LANGER ROOFING AND SHEET METAL, INC.

OSHRC Docket No. 1208

Occupational Safety and Health Review Commission

June 11, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission upon Chairman Moran's order directing review of a decision rendered by Judge David J. Knight. Judge Knight affirmed two items of Complainant's citation alleging that Respondent in a non-serious manner violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") by failing to comply with 29 C.F.R. 1926.51(a)(4) and 1926.300(b)(2). The Judge assessed no penalty for these violations. We concur with this disposition.

Judge Knight furthermore affirmed a third item of the citation alleging a non-serious violation for Respondent's failure to comply with 29 C.F.R. 1926.500(d)(1), and he assessed Complainant's proposed penalty of $65 for this violation.

We have reviewed the record. Employees of Respondent were engaged in roofing work on the flat roof of a building under construction. The perimeter of this roof had a low parapet but was not guarded by a standard railing. Respondent's employees worked in close proximity to the unguarded edge.

Respondent contends that these facts [*2] do not establish a violation of 29 C.F.R. 1926.500(d)(1) * because that standard does not apply to flat roofs. Heyse Sheet Metal and Roofing Co., S.D. Mullins Co., and Diamond Roofing Co., Accordingly, we affirm the Judge's decision that Respondent violated the Act by failing to comply with the standard.

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* The cited standard provides:

Guarding of open-sided floors, platforms, and runway. (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.

[*3]

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We turn now to the assessment of an appropriate penalty. It is uncontroverted that the roof was 20 feet above ground. A fall from such a height could result in serious injury or even death. On the other hand, while Respondent's employees worked close to the edge, the parapet along the edge would provide some protection. Therefore, the likelihood of an accident occurring was not great. On balance, we find the gravity of the violation to be low to moderate.

Turning to the remaining criteria of section 17(j) of the Act (29 U.S.C. 666(j)), Respondent's size (6 employees) is small and it has no history of prior violation under the Act. There is no evidence from which we could conclude that Respondent acted or did not act with a lack of good faith. In the circumstances we conclude that Complainant's proposed penalty of $65 is appropriate.

Accordingly, the decision of the Judge is hereby ORDERED affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: My views on the preposterous reasoning of the Commission in classifying a "roof" as a "floor" are detailed in Secretary v. S. D. Mullins Company, [*4] Inc., Now, as then, I find the interest of my colleagues in rewriting safety standards ex post facto in order to affirm violations to be wholly inconsistent with our sole statutory responsibility of adjudicating issues on the basis of the record as well as detrimental to the enhancement of employee safety.

[The Judge's decision referred to herein follows]

KNIGHT, JUDGE, OSAHRC: On July 18, 1972, the U.S. Department of Labor (Complainant) cited the Langer Roofing and Sheet Metal, Inc., of Milwaukee, Wisconsin, (Respondent) for three non-serious violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq. A notice contesting the violations was filed by the Respondent within the 15 working day limit of Section 659(a) of the Act. Thus, the jurisdiction of this Commission was properly invoked under Section 659(c).

Complaint and answer were filed iterating the essential elements of the citation and notice of contest, but several amendments were agreed upon at the hearing in Milwaukee, Wisconsin, on October 19, 1972. What remained to be tried was whether Respondent violated Section 654(b) of the Act in failing [*5] to comply with two safety standards promulgated thereunder, namely:

(1) 29 C.F.R. 1926.500(d) requiring that "(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 . . . on all open sides . . ." and

(2) 29 C.F.R. 1926.300(b)(2) requiring that "Belts, gears, . . . fly wheels . . . rotating or moving parts of equipment shall be guarded if such parts are exposed to contact by employees or otherwise create a hazard."

The contest levelled at a third item in the citation concerning an alleged failure to provide individual drinking cups was withdrawn at the hearing and the only penalty proposed on the alleged failure to guard open-sided floors in the amount of $65.00 was never contested. The Respondent admits that it is engaged (or affecting) interstate commerce (Tr. page 6). The contested violations were to be abated within three and 13 days, respectively.

THE ISSUES

Respondent admits that no guard rails or other protective barriers were in place at the worksite on the date of inspection. Its defense is that the regulation allegedly transgressed, 29 CFR 1926.500(d)(1), was never [*6] meant to apply to roofs which was the actual worksite. The issue as to this item, then, is whether a flat roof is to be included within the standard's wording, "Every open-sided floor or platform 6 feet or more above adjacent floor or ground level . . ."

The issue concerning the alleged failure to guard an exposed flywheel on a tar kettle machine is whether that condition created a hazard at all and whether it is feasible to guard or in some way remove the hazard if one exists.

THE EVIDENCE AND FINDINGS OF FACT

On July 10, 1972, Compliance Officers Robert B. Albrecht and Phillip Van Kiekien of the Occupational Safety and Health Administration of the Department of Labor inspected a worksite at 555 Executive Drive, Brookfield, Wisconsin. The construction of a two-story building was in progress and Respondent had approximately six employees engaged in laying on the roofing materials on top of the building. The roof is a flat, horizontal surface measuring about 100 foot square. It is approximately 20 feet from ground level. No guarding around the perimeter of this surface was in place. Photographs taken by Mr. Van Kiekien clearly indicate these working conditions at [*7] the time and the men performing their labors (Exhibits C-1A, 1B, 1D, 1E, and C-2A, 2C, 2D, and 2E). This testimony by Mr. Albrecht is undisputed.

Complainant's second witness, a technical adviser in the construction field and employed by the Department of Labor, tesified that, in his opinion, the standard cited at 29 C.F.R. 1926.500(d)(1) applied to flat roofs where these may be considered as floors allowing workmen to walk normally (as opposed to a pitched roof). This witness is a civil engineer with 20 years experience in the various phases of the construction industry. According to him, the cited standard was adopted from existing federal standards which applied to federally financed constructions. The American National Standard Institute (ANSI) covering the same situation was used as a guide but was not incorporated in toto.

On this issue, Respondent called the Assistant Executive Manager of the National Roofing Contractors Association, a trade association of 800 contractors from all over the country. An aspect of his function is safety, especially safety programming since enactment of the Occupational Safety and Health Act.

According to this witness, the [*8] standard in question is based on the requirement of ANSI, USAS, A12.1-1967 (Exhibit R-4, Tr. Page 104). Both standards are the same except the latter requires guarding on elevations four feet or more above the ground or adjacent floor while the standard found at 29 C.F.R. 1926.500(d)(1) comes into play at six foot heights. But the voluntary consensus standard recommended by the American Standards Institute never had any application to the roofing industry and, to this witness' knowledge, the roofers never guarded the perimeters of a worksite (Tr. page 106). Had this standard been meant to apply to the roofing industry, the Secretary of Labor would have added the word "roof" as was done within other provisions of the regulations of construction. The exclusion or omission of this word indicates the intent not to place the requirement of perimeter guarding of a roof within this subsection.

On this issue, I find that (1) the worksite, the roof of a two-story building under construction, was more than six feet from ground level at the time that Respondent's employees were at their labors on July 10, 1972; (2) the worksite was a level or flat surface measuring approximately 100 foot [*9] square; (3) no perimeter guarding around this worksite was in place save for a low parapet of about six inches high which appears to be an integral part of the building; and (4) these circumstances create the hazard of workmen or material falling from the roof.

As to the second issue, Compliance Officer Albrecht testified that he saw, adjacent to the building under construction, a tar kettle which lacked a guard on the fly or starter wheel of the kettle's engine (Exhibit C-3, Tr. page 22). This unguarded flywheel was exposed and so positioned so that it could cause physical injury to an employee coming in contact with it or whose clothing might get caught. It was described by Respondent as a 230 gallon propane fired kettle whose operation is rope started by winding the rope around the flywheel and jerking the engine into life. The flywheel continues to spin. The engine and pump are located on top and to the rear of the kettle. Respondent uses 25 kettles like the one at the worksite on July 10, 1972. No machine has a guard over the fly or starting wheel and to the Respondent's president's knowledge, none is or was ever available.

The salesman of these kettles testified [*10] that there has never been a guard on the starter wheel on this Blackwell Meltmore Kettle, model KT230S. He has been in this business for 20 years and a guard on these so-called rope puller sheds has never been used and none is commercially available. The flywheel is the simplest mechanism and required on these kettles since these are the most trouble free devices and the kettles are often used in areas where no repairmen are available if anything should go wrong. For this reason, even recoil starters, where the rope would be self-winding, are not used. He has never heard of any accident or injury caused by this starter wheel.

To rebut this evidence, Compliance Officer Albrecht testified that a guard could be placed over the wheel on hinges and exposed only at the time of starting and covered during all other times. At one time, an engine manufacturer was considering this but since there was no call for these guards, they were not manufactured. The officer admitted that no guard for this wheel is commercially available.

On this issue, I find that (1) a Blackwell Meltmore Kettle model KT230S was in use at the worksite at the time of inspection by Respondent's employees; (2) [*11] this kettle has an exposed fly or starter wheel mounted on the side of the upper rear portion exposed so that an employee or his clothing could come in contact with it and suffer some injury thus creating a hazard; and (3) while no guard is commercially produced to protect against this hazard, one is feasible on hinges or a similar devices still preserving the necessary qualities and accessibility of a rope started engine.

While some questioning was devoted to the method of the inspection concerning the Compliance officers' introduction and walk-around, the man in charge of Respondent's crew on the job did accompany the Officers on their tour. He identified himself as the foreman on the roof of the building and an opening conference took place (Tr. page 27) and at the closing conference was advised of what the Officers believed to be violations, the issuances of citations and the appeal procedures. No issue was raised in Respondent's motion to dismiss (Tr. page 120) or brief that any procedural defect is present in this case and I find that 29 U.S.C. 657(e) [ 8(e) of P.L. 91-596] has been complied with.

DISCUSSION, CONCLUSIONS AND ORDER

As to the applicability of [*12] the perimeter guarding requirement of 1926.500(d)(1), Respondent's main argument is that this section's provenance is from the ANSI consensus standard found at OSAS, A12.1-1967 dealing with floor and wall openings, etc. Its witness on this point claims that the consensus standard was never meant to apply to the flat roof. The standard (except for the height requirement) is also found at 29 C.F.R. 1910.23(c) and that standard's source is the ANSI safety requirement. See 29 C.F.R. 1910.31.

Buttressing this foundation, Respondent adds that the term "roof" is missing from the cited section which reads, "Every open-sided floor or platform. . .", indicating an intention by the Secretary of Labor to exclude roofs from the provisions of this standard; and that where it is intended to guard against hazards on a roof, the intention is specifically accomplished. Thusly, the general provisions of this subpart (29 C.F.R. 1926.500) guards against the danger of employees falling "through floor, roof or wall openings." The definitions applied to this subpart include the term "roof" in describing a floor hole or opening which is on "any floor, roof, or platform." See 29 C.F.R. [*13] 1926.502(a) and (b). And in 29 C.F.R. 1926.451(u)(3), certain sloped roofs must have safeguards.

Respondent cites cases where this rationale has persuaded Judges to hold that the absence of the term "roof" is a clear enough indication that the standard is inapplicable. See, Hodgson v. Mullins, Hodgson v. Diamond Roofing, Hodgson v. Heyse Sheet Metal, These cases are presently on review by this Commission. A similar ruling became the decision of the Commission by operation of law since no review was called, Secretary of Labor v. Hawkins, But there, the Judge's rationale was that -- until the Commission rules to the contrary on the cases before it -- the inapplicability of this standard to roofs would stand.

But this opinion is not unanimous among the Judges. See Secretary of Labor v. Psaty & Fuhrman, Inc., There the standard cited in Section 1926.500(d)(1) was held to apply and a penalty assessed for failure to guard the perimeter of a roof.

Section 1926.500(d)(1) is an established Federal Standard. [*14] Originally, it was found at 29 C.F.R. 1518, et seq. and there promulgated by the Secretary of Labor under the Contract Work Hours and Safety Act, 40 U.S.C. 1327, et seq. See 29 C.F.R. 1926.1(a). That numbering was redesignated from 1518 to 1926 by the Secretary on December 30, 1971, 36 F.R. 25232. And there are differences between the so-called ANSI standards (part 1910) and the established Federal standards (part 1926) and these indicate a broader coverage intended by the latter established Federal requirements.

In part 1910 floor holes or openings are described as these may occur in "any floor, platform, pavement or yard. . .," 29 C.F.R. 1910.21(a)(1) and (2). The term "roof" is omitted from the definitions or any subpart bound by those definitions such as 1910.23(c), guarding open-sided floors, platforms and runways. But these same definitions describing the limits of the application of part 1926 include the term "roof" in the exposition of what is a floor hole or opening, 29 C.F.R. 1926.502(a) and (b). And the general provisions cited in subpart 1926.500 governing floor and wall openings is to combat the danger of persons or materials falling through floor, roof, [*15] or wall openings. There is no such broad intention put forth in subpart 1910.

Thus, the coverage provided by subpart 1926.500 is broader than subpart 1910.23. Roofs would not appear to be covered at all by 1910.23 while in 1926.500 the hazards which may occur on roofs are to be protected against. To exclude roofs from 1926.500(d)(1) would be to interpret that section as an ANSI standard which was intended to cover a more restricted area than the federally established requirement. The latter's scope is more within a floor as "a surface or the platform of a structure on which to walk, work or travel," Webster's Third Unabridged Dictionary, page 873 (Exhibit C-4), rather than a floor in contradistinction to a roof which is also contained as a definition of "floor." The entire subpart M of which 1926.500(d)(1) is one subsection is aimed at hazards likely to exist on all flat, horizontal surfaces. Pitched roofs -- presenting a different circumstance -- are treated specifically in 29 C.F.R. 1926.451(u)(3) and a different type of safety mechanism is prescribed.

I conclude, therefore, that flat roofs are included within the language of 29 C.F.R. 1926.500(d)(1), "Every [*16] open-sided floor. . ." and Respondent's failure to establish perimeter guarding or permitting its employees to work on an area not so guarded at 555 Executive Drive, Brookfield, Wisconsin, are violations of the cited subsection. The penalty of $65.00 was not contested, as noted above, and will be affirmed.

The Respondent's defense against the charge of failing to guard the exposed flywheel on its tar kettle [29 C.F.R. 1926.300(b)(2)] is based on the inconvenience of guarding the wheel and that no guard is presently commercially available. The defense is not grounded on the impossibility of perfecting a guard. See Secretary of Labor v. Sivens, In fact, the evidence shows that a guard is feasible on the present construction of the engine. I conclude, then, that Respondent's failure to guard the flywheel is a violation of the cited standard. No accident is known to have been caused by this exposure and the Complainant's election not to assess any penalty is reasonable.

In summary, I find and conclude that:

(1) Respondent is an employer within the meaning of 29 U.S.C. 652(5) and is subject to the provisions of that statute; (2) Respondent's [*17] failure to guard the perimeter of the roof in question as required by 29 C.F.R. 1926.500(d)(1) or permitting its employees to work under those circumstances violate the Act and the standard promulgated thereunder; and (3) Respondent's failure to guard the spinning flywheel on its tar kettle violates the Act and the standard promulgated thereunder at 29 C.F.R. 1926.300(b)(2);

Based on the foregoing, it is ORDERED that:

(1) Respondent's motion to withdraw its notice of contest concerning an alleged violation of 29 C.F.R. 1926.51(a)(4) concerning the availability of individual drinking cups is granted and that citation is affirmed in all respects; (2) the citation issued July 18, as amended at the hearing alleging a violation of (a) 29 C.F.R. 1926.500(d)(1) and assessing a penalty of $65.00 and (b) 29 C.F.R. 1926.300(b)(2) to which was attached no penalty is affirmed in all respects.