STATE SHEET METAL AND ROOFING COMPANY
OSHRC Docket No. 2579
Occupational Safety and Health Review Commission
November 8, 1973
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: VAN NAMEE
OPINION:
VAN NAMEE, COMMISSIONER: This matter is before the Commission upon my order directing review of a decision of Judge James D. Burroughs. Judge Burroughs vacated Complainant's citation charging a serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"), on the ground that the standard upon which Complainant relied (29 C.F.R. 1926.500(d)(1)) n1 is inapplicable to flat roofs.
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n1 The cited standard provides:
Guarding of open-sided floors, platforms, and runways. (1) Every open-sided floor or plaform 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 toe-board 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.
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We have determined that the cited standard applies to flat roofs. Secretary of Labor v. S.D. Mullins Company, Inc., Secretary of Labor v. Diamond Roofing Company, Inc. Secretary of Labor v. Heyse Sheet Metal and Roofing Company, Inc.,
This case differs, however, from the cited cases on its facts. The record establishes that Respondent's employees were installing flashing and guttering along the outside edge of the roof. It may be that compliance with the requirements of the standard would have made performance of the work impossible. Accordingly, I requested submissions on the question of whether the citation for violation of 29 C.F.R. 1926.500(d)(1) should be vacated for the reason that compliance with its requirements could not be accomplished because of the nature of the work being done.
Complainant responded to the direction for review by submitting a document styled "Secretary's Withdrawal" in which he stated that he was withdrawing the citation and penalty proposed. In the circumstances of this case, however, Complainant has no power unilaterally to withdraw the citation.
Both section 12(g) of the Act and Commission Rule 2(b) (29 C.F.R. 2200.2(b)) provide that in the absence of a specific Commission rule, proceedings before the Commission shall be in accordance with the Federal Rules of Civil Procedure. Since we have adopted no rule regarding the withdrawal of a citation, the provisions of Federal Rule 41(a)(2) n2 have particular application.
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n2 In pertinent part the Rule is as follows: ". . . an action shall not be dismissed at the [complainant's] instance save upon the order of the court and upon such terms and conditions as the court deems proper . . . ."
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Complainant's withdrawal (which we treat as a motion) is unsupported by statements of fact, reason, and argument. Respondent here has been put to the expenses of trial and briefing the matter on review and has incurred the costs usually incident thereto.
In the circumstances we do not reach the issue on review. The interests of Justice are best served by vacating the citation with prejudice.
Accordingly, it is ORDERED that the citation be and the same is hereby vacated with prejudice.
CONCURBY: MORAN
CONCUR:
MORAN, CHAIRMAN, concurring: I agree with the disposition but not the discussion contained in this opinion. My views appear in Secretary v. S.D. Mullins et al., supra.
[The Judge's decision referred to herein follows]
BURROUGHS, JUDGE, OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., 84 Stat. 1590 (hereinafter referred to as the Act) to review a citation for serious violation issued by the Secretary of Labor (hereinafter referred to as the Complainant), pursuant to Section 9(a) of the Act, and the assessment of a penalty of $750.00 proposed pursuant to Section 10(a) of the Act.
Respondent concedes that at all times material to this proceeding it was engaged in a business affecting commerce within the meaning of the Act and that the Commission has jurisdiction of the parties and of the subject matter herein.
A citation for serious violation was issued to respondent on February 23, 1973, and amended on March 19, 1973. n1 On the basis of an inspection conducted on February 13, 1973, of a workplace under the ownership, operation, or control of the respondent located at 5300 Ringgold Road, Chattanooga, Tennessee, it was alleged that respondent violated Section 5(a)(2) of the Act by failing to comply with the safety standard published at 29 CFR 1926.500(d)(1). The alleged violation was to be corrected immediately upon receipt of the citation. A notification of proposed penalty was issued on February 23, 1973, proposing a penalty of $750.00 for the alleged violation. An amended notification of proposed penalty was also issued on March 19, 1973, but the amount of proposed penalty remained the same.
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n1 The original citation for serious violation erroneously referred to the alleged violated standard as 29 CFR 1926.600(d)(1), whereas the standard allegedly violated was 29 CFR 1926.500(d)(1). The error was corrected by the amended citation for serious violation.
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The alleged violation of 29 CFR 1926.500(d)(1) was described in the amended citation for serious violation as follows:
Employees were not protected by standard railings or the equivalent while working from an opensided platform 24 feet and 11 inches above ground level.
The respondent, by letter dated April 3, 1973, timely notified the complainant that it contested the alleged violation of safety standard 29 CFR 1926.500(d)(1) and the resulting proposed penalty of $750.00. The complainant advised the Occupational Safety and Health Review Commission of the notice of contest filed by respondent. The case was subsequently assigned to this judge for purposes of conducting a hearing pursuant to Section 10(c) of the Act. The hearing was held in Chattanooga, Tennessee, on June 15, 1973. No additional parties desired to intervene in the proceeding.
ISSUES
The primary issue for decision involves a determination as to whether there was a violation of Section 5(a)(2) of the Act by respondent's alleged failure to comply with the safety standard published at 29 CFR 1926.500(d)(1). If a violation occurred, a determination must be made as to whether the violation was of a serious or non-serious nature and the amount of penalty, if any, must be determined for the violation.
FINDINGS OF FACT
The evidence of record has been carefully considered and evaluated in its entirety. The facts hereinafter set forth are specifically determined in resolving the issues presented in this case.
1. Respondent, State Sheet Metal & Roofing Co., Inc., is engaged in sheet metal and roofing construction both in and outside the State of Tennessee and maintains its principal office at 1516 Riverside Drive, Chattanooga, Tennessee. Respondent had an average daily employment of 72 persons during the period pertinent to this proceeding (Par. II, Complaint and Answer; Tr. 18).
2. On February 13, 1973, the complainant, through a duly authorized compliance officer, conducted an inspection of a workplace under the operation and control of respondent at 5300 Ringgold Road, Chattanooga, Tennessee (Par. III, Complaint and Answer, Tr. 21).
3. Respondent was doing work on a partial second floor which was being added to an existing building being used by Stone Brothers, Inc., a hardware business. The addition was approximately 22' X 60' and was being constructed directly above the pre-existing structure (Par. II, Complaint and Answer, Tr. 21, 29, 41-43). Respondent had two employees at the work site at the time of inspection (Tr. 22).
4. The employees were working off of a built-up roof which was completely flat (Tr. 38-39, 68-70). The roof was complete except for the flashing and guttering around the edge (Tr. 39, 41).
5. The two employees were working on the edge of the flat roof which was approximately 24 feet 11 inches above the ground (Ex. 2; Tr. 23, 27-28, 32). They were installing flashing and guttering around the perimeter of the roof (Tr. 23, 39).
6. There were no guardrails around the edge of the roof working surface. The employees had no type of protection against a fall over the side (Exs. 1, 2; Tr. 23-24, 57).
OPINION
This proceeding emanates from the issuance on February 23, 1973, of a citation for serious violation. The citation was subsequently amended on March 19, 1973. The amended citation for serious violation alleges a violation of the safety standard published at 29 CFR 1926.500(d)(1). This standard provides as follows:
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.
The standard by explicit language has applicability to open-sided floors or platforms 6 feet or more above adjacent floor or ground level. It does not indicate its applicability to roofs. Complainant contends that the term "platform," as defined by 29 CFR 1926.502(e), is an inclusive term and applies to flat roofs. In essence, complainant argues that the terms "platform" and "flat roof" are synonymous when construed in light of the facts presented in this case.
The term "platform" is defined by 29 CFR 1926.502(e) as follows:
A working space for persons, elevated above the surrounding floor or ground, such as a balcony or platform for the operation of machinery and equipment.
There is no dispute over the fact that two employees of respondent were working on the edge of a flat roof installing flashing and guttering around the perimeter of the roof. Complainant submits that the roof constituted a working space elevated above the surrounding floor or ground and thus meets the definition of a "platform."
The issue concerning the applicability of 29 CFR 1926.500(d)(1) to a flat roof is not new to the Commission. Several cases containing the issue as to the applicability of the standard have been decided by Commission Judges and are under review by the Commission. n2 The issue was also presented in Secretary of Labor v. Hawkins Construction Company, It holds 29 CFR 1926.500(d)(1) inapplicable to a flat roof. However, no significance can be attached to this one decision since the issue is under review in the other cases. It would appear the Hawkins Construction Company case was not directed for review since the evidence did not justify a violation of 29 CFR 1926.500(d)(1) even if the standard was applicable to flat roofs.
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n2 See, e.g. Secretary of Labor v. Tyee Construction Company, Secretary of Labor v. Diamond Roofing Company, Secretary of Labor v. S.D. Mullins, Inc., J. F. Probst & Co., Inc., Docket No. 963 (Review Ordered 3/1/73). Secretary of Labor v. Moser Heating and Roofing Co., Inc., Secretary of Labor v. Heyse Sheet Metal and Roofing Company, Inc., Secretary of Labor v. Lance Roofing Company, Inc., Secretary of Labor v. Psaty and Fuhrman, Inc.,
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The position advocated by complainant in this case deviates from that argued in previous cases before Commission Judges. Complainant has in the past contended that the term "open-sided floor" covered flat roofs. This position has been almost totally repudiated by Commission Judges. n3 As a result, it appears that the complainant now seeks judicial construction contrary to its own initial interpretation of the standard.
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n3 With one exception, all of the cases decided by Commission Judges have determined that the term "open-sided floor" did not include a flat roof. In Secretary of Labor v. Psaty and Fuhrman, Inc.,
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While it is recognized that standards must contain some flexibility, they should be specific enough to put an employer on notice as to what is required. That is the primary purpose of a standard. Since 29 CFR 1926.500(d)(1) makes no reference to roofs, how is an employer to know that the terms "open-side floor" or "platform" are to include flat roofs? The term "open-sided floor" is not defined and the definition of "platform" makes no reference to it including roofs. An employer is left to his own interpretation of the standard by primarily drawing on his common sense, his past experiences and the industry interpretations.
Standards so vague in their language and application that men of common intelligence must necessarily guess as to their meaning will not be enforced. Where a standard is specific in language as to certain courses of conduct but is vague as to others, only those requirements adequately expressed by the standards need be followed by employers. The complainant's interpretation of its own standards will not be permitted where the standard is constrained in such a manner as to deny the employer fair warning of what is required of him. The applicability of 29 CFR 1926.500(d)(1) to flat roofs denies that fair warning to an employer.
Complainant is in a tenuous position if he believes respondent had fair warning that the term "platform" included flat roofs. After all, in previous cases he considered the applicability of 29 CFR 1926.500(d)(1) resulted from the use of the term "open-sided floor." There is nothing in the standard which suggests that the term "platform" included flat roofs and certainly no language to suggest that the two terms are used interchangeably.
A superficial reading of the definition of "platform" as provided by 29 CFR 1926.502(e) indicates that complainant's position may have merit. However, statutory construction necessitates that one must give words of common usage their commonly understood meaning unless it is clear from a reading of the statute that a different meaning was intended. There is no indication that "platform" was intended to be used in any manner other than in its commonly understood meaning.
The word "platform" is defined by Webster's Third New International Dictionary as "a horizontal flat surface usually higher than the adjoining area." This definition is similar to that provided in 29 CFR 1926.502(e) which defines a platform as a working space elevated above the surrounding floor or ground. The fallacy of complainant's position is that he is in effect contending that the adjoining area must always be the ground. The adjoining or surrounding area in this case is the roof. There is nothing elevated above the roof level. Thus nothing is higher than the adjoining area.
Under complainant's rationale, the definition of platform would also cover open-sided floors. For instance, the second floor of a ten story building under such reasoning would constitute an elevated working space above the ground. The same would be true for every other floor of the building. A building in effect would become a series of platforms. Since the standard uses the term "open-sided floor," it seems clear that complainant believed that the common usage of "platform" did not include open-sided floors. If the term "platform" as used by the standard does not include open-sided floors then there is no logic in saying it covers a flat roof.
A platform is generally used whenever persons are working at a height above that from which they can reach from a standing position. The work in this case was being performed at or below the roof level. One does not ordinarily use a platform to work at a level below where he is standing. A platform could have been erected on the ground at an appropriate height to facilitate the installation of the flashing and guttering around the perimeter of the roof. However, the respondent obviously chose not to follow that course of action.
The evidence refutes any contention that the construction industry regards a flat roof as a platform. The compliance officer, who had worked in the construction industry, testified that he had never heard a roof referred to as a platform by persons engaged in the construction industry (Tr. 68). If the common meaning of platform included roofs, it seems likely that the construction industry would be aware of this fact.
Regardless of the merits of the issue, it is difficult to comprehend how the cause of safety would be advanced by the use of toeboards and guardrails in this case. They would only present further obstacles to employees installing the guttering and flashing from the roof. The employees would have to work over the top of the toeboard and through the opening between the toeboard and guardrail to accomplish the job. The toeboard and guardrail would contribute nothing toward the safety of the employees. They would still be exposed to the possibility of a fall.
If flat roofs were intended to be covered under 29 CFR 1926.500(s)(1), the standard should have been explicit enough to advise employers that an "open-sided floor" or "platform" included a flat roof by definition. Complainant's application of the standard to include a flat roof as a platform applies the standard in such a constrained manner as to render its application in this manner unenforceable. Employers are not required to guess at the meaning of a standard. The objective of the Act is not advanced by making the application of the standards a guessing game.
CONCLUSIONS OF LAW
1. The respondent was at all times material hereto engaged in a business affecting commerce within the meaning of Section 3(5) of the Act.
2. The respondent was at all times material hereto subject to the requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter herein.
3. The definition of "platform" contained in 29 CFR 1926.502(e) has no applicability to flat roofs.
4. Respondent was not in violation of 29 CFR 1926.500(d)(1) as alleged in the citation for serious violation issued on February 23, 1973, and amended on March 19, 1973.
ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, it is
ORDERED:
1. That the citation for serious violation issued on February 23, 1973, and amended on March 19, 1973, pertaining to the alleged serious violation of 29 CFR 1926.500(d)(1) is hereby vacated; and
2. That the penalty of $750.00 as proposed in the notification of proposed penalty issued February 23, 1973, and amended March 19, 1973, for the alleged serious violation of 29 CFR 1926.500(d)(1) is hereby vacated.