Docket No. 12804

BONITZ ALL-WEATHER CRETE CO., INC.

OSHRC Docket No. 12804

Occupational Safety and Health Review Commission

April 4, 1977

[*1]

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

OPINION:

DECISION

BY THE COMMISSION: A decision of Review Commission Judge John S. Patton, dated March 3, 1976, 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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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.

APPENDIX A

DECISION AND ORDER

Jack S. Wallach and Nancy Spies, Office of the Solicitor, U.S. Department of Labor, for complainant

Ira J. Smotherman, Jr., for respondent

[*2] STATEMENT OF THE CASE

Patton, Judge: This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1976 (29 U.S.C. § 651, et seq., 84 Stat. 1590, hereinafter referred to as the Act) contesting a citation issued by the complainant against the respondent under the authority vested in complainant by section 9(a) of the 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 Alcova Street, Monroe, Georgia, the respondent has violated section 5(a)(2) of the Act by failing to comply with Occupational Safety and Health standard 29 C.F.R. 1926.500(d)(1). Hearing was held in Atlanta, Georgia, on August 20, 21, and 22, 1975. Complainant and respondent appeared and presented evidence. Briefs have been filed by both parties. There was no motion to intervene.

ISSUES IN THE CASE

It is alleged that the respondent violated standard 29 C.F.R. 1926.500(d)(1). Said standard is as follows:

"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 [*3] (f)(1) 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."

Standard 29 C.F.R. 1926.500(f)(1) provides:

"A standard railing shall consist of top rail, intermediate rail, toeboard, and posts, and shall have a vertical height of approximately 42 inches from upper surface of top rail to floor, platform, runway, or ramp level. The top rail shall be smooth-surfaced throughout the length of the railing. The intermediate rail shall be halfway between the top rail and the floor, platform, runway, or ramp. The ends of the rails shall not overhang the terminal posts except where such overhang does not constitute a projecting hazard. Minimum requirements for standard railings under various types of construction are specified in the following paragraphs:

* * *

"(iv) The anchoring of posts and framing of members for railings of all types shall be of such construction that the completed structure shall be capable of withstanding [*4] a load of at least 200 pounds applied in any direction at any point on the top rail, with a minimum of deflection."

It is admitted that the respondent did not have a guardrail around a roof on which its employees were working. Said roof was 26 feet in height. The respondent defends on the following grounds: it is contended by the respondent that the work could not have been properly performed with a guardrail; the erection of a guardrail would damage the property; it was not possible to erect a guardrail which would withstand the required 200 pounds of stress. It is further contended by the respondent that it would take longer to erect the guardrails than the length of time that employees would be exposed to the hazard without guardrails; and, therefore, compliance with the standard would increase rather than diminish the hazard. The complainant maintains that it was incumbent upon the respondent to raise the defenses of impossibility of performance and of increase in the hazard by performance in the original pleadings in this cause. The answer does not affirmatively raise said defenses. A Motion to Dismiss was, therefore, made on said ground which motion was taken under advisement. [*5]

DETERMINATION OF THE LAW AND ISSUES OF THE CASE

The first issue for determination is whether the respondent is required to raise the issues of impossibility of performance and increase of the hazard by performance in its answer. The failure of the respondent to plead said affirmative defenses in its answer presents a close question. The Review Commission has repeatedly held that the defense of impossibility of performance is an affirmative defense which must be proven by the respondent. In the case of Secretary v. Chicago Bridge and Iron Company, 6 OSAHRC 244 (1974), vacated and remanded, 514 F.2d 1082 (7th Cir. 1975), the Review Commission held that the affirmative defense of reasonable promptness must be raised in the issue-formation stage of the proceeding. In Secretary v. Mississippi Valley Erection Company, 5 OSAHRC 483 (1973), the Review Commission held that defense of an isolated event should be raised affirmatively during the formulation of the issues in the case. Any possible defect in this regard, however, was cured by the motion to amend the answer made at the hearing by the respondent. This motion was taken under advisement.

Rule 15(a) [*6] of the Federal Rules of Civil Procedure provides that amendments may be granted by leave of court and shall be freely given when justice requires. Counsel for the complainant had been put on oral notice of said defenses of the respondent well in advance of the date of hearing and, therefore, was not in any way taken by surprise by said issues being raised or by the request for amendment. In view of said facts, the request to amend the answer is hereby granted, and the motion to dismiss for failure to timely raise the issues of impossiblity of performance and increase of the hazard is denied.

Respondent, in its answer, denied that the Review Commission has jurisdiction of this proceeding. The respondent admitted, however, that it is a corporation having a place of business and doing business, among other places, at Alcova Street (Walton County Hospital) Monroe, Georgia, where it is engaged in the installation of roofing. It was admitted that respondent is and, at all times relevant to this cause, has been an employer engaged in a business affecting commerce within the meaning of the Act. Inasmuch as it is admitted that respondent is engaged in a business affecting commerce within [*7] the meaning of the Act, it is hereby found that jurisdiction of this proceeding does lie with the Occupational Safety and Health Review Commission, and that the respondent is governed by the Occupational Safety and Health Act.

It was stipulated at the beginning of the hearing that respondent had employees on a building exposed to a possible fall hazard; that if a violation was found, a $500 penalty was appropriate; and that the abatement date was reasonable (Tr. 5 (Vol. I)). It was further stipulated that, if a violation occurred, it was a serious violation within the meaning of the Act (Tr. 194 (Vol. II)).

The building under construction consisted of an addition to the Walton County Hospital in Monroe, Georgia (Tr. 18 (Vol. I)). An oblong building was under construction built on a sloping grade and was approximately 120 feet long, 75 feet wide and approximately 20 to 26 feet high in the front, and approximately 20 feet high in the back (Tr. 7, 11 (Vol. I)). The roof of the building was a poured concrete roof and was flat (Tr. 8 (Vol. I)). What was termed a nailer had been constructed by the general contractor, which was secured on the top edge of the roof and consisted of bolts [*8] anchored in the concrete roof connected to quarter-inch steel (Tr. 107, 108 (Vol. I)). This was an untreated two-by-six-inch piece of lumber connected to the quarter-inch steel by means of three-eighth-inch bolts (Tr. 110, 116 (Vol. I)). Three-quarter-inch by two-inch lumber was placed on top of the two-by-six-inch piece of lumber and secured by means of rails (Tr. 110, 111 (Vol. I)). The total height of the nailer was three inches (Tr. 108 (Vol. I)). A wooden nailer is used as a stop for the roof insulation and for the roofing contractor to nail his roofing paper and gravel stop into (Tr. 54, 55 (Vol. I)).

There was a conflict in evidence as to the strength of the nailer. Bruce Martin, general manager of the National Roofing Contractors' Association, testified that wood nailers typically found on almost every job he had visited and on every set of plans he had looked at were very flimsily attached to the structure of the building. He stated they were not even capable, in many cases, of accepting the roofing materials (Tr. 91 (Vol. II)). Mr. Roy Smith, construction superintendent with the respondent, testified that the nailer supports very little weight (Tr. 159 (Vol. II)). [*9]

Carl L. Bunn, safety engineer for the complainant who is an expert in safety engineering with an Associate's Degree from the Southern School of Technology, testified that most wooden nailers are fairly good and that the nailer could hold a stress of 200 pounds (Tr. 76, 87, 88, 89 (Vol. III)).

Respondent's business involves applying poured insulation, called all-weather crete, to roof decks (Tr. 7 (Vol. I)). Respondent employed at said project a foreman and seven other employees (Tr. 7, 65 (Vol. I)). Respondent completed its operation in four working days, however, employees were at the job for a week due to rain (Tr. 80 (Vol. I)).

Prior to the date of inspection, and during the time respondent was on the job site, a bricklayer's tubular metal scaffold was erected, which reached a height of within four or five feet of the top of the building on all three sides (Tr. 9, 11 (Vol. I)). This scaffolding was partly disassembled by the time of inspection (Tr. 20 (Vol. I)). During the inspection, the compliance officer observed one of respondent's employees utilizing a tamper to compact the poured insulation. Said employee was working with his toes at the foot or edge of the roof (Tr. [*10] 28 (Vol. I)). A tamper was described as an instrument used to apply the all-weather crete by hand, rather than by a machine.

Foreman Walter Hargrave testified that for a period between eight and ten man-hours during the four working days, his employees worked between six inches to a foot from the edge of the building (Tr. 86 (Vol. I)).

The respondent did not have guardrails, safety nets, safety belts or other fall protection on said project at Monroe, Georgia (Tr. 13, 53 (Vol. I), 115 (Vol. II)).

The ground around the base of the building under construction was littered with concrete blocks, lumber with protruding nails, and partially disassembled scaffolding on which an employee could have fallen (Tr. 19, 20, 31, 33 (Vol. I)).

While respondent was working on said roof, there were no other crafts engaged in work on the roof (Tr. 68 (Vol. I)).

The method of applying the all-weather crete is as follows: six men are normally required to be on the roof deck two men to pull the screed or straight edge across the material, one man to run the buggy, one man to run the power buggy, one man to run the hoist, and one to run the roller (Tr. 84 (Vol. I)).

The first step of the crew on [*11] the job is to set up its machinery (Tr. 46 (Vol. I)). The second step is to apply an asphalt primer to the deck (Tr. 46 (Vol. I)). The screed bars are then set on the deck to the proper height to achieve the proper thickness of the insulation (Tr. 46 (Vol. I)).

The material is mixed, hoisted to the roof deck, put in buggies, rolled to the point of implacement, dumped, and finally screed off the screed bars (Tr. 48, 49 (Vol. I)).

In the screeding process, the two screed men start on one edge, facing the edge, and move to within approximately eight feet of the opposite edge, then reverse direction, moving from the opposite edge back toward the center to finish the row (Tr. 50 (Vol. I)). One screed man, therefore, must work along an edge for the entire length of the first and last row (Tr. 51 (Vol. I)). On these rows, he works in a "clean" strip approximately three to four feet wide between the nailer and the row left as a place for him to walk (Tr. 51 (Vol. I)). After he has moved approximately ten feet along the row, he will then fill in the clean place and fan it level with the rest of the row (Tr. 52 (Vol. I)).

The next step is to roll and compact the insulation to the correct [*12] density (Tr. 52 (Vol. I)). The roller rolls to within one foot of the edge paralled to the front roller, then reverses direction to roll approximately one foot from the opposite edge (reversing directions so as not to back up to an edge), and finally turns ninety degrees to cross-roll to the very edge the one foot strip that has not been previously rolled (Tr. 53, 170 (Vol. I), 57, 155 (Vol. II)). It is possible to use a tamper to compact at the edge, but tamping cannot obtain a smooth surface (Tr. 74, 83, 84, 92 (Vol. I)). Irregularities may require tamping (Tr. 170 (Vol. I)). The tamper compacts the material but does not smooth it (Tr. 12 (Vol. I), 57 (Vol. II)). What is tamped is customarily then also rolled (Tr. 58 (Vol. II)). The roller weighs approximately four hundred to five hundred and fifty pounds, depending on whether it is fully loaded (Tr. 52 (Vol. I), 162 (Vol. II)), and the rolls are twenty-five inches wide and the frame thirty-one and one-half inches wide (Tr. 62 (Vol. I)). After the insulation is complete, the next step in the construction process is the application of the roof to the insulation (Tr. 53 (Vol. I)).

Mr. Stanley, general superintendent of respondent [*13] who has worked in the roof deck industry for 38 years and in the all-weather crete industry since 1963, supervising 40 jobs a year and observing 50 to 60 jobs a year (Tr. 38, 45 (Vol. I)), testified that he had only seen one temporary guardrail used during the application process, and it was very flimsily attached by nailing it to the nailer (Tr. 54 (Vol. I)).

Mr. John Bonitz, president of the respondent, who has been doing this type work since 1957 (Tr. 133, 134 (Vol. I)), testified that he was aware of two or three instances of use of guardrails in the industry, and that guardrails had been used on two of respondent's jobs (Tr. 154, 156 (Vol. I)).

Mr. Roy Smith, general superintendent of Silbreco until six months prior to the date of hearing, testified that no temporary guardrail system had ever been used at Silbreco (Tr. 133 (Vol. II)).

Mr. Bruce Martin, general manager since 1966 of the National Roofing Contractors' Association, a trade association composed of approximately 1,400 roofing and roof deck contractors (Tr. 64 (Vol. II)), testified that temporary guardrails are virtually never used in the roofing industry because of the problems incident to working with the guardrails [*14] in place (Tr. 79 (Vol. II)).

The respondent maintains that its contract with the general contractor would not permit the respondent to erect a guardrail under the circumstances which existed on the premises. So far as it relies upon this defense, respondent's position cannot be sustained. The law was enacted approximately five years ago. The contract was entered into with full knowledge, either actual or constructive, of the requirements of the standard. The respondent cannot, by contract with another party, absolve itself of the obligations which are imposed upon respondent by law. Respondent does not have the right to execute a contract which prevents it from complying with the safety laws of the nation. This defense, therefore, cannot be sustained.

The position of the respondent that its employees were not carpenters and, therefore, lacked the expertise to erect a guardrail does not absolve the respondent from any obligation it may have. If the respondent's employees could not erect a guardrail, it would be incumbent upon the respondent to hire someone with the necessary expertise or to contract with someone with the necessary expertise to have safety installation erected. [*15]

Respondent conceded that it was physically possible to erect a guardrail but took the position that the guardrail would not hold 200 pounds of stress as is required by the standard.

Mr. Carl Bunn, safety engineer for respondent, testified that it would be possible to anchor the guardrails to the windows. He stated that a guardrail could be made of either pipe or wood, although he thought wood would be preferable and is probably more available. He stated that he would use either two by fours on the edge or preferably four by fours and two-by-four-inch boards nailed flat to the four by fours with the entire rail attached, either at the nailing strip or through the window (Tr. 206 (Vol. II)). He stated that this would be outside the roof and, therefore, would not interfere with the laying of material (Tr. 205, 206 (Vol. II)). The guardrail would be secured by use of a strip anchor attached to the nailing strip and holding boards which were two by fours or four by fours. It would also be possible to go below to the window level with the four by four and attach it with a turnbuckle or banding so that the vertical piece would be held against the side of the building and would also [*16] be held in position by the four-by-four-inch board inside of the building. He stated that in either case, the strapping or vertical board tied into the building would give adequate strength to support a guardrail. A design was introduced in evidence as Exhibit C-16. Mr. Bunn testified that if connected to the nailer in the method described, there was no question that it could withstand 200 pounds of pressure (Tr. 210 (Vol. II)). He stated the amount of stress of the attachment part in said illustration would be 700 pounds, which would be the amount that would be applied from a 200 pound load (Tr. 213 (Vol. II)). He stated that using a turnbuckle through the window was quite a common arrangement in many structures (Tr. 56, 57 (Vol. III)). He stated that the turnbuckle places pressure on the two-by-four-inch board on the inside of the building and also against the outside two by four, pulling them together and holding it in position (Tr. 216, 217 (Vol. II)). An illustration was drawn and introduced as Exhibit C-17. He stated there would be no nailing or hammering on the building under this procedure (Tr. 218 (Vol. II)). He stated that if a turnbuckle of adequate size and strength [*17] was used, it could support any stress desired (Tr. 218 (Vol. II)). He envisioned a turnbuckle one-half inch in diameter (Tr. 218, 219 (Vol. II)).

Mr. Bunn also stated that they could use what he called "banding." He defined banding as a thin narrow strip of metal that could be inserted under the nailer strip and attached by a fastening device. He stated it might be necessary to loosen the nailer strip where it was bolted down so as to slide the band under it. This would only involve loosening the knot. The band would be wrapped around and pulled tight with a banding device. The band would be wrapped around the four-by-four-inch board as well as the nailer. The area of stress would be where the band goes around the four-by-four-inch board. He expressed the opinion that if a 200 pound man were to exert stress at a 42 inch high level, it would hold. In his opinion, it would stand the maximum amount of stress a four-by-four-inch board would stand if the banding was heavy enough (Tr. 221, 222 (Vol. II)). It was illustrated by Exhibit C-18.

Another method suggested was that a hole be drilled in the four-by-four-inch board prior to installation. The hole could then be drilled [*18] through the nailing strip and a bolt inserted (Tr. 4, 5 (Vol. III)). Use of a half-inch bolt was suggested (Tr. 5 (Vol. III)). The guardrails would be reuseable for another project (Tr. 5, 6 (Vol. III)). He stated that a two-by-four-inch nailer would probably be thick enough to hold, but there might be problems attaching it to the building sufficiently to hold (Tr. 6, 7 (Vol. III)). It is possible to erect a guardrail strapping it to the nailer. A U-bolt could be used to bolt the guardrail. This was illustrated in Complainant's Exhibit 17. He stated there would be no problem in removing the connections, since all that would be necessary would be to loosen the U-bolt. It would also be possible to remove the strapping, if the strapping method was used. If the banding was used at the top of the nailer, it could be cut and the edge of it removed, leaving a portion of it in position (Tr. 9, 10, 11 (Vol. III)). If the upright was bolted to the nailer, there might be some problem in removing the bolt from the nailer, and it might be necessary to remove some of the material placed against it (Tr. 11 (Vol. III)). It would depend on the nature of material that surrounds the knot [*19] (Tr. 11 (Vol. III)). He stated that it was possible if the bolting method was used, that the pressure applied to the 42-inch upright could split the nailer, but that it was not likely (Tr. 11, 12 (Vol. III)). He stated it depended on the strength of the wood and the direction of the grain; only unusual conditions could cause a split (Tr. 12 (Vol. III)). He stated that if the nailer is a two-by-six-inch board and 200 pounds of pressure are pressed against an upright at 42-inch level, it should not affect the strength of the nailer (Tr. 12, 13 (Vol. III)). It would apply a load to the two-by-six-inch nailer to be transmitted back to the structural part of the building (Tr. 13 (Vol. III)). It would be possible that the board might split but the possibility would be rather low (Tr. 14 (Vol. III)). He stated he has constructed guardrails using the turnbuckle method (Tr. 15 (Vol. III)).

He also suggested the possibility of using tubular scaffolding on the outside of the building to serve as guardrails (Tr. 26 (Vol. III)). He stated it would be erected from the ground level up to above the roof of the building and left in place (Tr. 26 (Vol. III)). The safety factor with reference [*20] to guardrails should be six to one, but the system he suggested would bear a 1,200 pound load (Tr. 51, 53, 54 (Vol. III)). He has seen the anchor-strap system used (Tr. 56 (Vol. III)). He has seen the band system used several times (Tr. 56 (Vol. III)). The use of the turnbuckle through the window is a very common arrangement in many structures (Tr. 56, 57 (Vol. III)). He has also seen drilling and bolting to the nailer occasionally (Tr. 57 (Vol. III)).

From structural analyses that have been run, he is satisfied that all four methods would work (Tr. 58 (Vol. III)). If the nailer itself was not securely attached, it would not support the load (Tr. 62 (Vol. III)). He stated that sometimes it could be prefabricated, but it is easier to handle if it is done through individual uprights erected on the building (Tr. 64, 65 (Vol. III)). There is very little compression force necessary on the wall or window. There is no danger of damaging the outside wall or window frames (Tr. 65 (Vol. III)). It would take two men to erect the turnbuckle system. The men would be inside the building working from the window. They would have to be on the topside, however, when installing the horizontal [*21] rails (Tr. 66 (Vol. III)). The same number of employees would be required to perform the anchor-strap method (Tr. 67 (Vol. III)). He stated it would take a couple of hours to erect the horizontal rails for a distance of 100 feet. It would take about ten minutes to erect each of the uprights (Tr. 67, 68 (Vol. III)). He stated that it would be possible to hold the uprights out from the edge of the building a sufficient distance to allow the gravel stop to be inserted between the uprights and the side of the building (Tr. 71 (Vol. III)). He stated that it is doubtful there is any possibility of damage to the roofing material which would be placed over the all-weather crete at a later time (Tr. 75 (Vol. III)). If the wood in the nailer is fairly good and if it is properly treated, the nail hole should make no difference (Tr. 76, 77 (Vol. III)). He did not know whether or not the nailer in the case at bar was treated wood (Tr. 77 (Vol. III)). It would take 2 hours to put up 13 uprights, which would be required for 100 feet; 2 hours to put up the horizontal bars or 4 hours in all to erect 100 feet of guardrail (Tr. 91 (Vol. III)).

On the other hand, Mr. Bonitz, president of the [*22] respondent, stated that he was not sure what effect using the method of screwing straps into the top of the nailer through pieces applied at the top of the two-by-six-inch nailer would have. He was not certain of the effect the screws and removal of the screws would have upon the narrow strip, which would be the essential anchoring point of the nailing of the roof at the edge and which would be the attachment of the gravel stop (Tr. 102 (Vol. III)). He stated the pressure caused by a turnbuckle or banding in the window area could apply forces potentially damaging to the window frame and/or wall construction which might, in this case, be block and masonry. He testified that he was not saying this would happen, but that it could happen (Tr. 102 (Col. III)).

Mr. Dan Stanley, general superintendent of the roof deck division of respondent, testified that he had only been on one job where there was a guardrail fastened on the outside, and that it did not get in the way of the work. He stated, however, that it was very flimsy, and he did not know whether guardrails could be erected that would be sturdy enough to hold a man (Tr. 70 (Vol. I)). There would have to be working room where [*23] they could get up to the edge of the building where materials are placed and finish it with a roller. He stated that if anything was back on the roof deck, they would have a problem getting around it (Tr. 71 (Vol. I)). If it is attached outside the nailer, it would leave room to get material (Tr. 71 (Vol. I)). He stated he would need to see the edge of the nailers. To nail something above the nailer would interfere with the work (Tr. 72, 73 (Vol. I)). A piece of steel through the center of the wooden nailer straight up would not obstruct vision too much, but the frame on the roller would stick out about four to six inches past the roller and hit the rail (Tr. 73 (Vol. I)). They do use tamping, which is putting it on by hand where the roller does not reach (Tr. 73 (Vol. I)). They can tamp along the edge, but it does not make a smooth surface (Tr. 74 (Vol. I)). He stated that it is possible to erect a rail, but it must withstand 200 pounds of pressure, and he doubts that this could be done (Tr. 75 (Vol. I)). If the product is not smooth, it creates roughness, which has a tendency to puncture the roofing paper (Tr. 92 (Vol. I)). The tamping process, however, does not destroy [*24] the smoothness of the roof (Tr. 93 (Vol. I)). The roller goes to two or three inches from the edge and then there is tamping by hand (Tr. 94 (Vol. I)).

Mr. Melvin Brady, superintendent with respondent, testified that if a bolt was put through the nailer and a two-by-four-inch board, 200 pounds of force at a 42-inch height might hold, but it was questionable (Tr. 113 (Vol. I)). He stated he would not trust it (Tr. 121 (Vol. I)). The bolt might go through the wood. He stated that it should be five times the weight of the man (Tr. 124, 125 (Vol. I)).

Mr. Bonitz stated that to put up a rail might interfere with subsequent work of the roofer and might damage workmanship of the carpenter or steel people (Tr. 174 (Vol. I)). He said no one in the company was qualified to erect a guardrail (Tr. 175 (Vol. I)). It would not be possible to shoot nails, screws or bolts in the wall (Tr. 174, 175 (Vol. I)). An ordinary masonry wall could be repaired, but marble surfacing could not (Tr. 175 (Vol. I)). Mr. Bonitz said that it would not be practical to tie anything onto the roller machine, as he could not say that the roller machine would not move (Tr. 14, 15, 16 (Vol. II)). Mr. Bunn was [*25] also of the opinion this would be impractical. Mr. Bonitz said a few bolt holes in the railing would not essentially impair the building (Tr. 18 (Vol. II)). He stated that if a board was bolted to the nailer, it would be impossible to unscrew the bolt without a wrench on the nut, and this would have to penetrate the all-weather crete (Tr. 20, 21 (Vol. II)). If the guardrail was subject to an impact to 200 pounds at a 42-inch height, it could conceivably fail and rip the nailer off the building (Tr. 27, 28 (Vol. II)). It did not matter if the nailer was scratched or notched, it is eventually covered by paper, metal flashing and other material (Tr. 34 (Vol. II)). The stress could result in the bolt shearing or bending and giving way. There is also a possibility of the board splitting (Tr. 39 (Vol. II)).

It should be noted that there is a conflict of evidence as to whether any method would sustain 200 pounds of pressure and the stress called for in the standard. The method of using a turnbuckle to tie onto at the windows would hold adequately to support 200 pounds of stress. Mr. Bunn stated that a two-by-four-inch board on the other side of the window, plus a two-by-four-inch [*26] board on the outside belted together, would make a firm and substantial upright. Some doubt as to the practicability of this method was expressed by the respondent, particularly by Mr. Bonitz, who stated that it might not prove practical. There was no testimony by the respondent that it would not hold the pressure, but merely a doubt expressed as to whether or not it would. On the other hand, Mr. Bunn quite positively testified that it would hold a stress of 200 pounds, and that there was no question about it. It would appear that the weight of the evidence, therefore, is to the effect that 200 pounds of stress could be withstood. The evidence further is to the effect that there should be a six-to-one margin, and that 1,200 pounds should be the amount of pressure that could be withstood. Mr. Bunn stated that such a stress would not be excessive to the suggested methods. It does not appear, however, that it is necessary to find that the uprights could withstand a stress in the amount of 1,200 pounds. The only requirement of the standard is to withstand a stress of 200 pounds.

A great many serious accidents could be prevented even by a guardrail which would not hold the pressure [*27] of a man striking the rail with the full force of his weight in a fall. There is a real peril on a roof of a man backing off of the roof and, therefore, losing his life, even though he has not fallen toward the edge of the roof. A guardrail, which would not hold a man striking the roof with the full weight of his body and the impact of a fall, could very well prevent a man from falling if he merely backed into the guardrail. It would also appear that a man hitting the guardrail a glancing blow would be prevented, in certain instances, from falling from the roof even though the guardrail might not hold him if he hit the roof with full force. Therefore, if a guardrail can be erected which would withstand 200 pounds of stress, the amount required by the standard, the guardrail would be an added safety device and would comply with the standard. The erection of a rail attached to scaffolding would also appear to be practical. It should be noted that scaffolding had been erected on the job by another craft and was partly demolished at the time that the respondent was doing its work. There is some evidence that there had been scaffolding all around the front of the building. This [*28] scaffolding could have remained intact until after the work was done by the Respondent, and a rail could have been attached to it which would have been a protection against falls.

There is some conflict of evidence as to whether use of the window as a means of support would be damaging to the construction around the window. Mr. Bunn was of the opinion that damage would not result, and testimony of Mr. Bonitz and other witnesses of the respondent was to the effect that damage could occur, although there was no dogmatic statement that it would be probable that it would happen. It was suggested that if 200 pounds of stress were placed against a guardrail affixed to the window, damage to the wall could result. If it was established that damage to the wall would be the result of merely erecting a guardrail, such fact would probably be an adequate defense to the requirement that a guardrail be erected, unless the damage could be adequately repaired. If, however, the only instance of damage would be in the event that a man fell with the full force of his body against the guardrail, it would seem that any damage to property would be a small price to pay for saving an employee from what [*29] would inevitably be very serious injury and possibly death.

There is some testimony that the work could not be adequately performed if a guardrail was erected. This would probably be true if the guardrail was erected on the surface which had to be covered by the respondent's product. The suggestion that a guardrail be erected on scaffolding or be affixed to the window and nailer outside the building, however, would not appear to prevent the respondent from completing its work while the guardrail was erected. There is some evidence that the roller could not get as close to the edge as it could without a guardrail because the arm of the roller would hit the guardrail. This evidence is not contradicted and must be taken as true. It is further testified, however, that a tamper is used for the last two or three inches even when a roller is used. Tamping could be applied a little further back than the two or three inches where it is now applied. There is an indication that the product is not quite as good if this is done, but apparently the product is still useable with tamping on the last two or three inches. Therefore, it should be useable if tamping is resorted to a bit further [*30] back. Some decrease in quality, if said decrease does not make it impractical to affix the all-weather crete, would be the price that would have to be paid for safety. It should further be noted that there is testimony that scaffolding can either be purchased or rented; and, therefore, it would not seem to be impractical to resort to scaffolding, if necessary. The weight of evidence, therefore, would appear to establish that it is not impossible to erect guardrailing which would conform to the requirements of the standard.

It is further maintained by the respondent, however, that it would take longer to erect the guardrailing than the length of time which an employee would be working around the edge of the structure, and that it would therefore increase rather than decrease the hazard.

Mr. Bruce Martin, general manager of the National Roofing Contractors' Association, testified that on most jobs with a ten-hour workday, one would probably work two or three hours a day around the outside edge of the building (Tr. 65 (Vol. I)). He stated that in the case at bar, there were about eight men on the job and probably three men at the edge of the building for four hours (Tr. 66 (Vol. [*31] I)).

Formen Walter Hargrave stated that he considered six inches from the edge to be on the edge, and that eight to ten man-hours of exposure occurred if the edge is considered within two feet of the edge (Tr. 87 (Vol. I)).

In the screeding process, two men are at the very edge for approximately five minutes. It is possible for them to trip on the screeds, which are from one to twelve inches off the floor. They could also trip on a rake or on material, although he has never seen anyone trip (Tr. 97, 99, 103 (Vol. I)). Superintendent Melvin Brady stated that there was more time exposure in putting up guardrails than exposure without them (Tr. 161 (Vol. I)). He did not know how much difference existed, as he said he had never run time studies (Tr. 161, 162 (Vol. I)).

Mr. Roy Smith, construction superintendent for the respondent, testified that it would take ten times as long to put up guardrails as the length of time men would work on the edge. He further pointed out aht it would take additional exposure to remove the guardrails later. He stated they always tamped within two feet of the edge (Tr. 149, 154 (Vol. III)). This ratio would be extremely persuasive but for the fact [*32] that other testimony in the record, is to the effect that only the last several inches are considered as the edge. The tamping was at times done over a distance of two feet. It should be noted that the total work on the roof required four days. An employee working two feet from the edge is involved in some danger. The evidence pointed out the hazards which result from possible tripping of employees, and an employee could be in such a position as to go over the edge, even though working more than two feet from the edge. The estimate of the length of time taken to erect guardrails, as given by Mr. Bunn, would not substantiate the 10-1 ratio, even considering an employee working very close to the edge as a basis for comparison. The question for determination, however, is whether the risk is necessarily the same for an employee working on erection of guardrails and an employee working on the roof laying respondent's product. There was considerable evidence by the respondent that there are more falls from scaffolding than from roofs (Tr. 124, 125, 137 (Vol. III)).

The question of whether the danger is increased by erection of guardrails hinges upon the question of the practicability [*33] of safety belts in erecting guardrails and the practicability of safety belts when working on a roof. Mr. Hargrave, the foreman, testified following the inspection, the respondent, at the suggestion of the compliance officer, provided a fall line about 20 to 30 feet long which tied around the employee's waist and was connected to a vent pipe as protection against falls (Tr. 13 (Vol. I)). It was not provided prior to inspection (Tr. 13 (Vol. I)). It was suggested that the respondent could tie the line to the vent pipe on the roof deck or stretch a cable which would support a man and meet requirements (Tr. 32 (Vol. I)).

General superintendent Stanley stated that they had never used safety belts on a deck, and that they had never found a place to fasten safety belts; there was nothing provided at the top of the building on which to tie lines (Tr. 56 (Vol. I)). He stated that if lines were strung across the building, the roller would run over the lines. He also said that if lines or ropes were strung across the top of the building, they would constitute a tripping hazard (Tr. 66 (Vol. I)). The reason suggested by Mr. Stanley for not using safety belts raises a serious question [*34] as to whether safety belts used in putting the all-weather crete on the roof are practical. Testimony was to the effect that five men work on the roof. It could well be that five lines stretched across the roof would constitute a tripping hazard. A problem would also arise from the fact that rollers would be running over the lines. The problems, however, do not suggest themselves in tying off of men to erect a guardrail. It would be presumed that the guardrail would be erected before the men began working on applying the all-weather crete. It certainly would be possible to tie on to the scaffolding as the scaffolding was erected. It was testified that the employees could trip on the screeds when working on top of the roof. This would not constitute a problem while erecting guardrails (Tr. 103 (Vol. I)). It was further testified that if everyone was tied off while the crete was applied, ropes would be dragged through the material (Tr. 170 (Vol. I)). It was stated that men would have to move in sequence or the ropes would become tangled (Tr. 173 (Vol. II)). The principal reason for falls is tripping and that would be greatly enhanced by having belts while the work was being [*35] performed (Tr. 174 (Vol. II)).

Mr. Bunn defined a lifeline as a rope tied at a fixed location above the operation to which the lanyard is attached. He stated that a lanyard should be 10 to 12 inches long and tied directly to the lifeline at such a distance that the employee could reach the edge (Tr. 18 (Vol. III)). He stated that the employees could tie to the window opening, drain opening or hatches (Tr. 19 (Vol. III)). The lanyard could be tied around the column that forms the window opening (Tr. 19, 20 (Vol. III)). It could be connected through a hole in the roof and tied to a connector (Tr. 21 (Vol. III)). He would not recommend tying off to a piece of equipment (Tr. 21 (Vol. III)). The exhibits show a column on either side of the window to which a rope could be tied (Tr. 22 (Vol. III)). It is possible to tie through the roof drain with a T-toggle (Tr. 23 (Vol. III)). It was stated that it would be possible to tie off from I-beams and angel irons (Tr. 25 (Vol. III)). Evidence was to the effect that only two employees would be erecting guardrails. If they tied to the windows or to scaffolding, the ropes would not be stretched across the top of the building in a position [*36] where the tripping would be as great as in application of the all-weather crete. The problem of dragging the ropes through material or running the roller over the ropes and other problems mentioned in the evidence, if the employees were tied off while the work was in progress, would not be involved. With only two employees tied off, the likelihood of ropes tangling, which was described as a problem while the employees were working on the roof, would be greatly minimized. It would appear that a rope tied to a column through the window or tied to the window itself would not be stretched across the interior of the roof, and there would be very little likelihood of tripping. There would be little likelihood of tripping on a rope if the rope was tied to the scaffolding. It appears that there are objects to which a rope could be anchored in the erection of a guardrail. Serious doubt exists as to the practicality of tying off while the work is being performed, and it is possible that the hazard could be increased if this was done. On the other hand, the hazard would be substantially reduced by the employees tying off while erecting a guardrail. Therefore, the mere question of relative [*37] time of employees working directly on the edge of the roof and the time required in erecting a guardrail is not the sole determinative factor.

Even if there was some possibility that in the event of a fall the anchorage would not hold, the guardrail might still be suggested. It is not necessary to establish with absolute certainty that an employee would be saved by the wearing of a safety belt; but, if it is probable that he would be saved and the risk is minimized, the safety belts are a practical means of protecting the employee. It would seem that tying off to scaffolding, a window or a column would be a firm anchor and would hold the employee. It must therefore be concluded that if employees are properly tied off while wearing safety belts, the risk is not enhanced by the erection of guardrails but is minimized.

It is admitted that guardrails were not erected, and that employees worked up to the edge of a roof 26 feet high. There was, at the time of inspection, no other type of protection afforded an employee against a fall. The respondent has failed to carry the burden of establishing that it is impossible to erect a guardrail and has further failed to establish that it [*38] would increase the hazard to erect a guardrail. The complaint, therefore, must be sustained.

A penalty in the amount of $500 is proposed. The employees were working at a high elevation on a roof without any fall protection. A fall in all probability would have resulted in very serious injury or death. It is stipulated that the penalty is proper if a violation is found, and it is stipulated that the violation is a serious violation. Therefore, a penalty in the amount of $500 should be approved.

FINDINGS OF FACT

1. Respondent is a corporation having a place of business and doing business at Monroe, Georgia, where it was engaged in the installation of roofing. Respondent, at all times relevant to this cause, was an employer engaged in a business affecting commerce within the meaning of the Act.

2. On or about March 5, 1975, respondent was engaged in installation of all-weather crete on an addition to the Walton County Hospital in Monroe, Georgia.

3. On or about March 5, 1975, employees of respondent were working on said roof at an elevation of 26 feet with no guardrail on any part of said roof.

4. Employees of respondent performed work up to the edge of the roof. [*39]

5. Respondent's employees were not, on or about March 5, 1975, wearing safety belts, nor was any other section against fall provided by the respondent.

6. The time required to erect a guardrail would have been in excess of the time employees worked on the very edge of the roof, but would not have been as great a period of time as that required for employees to work on the roof in positions where there could have been some danger of fall.

7. Guardrails could have been erected by tying said guardrails to the windows and nailer by means of bolting and/or use of a turnbuckle or band. Said guardrails would have to withstand 200 pounds of stress.

8. Said guardrails could have been erected without damage to the property.

9. The possibility of tripping, the tangling of ropes, the dragging of ropes through the material while the material was being applied, and the running of a roller over the ropes made it questionable as to whether it was practical for safety belts to be worn while the employees were laying the all-weather crete on said roof.

10. Safety belts could have been tied to the windows, to columns inside the windows, or to scaffolding while guardrails were being erected [*40] and the problems incident to use of safety belts while the all-weather crete work was being performed on the roof would not have been present while wearing safety belts to erect the guardrails.

11. Scaffolding had been used on said premises and had been partly removed at the time of said inspection.

12. Guardrails could have been erected on scaffolding which would have protected the employees.

13. Employees could have worn safety belts and tied to the scaffolding as the scaffolding was being erected.

14. With the employees wearing safety belts and properly tied off, it would have been less hazardous to have erected guardrails than not to have done so.

15. If employees had fallen from the roof, there would have been substantial danger of a serious accident or death.

CONCLUSIONS OF LAW

1. Respondent was engaged in a business affecting interstate commerce and was within the jurisdiction of the Occupational Safety and Health Act.

2. The burden of proving impossibility of performance and/or proving that the hazard would be increased by complying with the standard is upon the respondent.

3. The request by respondent that it should be permitted to specially plead the [*41] impossibility of performance is hereby granted.

4. Respondent, on or about March 5, 1975, was in violation of standard 29 C.F.R. 1926.500(d)(1) by failing to have guardrails around a roof 26 feet in height on which its employees were working.

ORDER

The request to amend the answer so as to specially plead impossibility of performance is hereby granted.

Respondent, on or about March 5, 1975, was in violation of standard 29 C.F.R. 1926.500(d)(1) by failing to have guardrails around a roof 26 feet in height on which employees were working. A penalty in the amount of $500 is assessed. The proposed abatement date is affirmed.

Dated this 3rd day of March 1976.

JOHN S. PATTON, Judge