OSHRC Docket No. 15974

Occupational Safety and Health Review Commission

April 18, 1977


Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.


Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Regional Solicitor, USDOL

Vernon Newell, President, Southwestern Acoustics & Specialty, Inc., for employer



This case is before the Commission pursuant to a Sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded [*2] the significance of an unreviewed Judge's decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.



MORAN, Commissioner, Concurring:

I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A. For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.



Gail M. Dickenson, Office of the Solicitor, U.S. Department of Labor, for the complainant

Vernon Newell, President, Southwestern Roofing & Sheet Metal Co., for the respondent


On November 14, 1975, the Secretary of Labor issued a citation charging that on October 30, 1975, the respondent failed to comply with safety regulations in non-serious violation of section 654(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter referred to as the Act). Notification of proposed penalty was issued to the respondent [*3] on November 14, 1975, proposing a penalty of $105.00. A timely notice of contest was filed by the respondent and this Commission thereby acquired jurisdiction over the subject matter under section 659 of the Act. A hearing was held in Oklahoma City, Oklahoma, on March 3, 1976. The description of the alleged violations, proposed penalties, and the standards concerned is as follows:


An approved container was not used for the storage and handling of flammable liquids that were in greater quantities than one gallon; i.e., the five-gallon size can that was used for refueling the engine that drives the tar pump on the Reeves Tarpot, and was located near the trash container, outside, on the north side of the building.

In violation of 29 CFR 1926.152(a)(1). Proposed Penalty: None.

The safety standard concerned provides:

1926.152 Flammable and combustible liquids.

(a) General requirements. (1) Only approved containers and portable tanks shall be used for storage and handling of flammable and combustible liquids. Approved metal safety cans shall be used for the handling and use of flammable liquids in quantities greater than one gallon, except that this shall not [*4] apply to those flammable liquid materials which are highly viscid (extremely hard to pour), which may be used and handled in original shipping containers. For quantities of one gallon or less, only the original container or approved metal safety cans shall be used for storage, use and handling of flammable liquids.


The open-sided floor that was greater than 6 feet above the adjacent floor or ground level, did not have a standard railing or the equivalent on the open side; i.e., the open-sided roof on the north side of the building.

In violation of 29 CFR 1926.500(d)(1). Penalty Proposed: $105.00.

The safety standard concerned 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 [*5] could create a hazard.

The parties have stipulated and it is found that the respondent herein at the time of the inspection was an employer engaged in a business affecting commerce within the meaning of the Act. The respondent is a corporation that has engaged for some years in the roofing business. On October 30, 1975, Mr. James J. Fitzgerald, the respondent's safety compliance officer, inspected the respondent's worksite at which a restaurant was being constructed. The compliance officer identified himself to the respondent's foreman, Mr. Jose Garcia, and proceeded with his inspection. The building being constructed had 32 feet of pitched roof. However, at the end of the pitched roof, it had a flat surface for several feet where the respondent's employees were working. At this point, the roof was between 10 and 12 feet above the ground, and the employees were working on the roof within 3 to 4 feet of the edge. There was no guarding on the edge of the roof. The respondent had five employees working at the site, including Mr. Garcia.

At the site the respondent's employees were using a black 5-gallon can which held gasoline. The gasoline was used at least twice a day to [*6] fuel the gasoline engine that was part of the tar pot. The black can was from time to time in the vicinity of at least one of the respondent's employees. The compliance officer checked the contents of the can and found that it contained gasoline. The can did not have a self-closing lid and did not have a flame-arresting screen in the pour spout and, therefore, was not an approved container as required by the standard. The respondent's foreman did have an approved container in the back of his station wagon that was nearby but failed to use it.

The hazard concerned in this violation is the possibility of the ignition of the gasoline in the can and a resulting fire or an explosion that would burn the employee using the can or a nearby employee. The use of the approved can would have avoided this hazard.

The credible evidence establishes that the respondent's foreman knew of the violation concerned and this knowledge is attributable to the respondent.

The respondent failed to present any evidence other than the cross-examination of the complainant's witness. The defense raised to the gasoline can violation was that it was an isolated incident. The Commission in Secretary [*7] v. Leone Construction Co., Docket No. 4090 (February 10, 1976) at page 8 questioned whether the "isolated event" concept exists as a defense. Indeed, most of the citations affirmed by this Commission appear to have arisen from isolated events. Apparently the respondent here feels that it is not liable for the violation due to an allegedly single act of an employee which the respondent could not prevent. In this case, it would appear that, by proper safety instructions and enforcement of these instructions, the hazard could have been prevented. The can in question appeared to be in general use and more than one employee, including a supervising employee, was aware of the condition. this violation was readily preventable by the employer.

As to the periphery guarding violation, the respondent argues that the safety standard in question, 29 CFR 1926.500(d)(1), does not apply to roofs. Langer Roofing & Sheet Metal, Inc., v. Secretary of Labor, 524 F.2d 1337 (7th Cir. 1975). The complainant argues that this judge is bound by the mandate of the Commission, which has repeatedly held, that the standard applies to worksites that are roofs. Both arguments are correct, as [*8] far as they go.

Since the writing of the complainant's brief, most of the cases cited in support of his position have been reversed. Diamond Roofing Co. v. Occupational Safety & Health Review Commission, 528 F.2d 645 (5th Cir. 1976). Although a considerable period of time has passed since the Langer decision, the Commission has not renewed its mandate. In addition, another Circuit of the United States Court of Appeals now endorses the Langer position. It is, therefore, concluded that the standard does not apply to roofs. It follows that Item 2 and the related Proposed Penalty must be vacated.

Long after the filing of briefs, the complainant moved "to conform the pleadings to the proof." The motion fails to indicate the proof to which the complainant wishes the pleadings be conformed and further fails to indicate any requested change in the factual averments of pleadings. Instead, the complainant urges "specifically" that the safety standard alleged be amended to alternatively include 29 CFR 1926.28(a). If granted, paragraph V of the Complaint which now states:

"At respondent's aforesaid workplace on October 30, 1975, an open-sided floor 6 feet or more above [*9] adjacent floor or ground level was not guarded by a standard railing or the equivalent on all open sides in violation of section 5(a)(2) of the Act and 29 CFR Part 1926.500(d)(1) which was promulgated pursuant to section 6 of the Act."

would be amended to read as follows:

"At respondent's aforesaid workplace on October 30, 1975, an open-sided floor 9 feet or more above adjacent floor or ground level was not guarded by a standard railing or the equivalent on all open sides in violation of section 5(a)(2) of the Act and 29 CFR Part 1926.500(d)(1) and Part 1926.28(a) which were promulgated pursuant to section 6 of the Act."

29 CFR 1926.28(a) provides as follows:

"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 indicated the need for using such equipment to reduce the hazards to the employees."

It is concluded that in the factual averment in paragraph V of the Complaint, "standard railing, or the equivalent", that the phrase "or the equivalent" refers to a barrier or railing that is equivalent to a standard railing. It is obvious this averment [*10] was taken in haec verba from the wording of section 1926.500(d)(1). It is further concluded that section 1926.28(a) does not require that such railings and barriers be worn as appropriate personal protective equipment. Accordingly, as the facts averred do not support the theory for liability stated in section 1928.28(a), the complainant's argument "that the underlying factual basis of a violation of 29 CFR 1926.28(a) or a violation of 29 CFR 1926.500(d)(1) is the same," is incorrect.

Next, the complainant argues that the issue of the violation of 29 CFR 1926.28(a) was impliedly tried by the parties. Again, the complainant fails to indicate the "proof" or evidence to support this argument. The motion can be denied on this basis.

The respondent here is not represented by an attorney and, therefore, may not be aware that Rule 15(b) of the Federal Rules of Civil Procedure allows the parties to move to amend the pleadings at any time, even after judgment. Therefore, in an attempt to deal fully with the problem that was weakly raised, the evidence has been reexamined for references to personal protective equipment.

Scaffolding, catch platforms and life lines, safety [*11] belts and lanyards are mentioned in the testimony. Scaffolding and catch platforms are not personal protective equipment within the scope of section 1926.28(a). However, assuming that they were, the record fails to establish that the respondent impliedly tried 1926.28(a) issues. The mention of scaffolding, catch platforms and life lines, safety belts and lanyards occurred only as the complainant was attempting to prove the element of hazard and the possibility of abatement under the section 1926.500(d)(1) violation. In this context, the complainant was allowed to present evidence that no other guarding or safety equipment was present in addition to the absence of guard rails. Similarly, in an attempt to prove possibility of abatement, the complainant was allowed to present evidence as to other guarding or safety equipment that would abate the alleged section 1926.500(d)(1) violation. The respondent did not have grounds to object to this evidence as it was incidental to proving the section 1926.500(d)(1) violation alleged. Consequently, his failure to object did not imply his consent to the trial of a new issue. It is concluded that as the references to other equipment was [*12] incidental to the section 1926.500(d)(1) violation alleged, the presence of those references in the record does not imply respondent's consent to the trial of any issues other than the section 1926.500(d)(1) violation alleged.

"The purpose of Rule 15(b) is to bring the pleadings in line with issues actually tried and does not permit amendment to include collateral issues which may find incidental support in the record" Monod v. Futura, Inc., 415 F.2d 1170 (10th Cir., 1969).

It is found that the Rule 15(b) motion is not applicable to this case. However, "assuming F.R.C.P. 15(b) may be applicable to such a case, implied consent to the trial of an issue not raised by the pleadings should not be found where, as here, the [respondent] was not represented by counsel and his attention was in no way directed to the significance of the testimony on an issue outside the pleadings." United States v. Hauck, 155 F.2d 141 (2nd Cir., 1946). Allowing the motion would result in undue prejudice to this respondent, as he did not have a fair opportunity to defend against the allegations sought to be added to the violations initially charged. de Haas v. Empire Petroleum Co., [*13] 435 F.2d 1223 (10th Cir. 1970). Therefore, the motion is denied.

No penalty was proposed for Item 1. After considering the respondent's good faith, history of previous violations, size of the respondent's business, and the gravity of the violation, it is concluded that it is appropriate that no penalty be assessed for this violation.


It is therefore ORDERED that Item 1 of the citation be and is hereby AFFIRMED, and that Item 2 and the related proposed penalty be and hereby are VACATED.

Erwin L. Stuller, Judge

Dated: May 24, 1976