A. B. HALL, d/b/a DIXIE ROOFING & METAL COMPANY

OSHRC Docket No. 4296

Occupational Safety and Health Review Commission

January 28, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge James D. Burroughs, dated February 13, 1974, which held respondent in violation of 29 U.S.C. 654(a)(2) on three counts is before this Commission for review pursuant to 29 U.S.C. 661(i).

The issues upon which this decision was directed for review were whether the court below erred by reducing the violations based upon occupational safety and health standards codified at 29 C.F.R. 1926.500(b)(1) and (d)(1) from serious to nonserious; and if so, whether it was error to modify the amount of penalty proposed.

In a memorandum filed by the Secretary of Labor in response to that direction for review, it was stated as follows:

Upon reviewing the record the Secretary concludes that the decision and order of the Administrative Law Judge is supported by a preponderance of the evidence.

Since our examination of the record leads us to a similar conclusion, we affirm the disposition ordered by the judge.

[The Judge's decision referred to herein follows]

BURROUGHS, JUDGE: This is a proceeding under section 10(c) of the Occupational Safety and Health Act of [*2] 1970, 29 U.S.C. 651 et seq., 84 Stat. 1390 (hereinafter referred to as the Act). Respondent seeks review of two citations, which allege serious violations of the Act, issued to it by complainant on August 1, 1973, and amended on August 7, 1973. Review is also sought by respondent of the penalties proposed for the alleged serious violations and of the penalty proposed for a non-serious violation which was conceded by respondent in its answer.

The citations and notification of proposed penalty were issued as the result of an inspection on July 31, 1973, of a workplace under the operation or control of the respondent located at Highway 90, Ocean Springs, Mississippi. The citations allege that respondent violated section 5(a)(2) of the Act by failure to comply with standards promulgated by complainant pursuant to section 6 of the Act.

Citation Number One, as amended on August 7, 1973, alleges a non-serious violation of the standard set forth at 29 CFR 1926.450(a)(10). The alleged violation is described as follows by the citation:

Failure to secure against accidental displacement, the portable ladder located approximately 100 feet east of the Howard Brothers Discount [*3] store building under construction, in that such portable ladder used to provide access between the ground floor and top of such building under construction.

A violation of this standard has been conceded but the amount of penalty to be assessed is still in dispute.

Citation Number Two, as amended on August 7, 1973, alleges a serious violation of the standard published at 29 CFR 1926.500(b)(1). The alleged violation is described as follows by the citation:

Failure to provide protection for employees by providing guarding by standard railings or cover for the floor openings located in the roof of Howard Brothers Discount store building, in that such openings are floor openings for employees working on the roof, as follows:

(a) Opening located approximately 210 feet east and 28 feet south of the northwest corner of the building under construction.

(b) Opening located approximately 155 feet east and 28 feet south of the northwest corner of the building under construction.

(c) Opening located approximately 90 feet east and 28 feet south of the northwest corner of the building under construction.

(d) Opening located approximately 30 feet east and 39 feet south of the northwest [*4] corner of the building under construction.

(e) Opening located approximately 210 feet east and 70 feet south of the northwest corner of the building under construction.

(f) Opening located approximately 155 feet east and 70 feet south of the northwest corner of the building under construction.

(g) Opening located approximately 90 feet east and 70 feet south of the northwest corner of the building under construction.

(h) Opening located approximately 30 feet east and 70 feet south of the northwest corner of the building under construction.

(i) Opening located approximately 210 feet east and 117 feet south of the northwest corner of the building under construction.

(j) Opening located approximately 155 feet east and 117 feet south of the northwest corner of the building under construction.

(k) Opening located approximately 90 feet east and 117 feet south of the northwest corner of the building under construction.

(l) Opening located approximately 30 feet east and 117 feet south of the northwest corner of the building under construction.

Citation Number Three, as amended on August 7, 1973, alleges a serious violation of 29 CFR 1926.500(d)(1). The citation describes [*5] the alleged violation in the following manner:

Failure to provide standard railing or the equivalent to protect employees working adjacent to open-sided floor more than 15 feet above adjacent floor or gound level about the north, south, and west peripheries of the Howard Brothers Discount store building under construction.

The notification of proposed penalty, as amended August 7, 1973, proposes a penalty of $600.00 for each of the alleged serious violations and a penalty of $150.00 for the non-serious violation conceded by respondent. All of the alleged violations were to be corrected immediately upon receipt of the citations.

Respondent, by letter dated August 20, 1973, timely notified the complainant that it desired to contest the three citations and the proposed penalties. The complainant timely advised the Commission of the notice of contest and a complaint and answer were filed. Respondent conceded the non-serious violation in the answer filed by it.

The case was assigned to this Judge on December 6, 1973, for purposes of conducting a hearing pursuant to section 10(c) of the Act. The hearing was held in Biloxi, Mississippi, on January 10, 1974. No additional parties [*6] desired to intervene in the proceedings.

JURISDICTION AND ISSUES

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.

The issues pertinent to a disposition of this case are as follows:

1. Did respondent commit a violation of section 5(a)(2) of the Act by failing to comply with the standards published at 29 CFR 1926.500(b)(1) and 29 CFR 1926.500(d)(1)?

2. If respondent committed violations of 29 CFR 1926.500(b)(1) and 29 CFR 1926.500(d)(1) were the resulting violations of a serious nature as defined by section 17(k) of the Act?

3. What penalties, if any, should be assessed for the violation of 29 CFR 1926.450(a)(10) and any other violations of the Act as determined herein?

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 in this case.

1. Respondent, A. B. Hall d/b/a Dixie Roofing and Metal Company, has a place of business and does business, among [*7] other places, at Ocean Springs, Mississippi. He is engaged in the construction of roofs and the fabricating of sheet metal for buildings.

2. Mr. Hall has been in the roofing business for twenty years. He employs approximately 15 to 20 persons in his business operations.

3. On July 18, 1973, the complainant through a duly authorized compliance officer, conducted an inspection of respondent's workplace at the Howard Brothers Discount Store building, Ocean Springs, Mississippi. The building was a one story structure of approximately 40,000 square feet.

4. Respondent was a subcontractor on the Howard Brothers Discount Store, Ocean Springs, Mississippi. He was to install a roof deck, roofing and sheet metal. Fifteen different employees worked on the job at various times. Only six or seven employees actually worked-on top of the roof. Four employees were on the roof at the time of inspection by the compliance officer.

5. A wooden ladder was used by employees of respondent to gain access to the roof. The ladder contained no bracing or any type of restraints to prevent it from moving. It rested on a steel beam. The employees used the ladder for access to the roof [*8] on four or five different occasions during a work day.

6. The roof was pitched approximately one foot from the north end to the south end of the building. The roof measured 16'6" above ground level at the front or north end and 15'6" above the ground level at the rear or south end of the building. There was a dirt surface on the ground below the roof.

7. A parapet ran along the west end of the building. The parapet was approximately 16" above the roof level on the north end and ran to approximately 28" at the back or south end of the building. n1

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n1 The compliance officer testified that the parapet was approximately 8" above roof level on the north end of the building and ran to approximately 20" at the rear of the building. Mr. Hall's measurements are considered to be more accurate since he referred to the plans and specifications for the building.

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8. There were 12 openings on the roof which were left for the installation of air conditioning equipment. All of the openings, except one, were the same size. [*9] The inside measurements of eleven of the openings were 3'10" X 6'8". There was at least one bar joist immediately below the openings. The bar joists were 4 feet from center to center.

9. The air-conditioning openings on top of the roof were 16'6" from the floor level of the building on the north or front side of the building. The south row of openings were slightly less than 16'6" from the floor level because of a slight slope in the roof of the building. The floor below the openings was concrete.

10. Each opening had a 13" steel flange around the edge. The air conditioning units were to be placed over the flange.

11. Respondent's employees were applying asbestos felt, asphalt, and gravel to waterproof the roof structure. It took approximately 7 days to complete this part of the job. The work took employees to the edge of the roof and air-conditioning openings.

12. There were no guardrails or other protection round the edges of the roof, with the exception of a parapet on the west side, or the air conditioning openings.

13. Respondent has a good past safety record. Personal safety requirements are posted on the bulletin board and an effort is made to remind [*10] the employees of the safety requirements. Periodic checks are made to enforce the requirements. Respondent has never had an employee fall off of a roof or through a hole in a roof.

14. The Occupational Safety and Health Administration held a seminar in Laurel, Mississippi, on the requirements of the Act. The seminar was held at the request of A. B. Hall and he was instrumental in obtaining employer attendance at the seminar.

15. The respondent received one citation previous to the one issued in this case.

16. Complainant commenced with an unadjusted penalty of $500.00 for the violation of 29 CFR 1926.450(a)(10). The ladder was considered to be easily displaced because it was wooden and rested on a steel beam. a reduction of 40-percent was allowed for good faith (20-percent), size (10-percent) and previous history (10-percent). An additional 50-percent credit was given for abatement.

17. In determining the penalties for the alleged serious violations, the complainant commenced with an unadjusted penalty of $1000.00 and allowed a 40-percent reduction. The reduction consisted of 20 percent for good faith, 10-percent for size and 10-percent for history.

LAW AND OPINION [*11]

Section 5(a)(2) of the Act provides that every employer shall comply with occupational safety and health standards promulgated under the Act. Complainant alleges that respondent violated section 5(a)(2) by failing to comply with the standards published at 29 CFR 1926.500(b)(1) and 29 CFR 1926.500(d)(1).

1. Alleged Violation of 29 CFR 1926.500(b)(1)

Section 1926.500(b)(1) of 29 CFR provides as follows:

Floor openings shall be guarded by a standard railing and toe board or cover, as specified in paragraph (f) of this section. In general, the railing shall be provided on all exposed sides, except at entrances to stairways.

A floor opening is defined in 29 CFR 1926.502(b) as an opening measuring 12 inches or more in its least dimension in any floor, roof, or platform through which persons may fall.

The evidence is undisputed that there were 12 openings on the roof of the Howard Brothers Discount Store building. Eleven of the openings measured 3'10" X 6'8" and were of sufficient size for a person to easily fall through. Employees had to work up to the edge of the openings in the installation of the roof. This fact clearly reflects that there was a realistic exposure [*12] of employees to an accidental fall through the openings. The violation has been established.

2. Alleged violation of 29 CFR 1926.500(d)(1)

The standard published at 29 CFR 1926.500(d)(1) 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.

Complainant contends that the standard was violated by the absence of guardrails around the north, south and west peripheries of the roof of the Howard Brothers Discount Store building, Ocean Springs, Mississippi, while employees were installing a roof composed of asbestos felt, asphalt and gravel on the roof structure.

The roof surface was essentially flat. The evidence is undisputed that there were no guardrails around the edge of the roof. The question of whether the terms "floor" [*13] and "platform" as used in the standard are applicable to a flat roof was resolved by the Commission in the case of Secretary of Labor v. Diamond Roofing Company, Inc. the Commission Judge and held that the terms "floor" and "platform" as used in 29 CFR 1926.500(d)(1) included a flat roof. The Commission decision in Diamond Roofing states, in part, as follows:

Of course, it is not strange that the terms [floor and roof] can be used interchangeably. By definition, the term "floor" means "the surface or the platform of a structure on which to walk, work, or travel" (Webster's Third New International Dictionary, 873 (1971)). Certainly, a flat roof being constructed by employees and upon which they walk during the course of their work is a "floor" rather than a roof to such employees. The problem with respondents' argument is that it focuses on the end use of the roof, i.e., a cover. The argument ignores the fact that during construction the roof may may be used as a floor or platform.

The decision [*14] of the Commission is dispositive of the question of the applicability of 29 CFR 1926.500(d)(1) to the facts of this case. The roof in issue is covered under the standard.

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n2 The case was consolidated with Secretary of Labor v. S.D. Mullins Company, Inc., The decision was issued on October 24, 1973.

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The ultimate determination of whether there was a violation of 29 CFR 1926.500(d)(1) must be decided by ascertaining if respondent's employees were exposed or affected by the hazards resulting from the absence of the railings. The evidence is undisputed that employees of respondent worked up to the edge of the roof structure while installing the asbestos felt and asphalt. These facts clearly reflect that there was a realistic exposure of employees to an accidental fall. Accordingly, it is concluded that respondent was in violation of 29 CFR 1926.500(d)(1).

TYPE OF VIOLATION

Complainant contends that the violations of 29 CFR 1926.500(b)(1) and 29 CFR 1926.500(d)(1) were serious violations [*15] within the meaning of Section 17(k) of the Act. This section provides as follows:

TYPE OF VIOLATION

Complainant contends that the violations of 29 CFR 1926.500(b)(1) and 29 CFR 1926.500(d)(1) were serious violations within the meaning of Section 17(k) of the Act. This section provides as follows:

For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a 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.

It is clear that section 17(k) requires two findings prior to determining that a violation constitutes a serious violation. These are: (1) substantial probability that death or serious physical harm could result from the violation, and (2) the employer did not, and could not with the exercise of reasonable diligence know of the presence of the violation.

In Secretary of Labor v. Natkin and [*16] Company, An accident has to only be simply possible. Serious and non-serious violations, according to the Commission, "are distinguished on the basis of the seriousness of injuries which experience has shown are reasonably likely to occur." The probability of an accident occurring is deemed relevant to the gravity of the violation and is considered in the process of assessing an appropriate penalty. See, Secretary of Labor v. Emory H. Mixon,

The respondent was aware of both of the violations in this case. There would also seem to be little dispute that an accidental fall was always possible. Thus, the crux of this issue depends on the degree of probable injury.

The type of injury to sustain a violation of section 17(k) must be one that will cause death or serious physical harm. If the more likely consequence is something less than death or serious physical harm, the violation is not serious. There are [*17] no statistical guidelines which assist in formulating a reasonable judgment as to what height a person must fall before he is likely to suffer death or serious physical harm. An evaluation of the specific facts existing in each case must be made and judgment formed in light of the statutory definition.

The height of the roof and the air-conditioning openings in this case varied between 16'6" and 15'6". There was a dirt surface below the roof level and a concrete floor below the openings. The complainant contends that an employee falling off the roof or through one of the openings was likely to suffer serious physical harm or death. This position has been formulated on the opinion of the compliance officer and his Area Director. In other cases involving different compliance officers and Area Directors the complainant has reached an opposite conclusion. n3 This inconsistency on the part of complainant has resulted in an unconscious discriminatory application of the Act. n4

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n3 See, e.g. Secretary of Labor v. L.I. Dumont, Secretary of Labor v. Moser Heating & Roofing Co., Inc., (The non-serious nature of the violation and $35.00 penalty were affirmed by the Commission on January 2, 1974.); Secretary of Labor v. Diamond Roofing Company, Inc. and S.D. Mullins, Inc., (The Commission affirmed the complainant's penalties and non-serious determinations by decision dated October 24, 1973.)

n4 The type of violation and the amount of penalty for employers with employees exposed to a fall between 15 and 25 feet seems to vary according to the compliance officer making the inspection. This inconsistency could be eliminated by complainant establishing guidelines for the compliance officers as to what height one needs to fall from onto dirt, concrete, wood, etc. before it will be deemed a serious violation for purposes of issuing a citation. The objective of the Act is not served by a large segment of the compliance officers expressing differing opinions on the question.

[*18]

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An employee falling from a distance of 16'6" onto a dirt surface is not likely to be killed or sustain serious physical harm. The most likely result is that he will suffer breaks of bones, bruises, concussions and similar injuries. These type of injuries can not be concluded to be of a serious nature. This does not imply that one could not be killed or suffer serious physical harm from a fall of 16'6" but only that it is not likely, i.e., to be reasonably expected, that such a serious injury will occur. Accordingly, the violation of 29 CFR 1926.500(d)(1) is deemed to be non-serious.

When an employee falls a distance of 16'6" onto concrete, the consequences are likely to be of a more serious nature than those experienced by falling onto a dirt surface. How much more serious is a difficult question of judgment. The best judgment to be deduced from the record is that any injuries sustained would not likely result in death or permanent injury of a serious nature. Again, it is recognized that death or serious injury could result, but it is not believed that this is the likely consequences [*19] expected from such a fall.

The burden of proving a serious violation rests with the complainant. The proof should be strong and convincing prior to resolving the issue against the employer. This is especially true when previous cases involving greater heights have been determined by complainant to be of a non-serious nature. n5 Mere speculation, as in this case, is not sufficient to sustain complainant's burden of proof.

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n5 See, e.g. cases set forth in footnote 3.

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PENALTY DETERMINATION

Once a notice of contest is served challenging penalties proposed by the Secretary, the authority to assess civil penalties under the Act resides exclusively with the Commission. The Commission, in section 10(c) of the Act, is charged with affirming, modifying or vacating citations issued by the Secretary under section 9(a) and notifications issued and penalties proposed by the Secretary under sections 10(a) and 10(b) of the Act. The Commission is the final arbiter of penalties if the complainant's proposals are contested. In [*20] such an event the complainant's proposals merely become advisory. Secretary of Labor v. Occupational Safety and Health Review Commission and Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973).

The Commission is required by section 17(j) of the Act to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer and the history of previous violations in determining the assessment of an appropriate penalty. Secretary of Labor v. Nacirema Operating Company, Inc., In Nacirema the Commission stated that the four criteria to be considered in assessing penalties cannot always be given equal weight. The principal factor to be considered is the gravity of the offense. In determining the gravity of a violation, several elements must be considered, including but not necessarily limited to the following: (1) the number of employees exposed to the risk of injury, (2) the duration of the exposure, (3) the precautions taken against injury, if any, and (4) the degree of probability of occurrence of an injury. Secretary of Labor v. National Realty and Construction [*21] Company, Inc.,

Respondent had six or seven employees that worked on top of the roof during the seven days that it took to complete the job. All of them were not always on the roof at the same time. A total of four employees were observed on the roof on the day of inspection. Since the roof was approximately 40,000 square feet, employees would have been exposed for a short duration of the total job time to the edge of the roof or the openings.

The roof was essentially flat and there was little likelihood that anyone would lose their footing and fall. The parapet on the west side of the building and the 13" steel flange around the openings served as reminders of the hazardous conditions and offered protection against an accidental displacement of an employee's foot.

The ladder was used by all employees to gain access to the roof several times during a work day. The exposure to a possible slipping or displacement of the ladder would have been extremely brief since the roof was only at a height of 16'6". In the event the ladder slipped, an employee would probably have time [*22] to jump clear.

After due consideration of all factors provided by section 17(j) of the Act, with particular emphasis on the gravity of the violation, it is concluded that a penalty of $75.00 each is fair and appropriate for the violations in this case. The assessments of penalties for the same type violations in other cases have also been considered in order to achieve some consistency in the assessment of penalties. n6 When factual situations are the same or quite similar there should not be a wide variance in the amount of penalties that are assessed.

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n6 The cases in footnote 3 reflect that the penalty for violations of 29 CFR 1926.500(d)(1) ranged from $35.00 to $50.00. A higher penalty is assessed here because of a previous citation being issued to respondent.

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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 [*23] the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter herein.

3. The terms "floor" and "platform" used in 29 CFR 1926.500(d)(1) include a flat roof.

4. Respondent had six or seven employees exposed to the edges of a flat roof and floor openings in the roof which contained no guardrails or other protective equipment in violation of the safety standards published at 29 CFR 1926.500(b)(1) and 29 CFR 1926.500(d)(1).

5. Respondent permitted its employees to utilize a wooden ladder which was not secure against accidental displacement in violation of 29 CFR 1926.450(a)(10).

6. The violations established in this case are of a non-serious nature as there was little likelihood of death or serious physical harm resulting from any accidental fall.

7. Penalties of $75.00 each for the violations determined herein are fair and appropriate.

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, it is ORDERED:

1. Citation number One pertaining to a non-serious violation of 29 CFR 1926.450(a)(10) is affirmed;

2. Citation Numbers Two and Three pertaining to the violations of 29 CFR [*24] 1926.500(b)(1) and 29 CFR 1926.500(d)(1), respectively, are modified to reflect non-serious violations and are affirmed as modified; and

3. The notification of proposed penalty issued herein is modified so as to assess a penalty of $75.00 for each of the violations.