TILO COMPANY, INC.
OSHRC Docket No. 211
Occupational Safety and Health Review Commission
April 27, 1973
Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners
OPINIONBY: BURCH
OPINION:
BURCH, COMMISSIONER: On July 21, 1972, Judge Donald K. Duvall issued his recommended decision and order in this case, affirming the Secretary's citation for five non-serious violations of standards promulgated by the Secretary. The proposed penalties were modified by reducing the penalties for items no. two and four to zero, thus reducing the total assessed penalty from $111 to $69.
On August 4, 1972, I directed that the proposed decision and order be reviewed by the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651, et seq., hereinafter referred to as "the Act").
The Commission has reviewed the briefs filed by the parties and has considered the entire record. We adopt the Judge's recommended decision and order insofar as it is consistent with this decision.
Review was directed in order to determine whether the use of roofing brackets is mandatory pursuant to 29 CFR 1926.451(u)(1) and whether 29 CFR 1926.451(u)(1) and (3) are independent or mutually exclusive requirements.
Respondent was cited for five violations, two of which are presently in issue, while engaged in reroofing work on a private dwelling. The standards in question, as of the date of the citation, n1 read as follows:
29 CFR 1926.451(u)
(1) Roofing brackets shall be constructed to fit the pitch of the roof.
(3) A catch platform shall be installed below the working area of roofs more than 10 feet from the ground to eaves with a slope greater than 3 inches in 12 inches without a parapet. In width, the platform shall extend 2 feet beyond the projection 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 are protected by a safety belt attached to a lifeline.
Evidence establishes that respondent failed to utilize any of the safety devices mentioned in the standards despite working on a roof in excess of the minimum height and slope requirements of section (u)(3).
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n1 Section (u)(3) has since been amended to "16 feet from the ground to eaves with a slope greater than 4 inches in 12 inches . . ."
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It is respondent's contention that requiring the use of roofing brackets on all roofs, regardless of the slope, and including flat roofs, was not within the contemplation of the framers of the standard and that no such requirement is intended by section (u)(1). The Secretary maintains that the mandatory definition of "shall" prescribed by 29 CFR 1926.32(p), coupled with the use of that word in 29 CFR 1926.451(u)(1) and in section 5(a)(2) of the Act, renders the meaning of the section clear, that it prescribes a mandatory requirement, and that respondent's interpretation is ridiculous.
Accepting the mandatory meaning of "shall" in section (u)(1) fails to remove the ambiguity of the requirement. That section states that ". . . brackets shall be constructed to fit the pitch of the roof." It is reasonable to construe this as requiring (mandatorily) that the brackets be constructed in this fashion under circumstances requiring their use. Section (u)(2) provides further detail with respect to the means of securing brackets, thus lending some support to the Secretary's interpretation of section (u)(1). To conclude that both subsections deal with the means of attaching the brackets makes them somewhat redundant. However, it is contrary to both common sense and the realities of the roofing industry to accept the Secretary's argument that roofing brackets must be utilized under all circumstances regardless of the pitch of the roof.
It is necessary to consider what conditions warrant the use of brackets. The Secretary overstates respondent's position by interpreting it to mean that the regulation tells an employer how to construct brackets ". . . if he should decide he wants to use such brackets." In fact, respondent maintains that brackets are required on other than "walkable roofs," i.e., those with a slope not exceeding four inches in 12, n2 the amended requirement for the use of a catch platform in section (u)(3).
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n2 Respondent's construction of the standard is clearly an after the fact one inasmuch as it failed to use brackets even though the roof had a four in 12 slope.
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Respondent's interpretation is arguably reasonable. However, having found that the Secretary's construction is contrary to common sense and that subsection (u)(1) of the standard is so vague as to not sufficiently apprise an employer of what is required in order to be in compliance, item one of the citation is vacated. An employer is entitled to rely upon the clear language of a standard and where that is impossible a violation cannot be upheld. Secretary of Labor v. California Stevedoring Co.,
With respect to the second issue under review, the mutual exclusivity of subsections (1) and (3) of 1926.451(u), it is our conclusion that subsections of standards must be considered as independent requirements in the absence of either a clear indication to the contrary or an obviously impractical result not intended by the Act. There is no such indication or overly restrictive result with regard to these standards. n3 Although we have ruled that section (u)(1) is unenforceably vague, the evidence of record demonstrates that this respondent has failed to provide any safety equipment whatsoever. There was no attempt to provide roofing brackets, a catch platform or a safety belt and lifeline, and there is no evidence of record to show there was a parapet, the presence of which offers a third alternative way to ameliorate the hazard. n4 Despite the vagueness of section (u)(1) and the question of the applicability of section (u)(3) or of 29 CFR 1910.28(s)(3) n5 respondent, by failing to provide for the safety of its personnel by providing a catch platform or safety belt, has violated 29 CFR 1926.451(u)(3). In light of the arguable conflict referred to in note 5, Judge Duvall's vacating of the penalty for that item of the citation is appropriate.
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n3 The framers of the regulations are, of course, entitled to clarify their intentions.
n4 Here again, we note that (u)(3) approaches unacceptable vagueness, in that there is no longuage whatever to inform interested persons as to what the Secretary would consider as constituting an acceptable parapet. As there is no evidence to indicate there was anything near the roof-edge which could remotely be considered a parapet, it is not necessary to consider the issue in this case.
n5 Judge Duvall has correctly determined that section 1910.5(c)(1) provides that the standard most specifically applicable to an operation takes precedent over a general standard which might be applicable to the same operation. Here, the construction safety standard ((u)(3)) prevails over the occupational safety standard. The height of the roof in question requires compliance with that standard although not with the less stringent 1910.28(s)(3).
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Accordingly, it is ORDERED that item one of the citation and the $35 penalty proposed therefor be vacated, that the Judge's decision otherwise be and the same is hereby affirmed, and that respondent be assessed a total penalty of $34.
CONCURBY: VAN NAMEE
CONCUR:
VAN NAMEE, Commissioner, concurring: I concur that the citation for violation of the standard prescribed by 29 C.F.R. 1926.451(u)(1) should be vacated. I do not agree with the rationale given for taking that action.
As I understand the majority, they focus attention on the word "shall" appearing in the standard and conclude that the actual words of the standard are as follows:
"Roofing brackets shall be constructed to fit the pitch of the roof [under circumstances requiring their use]."
They then argue that common sense and reality precludes a construction of the foregoing language as requiring the use of roofing brackets on all roofs regardless of pitch. Accordingly, they conclude the standard should be limited in its requirement of usage and is unenforceably vague because it is not so limited.
In my view, the words, "roofing brackets shall be constructed to fit the pitch of the roof," do not require employers to use such brackets. Rather, the terms merely describe the manner of construction of the brackets when they are used. Since Respondent here did not use roofing brackets it cannot be concluded that Respondent violated the standard.
[The Judge's decision referred to herein follows]
DUVALL, JUDGE, OSAHRC: This proceeding arises under the Occupational Safety & Health Act of 1970, Public Law 91-596, 29 U.S.C. 651, et seq. (hereinafter referred to as "the Act"), to review the citation and proposed penalties issued by the Complainant, the Secretary of Labor, on November 11, 1971, against the Respondent, Tilo Company Inc., for five alleged non-serious violations of specific occupational safety & health standards duly promulgated pursuant to Sections 5 and 6 of the Act. On January 11, 1972, this case was duly assigned by the Occupational Safety & Health Commission to the undersigned Judge, who held a hearing in the matter on February 16, 1972, under the provisions of Sections 10(c) and 12(j) of the Act.
The Citation issued November 11, 1971, alleges that on the basis of an inspection made of Respondent's workplace at Salt Point Road and Smith Road, Pleasant Valley, New York (on October 27, 1971) certain occupational safety and health standards promulgated under the Act were violated by the Respondent in that no roofing brackets or catch platform were provided, no provisions were made for first aid administration, no toilet facilities were available, and a ladder to the roof was not secured against displacement. The date specified in the citation for abatement of these alleged violations was November 24, 1971. On November 11, 1971, the Secretary also issued a notice of proposed penalties for the alleged violations in the total amount of $111.00. Respondent filed notice of contest with the Complainant on November 24, 1971.
The Complainant's complaint, filed on December 1, 1971, alleged that Respondent was engaged in a roofing business affecting commerce within the meaning of Section 3(5) of the Act; that on October 27, 1971, Respondent violated the standards set forth in the forestated citation; that proposed penalties for the said violations totaled $111.00; that Respondent's employees affected by the violations included one William Hardy; and that the citation and proposed penalty should be affirmed.
Respondent filed an answer and amended answer with the Complainant on or about December 15 and 30, 1971, respectively (subsequently filed with the Commission on January 28, 1972). Respondent's amended answer, while admitting being engaged in reroofing work on a private dwelling house on Salt Point Turnpike, Pleasant Valley, New York, during the week ending October 30, 1971, denies that such work affected commerce within the meaning of Section 3(5) of the Act, generally denies the Commission's jurisdiction over the aforesaid work, and respecting each and all of the standards contained in the aforestated citation denies their applicability to Respondent; and asserts that even if applicable the cited standards were not violated as alleged.
Pursuant to due notice, which was posted at Respondent's place of business, a hearing was held at New York, New York, on February 16, 1972. Both parties were represented by legal counsel and were afforded opportunity to be heard, to present evidence, examine and cross-examine witnesses. No affected employee or representative of affected employee(s) sought to participate in the hearing, although given an opportunity so to do. Proposed findings of fact and conclusions of law were subsequently filed by both parties.
APPLICABLE LAW AND ISSUES
This case arises under Section 5(a)(2) of the Act which provides that each employer (meaning a person engaged in a business affecting commerce who has employees) shall comply with occupational safety and health standards promulgated under the Act. The five occupational safety and health standards cited in this case were promulgated by the Secretary of Labor pursuant to Section 6 of the Act by publication of such standards in the Federal Register, 36 F.R. 7340, et seq. (April 17, 1971).
Section 9(a) of the Act provides in pertinent part that when the Secretary of Labor or his authorized representative believes that an employer has violated any standard or regulation promulgated pursuant to the Act "he shall with reasonable promptness issue a citation to the employer. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated . . . ."
Section 10(a) of the Act provides in pertinent part that the Secretary shall give the employer appropriate notice within a reasonable time of the penalty, if any, proposed to be assessed under Section 17 of the Act.
Section 17 of the Act provides in pertinent part as follows:
"(c) Any employer who has received a citation for a violation of the requirements of section 5 of this Act of any standard, rule or order promulgated pursuant to section 6 of this Act, or of regulations prescribed pursuant to this Act, and such violation is specifically determined not to be of a serious nature, may be assessed a civil penalty of up to $1,000 for each such violation.
"(j) The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations." The occupational safety and health standards cited herein provide as follows:
29 C.F.R. 1518.451(n)
(1) Roofing brackets shall be constructed to fit the pitch of the roof.
(2) A catch platform shall be installed below the working area of roofs more than 10 feet from the ground to eaves with a slope greater than 3 inches in 12 inches without a parapet. In width, the platform shall extend 2 feet beyond the projection 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 are protected by a safety belt attached to a lifeline.
29 C.F.R. 1518.23
First aid services and provisions for medical care shall be made available by the employer for every employee covered by these regulations. Regulations prescribing specific requirements for first aid, medical attention, and emergency facilities are contained in Subpart D of this part.
29 C.F.R. Subpart D, 1518.50, provides in pertinent part as follows:
(a) The employer shall ensure the availability of medical personnel for advice and consultation on matters of Occupational Health.
(b) In the absence of an infirmary, clinic, or hospital in proximity to the worksite which is available for the treatment of injured employees, a person or persons who have a valid certificate in first aid training from the U.S. Bureau of Mines or the American Red Cross shall be available to render first aid.
(c)(1) First aid supplies recommended by the consulting physician shall be easily accessible when required.
29 C.F.R. 1518.51(c)
(1) Toilets shall be provided for employees according to the following table:
20 or less employees . . . . 1 toilet (minimum)
29 C.F.R. 1518.450(a)
(10) Portable ladders in use shall be tied, blocked, or otherwise secured to prevent their being displaced.
29 C.F.R. 1910.28(s)
(3) A substantial catch platform shall be installed below the working area of roofs more than 20 feet from the ground to eaves with a slope greater than 3 inches to 12 inches without a parapet. In width the platform shall extend 2 feet beyond the projection of the eaves and shall be provided with a safety rail, mid-rail, and toeboard. This provision shall not apply where employees engaged in work upon such roofs are protected by a safety belt attached to a lifeline.
The main issues herein to be resolved are (1) whether Respondent is an employer within the meaning of Section 3(5) of the Act and (2) whether Respondent violated the occupational safety and health standards as specified in the citation issued by Complainant against Respondent on November 11, 1971.
FINDINGS OF FACT
1. Respondent is a Delaware Corporation, with its principal office in Stratford, Connecticut, and a branch office at Poughkeepsie, New York (Tr. 14-15).
2. Respondent is engaged in the business of reroofing, residing and other exterior improvements on existing houses (T-14).
3. Pursuant to a contract, Respondent employed workmen to reroof portions of the existing roof of a house located at Salt Point Road and Smith Road, Pleasant Valley, New York, (hereinafter, workplace) during the week ending October 30, 1971 (Tr. 15; Stipulation, item 5).
4. In performing the aforesaid contract Respondent used materials which had been stored at its Poughkeepsie (N.Y.) office for a considerable period of time prior to use, including roofing shingles manufactured is Stratford, Connecticut, and nails and flashing compound purchased from producers in New Jersey. None of the materials used were ordered, manufactured or shipped specifically for said work (Tr. 16). In its manufacturing operations in Stratford, Connecticut, Respondent obtains its principal raw materials from Connecticut, New Jersey, New York, Pennsylvania, Massachusetts, and Illinois (Tr. 17).
5. The roofing brackets and ladders used on the job were owned by Respondent, but hammers and small hand tools were the property of workmen (Tr. 16-17).
6. At the time work was performed on this job, Respondent had approximately 35 employees at its Poughkeepsie office and its net worth for 1970 was approximately $6,500,000 (Tr. 17).
7. Respondent has no previous history of violations under the Act (Tr. 43).
8. On October 27, 1971, Mr. Bert E. Tompkins, Jr., construction safety inspector with the State of New York, on assignment to the Occupational Safety and Health Administration, U.S. Department of Labor, pursuant to contract, conducted an inspection of Respondent's workplace (Tr. 19-20, 23).
9. On November 11, 1971, Complainant issued a citation and notification of proposed penalty charging Respondent with violations of the following standards under the Occupational Safety and Health Act of 1970, at its workplace, with prescribed dates for correction of said violations and proposed penalties:
(1) 29 C.F.R. 1518.451(u)(1) Roofing brackets not provided (roof pitch over 3" in 12") -- November 24, 1971 -- $35.00.
(2) 29 C.F.R. 1518.45(u)(3) -- a catch platform not provided below eaves (18' above ground) -- November 24, 1971 -- $35.00.
(3) 29 C.F.R. 1518.23 -- No provisions made to administer first aid in event of accident or injury -- November 24, 1971 -- $17.00.
(4) 29 C.F.R. 1518.51(c)(1) -- Toilet facilities not available -- November 24, 1971 -- $7.00.
(5) 29 C.F.R. 1518.450(a)(10) -- Ladder to roof not secured against displacement -- November 24, 1971 -- $17.00 (Citation, Item 1 in OSHRC File on Docket No. 211).
10. Respondent contested the citation in its entirety by notice of contest filed with the Commission on November 24, 1971, and December 2, 1971 (Items 3 & 8, OSHRC File -- Docket No. 211).
11. The citation and proposed penalty issued November 11, 1971, were received by Respondent on or about November 16, 1971 (Stipulation, Tr. 17).
12. The citation and the notice of hearing were posted in the Poughkeepsie office of Respondent on November 29, 1971, and March 7, 1971, respectively (Stipulation, Tr. 17).
13. The OSHA inspector, Mr. Bert E. Tompkins, has performed the duties of a construction safety inspector since February 22, 1962, including thousands of safety inspections of construction worksites in the State of New York (Tr. 19-22). For a substantial period of time prior to February 1962, Mr. Tompkins was engaged in construction work as an employee, including reroofing experience (Tr. 36-38).
14. On his inspection of the workplace, Mr. Tompkins observed and reported provision of no roofing brackets for Respondent's employee to retain his footing on the roof (Tr. 25), which had a moderate slope or pitch of approximately 6 inches in 12 inches or slightly under a 45 degree angle (Tr. 27, 48-49; Complainant's Proposed Findings of Fact 13, with attached statement of Bert E. Tompkins).
15. On his inspection of the workplace, Mr. Tompkins observed and reported no catch platform installed below the working area of the main house (front) roof, which was between 15 and 18 feet, approximately, from the ground to eaves with a slope greater than 3 inches in 12 inches without a parapet, and no lifelines being used by employees working on the roof. The roof at the rear of the main house was less than 10 feet from the ground to eaves (Tr. 25-27, 75, 76, 80, 110).
16. On his inspection of the workplace, Mr. Tompkins observed and reported no provisions for first aid or medical care in the event of injury to employees, with the nearest hospital approximately 11 miles (20 to 30 minutes) away (Tr. 28-29).
17. On his inspection of the workplace, Mr. Tompkins observed and reported no provision of toilet facilities for employees in that the owner of the premises was not at home, there was no arrangement with the owner for employee use of the house facilities when the owner was absent, and no facilities were located outside the house (Tr. 29-30).
18. On his inspection of the workplace, Mr. Tompkins observed and reported employee use of an unsecured portable ladder (Tr. 30-31).
19. In determining the proposed penalty of $111.00 for the aforecited alleged violations of occupational safety and health standards, Complainant considered Respondent's good faith, size, and history of violations and the gravity of the alleged violations (Tr. 32-36).
20. All of the alleged conditions or violations reported by Mr. Tompkins were completely abated by Respondent within two or three days after the inspection (October 27, 1971), when the work was completed and Respondent's materials and equipment were removed from the workplace (Tr. 76-77).
DISCUSSION
Respondent's contention (Respondent's Proposed Finding of Fact 2) that it is not engaged in commerce within the meaning of Section 3(3) of the Act, and therefore, not an employer within the meaning of Section 3(5) of the Act is not sustained by a preponderance of the evidence of record. As defined in Section 3(3) "commerce" means trade, traffic, commerce, transportation, or communications among the several States, or between a State and any place outside thereof. The record here establishes that Respondent was a person (corporate) engaged in a business affecting commerce since it used materials (e.g., roofing shingles, nails, flashing compound) manufactured or shipped from outside the State of New York and the principal raw materials used in manufacturing at its principal office in Connecticut were of out-of-State origin (Finding of Fact 4). Respondent's assertions that all materials used at the workplace had been stored at its Poughkeepsie branch office for a considerable period of time and were not ordered specifically for use at that workplace, while unrebutted of record, do not, as a matter of law, change the fundamental character of Respondent's business, namely, a business affecting commerce by reason of its use of materials which originated outside the State of New York.
Respondent further contends that its business of reroofing, residing and other exterior improvements, on existing houses, including the specific reroofing job here involved, does not constitute engaging in construction within the normal and reasonable meaning of that term and, therefore, that Respondent is not subject to the provisions of the occupational safety and health standards for construction cited herein (Respondent's Proposed Findings of Fact 1). This contention must also fail for lack of support in the evidence of record. The occupational safety and health regulations for construction, which contain the standards Respondent is charged with violating, clearly apply to contract work for "construction, alteration, and/or repair" (29 C.F.R. 1518.10(a); 36 F.R. 7341 (April 17, 1971)).
The proposed regulations for Light Residential Construction, referred to by Respondent in its brief, confirm that Part 1518 of the Code of Federal Regulations were applicable even to light residential construction on September 27, 1971, and thereafter until specifically superseded by new regulations (36 F.R. 15437-15438) (August 14, 1971)). Indeed, by citing the proposed regulations for Light Residential Construction as being applicable to its business, Respondent appears to be conceding to that extent the applicability of the term "construction" to its own business.
Respecting alleged violation item No. 1 of the citation, Respondent contends that standard 1518.451(n) (1) does not require provision of roofing brackets, but merely states a correct method of their use in such cases as they may be required for safe performance of roofing work on substantially pitched roofs (Respondent's Proposed Finding of Fact 3, Tr. 113). This contention appears to stem from Respondent's further contention that the pitch (slope) of the main roof was three inches in a foot (Respondent's Proposed Finding of Fact 4; Tr. 71, 86-89). This latter contention was disputed by Complainant, whose witness, Inspector Tompkins, testified that the pitch of slope of the main roof was approximately 6 inches to the foot (Tr. 27) based on physical sight and his previous experience in estimating the slope of a roof (Tr. 38) and subsequent unrebutted measurement (Complainant's Proposed Finding of Fact 13; Tr. 98).
Respondent's Branch Manager, Mr. Barney I. Cohen, testified that the main roof had less than 1/3 pitch (Tr. 31) based on eye examination only (Tr. 88), which he later corrected to a 4 inch rise to the foot (Tr. 85-90) and which he considered a walkable roof not requiring roof brackets. This latter corrected estimate was supported by the opinion of Mr. Nash, Respondent's construction safety coordinator (Tr. 101).
On balance, based on the evidence of record, I conclude that the pitch of the main roof approximated a rise of 6 inches per foot, or slightly under a 45 degree angle (Finding or Fact 15). This being so, standard 29 C.F.R. 1518.451(n)(1) may reasonably be construed, as contended by Complainant, to require provision of roofing brackets to fit the moderate pitch of the roof to provide safe footing for men working there (Tr. 49).
Respecting the alleged violation item No. 2 of the citation (29 C.F.R. 1518.451(n)(3)), since the record establishes that the subject main roof was more than 10 feet from the ground to eaves with a slope greater than 3 inches in 12 inches without a parapet (Finding of Fact 16), Respondent was in violation of this standard by not having installed a catch platform below the working area of the roof. There was no evidence of record that Respondent's employee working on this roof was protected by a safety belt attached to a life line (Tr. 26). The fact that the roof at the rear of the main house was less than 10 feet from the ground to the eaves did not relieve Respondent of the duty of complying with the standard, at least in its application to the front part of the main roof where work was being performed as evidenced by the location of the access ladder (Tr. 30-31).
Respondent further contends that since the stricter standard under 29 C.F.R. 1518.451(n)(3) conflicts with the more liberal standard under 29 C.F.R. 1910.28(s)(3), requiring a catch platform where a roof is more than 20 feet (rather than 10 feet) from the ground to eaves with a slope greater than 3 inches in 12 inches without a parapet, the latter standard should prevail, allegedly because the latter refers specifically to roofing as distinguished from construction generally and because of a reported opinion critical of the feasibility of catch platforms expressed by an assistant regional administrator of OSHA, U.S. Department of Labor, at a roofing industry conference in December, 1971 (Respondent's Proposed Finding of Fact 7).
My review of the two regulations indicates that the prior standard under which Respondent was cited was promulgated on April 17, 1971 (36 F.R. 7340, 7379) as Part 1518 -- Safety and Health Regulations for Construction, with Section 1518.451(n)(3) listed under Subpart L-Ladders and Scaffolding, whereas the latter standard cited by Respondent was promulgated on May 29, 1971 (36 F.R. 10466, 10492) as Part 1910 -- Occupational Safety and Health Standards, with Section 1910.28(d)(3) listed under Subpart D -- Walking -- Working Surfaces, Safety Requirements for Scaffolding. I find no substantial support for Respondent's contention that the latter standard refers specifically to roofing. Indeed, Section 1910.12(a) specifically provides that standards prescribed by Part 1518 and in effect on April 28, 1971, "are adopted as occupational safety and health standards under Section 6(a) of the Act and shall apply, according to the provisions thereof, to every employment and place of employment of every employee engaged in construction work." Section 1910.12(b) states that "construction work" means work for construction, alteration, and/or repair. The latter standard (29 C.F.R. 1910.28(s)(3)) does not appear to fall within the scope of Section 1910.5(c)(1) which provides in pertinent part that if a particular standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might otherwise be applicable to the same condition, practice, means, method, operation, or process."
While, on balance, as a matter of law, I find no substantial reason why the prior cited standard should not apply to Respondent in this case, as a matter of equity and fairness I would urge the Complainant to take appropriate steps to harmonize these two apparently conflicting standards. The fact that employers are legally on notice of the effectiveness of both regulations, and hence under obligation to comply with the requirements of both, tends practically to render the more liberal latter standard a nullity and unnecessarily exposes employers to the risk of complying with the wrong standard.
In this connection it is noted that the Secretary of Labor has already proposed modifications of several construction standards, including 29 C.F.R. 1926.451 (formerly 1518.451(u)(3)), which would require a catch platform for roofs more than 16 feet from the ground to eaves with a slope greater than 3 inches in 12 inches without a parapet (37 F.R. 11340, June 7, 1972; CCH, Employment Safety and Health Guide, Par. 8438, 6-23-72). Nevertheless, under the existing conflict or lack of clarity in the dual standards relating to catch platforms, which subjected Respondent to an undue risk of non-compliance, assessing the proposed penalty for violation of this standard in the circumstances of this case would, in my opinion, be inconsistent with the purposes and intent of the Act.
Respecting the first aid standard (29 C.F.R. 1518.23), it appears that Complainant has established by a preponderance of the evidence of record that Respondent violated this standard by not providing its employee at the subject workplace with first aid service (Finding of Fact 16). While Respondent's branch manager testified, in effect, that it was company policy for all applicators to carry first aid kits, he could not under oath establish that the employee at the subject workplace had been supplied with a first aid kit (Tr. 83-84). Inspector Tompkins testified that Respondent's employee on the job informed him that he had no first aid kit available and that he did not know of any arrangements having been made in the event of injury on the job (Tr. 28, 50).
Respecting the toilet facilities standard (29 C.F.R. 1518.51(c)(1)), the evidential record establishes a technical violation at the time of the inpsection (Finding of Fact 17). However, the job at the workplace continued apparently over several days and the employee on the job told Inspector Tompkins that he would have been able to use the toilet facilities (two bathrooms) in the house when the owner was home (Tr. 29-30). While the owners of the house were away during part of the time the inspector was at the workplace and indicated to Inspector Tompkins that they had given no permission for employee use of the toilet facilities in the house during their absence (Tr. 30), the record does not show how long the owners were away.
It seems clear that up to the time Respondent's branch manager (Mr. Cohen) spoke with one of the owners following the inspection no arrangements had been made for use of the toilet facilities by Respondent's employee during the owners' absence or perhaps at any time, notwithstanding employee Hardy's statement which was ambiguous on this point (Tr. 29-30, 74-75). Nevertheless, in view of the fact that the employee reasonably understood that the toilet facilities of the house were available to him while at least one of the owners was at home and absent proof of the extent of the owners absence from the house relative to the employees presence at the workplace, I do not believe Complainant has sustained its burden of proving a violation of this standard sufficiently to warrant assessment of a penalty.
A rule of reason should apply in construing the requirements of this as well as other occupational safety and health standards. This standard, on its face, requires employers to provide their employees numbering 20 or less at least one on-site toilet facility, presumably on a continuous basis so long as employees are on the job site. On jobs taking more than a short time to perform, unless such toilet facility were continuously available employees, whether one or more, would be put to the possible delay, inconvenience or even impossibility of controlling the calls of nature and/or ascertaining what specific times the house toilet facilities would be available to them.
On the other hand, depending on the length of time involved, house owners cannot be deemed unreasonable in not providing employees access to their homes during their absence. In such cases, where the duration of the work to be performed exceeds several hours, in the absence of any other adequate arrangements with suitable toilet facilities proximate to the workplace the employer probably has a duty to provide a suitable portable privy. As previously discussed, Respondent's reroofing job at the workplace is deemed to be a construction job site within the meaning of the standard here involved.
Respecting the alleged violation of the ladder standard (29 C.F.R. 1518.450(a)(10)), the record clearly establishes that the portable ladder used by Respondent's employee at the workplace on October 27, 1971, was not tied, blocked or otherwise secured (Finding of Fact 18).
While Respondent's branch manager testified that its employees had received safety instructions, including the securing of ladders (Tr. 75), the record establishes that the ladder in use by Respondent's employee here was not secured in compliance with the standard. A non-serious violation, unlike a serious violation, is not specifically rendered unenforceable under the Act by a showing that the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation (Sec. 17(c) and (k) of the Act; and see Matter of Tacoma Boatbuilding Co. Inc.,