CHAMPLIN PETROLEUM COMPANY

OSHRC Docket No. 12696

Occupational Safety and Health Review Commission

September 3, 1976

[*1]

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

COUNSEL:

Ronald M. Gaswirth, Reg. Sol., USDOL

David L. Motloch, Champlin Petroleum Co., Inc., for the employer

OPINIONBY: MORAN

OPINION:

DECISION

MORAN, Commissioner: A decision of Review Commission Judge Alan M. Wienman, dated August 28, 1975, is before this Commission for review pursuant to 29 U.S.C. 661(i). That decision, which is attached hereto as Appendix A, n1 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).

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n1 Chairman Barnako does not agree to this attachment.

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

Accordingly, Citation Number 2 (serious) and the penalty assessed therefor are vacated. Furthermore, the Judge's vacation of the remaining [*2] contested charge (Item 1, Citation Number 1 (nonserious)) is affirmed.

DISSENTBY: CLEARY

DISSENT:

CLEARY, Commissioner, DISSENTING:

I dissent. Central City Roofing is not dispositive of this case. The crucial issue is factual. The citation alleged that an employee was working on the edge of a roof. The remainder is devoted to a method of abatement (perimeter guarding) and the citing of section 1926.500(d)(1). At the time of the citation it was at least arguable that safety lines and belts would be an "equivalent" method of protection under the terms of the cited standard. See Edward M. Ream, Inc., 18 OSHRC 173, 3 BNA OSHC 1208, CCH OSHD para. 19,687 (1975); Warnel Corp., No. 4537, CCH OSHD para. 17,759 (Administrative Law Judge) (1974), reviewed 4 BNA OSHC 1034, CCH OSHD para. 20,756 (1976). The Secretary of Labor's complaint repeated the allegation.

Respondent's employee, Bufford Hill, was working on the roof of a service station removing a sign. He worked at the edge of the roof using a crow bar to pry the sign loose. It was admitted into evidence without objection that Hill was unprotected by safety lines or safety belts while so working. (Tr. 26-27).

Thus, assuming [*3] arguendo that my colleagues are correct and section 1926.500(d)(1) does not apply because of the holding in Central City Roofing, then I would amend the complaint to conform to the evidence which indicates there is a violation of 29 CFR 1910.132(a) n2 regarding the use of personal protective equipment to protect the employee from the hazard of falling. If there is any characteristic of the Federal Rules of Civil Procedure n3 it is well settled that a complainant pleads facts and not law. Padovani v. Bruchhausen, 293 F.2d 546 (2d Cir. 1961). When the underlying facts are alleged in a complaint an agency may find that the conduct violates a different provision of law from that specified in the complaint. N.L.R.B. v. Majestic Weaving Co., 355 F.2d 854, 861-2 (2d Cir. 1969). This rule is subject to the qualification that any shift in legal theory must not prejudice the parties charged with the violations. Here there was no objection by respondent to testimony concerning the absence of life lines or safety belts. I would therefore find no prejudice resulting from an amendment of the pleadings.

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n2 Section 1910.132(a), a general industry standard, applies in my opinion because I agree with respondent's arguments that the removal of the sign in question is not "construction". Therefore, none of Part 1926, the construction standards, applies. The precedent under the Davis Bacon Act cited by the Secretary's complaint at the close of the hearing supports this conclusion.

n3 The Rules apply to Commission proceedings by virtue of Commission Rule 2(b), 29 CFR 2200.2(b).

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