LANGER ROOFING AND SHEET METAL, INC.

OSHRC Docket No. 1536

Occupational Safety and Health Review Commission

January 7, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission on my order directing review of a decision of Judge Louis J. Rubin. Respondent (hereinafter "Langer") was cited for three non-serious violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ). Judge Rubin vacated one item which alleged a violation of 29 C.F.R. 1926.500(d)(1) n1 on the ground that the standard was inapplicable to flat roofs. A second item, alleging a violation of 29 C.F.R. 1926.500(f)(5)(ii), n2 was vacated on the Judge's conclusion that Langer had complied with the requirements of the cited standard. A third item of the citation went uncontested by Langer.

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n1 The standard provides:

(d) 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.

n2 The standard provides:

(5) Floor opening covers shall be of any material that meets the following strength requirements:

(i) . . .

(ii) The floor opening cover shall be capable of supporting the maximum intended load and so installed as to prevent accidental displacement.

[*2]

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We have reviewed the entire record. We affirm Judge Rubin's disposition of the 1926.500(f)(5) allegation for the reasons he assigns. The Judge erred, however, by vacating the alleged violation of 1926.500(d)(1). Our decisions have unequivocally held that 1926.500(d)(1) applies to flat roofs. S.D. Mullins Co., appeal docketed, No. 73-3705, 5th Cir., Nov. 14, 1973; Heyse Sheet Metal & Roofing Co., Since the record establishes that the dictates of the standard were not complied with at Langer's rooftop worksite, we find Langer in violation.

Considering the gravity of the violation, and Langer's size, good faith, and safety history, we conclude that Complainant's proposed penalty of $55 is appropriate. Accordingly, it is ORDERED that Complainant's citation and proposed penalty for non-serious violation C.F.R. 1926.500(d)(1) is affirmed. In all other respects the decision of the judge is affirmed.

CONCURBY: CLEARY (In Part); MORAN (In Part)

DISSENTBY: [*3]

CLEARY (In Part); MORAN (In Part)

DISSENT:

CLEARY, COMMISSIONER, concurring in part and dissenting in part: I concur in affirming the violation of 29 CFR 1926.500(d)(1) and the proposed penalty.

In his petition for discretionary review and again in his brief on review complainant has argued that the Administrative Law Judge erred in vacating the item alleging a non-serious violation of 29 CFR 1926.500(f)(5)(ii). That subparagraph provides:

(ii) The floor opening cover shall be capable of supporting the maximum intended load and so installed as to prevent accidental displacement (emphasis added).

At hearing the parties stipulated that a floor opening approximately 4' X 4' was covered by respondent's employees by placing a 4' X 8' board of 3/4 inch plywood over the opening, that the opening was not guarded by a standard railing and toeboard, n3 and that the plywood cover was not fastened to the roof deck. The material used as a cover was also used as a path to facilitate moving equipment across the roof. Evidence reveals that employees of another subcontractor removed the board to use elsewhere, resulting in a fatal fall through the floor opening by one of [*4] these employees. Respondent's employees, some of whom were unaware that the board served as a cover, were similarly exposed to the hazard.

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n3 29 CFR 1926.500(b), with which respondent was alleged to be in violation, requires the use of railings and toeboards or covers, as specified in 29 CFR 1926.500(f)(5)(ii).

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Judge Rubin vacated the item, asserting that the underlined language of the standard, supra, refers only to the standard's preceding requirement regarding the strength of the material used as a cover. The Judge found that the cover weighed at least 30 pounds and required two men to lift and that its displacement was ". . . not because the material used failed to meet the strength requirements . . . ." My colleagues have affirmed the Judge's holding.

I see no basis for relating the installation requirement to the strength requirement. Where a cover rather than a railing is used to prevent falls through a floor opening, the standard requires that the cover be sufficiently strong to preclude falling [*5] through it and installed to prevent reopening the hole accidentally. Here, it was not obvious that the plywood board served as a cover over a floor opening. It was removed because of the need for a plywood cover elsewhere on the roof. Clearly, the plywood was removed intentionally, but the fact that the plywood was unsecured and therefore easily removable, and the fact that it was not obvious that the board constituted a protective cover, render the displacement of the cover accidental, within the meaning of the standard. I would affirm the violation.

MORAN, CHAIRMAN, concurring in part and dissenting in part: The affirmation of Judge Rubin's disposition of the charge framed under 29 C.F.R. 1926.500(a), (b) and (f)(1), (3), and (5)(ii) is correct and I concur therewith. I dissent, however, from the reversal of the Judge's disposition of the 1926.500(d)(1) charge. The Judge should be affirmed in all respects. In the dissenting opinion I rendered in the case of Secretary v. S.D. Mullins Company, Inc., et al. 4 OSAHRC 1415 (1973), I set forth some additional reasons why the latter disposition of the Judge should be affirmed.

[The Judge's decision referred [*6] to herein follows]

RUBIN, JUDGE: This is a proceeding pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq. (hereafter called the Act). Respondent contests a Citation and Notification of Proposed Penalty issued by the Secretary of Labor on September 15, 1972, pursuant to Section 9(a) of the Act.

The Citation alleged that an inspection and investigation on July 19 and July 20, 1972, of a workplace under the ownership, operation or control of the Respondent, located at 105 North Michigan Avenue, Hartford, Wisconsin, disclosed that Respondent violated Section 5(a)(2) of the Act by failing to comply with occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citation alleged three non-serious violations. Respondent did not contest item 2 of the Citation for which no penalty was proposed. Said item and penalty are deemed to be a final order of the Commission pursuant to Section 10(a) of the Act. The phraseology of items 1 and 3 of the Citation were modified in the Complaint. The alleged violations, abatement dates and proposed penalties are as follows:

Violation -- Abatement [*7] Date -- Proposed Penalty

On July 19, 1972, allowed employees to work where an open-sided floor six feet or more above adjacent floor or ground level was not guarded by a standard railing or the equivalent.

[29 CFR 1926.500(a) and (d) as adopted by 29 CFR 1910.12] (item 1 of Citation) (Amended to conform with the standard) -- October 12, 1972 -- $55.00.

On June 29, 1972, allowed employees to work where a floor opening was not guarded by a standard railing and toeboard, or a cover, so installed as to prevent accidental displacement.

[29 CFR 1926.500(a), (b) and (f)(1), (3) and (5)(ii), as adopted by 29 CFR 1910.12] (item 3 of Citation) (Amended to conform with standard) -- Immediately -- $110.00

After Respondent contested this enforcement action, and Complaint and Answer were filed, the case came on for hearing in Milwaukee, Wisconsin, on February 21, 1973. No affected employee nor authorized employee representative has asserted party status.

STIPULATION

At the hearing the parties entered an oral stipulation wherein: (a) Respondent admits that on July 19, 1972 it allowed its employees to work on a flat roof, which was more than 6 feet above adjacent floor or ground [*8] level, where the open sides of the roof were not guarded by standard railings or the equivalent; (b) Respondent admits that on June 29, 1972 one of its employees covered an approximate 4' X 4' floor opening, which was not guarded by a standard railing and toeboard, with a 4' by 8' board of 3/4-inch plywood and the board was not fastened in any manner to the roof; (c) Respondent does not contest the amount of the proposed penalties; (d) Respondent does not contest the reasonableness of the abatement periods (Tr. 5, 6).

ISSUES

Respondent admits that the Occupational Safety and Health Review Commission has jurisdiction of this action and that Respondent is an employer within the meaning of Section 3(5) of the Act (Complaint and Answer). The issues to be resolved are whether the conditions cited in items 1 and 3 of the Citation, as modified by the Complaint, violate Section 5(a)(2) of the Act and if so, what penalty or penalties are appropriate.

DISCUSSION

ITEM 1

29 CFR 1926.500 provides in pertinent part:

(a) General provision. This subpart shall apply to temporary or emergency conditions where there is danger of employees or materials falling through floor, roof, [*9] or wall openings, or from stairways or runways.

(d) 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 . . ., on all open sides, . . .

The parties have stipulated that employees of Respondent worked on a flat roof which was more than 6 feet above adjacent floor or ground level with open sides which were not guarded by standard railings or the equivalent. Respondent contends that the standard cited does not apply to an open-sided roof. The parties are aware that Judges decisions in support of their respective positions are presently under review by the Commission.

In Secretary of Labor v. J.F. Probst & Company,

It is evident that Respondent's employees are engaged in a hazardous occupation and should be protected by a railing, life line or other device from the hazard of falling off an open-sided [*10] roof. However, the question to be decided is not the desirability of such protection but whether 1926.500(d)(1) requires Respondent to provide a railing or equivalent. The standard cited omits any specific reference to roofs. Complainant's contention that the term 'open-sided floor' in 1926.500(d)(1) applies to an 'open-sided roof' is tenuous at best. The paragraphs in Subpart M which do refer to a roof are concerned with the danger of a fall through a roof opening, a condition not pertinent here.

There is evidence which suggests that the standard writers intended 1926. 500(d)(1) to include an open-sided roof. However, fairness dictates that the standard relied upon clearly set forth an employer's responsibility and that it not necessitate a strained interpretation in its application.

Absent a contrary ruling by the Review Commission in the cases pending before it, the undersigned finds that the standard in question is not applicable to open-sided roofs.

ITEM 3

The Regulations involved are:

Subpart M-Floor and Wall Openings, and Stairways

1926.500-Guardrails, handrails and covers.

(a) General provision. This subpart shall apply to temporary or emergency [*11] conditions where there is danger of employees or materials falling through floor, roof, or wall openings, or from stairways or runways.

(b) Guarding of floor openings and floor holes. (1) Floor openings shall be guarded by a standard railing and toeboards or cover, as specified in paragraph (f) of this section . . .

(f)(1) Standard specifications (for railings)

(f)(3) Standard toeboard specifications.

(f)(5) Floor opening covers shall be of any material that meets the following strength requirements:

(ii) The floor opening cover shall be capable of supporting the maximum intended load and so installed as to prevent accidental displacement. 1926.502-Definitions applicable to this subpart.

(b) "Floor opening" - An opening measuring 12 inches or more in its least dimension in any floor, roof, or platform through which persons may fall.

The parties have stipulated that a floor opening approximately 4' X 4' was covered by Respondent's employees by placing a 4' X 8' board of 3/4-inch plywood over the opening, that the opening was not guarded by a standard railing and toeboard, and that the plywood cover was not fastened to the roof deck. Complainant does not charge nor has evidence [*12] been offered to establish that the floor opening cover was incapable of supporting the maximum intended load. It is Complainant's position that the cover was not so installed as to prevent accidental displacement. Moreover, the board was displaced by employees of the W & B Corporation resulting in a fall through the opening and the death of Howard Backus on June 29, 1972.

Complainant contends that accidental displacement of the cover was due to the lack of any marking on the board to reveal the underlying opening, the similarity between that board and others adjacent to it, and the fact that the board was not fastened to the roof deck. There can be no doubt that these factors were largely responsible for the displacement. However, Respondent's culpability in this regard does not establish a violation of the standard cited.

Subparagraph (f)(5) is concerned with the strength requirements of the material used as a floor opening cover. Whether or not the board was so installed as to prevent accidental displacement, must be considered in the context of (f)(5), i.e., the strength of the material used. The plywood board was 4' X 8', weighed at least 30 pounds and required [*13] two men to lift (Tr. 57). Complainant's witness has testified that the board was abutted on two sides by boards of like size and weight (Tr. 102). The position, weight and size of the board would preclude its being pushed aside accidentally. The board was displaced, but not because the material used failed to meet the strength requirements set forth in (f)(5). Again, as in item 1, we are faced with a hazard which requires the promulgation of a protective standard since such protection is not afforded by the standard cited.

The above determination makes it unnecessary to resolve the questions raised relating to the validity of the standard.

FINDINGS OF FACT

1. Langer Roofing and Sheet Metal, Inc., Respondent herein, is a corporation with an office and place of business at 4320 North 35th Street, Milwaukee, Wisconsin.

2. Respondent is an employer within the meaning of the Act.

3. On July 19, 1972, employees of Respondent were working on an open-sided, flat roof which was not guarded by a standard railing or the equivalent.

4. Occupational safety and health regulation 29 CFR 1926.500(d)(1) does not apply to open-sided roofs.

5. On July 29, 1972, Respondent's employees [*14] placed a 4' X 8' board of 3/4-inch plywood over a 4' X 4' floor opening without marking or fastening the plywood board to the roof deck.

6. The displacement of the board was not due to the failure of the material to meet the strength requirements of 29 CFR 1926.500(f)(5).

CONCLUSIONS OF LAW

1. Respondent is and, at all times relevant herein, 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.

2. The Occupational Safety and Health Review Commission has jurisdiction of the parties and subject matter herein pursuant to Section 10(c) of the Act.

3. Respondent did not violate 29 CFR 1926.500(d)(1) as charged in item 1 of the Citation, and as amended by the Complaint.

4. Respondent did not violate 29 CFR 1926.500(b)(1) as charged in item 3 of the Citation, and as amended by the Complaint.

ORDER

The Citation and proposed penalties pertaining to item 1 and 3 are hereby vacated.