicken ladders. Because this is a question with important ramifications for Respondent's industry, I think it appropriate to make some further observations with respect to my colleague's resolution of the question.
There is conflicting evidence whether walking, as opposed to jumping, on unsupported sheeting is a recognized hazard. For example, my colleague himself notes that Respondent's normal work duties at times require employees to walk on unsupported sheeting, and, as he also observes, Judge Otto found the record insufficient to establish that merely walking on the material would cause a fracture. [*16] Nevertheless, my colleague concludes that walking as well as jumping is a recognized hazard because in his view Respondent, a roofing installer, is bound by the recommendations of the manufacturing industry to use chicken ladders and walkboards.
Judge Otto, on the other hand, distinguished the manufacturing from the installation industry, and he specifically found that in the United States the latter does not perceive a need for chicken ladders or walkboards on a virtually flat roof as in this case. See Cape and Vineyard Division of The New Bedford Gas and Edison Light Company v. OSHRC, 512 F.2d 1148 (1st Cir. 1975); National Realty, supra, 489 F.2d at 1266 n.37; B & B Insulation, Inc., No. 9985 (R.C., April 18, 1977); Grand Union Company, 20 OSAHRC 663, 3 OSHC 1596, 1975-76 OSHD para. 20,107 (1975).
Because the citation can be affirmed on other grounds, the question whether Respondent must comply with the manufacturer's recommendations need not be resolved in the particular circumstances of this case. And even if I were to consider the question I note that despite its importance, the parties have given us little guidance in its resolution. They cite virtually [*17] no authority in support of their respective positions, and they fail to address any of the precedents I have cited. Similarly, no authority is cited in the lead opinion. n3
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n3 Bay Marina, supra, the one authority cited by my colleague, is distinguishable for it involved specific occupational safety standards which expressly incorporate a manufacturer's approval.
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In sum, I concur for the reasons I have stated. Respondent has actual knowledge that the conduct in issue (jumping on the sheeting so as to impose an impact load) is hazardous and so admits. On the facts it did not take all feasible steps to prevent such conduct. The elements of a violation of 29 U.S.C. 654(a)(1) are therefore established.