LANCE ROOFING COMPANY, INC.
OSHRC Docket No. 1102
Occupational Safety and Health Review Commission
January 4, 1974
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners.
OPINIONBY: VAN NAMEE
VAN NAMEE, COMMISSIONER: This matter is before the Commission upon my order directing review of a decision of Judge Paul L. Brady. Judge Brady vacated one item of Complainant's citation charging a non-serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter "the Act"), on the ground that the standard upon which Complainant relied (29 C.F.R. 1926.500(d)(1)) n1 is inapplicable to flat roofs.
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n1 The cited standard 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.
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We have reviewed the entire record. Judge Brady's decision is adopted only to the extent it is consistent with this decision.
For the reasons stated in our decision in Secretary of Labor v. S.D. Mullins Company, Inc., Secretary of Labor v. Diamond Roofing Company, Inc. Secretary of Labor v. Heyse Sheet Metal and Roofing Company, Inc.,
We have considered the size of Respondent's business, the gravity of the violation, Respondent's good faith, and its history of previous violations. Considering these factors, we conclude that Complainant's proposed penalty of $160 is appropriate.
Accordingly, it is ORDERED that Complainant's citation and proposed penalty for non-serious violation of section 5(a)(2) of the Act based on violation of 29 C.F.R. 1926.500(d)(1) [*3] is affirmed. In all other respects the decision of the Judge is affirmed.
MORAN, CHAIRMAN, dissenting: The Judge decided this case correctly. His decision should be affirmed both for the reasons stated therein and those which I set forth in Secretary v S.D. Mullins Company, Inc., et al., supra.
[The Judge's decision referred to herein follows.]
BRADY, JUDGE, OSAHRC: This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., (hereinafter referred to as the Act) contesting a citation issued by the Secretary of Labor, complainant, (hereinafter referred to as the Secretary) pursuant to section 9(a) of the Act. The Citation, which was issued June 13, 1972, alleges that as the result of an inspection of Respondent's workplace, Respondent violated section 5(a)(2) of the Act by failing to comply with certain Occupational Safety and Health Standards promulgated by the Secretary pursuant to section 6 thereof. The Secretary, pursuant to enforcement procedure set forth in section 10(a) of the Act, notified Respondent by letter dated June 13, 1972, of a proposed penalty for the violation designated Item [*4] 1 of the Citation, in the amount of $160.00. The case came on for hearing August 31, 1972, at Atlanta, Georgia. No additional parties sought to intervene in the proceeding.
STATEMENT OF THE CASE
Respondent, Lance Roofing Company, Inc., is engaged in the business of roofing contracting with its principal place of business located at 57 Weyman Avenue, S.W., Atlanta, Georgia (Complaint and Answer). It is a business affecting commerce within the meaning of the Act (Tr. 6).
On June 6, 1972, a duly authorized representative of the Secretary conducted an inspection of Respondent's workplace, a motel construction site, at 4888 Frontage Road, Forest Park, Georgia (Tr. 18, 19). It is alleged that at the aforesaid time and place, Respondent's employees were working on the roof of the structure without any type of guarding device, and employees at the site were not wearing hard hats, as required by the Secretary's regulations (Tr. 24, 56).
The testimony of Complainant's witnesses regarding the alleged violations is not disputed by the Respondent.
The issues to be determined in this proceeding relate to whether the construction standards under which this case arose have been legally [*5] promulgated, and if so, whether section 1926.500(d)(1) has application to roofs as used in the circumstances of this case.
THE CONSTRUCTION STANDARDS
It is contended by respondent that the construction standards prescribed in 29 CFR 1926 (formerly 29 CFR Part 1518), and adopted by the Secretary as Occupational Safety and Health Standards pursuant to section 6(a) of the Act, are invalid, and therefore are of no force or effect in this proceeding. Respondent argues that although section 6(a) allows the Secretary to promulgate "established federal standards," such standard must have been in effect on the day of enactment of the Occupational Safety and Health Act.
The standards in question were established by the United States Department of Labor, and became effective April 24, 1971, prior to the effective date of the Occupational Safety and Health Act, but subsequent to its enactment.
Section 3(10) of the Act defines the phrase "established federal standard" as meaning "any operative occupational safety and health standard established by an agency of the United States and presently in effect, or contained in any Act of Congress in force on the date of enactment of this [*6] Act." In questioning the validity of the standards which form the basis of this proceeding, respondent places an erroneous interpretation on the phrase "presently in effect," as contained in section 3(10) of the Act. Although the phrase "presently in effect" is not defined in the Act, it must be construed to mean standards in force and effect on the effective date of the Act, April 28, 1971. Reading section 3(10) in context with related sections of the Act provides ample support for this view. Section 4(b)(2) provides". . . Standards issued under the laws listed in this paragraph 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." Accordingly, section 4(b)(2) shows the Congressional intent that the effective date of the Act governs in determining whether Federal Standards are "established" within the meaning of the Act. Also, in the latter part of section 3(10) it is stated that standards in any act of Congress would be effective "on the date of enactment of this Act," distinguishing from those standards established by any agency of the United [*7] States "presently in effect." Further, Section 6(a) of the Act, which provides the statutory authority for the Secretary to promulgate standards, states that the Secretary may promulgate such standards commencing with the effective date of the Act. Therefore, it would be a gross inconsistency to hold that the Secretary cannot promulgate standards "in effect" on the effective date of the Act, but require that such standards be in effect on the date of enactment of the Act only.
The Federal Standards in effect regarding construction were legally promulgated by the Secretary as Occupational Safety and Health Standards pursuant to Section 6(a) of the Act. Hence, the standards alleged to have been violated by the Respondent were in effect on the date of the inspections herein.
The alleged non-serious violation as set forth in Item 1 of the citation states:
Construction site -- there were several employees working on the three (3) story high building installing a roof. There were no guard railings, nor were the employees secured so as to prevent them from falling off the roof.
The standard at 1926.500(d)(1) as promulgated by the Secretary provides as follows: [*8]
(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.
The testimony of Louis Barbe and Bruce Martin, in the consolidated proceeding of OSHRC Docket Numbers 364 and 469, was incorporated in this record and made part of the proceeding (Tr. 8). The testimony of Mr. Barbe, a registered professional safety engineer, and Mr. Martin, Assistant Executive Manager of the National Roofing Contractors Association, was offered to show that the roofing industry does not consider section 1926.500(d)(1) as having application to roofs which would require perimeter barricading as alleged in this case (Tr. 7, 8). Respondent points out that this section was copied practically verbatim from the American National Standard Institute, standard A 12.1-1967, [*9] which is entitled "Safety Requirements for Floors and Wall Openings, Railings, and Toe Boards," and that this standard has always applied to floor and wall openings only.
Respondent concedes, however, that there is a deviation in that the Secretary's standard at section 1926.500 applies to employees or materials falling through "roofs." The general provision as contained in (a) of this section states in pertinent part, ". . . where there is danger of employees or materials falling through floor, roof, or wall openings, or from stairways or runways." This provision is found under the heading, "Subpart M-Floor and Wall openings, and Stairways. Further, looking at 1926.502(a) and 1926.502(b), under Subpart M, it is revealed that the definitions for "floor-hole" and "floor-opening," require guarding of floor holes and floor openings through which employees or material may fall.
There has been no change of wording to include roofs within the requirements for the open-sided floors contained in 1926.500(d)(1). The Respondent maintains that the Secretary has specifically inserted the word "roofs" to require guarding of holes in roofs in situations where employees might [*10] fall through a roof, but it was not intended to require open-sided roofs to be barricaded as a guard against falls off the edge thereof, or such intention would have been so stated. Also, floors or walking surfaces may carry general traffic while a roof is not a general walking surface for traffic and that employees are usually on roofs only to perform specific tasks.
The compliance officer testified that there was some controversy among compliance officers as to whether the standard in question applied to roofs (Tr. 46).
It is conceded by complainant that section 1926.500(d)(1), under which Respondent is charged, does not contain the word "roof," but it is submitted that the term open-sided floors, particularly during construction, includes flat roofs. Furthermore, to construe "open-sided floors" as including "roofs" is consistent with the objectives sought by the enactment of subpart M, which is to eliminate falling hazards to employees and the danger from falling materials. Also, the danger of employees falling off "roofs" is as great as the danger of falling off "floors" or "platforms." It is maintained that Subpart M deals with safety on unguarded working surfaces, and [*11] that protection of a roof by railing is assured through the addition of roofs to the regulation in question.
The construction standards promulgated by the Secretary which provide safeguards for "Floor and Wall Openings and Stairways," is found under Subpart M of his regulations. Section 1926.500 thereunder pertains to guardrails, handrails, and covers. Paragraph (a) states:
(a) General Provision. This subpart 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.
The above reference to "roof" is the only time such term is used in this subpart, except in the definitions of floor holes and floor openings contained in 1926.502(a)(b). Provision for the guarding of floor holes is found in paragraph (b), with (c) applying to the "Guarding of wall openings" and (d) pertaining to the "Guarding of open-sided floors, platforms and runways."
Whether open-sided floors or platforms includes roofs, and whether falling through a roof has the same meaning as falling off a roof, is open to conjecture. The fact that the section is not clear and concise regarding [*12] its application to roofs, deserves special consideration under the circumstances presented.
Evidence in this case shows that the roofing industry interprets the regulation in question as not having application to roofs. It is also indicated that among the Secretary's compliance officers there is question as to its interpretation and application. Further, upon reading subpart M, and the pertinent sections thereunder, including the definitions, it must be concluded that there clearly exists room for different interpretations as to its application to roofs.
The regulations here involved should be adequately clear to provide substantial notice to those affected as to the type of conduct required, as a matter of due process of law. Consistent therewith respondent quotes from Davis, on Administrative Law, as follows:
If the regulation is designed to control conduct of private parties and a violation is subject to criminal or civil sanction, what the agency intended but did not adequately express can hardly be controlling. Alas, of course, the parties affected have sufficient notice of the agency's interpretation. 4, Davis Treatise on Administrative Law, 261.
The point [*13] is also made that an agency's interpretation of its own regulations should not be permitted to allow penalizing an individual for violating regulations when the regulations are insufficiently clear to give an individual fair warning. Meehan v. Macy, 392 F.2d 822.
Although Subpart (M) is concerned with the dangers of employees and materials, in fairness, and due process of law it cannot be held in this case that Respondent has violated 1926.500(d)(1) as alleged. If it is intended that roofs should be provided with standard guard railing or the equivalent, the word roof must be specifically set forth in 1926.500(d)(1). This is the only position that can be justifiably maintained in view of the inordinate burden placed upon an employer faced with speculating as to the meaning of the Act, who otherwise comes within its jurisdiction. Also, to hold otherwise would be inconsistent with Rule 73 of the Commission's Rules, which provides that the burden of proof rests with the Secretary.
To charge an employer as in this case, to accurately interpret the Act, does not help achieve its purpose, to insure a safe and healthful workplace but tends only to frustrate it.
FINDINGS OF [*14] FACT
1. Lance Roofing Company, Inc., is a corporation with its principal place of business at 57 Weyman Avenue, S.W. Atlanta, Georgia, where it is engaged in the business of roofing contracting.
2. On June 6, 1972, Respondent was engaged in the roofing of a structure located at 4888 Frontage Road, Forest Park, Georgia.
3. On June 6, 1972, authorized representatives of the Secretary conducted an inspection of the Respondent's workplace at 4888 Frontage Road, Forest Park, Georgia. As a result of such inspection a citation was issued June 13, 1972, for alleged violations of the Act, with a notice of proposed penalty.
4. On June 6, 1972, employees of Respondent were working on the roof of the aforesaid structure without standard guard railing, or the equivalent thereof.
5. On June 6, 1972, employees of Respondent were working at the aforesaid construction site without protective helmets, where there was possible danger of head injury.
6. Section 1926.500(d)(1), under which an alleged violation arose in this case, does not contain the word "roof" nor does the section specifically refer to "roofs."
CONCLUSIONS OF LAW
1. Lance Roofing Company, Inc., at all times [*15] pertinent hereto, was an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties and subject matter herein, pursuant to section 10(c) of the Act.
2. Respondent is, and at all times pertinent hereto, required to comply with the safety and health regulations promulgated by the Secretary pursuant to section 6(a) of the Act.
3. Respondent was not in violation of the standard at 29 CFR 1926.500(d)(1) on June 6, 1972, as charged in Item No. 1 of the citation.
4. Respondent was in violation of the standard at 29 CFR 1926.100 on June 6, 1972, as charged in Item No. 2 of the citation.
5. Respondent failed to comply with the regulation set forth above which is contained in the citation, thereby violating section 5(a)(2) of the Act.
Upon the basis of the foregoing findings of fact and conclusions of law, and the entire record, it is
1. The Respondent's motion to dismiss the complaint is hereby denied.
2. Item No. 1 of the citation, and the proposed penalty issued for violation of 29 CFR 1926.500(d)(1), is hereby vacated.
3. [*16] Item No. 2 of the citation for violation of 29 CFR 1926.100 is hereby affirmed.