SPRING SHEET METAL & ROOFING CO., INC.

OSHRC Docket No. 16140

Occupational Safety and Health Review Commission

April 11, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Reg. Sol., USDOL

Peter G. Smith, for the employer

OPINION:

DECISION

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 the significance of an unreviewed Judge's decision. [*2] 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.

CONCURBY: MORAN

CONCUR:

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.

APPENDIX A

DECISION AND ORDER

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor and Barnett Silverstein, for complainant

Peter G. Smith, for respondent

DeBenedetto, J.:

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. et seq., hereinafter called the Act) stemming from a citation issued by complainant against respondent under authority provided by section 9(a) of the Act.

The citation and notification of proposed penalty, issued on November 10, 1975, are based on an October 28, 1975, inspection of a construction site in Perinton, New York. The citation alleges serious [*3] violation of 29 CFR 1926.500(d)(1) for which a penalty of $550.00 is proposed. Respondent timely filed a notice of contest, n1 complaint and answer were filed by the parties, and the case came on for a hearing in Rochester, New York, on April 8, 1976. No affected employee or authorized employee representative elected to participate as a party in the case.

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n1 Respondent was also charged with nonserious violation of 29 CFR 1926.450(a)(10) [failure to secure a portable ladder]. This citation and proposed assessment of $35.00 penalty were not contested, therefore, they became a final order of the Commission pursuant to 29 U.S.C. 659(a).

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OCCUPATIONAL SAFETY AND HEALTH STANDARDS

1926.500(d)(1) provides:

"Every opensided 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)[1] of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall [*4] 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."

1926.500(f)(1) states in pertinent part:

"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 intermediate rail shall be halfway between the top rail and the floor, platform, runway, or ramp . . . ."

MOTIONS TO AMEND CITATION

At the commencement of the hearing complainant moved to amend the citation and complaint to include the alternative charge that respondent violated 29 CFR 1926.451(u)(3) which states:

"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. In width, the platform shall extend 2 feet beyond the protection of the eaves and shall be provided with a guardrail, midrail, and toeboard. This provision shall not apply where employees engaged in work upon such roofs [*5] are protected by a safety belt attached to a lifeline."

While pleadings in the alternative are permitted by Rule 8(e)(2) of the Federal Rules of Civil Procedure, n2 the motion, which was opposed by respondent, was denied initially (Tr. 8) on the basis that such an amendment would have unduly prejudiced respondent in view of the statutory (29 U.S.C. 658(a)) and the Commission procedural (Rule 33(a)(2)) requirement of "particularity" in connection with the citation and complaint, respectively, and because the issue of the catchplatform standard had not as yet been developed at the hearing. Upon the completion of his case, complainant renewed the motion to amend the citation and complaint to include the alternative charge that respondent failed to comply with 1926.451(u)(3) (Tr. 161). A ruling on the motion was reserved.

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n2 There being no specific provision set forth in the Commission's procedural rules, the applicable rules of Fed. R. Civ. P. govern the procedure herein. Rule 2(b) Commission Rules of Procedure.

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It should be noted that the term "pitched roof sections" appears in the citation's description of the alleged violation. This, or course, pertains to the slope condition referred to in the safety standard 1926.451(u)(3). A review of the hearing transcript discloses that the issue of whether respondent violated the sloped-roof requirements of 1926.451(u)(3) was fully litigated. Sketches of the worksite, which were admitted in evidence as Exhibits C-1 and C-2, depict the sloped portions of the roof. Testimony of witnesses of both parties refer to the sloped roof, and the extent of the operations and work performed by respondent's employees in connection therewith. Courts as well as the Commission have indicated that a material issue which has been fairly tried by the parties should be decided by the Commission regardless of whether it has been specifically pleaded. Secretary v. Colorado Pipe Lines, Inc., d/b/a CPL Constructors, No. 2805 (December 31, 1975); National Realty & Constr. Co., Inc. v. OSAHRC, 489 F.2d 1257, 1264 (D.C. Cir. 1973); Frito Company, Western Division v. N.L.R.B., 330 F.2d 458, 465. These decisions are in accord with the liberality [*7] in amending pleadings sanctioned by Rule 15(b), Fed. R. Civ. P. n3 The applicability of 1926.451(u)(3) to respondent's worksite having been litigated in this case, amendment of the citation and complaint is required, therefore, complainant's motion to include the alternate allegation of noncompliance with 1926.451(u)(3) is granted.

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n3 Fed. R. Civ. P. 15(b) in relevant part provides:

"When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings."

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During direct examination of the compliance officer, complainant sought to elicit testimony concerning the use of safety belts by respondent's employees at the worksite. Respondent objected strenuously to the introduction of such evidence on the ground that the issue of personal protective equipment was not within the framework of the pleadings. Respondent's objection was sustained. Complainant made an offer of proof on the issue of safety belts (Tr. [*8] 48-50) based on the theory that the safety belt requirement is contemplated by the standard 1926.500(d)(1) as evidenced therein by the use of the term "equivalent" (Tr. 44). This same argument was squarely met and disposed of recently by the Commission in Secretary v. Warnel Corporation, No. 4537 (March 31, 1976), where it was stated: ". . . safety belts cannot be considered the 'equivalent' of a standard railing within the meaning of 500(d)(1)."

ADMISSIONS

Respondent admitted that it is a New York corporation, does business as a roofer and sheet metal contractor, and utilizes materials and supplies manufactured outside the State of New York (answer and complaint).

TESTIMONY OF GEORGE FAY, COMPLIANCE SAFETY AND HEALTH OFFICER

The construction site consisted of a two-story frame building and at the time of inspection on October 28, 1975, work was being performed on the roof of the structure (Tr. 11). The roof was described as being about 24 feet above ground level and having a flat surface measuring approximately 58 feet by 47 feet, and ascending therefrom at three sides are three "pagoda-type" or truncated pyramidal structures ("pagodas") each having 4 sides [*9] sloped to about 45-degree angles (Tr. 74) with elevations of about 8 feet above the surface of the 58 by 47-foot flat roof; vertical walls arise 7 feet from the sloped sides topped off by a flat roof measuring 8 feet by 8 feet (Tr. 11-15, Exhs. C-1, C-2). Upon approaching the construction site, the witness saw from a distance of "approximately 150 feet" 3 persons working on the roof of one of the "pagodas" about 40 feet above ground level (Tr. 17). The sides of that roof were open (Tr. 35-36) and when he reached the construction site he came upon respondent's foreman, Martin Smith, who was located on the lower flat roof of the structure. In conversing with Mr. Smith, the witness was informed that respondent had 6 employees engaged at the worksite (Tr. 41, 53). The employees had applied tar on the seams "where the base of the pitched roof section ran into the flat roof section" (Tr. 20, Exhs. C-3, C-4), and they had "poured the flat roof" at the top of the "pagodas" (Tr. 54), coming "within a foot or two of the open side . . ." (Tr. 57). They had not installed and would not install "a poured roof on the pitched section . . . there was going to be a different type of roofing installed [*10] there . . ." (Tr. 64). His investigation disclosed that the pitched sections of the "pagodas" were sloped 6 feet in 12 feet or 6 inches in 12 inches (Tr. 80). He felt that working on the unguarded roof of the "pagoda" could have resulted in serious injury or death. n4 The unadjusted proposed penalty was $1,000.00. A maximum credit of 20 percent was allowed for "good faith", primarily because of respondent's cooperation. A 5 percent credit was allowed for "size", respondent having a total of about 30 employees with only 6 employees engaged at the worksite. A maximum credit of 20 percent was given for "history", respondent having no record of previous violations (Tr. 83-98).

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n4 A serious violation is defined by 29 U.S.C. 666(k) as follows:

"A serious violation shall be deemed to exist in a place of employment if there is substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation."

[*11]

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On cross-examination, Mr. Fay indicated that during his investigation he did not see anyone engaged in working on the roof of the "pagoda" except when he made his initial observation at a distance of 150 feet on approaching the site (Tr. 103-105). He stated that the only work performed by respondent in the area of the sloped portion of the "pagoda" was in the seam where the pitched roof met the lower flat roof and the adjoining parapet wall, and he indicated that such work did not require any climbing or significant reaching from the lower flat roof (Tr. 108-112). There were two other subcontractors engaged in applying siding to the structure at the time of the inspection (Tr. 139).

TESTIMONY OF SIMON COHEN, PRESIDENT OF RESPONDENT CORPORATION

Mr. Cohen gave testimony primarily regarding respondent's safety program (Tr. 170-175).

TESTIMONY OF JAMES CAHILL, RESPONDENT'S SUPERINTENDENT

Mr. Cahill has worked as a roofer since 1947, the last 18 years as respondent's superintendent. He described the methods of installing a roof. It was his opinion that it would not have been practical to erect [*12] guardrails along the perimeter of the flat roof of the "pagoda" or on the open side of the 58-foot by 47-foot lower flat roof, and he described the difficulties it would entail (Tr. 185-201). He stated that respondent's employees reached the roof of the "pagodas" by a ladder that was positioned with the base resting on the 58-foot by 47-foot lower flat roof (Tr. 216).

TESTIMONY OF MARTIN SMITH, RESPONDENT'S FOREMAN

Mr. Smith stated that just he and another employee had performed work on the 3 roofs of the "pagodas", that it took about one hour and a quarter to install each of the three roofs, and that in his opinion to have installed guardrails would have taken a longer time and would have created a greater hazard (Tr. 244-246). The employees stood on the lower flat roof when they applied the tar to the seams in the area where the "pagodas" adjoined the lower flat roof (Tr. 247, Exh. C-3). He indicated that respondent's employees reached the roof of the "pagodas" by using the side of the "pagoda" which sloped onto the lower flat roof (Tr. 281).

DISCUSSION

The Act was designed "to assure so far as possible every working man and woman in the Nation safe and healthful [*13] working conditions and to preserve our human resources . . .". n5 The statute and the promulgated occupational safety and health standards, being remedial in nature, are entitled to a liberal construction. Secretary v. Underhill Construction Corp. ("Dic-Underhill"), 513 F.2d 1032, 1038 (2d Cir. 1975); Secretary v. Gerosa, Inc., 491 F.2d 1340, 1343 (2d Cir. 1974). But such a salutory policy does not justify ignoring the plain meaning of the statutory or regulatory language. Secretary v. Ron M. Fiegen, Inc., 513 F.2d 713, 716 (1975); M. Kraus & Bros. v. United States 66 S. Ct. 705, 708 (1946).

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n5 29 U.S.C. 651(2)(b)

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It is manifestly a fundamental concept that occupational safety and health standards should be plain, unequivocal and so free from doubt that those concerned will know precisely what conditions, practices or methods are required of them to provide safe or healthful employment. As the Commission stated in Secretary v. Tilo Company, Inc., 2 OSAHRC 1391, 1393 (1973): [*14] "An employer is entitled to rely upon the clear language of a standard and where that is impossible a violation cannot be upheld."

It might be argued with some justification that the Commission's application of 1926.500(d)(1) to roofs, see Secretary v. J.F. Probst & Co., Inc., 11 OSAHRC 373 (1974) and cases cited therein, represents an erosion of the principle set out in Tilo. Roofers have vigorously contested the charge of noncompliance with 1926.500(d)(1) and have found support in the dissenting opinions of Commissioner Moran; in Secretary v. S.D. Mullins Co., Inc., and Diamond Roofing Co., Inc., 4 OSAHRC 1415, 1420, (1973) Commissioner Moran stated:

"The Commission's conclusion that a 'floor' is a 'roof' brings to mind the following passage from Lewis Carroll's classic, Alice Through The Looking Glass:

'When I use a word,' Humpty Dumpty said in rather a scornful tone, 'it means just what I choose it to mean -- neither more nor less.'

'The question is,' said Alice, 'whether you can make words mean so many different things.'

'The question is,' said Humpty Dumpty, 'which is to be master -- that's all.'

"This decision not only reflects the contorted [*15] logic of Humpty Dumpty but it frustrates the purposes of the Act by obfuscating regulations which require elucidation.

"The purpose of the Act is to obtain safe and healthful working conditions. This is to be accomplished through promulgation of occupational safety and health standards which tell employers what they must do to avoid conditions which are hazardous. A roofing contractor is quite unlikely to look at a standard requiring the 'guarding of open-sided floors' and be inspired to research the law to see if, by some chance, the word 'floor' has been interpreted to include the word 'roof.' As we said in Secretary v. A.B. Concrete, Inc., OSAHRC Docket No. 2423, October 11, 1973, 'The law obliges employers to be standards readers, but not mind readers.'

"To strain the meaning of a word to the extent done in this decision, merely for the purpose of inflicting a penalty on two employers whose employees may have been exposed to a hazard, is to delay the day when the job safety regulations will be written in clear and concise language so that all employers will be able to understand and observe them."

A November 1975 decision of the Seventh Circuit in Langer Roofing [*16] & Sheet Metal, Inc. v. Secretary, 524 F.2d 1337, considered the question whether an employer violated 29 CFR 1926.500(d)(1) on undisputed evidence that its employees at two separate construction sites were working on flat roofs more than 6 feet above ground without a standard railing or equivalent protection against falls. The Court, rejecting the Commission majority's (and the Secretary's) construction of the word "floor", as used in 1926.500(d)(1) to encompass "flat roofs" that are used as working surfaces, stated, at 1339:

'The Secretary's interpretation does not accord with normal usage. Moreover, we think that 1926.451(u)(3), the only regulation expressly requiring protection for roof edges, eliminates any doubt that might exist about the scope of 1926.500(d) if the latter stood alone. The fact that 1926.451(u)(3) does not apply to flat roofs, and indeed specifically exempts even roofs having slopes of less than 4 inches in 12, indicates that perimeter protectior for flat roofs was not contemplated by the writers of the regulations. . . ."

The Commission has not confronted the issue since Langer; however, in Warnel Corporation, supra, Chairman Barnako, [*17] writing for the majority, made the following general observation:

"The construction safety standards in 29 C.F.R. Part 1926 contain a number of provisions directed against the hazard of falling from heights. . . . Although the standards purport to specify the type of protection required under particular circumstances, it is not always clear when each standard is applicable."

The point was supported by several illustrations including the following:

"For example. Complainant has consistently argued that 500(d)(1) applies so as to require guardrail protection for workers on flat roofs. In a number of cases, roofing contractors have argued that the standard does not apply to roofs, and that guardrails are not a practical means of protecting their employees. We have agreed with Complainant's interpretation, but one court of appeals has held to the contrary. Langer Roofing and Sheet Metal, Inc. v. OSAHRC, No. 74-1645 (7th Cir., Nov. 20, 1975). The issue is currently on appeal in at least of our other circuits. These whether workers on flat roofs must be protected against falls, and if so, the type of protection required, are still uncertain." [Footnote omitted]

The [*18] warnel case was decided by the Commission prior to the appearance of Diamond Roofing Co., Inc. v. Secretary 528 F.2d 645 (5th Cir. 1976). In holding that an open-sided roof is not an "open-sided floor" as that term is used in 1926.500(d)(1), and that the standard safety railing requirement therefore does not apply to open-sided roofs, the Fifth Circuit stated:

"Had the drafters of this regulation intended that 1926.500(d)(1) apply to open-sided roofs, they very easily could have and should have said so, as they did with reference to roof openings and roof holes. If the regulation missed its mark, the fault lies in the wording of the regulation -- a matter easily remedied under the flexible regulation promulgating structure, 29 U.S.C.A. 655(b) and (e); 29 CFR Part 1911, with no need to press limits by judicial construction in an industrial area presenting infinite operational situations." Id. at 648-649 (footnote omitted).

In answer to the contention that the regulations should be liberally construed to give broad coverage because of the intent of Congress to provide safe and healthful working conditions for employees, the Court declared:

"An employer, however, [*19] is entitled to fair notice in dealing with his government. Like other statutes and regulations which allow monetary penalties against those who violate them, an occupational safety and health standard must give an employer fair warning of the conduct it prohibits or requires, and it must provide a reasonably clear standard of culpability to circumscribe the discretion of the enforcing authority and its agents." Id. at 649.

The Court concluded by echoing the words of Commissioner Moran in his dissenting opinion in Secretary v. S.D. Mullins Co., Inc., and Diamond Roofing Co., Inc., supra:

"The purpose of OSHA is to obtain safe and healthful working conditions through promulgation of occupational safety and health standards which tell employers what they must do to avoid hazardous conditions. To strain the plain and natural meaning of words for the purpose of alleviating a perceived safety hazard is to delay the day when the occupational safety and health regulations will be written in clear and concise language so that employers will be better able to understand and observe them." Id. at 650.

Although the Second Circuit, the judicial circuit of the present case, has [*20] not addressed itself to the specific issue raised herein, and therefore the pre-Langer decision of the Commission is controlling in the Second Circuit until the Commission rules otherwise, there is a compelling reason to resolve the issue in respondent's favor. It is firmly believed that upon reconsideration, the Commission will adopt the conclusion reached in Langer and Diamond. This belief is based upon the grave doubts expressed by Chairman Barnako in Secretary v. Warnel Corporation, Supra, concerning the application of 1926.500(d)(1) to open-sided roofs, and the persuasive reasoning of the two circuits which have decided the open-sided floor standard coincident with the view previously expressed by Commissioner Moran. Accordingly, in anticipation of the Commission adopting the principle set forth in Langer and Diamond for application in all Federal judicial circuits, it is concluded that respondent may not be cited for noncompliance with 1926.500(d)(1) for failure to guard an open-sided flat roof.

As to the alternate allegation of violating 1926.451(u)(3), a charge somewhat faintly presented by complainant, I need pause only briefly to [*21] note that respondent's employees did not install roofing on the sloped portions of the "pagodas" other than apply tar to the seams where the "pagodas" joined the 58-foot by 47-foot lower flat roof. The employees performed that work while standing on the lower flat roof. The only significant activity pertaining to the sloped roofs occurred when respondent's employees traversed the sloped roof by ladder to gain access to the top of the "pagoda". Because the smallest width of the lower flat roof was 47 feet and the adjoining truncated pyramidal structure or "pagoda" culminated in an 8-foot square roof, it is readily apparent that the employee activity was conducted essentially in the center of the sloped portion of the "pagodas" and above the midline of the adjoining 58-ffot by 47-foot lower flat roof. Under such circumstances, it is reasonable to conclude that the lower flat roof was tantamount to the "catch platform" required by 1926.451(u)(3). This was conceded by complainant during the course of the hearing (Tr. 168).

FINDINGS OF FACT

1. In October 1975, respondent, a roofing contractor, had 6 employees engaged in installing roofing material on a two-story frame building. [*22]

2. The roof of the structure consisted of a 58-foot by 47-foot lower flat roof 24 feet above ground level, and 3 "pagoda"-type structures extending vertically about 40 feet above ground level.

3. Portions of the "pagodas" were sloped greater than 4 inches in 12 inches.

4. The only work activity engaged in by respondent's employees involving sloped roofs occurred where there was adjoined thereto a 58-foot by 47-foot flat base; all other work was done on flat roofs.

CONCLUSIONS OF LAW

1. At all times relevant herein, respondent has been engaged in a business affecting commerce within the meaning of section 3 of the Act.

2. The standard 29 CFR 1926.500(d)(1) is not applicable to open-sided flat roofs, therefore, respondent may not be held in violation thereof.

3. Respondent did not violate 29 CFR 1926.451(u)(3).

ORDER

It is hereby ORDERED that:

1. The citation and complaint filed herein, alleging serious violation of 1926.500(d)(1), are amended (to conform the pleadings to the proof) to include as an alternative allegation, serious violation of 1926.451(u)(3).

2. The citation issued on November 10, 1975, as amended, charging serious violation of 1926.500(d)(1) [*23] or 1926.451(u)(3), and the penalty proposed therefor, are vacated.

RICHARD DeBENEDETTO, JUDGE, OSAHRC

Dated: June 3, 1976

New York, New York