BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

BY THE COMMISSION: A decision of Review Commission Judge J. Paul Brenton,

dated October 14, 1975, is before this Commission for review pursuant to 29 U.S.C. § 661(i).


That decision, which is attached hereto as Appendix A, affirmed a citation which alleged that

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).

In Secretary v. Central City Roofing Co., OSAHRC Docket No. 8173, June 4, 1976, a

divided Commission held that 29 C.F.R. § 1926.500(d)(1) does not apply to flat roofs. That

decision is dispositive of the charge in issue in the instant case.

Accordingly, the citation and the penalty assessed therefor are vacated.


William S. McLaughlin

Executive Secretary

DATED: OCT 13, 1976


Chairman Barnako does not agree to this attachment.











William E. Everheart, Esq., of Dallas, Texas, for the Secretary of Labor

Mr. Michael Beldon, of San Antonio, Texas, for the Respondent


J. Paul Brenton, Judge, OSAHRC

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 a citation issued by the

complainant against the respondent under the authority vested in complainant by section 9(a) of

that Act.

The citation alleges that as the result of the inspection of a workplace under the

ownership, operation or control of the respondent, located at 1810 S. Laredo, San Antonio,

Texas, and described as follows: ‘Roofing’, the respondent has violated section 5(a)(2) of the Act

by failing to comply with certain occupational safety and health standards promulgated by the

Secretary of Labor pursuant to section 6 thereof.

The citation, which was issued on April 3, 1975, alleges that a serious violation resulted

from a failure to comply with a standard promulgated by the Secretary by publication in the

Federal Register, and codified in 29 CFR 1962.

The description of the alleged serious violation contained on said citation states:

Item 1 ‘29 CFR 1926.500(d)(1) Open sided floor 6 feet or more above the

adjacent floor or ground level was not guarded by standard railings or the

equivalent: a. East side of the building.’

The standard as promulgated by the Secretary provides as follows:



Item 1 ‘Section 1926.500—Guardrails, Handrails, and Covers

(d) Guarding of open-sided floors, platforms, and runways

(1) Every opensided 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


Pursuant to the enforcement procedure set forth in section 10(a) of the Act, the

respondent was notified by letter dated April 3, 1975, from Herbert M. Kurtz, Area Director of

the San Antonio, Texas, area, Occupational Safety and Health Administration, U. S. Department

of Labor proposed to assess a penalty for the serious violation alleged in the amount of $500.00.

After respondent contested this enforcement action, and a complaint and an answer had

been filed by the parties, the case came on for hearing at San Antonio, Texas, on July 14, 1975.


1. Respondent engages in the business of roofing and remodeling. In so doing it uses

materials shipped into the State of Texas which are manufactured elsewhere.

2. Respondent was engaged in reroofing a building at the time the alleged violation

occurred. It employed six to seven workmen at this work site.

3. In order to carry hot tar to the work area a pipe, connected with a pump, was erected

leading from the tar kettle on the ground up over the roof top at the corner of an offset portion of

the building, the pipe being bent over and downward to form a down spout and nozzle over and

above this corner of the roof. (Exhibit C–1)

4. One employee was engaged in carrying the tar to its destination after causing it to be

pumped into a bucket through the pipe.

5. Filling the tar bucket brought this employee no closer to the roof’s edge than three feet.

Upon filling the bucket he took off over the roof carrying it to the upper portion of the building

where the reroofing operation was in process.

6. A metal rain spout was attached to the roof’s edge. At one side at this corner was a

utility pole and an adjacent ladder which extended from a loading dock below and used by all

respondent’s employees in going to and from the ground and the work areas on top. On the other



side was the ground consisting of dirt, grass, and gravel. Also on this side there existed a railroad

track the ties of which had long before settled into the earth’s surface or became covered with

earth. The nearest rail, which was three inches wide, was six feet four inch from the side of the

building. The tar machine or kettle was situated on the ground at the corner of the building about

even with the utility pole.

7. The distance from the ground to the roof top at this corner was 15 feet nine inches. The

distance from the loading dock, which was concrete, to the roof top is unknown. It may only be

inferred that it is less than 15 feet nine inches because it would have to be elevated above ground

level to be a dock.

8. The corner at this roofs edge was not guarded with a standard railing.

9. The reroofing job commenced on March 24, 1975 and was completed on April 3,



Whether the facts and circumstances make a case for a serious violation of the standard


What amount, if any, should be assessed as a penalty for the violation.


Crucial to respondent is the issue of whether a rational conclusion may be adjudged from

the evidence that there did in fact exist a substantial probability that death or serious physical

harm could result from a 15 feet nine inch fall at this location. In order words is the violation

here a section 17(k) of the Act violation. Respondent did not raise as an issue that it did not know

of the presence of the violation. In fact it tried the case on the proposition that it was completely

aware of the violation.

Respondent aptly argues with authority that complainant is inconsistent in his

determination to classify the violation here as serious, because in most previous cases for the

same or similar violation of the same standard he has determined each to be nonserious. In fact in

most non-serious cases the height of the fall potential was even greater 36 feet in Secretary v.

Psaty & Fuhrman, Inc., 9 OSAHRC 447. 25 feet in Secretary v. S. D. Mullins Co., Inc., 4

OSAHRC 1415. 20 feet in Secretary v. L. I. Dumont, Inc., 11 OSAHRC 158; Secretary v.

Langer Roofing & Sheet Metal, Inc., 9 OSAHRC 403; and Secretary v. J. F. Probst & Co., Inc.,



11 OSAHRC 373. 30 feet in Secretary v. Heyse Sheet Metal & Roofing Co., 4 OSAHRC 1395.

18 feet in Secretary v. Moser Keating & Roofing Co., Inc., 6 OSAHRC 77.

And in Secretary v. A. B. Hall, d/b/a Dixie Roofing & Metal Co., 15 OSAHRC 247, the

issue was met squarely and forthrightly. There alleged serious violations of 29 CFR

1926.500(b)(1), unguarded roof openings 166‘ above concrete floor below, and 29 CFR

1926.500(d)(1), unguarded perimeter of flat roof 156‘ to 166‘ above dirt surface below, were

modified by the Administrative Law Judge so that each reflected a non-serious violation.

Moreover, upon review of this decision the Secretary of Labor, the complainant in the instant

case, filed a memorandum therein concluding that the Judge’s decision and order was supported

by a preponderance of the evidence. Furthermore, the Review Commission unanimously

affirmed the disposition of the Judge.

Apparently under the facts and circumstances of the instant case, an accidental fall was

always possible although extremely unlikely. Thus, the degree of probable injury in the event of

a fall is the yard-stick by which a serious from a non-serious violation may be distinguished.

Inquiry must therefore be made with respect to the kind of injury that is reasonably likely to

occur. Here one surface area of exposure to a fall was composed mostly of grass or sod, and

some dirt with a mixture of loose gravel. This certainly is not significantly different than plain

dirt. True there existed a three inch railroad rail parallel to the roof in this area but the chance of

a fall thereon in a manner resulting in death or a permanent impairing injury is mere speculation.

The other surface exposed to a fall was concrete, however, the length of fall here is unknown

except that it is something less than 159‘.

Accordingly, it must be concluded, in either situation, the most likely result of an

employee fall is that he may suffer bruises, concussion, breaks of bones, and similar injuries

which are a type of injuries not classified as serious in nature. This conclusion comports with the

reasoning in Dixie Roofing & Metal Co., supra.

Moreover, this tribunal is attracted to the guidelines and the rationale therefor in

Secretary v. Brown & Kerr, Inc., 13 OSAHRC 221, where it is established that a fall of 20 feet or

more on a soil surface and over 15 feet on a concrete surface is an exposure to the possibility of a

serious injury within the meaning of section 17(k) of the Act. These guidelines are definitive and

they hereby are approved and are herein followed.



The violation in this case is therefore determined to be non-serious, consequently the

citation should be modified.


The $500.00 proposed penalty is inappropriate. Of course it was proposed on the basis of

a serious violation. Regardless, however, of whether the violation is serious or non-serious the

same factors must be considered in assessing a civil penalty in keeping with the commands of

section 17(j) of the Act.

Respondent had no history of previous violations, its good faith is apparently good and

there were only seven employees on the job site. More importantly, just one employee was

exposed intermittently to the possibility of falling off this roof over a period of about eight days.

Most significantly the facts and circumstances show that the degree of probability of occurrence

of an injury is so minimal that it is practically non-existent. Therefore, the gravity of the

violation is moderate to the point of being exceedingly low. A penalty in the amount of $50.00 is

therefore deemed appropriate and the notification of penalty to be assessed should be modified



1. The Review Commission has jurisdiction to hear and decide this case.

2. The kind of injury to be reasonably expected upon exposure to a hazard is measured by

the facts and circumstances surrounding the situation then and there existing in making a

distinction between a non-serious and serious violation.

3. An exposure to a fall of less than 20 feet upon a soil surface below ordinarily will be

deemed a non-serious violation. If 20 feet or more it ordinarily will be deemed a serious


4. An exposure to a fall in excess of 15 feet upon a concrete surface below ordinarily will

be deemed a serious violation. If 15 feet or less it ordinarily will be deemed a non-serious


5. An appropriate penalty for the violation is $50.00.


Wherefore, it is Ordered that:

The citation be and it hereby is, modified by deleting therefrom the serious violation as

charged, substituting therefor a non-serious violation, and affirmed as modified.


The notification of $500.00 proposed penalty to be assessed be and it hereby is, modified

by reducing it by the sum of $450.00 for a total of $50.00 to be assessed as the penalty for the


It is so ordered at Dallas, Texas.

J. Paul Brenton,


Date: October 14, 1975