JULIAN HIRSCHBEIN, d/b/a STATE HOME IMPROVEMENT COMPANY
OSHRC Docket No. 14098
Occupational Safety and Health Review Commission
December 20, 1977
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Before: CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Marshall H. Harris, Reg. Sol., USDOL
Ernest Hirschbein, State Home Improvement Co., for the employer
OPINION:
DECISION
BY THE COMMISSION: A decision of Review Commission Judge Donald K. Duvall, dated February 24, 1976, is before this Commission for review pursuant to 29 U.S.C. § 661(i). That decision held that two citations, one alleging a serious violation of 29 C.F.R. § 1926.28(a), n1 the other alleging a nonserious violation of 29 C.F.R. § 1926.450(a)(10), n2 were final orders of the Commission by operation of law. The Judge assessed penalties of $250 for the serious violation and $50 for the nonserious violation.
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n1 That standard provides:
The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.
n2 That standard provides:
Portable ladders in use shall be tied, blocked, or otherwise secured to prevent their being displaced.
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The respondent contends in its petition for review that the Judge erred in finding that its notice of contest was limited to the appropriateness of the proposed penalties. It also contends that 29 C.F.R. § 1926.28(a) is unenforceably vague. For reasons that follow, we find that the Judge erred in limiting the respondent's notice of contest, but affirm the citations and penalties based on his findings that the violations were proved.
On June 25, 1975, the respondent's foreman and another employee were shingling the roof of a two-story dwelling. As the Judge correctly found:
No personal protective or lifesaving equipment, such as safety belts, lifelines, or catch platforms were being used or furnished other than [a] 4- by 4-inch wood toeboard with brackets nailed to the roof, against which the employees could walk and brace their feet while working on the 6- to 12-inch pitched roof. . . .
Although the board protected the employees from slipping, it did not prevent a fall from the unparapeted roof to the ground below. The fall distance involved was greater than 16', the actual distance being dependent [*3] on where the employees were located on the sloped roof. The compliance officer and one of respondent's employees testified that the use of safety belts was feasible and described how they could be tied off.
The citations were received by the respondent on July 8, 1975. On July 9, 1975, respondent's co-owner, Ernest Hirschbein, timely filed a notice of contest which stated in pertinent part:
I cannot honestly, and do not deny that I am in violation of these charges. For these charges I have received proposed penalties of $595.00.
I wish to contest the proposed penalties as being much too severe for my first offense. I want to plead my defense in hopes that some compassion will be shown.
Thereafter the Secretary of Labor filed a complaint which asserted that the two citations were final orders because the respondent had contested only the penalties. n3 The respondent replied to the complaint with a letter postmarked August 25, 1975, stating in part:
Please be informed that my letter of July 9, 1975, did not mean that I waive my rights to a hearing with the Occupational Safety and Health Review Commission, or admitted liability.
When I spoke to Mr. Alonzo Griffin, area director, [*4] he informed me there would be an informal hearing.
I therefore, am requesting a hearing to contest both the citations and the penalties.
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n3 If an employer fails to notify the Secretary of Labor within 15 working days after receiving a notice of a proposed penalty that he intends to contest the citation or proposed assessment of penalty, "the citation and the assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency." 29 U.S.C. § 659(a).
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At the hearing, Mr. Hirschbein, appearing pro se, stated that his letter of July 9, 1975, was not intended to mean that the citations were not being contested. He indicated that his intention was to admit that the conditions alleged in the citation existed and not to admit his culpability. Judge Duvall ruled that the citations as well as the penalties were in issue, and a trial on the merits was conducted. In his written decision, however, Judge Duvall reversed himself and held that respondent had not timely contested [*5] the citations.
In Turnbull Millwork Co., 75 OSAHRC 16/A13, 3 BNA OSHC 1781, 1975-76 CCH OSHD para. 20,221 (No. 7413, 1975), a divided Commission held that a notice of contest limited to the penalty would, nevertheless, be construed to include a contest of the citation if a respondent subsequently indicated that its intent was to also challenge the citation. The Commission finds that the Turnbull decision is controlling in this case. Therefore, the Judge erred in concluding that the respondent's notice of contest was limited to the proposed penalty. However, remand for a hearing is not required.
After holding a full hearing on the merits as to the violations and giving careful consideration to the evidence and the respondent's contentions, the Judge found that the evidence established both violations. His decision indicates that, irrespective of his holding that the citations were not in issue, the citations should be affirmed. On review, the respondent takes issue with the Judge's determination that 29 C.F.R. § 1926.28(a) is not unenforceably vague. The respondent does not challenge the Judge's other findings on the merits. The Commission will not review the unchallenged [*6] findings of the Judge. See Water Works Installation Corporation, 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD para. 20,780 (No. 4136, 1976); Crane Co., 76 OSAHRC 37/A2, 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976). That portion of the Judge's opinion will be accorded the significance of an unreviewed Judge's decision. Leone Constr. Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).
The respondent's second contention is rejected. Although Chairman Cleary and Commissioner Barnako have expressed different views on the proper interpretation and application of § 1926.28(a), n4 they agree that the standard is not unenforceably vague as applied in this case.
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n4 See, e.g., B & B Insulation, Inc., 77 OSAHRC 49/A2, 5 BNA OSHC 1265, 1977-78 CCH OSHD para. 21,747 (No. 9985, 1977), appeal docketed, No. 77-2211, 5th Cir., June 14, 1977.
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As stated in his opinions in several cases, n5 Chairman Cleary considers the standard to give adequate [*7] notice of a duty to use personal protective equipment whenever a hazardous condition exists. In this case, Chairman Clearly finds that the employees working on the roof were exposed to an obvious fall hazard that could have been eliminated by the use of safety belts.
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n5 See, e.g., Schiavone Construction Co., 77 OSAHRC 78/A2, 5 BNA OSHC 1385, 1977-78 CCH OSHD para. 21,815 (No. 12767, 1977), appeal docketed, No. 77-1807, 3d Cir., June 20, 1977; B & B Insulation, Inc., supra.
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Commissioner Barnako considers 29 C.F.R. § 1926.28(a) to be unenforceably "vague unless its scope is defined and limited by extrinsic means such as other regulations and industry customs and practices." n6 In this case, Commissioner Barnako finds that a reasonable person familiar with the roofing industry would recognize a need for the use of personal protective equipment. n7 The compliance officer and two of the respondent's employees testified that the board bracketed to the roof would not prevent a fall from the roof. Their [*8] testimony is corroborated by the photographic exhibits. Commissioner Barnako also finds that the testimony of the compliance officer and one of the respondent's employees establishes the feasibility of using safety belts. Furthermore, Commissioner Barnako observes that the standard at 29 C.F.R. § 1926.451(u)(3) n8 suggests the use of safety belts when work is performed without a catch platform on an unparapeted roof with a slope greater than 4 inches in 12 inches. n9
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n6 Frank Briscoe Co., Inc., 76 OSAHRC 129/A2, 4 BNA OSHC 1729, 1731, 1976-77 CCH OSHD para. 21,162 (No. 7792, 1976).
n7 See Western Waterproofing Co., 77 OSAHRC 179/B9, 5 BNA OSHC 1897, 1977-78 CCH OSHD para. 22,212 (No. 13538, 1977).
n8 The standard provides in pertinent part:
A catch platform shall be installed below the working area of roofs more than 16 feet from the ground to eaves with a slope greater than 4 inches in 12 inches without a parapet. . . . This provision shall not apply where employees engaged in work upon such roofs are protected by a safety belt attached to a lifeline.
n9 Commissioner Barnako notes that the respondent argued before the Judge that § 1926.451(u)(3) rather than § 1926.28(a) was the standard applicable to its workplace. As noted above, the respondent has not raised that issue before the Commission, and we do not decide it. But in Commissioner Barnako's opinion, the evidence shows that even if § 1926.451(u)(3) is applicable, the respondent violated that standard in that at least some parts of the eaves of the roof were more than 16 feet high, and the respondent's employees were not protected by means of a catch platform or tied-off safety belts. The respondent has not argued that the toeboard it provided was a parapet within the meaning of § 1926.451(u)(3). See National Roofing Contractors Association v. Brennan, 495 F.2d 1294, 1302 (7th Cir. 1974) (Pell, J. dissenting).
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Accordingly, the citations are affirmed and a total penalty of $300 is assessed.
So ORDERED.