OSHRC Docket No. 4773

Occupational Safety and Health Review Commission

March 31, 1981


Before: BARNAKO, Acting Chairman; CLEARY and COTTINE, Commissioners.


Baruch A. Fellner, Office of the Solicitor, USDOL

Herman Grant, Regional Solicitor, USDOL

Samuel W. Barr, for the employer




In a prior decision, n1 a divided Commission concluded that Respondent, Duane Smelser Roofing Co. ("Smelser"), was in violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"), in that it failed to comply with the standard at 29 C.F.R. 1926.500(b)(1). n2

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n1 Duane Smelser Roofing Co., 76 OSAHRC 145/E3, 4 BNA OSHC 1948, 1976-77 CCH OSHD P21,387 (No. 4773, 1976).

n2 The standard provides:

1926.500 Guardrails, Handrails, and Covers.

* * *

(b) Guarding of floor openings and floor holes. (1) Floor openings shall be guarded by a standard railing and toeboards 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.

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This case is now before the Commission [*2] on remand by the United States Court of Appeals for the Sixth Circuit. Duane Smelser Roofing Co. v. Marshall, 617 F.2d 448 (6th Cir. 1980). The court's decision states in part:

The Commission is directed to make findings on the procedures in effect and the activities of the workers at the time the decedent fell. The Commission, in making findings on the activities of workers present at the time, should determine whether the hole was left open longer than necessary to perform the work and whether the hole was left unattended. The findings should include a determination of the meaning of "around the hole" which appears to have been used ambiguously to mean both the general area surrounding the hole but not near the hole and also the area adjacent to and under the box. The meaning of "open" should also be determined, that is, whether it means all of the box removed or if it includes a lesser portion. It should make a finding on whether the required barricade would provide the necessary protection, cf. 29 C.F.R. 1926.201(a)(1). In order to make these findings and any others which the Commissioners determine to be necessary to its ultimate conclusion, the Commission may, [*3] in its discretion, reopen the record.

617 F.2d at 449-450.

In response to the order of the court the Commission has reviewed the record in its entirety. We note that the parties had an opportunity to make a complete record at the hearing before Administrative Law Judge Louis J. Rubin. Furthermore, this case does not require findings based on credibility determinations that should be made in the first instance by the judge who heard the case. See generally Asplundh Tree Expert Co., 78 OSAHRC 77/E12, 6 BNA OSHC 1951, 1978 CCH OSHD P23,033 (No. 16162, 1978). The Commission has the ultimate authority to make findings of fact, Accu-Namics, Inc. v. OSHRC, 515 F.2d 828, 834 (5th Cir. 1975), cert. denied, 425 U.S. 903 (1976), and where, as here, the record is sufficiently detailed and credibility is not an issue, the Commission can make the necessary findings of fact.


The relevant facts are undisputed. Smelser was engaged in removing and replacing the roof of a General Motors plant in Ypsilanti, Michigan. The total roof area was approximately one million square feet. Intermittently spaced throughout the roof were approximately two hundred boxes constructed [*4] of wood or metal which covered openings formerly used for ventilation or the passage of pipes or stacks. Each of the boxes was composed of a wooden or metal cover on a wooden frame anchored by steel braces from underneath supports. In order to perform the job, Smelser's employees were divided into two groups; one removing existing roofing, and another installing new roofing. Each group was supervised by a foreman. Dick Corby, the foreman of the group of employees removing existing roofing, sustained fatal injuries as a result of falling through a roof opening about 4 1/2 feet square from which a box had been previously removed.

The removal and replacement of the roofing material was accomplished in several stages. A "square" of roofing, approximately 10 feet by 10 feet was marked out; "boxes" within the square were removed, leaving only the steel supporting braces in place; an employee operating a machine which stripped roofing of the metal deck (referred to as a "jitter-box" or "tear-off" machine) would proceed over the area followed by another employee operating a "plow" which pushed the removed roofing to an area approximately 20 feet away where it was picked up by laborers. [*5] Simultaneously, or shortly thereafter, roofing material adhering to the metal deck in the area immediately (within 2 or 3 feet) surrounding the open hole would be removed by hand by an employee using a shovel and broom. Hand removal was necessary because tear-off machines and plows could get no closer than 2 feet to a box. Immediately thereafter the remaining steel braces would be removed, a metal deck plate would be placed over the hole, and new roofing material applied. While actual removal of a box -- that is, the wooden frame and metal or wooden cover, but not the steel braces -- could take as little as 30 minutes or as much as 3 hours, once removed, the hand removal of old roofing material from the 2-foot area immediately surrounding the hole was accomplished in 10 to 15 minutes.

Although it appears that machine stripping to within 2 feet of a box, followed by removal of the box and hand stripping around the edge of the hole, would have been the more preferable sequence of events in that an unguarded roof opening would exist for the shortest possible time, the preponderance of the evidence in this case demonstrates that such a procedure was not followed.

There is unrefuted [*6] testimony by another foreman, Adams, that when Corby arrived at the jobsite on the morning of the accident the hole through which he later fell was covered by a box. n3 Foreman Adams also testified that when Corby arrived at the jobsite that morning "nothing [was] started" and that roofing material covered the area. Based upon this testimony and the record as a whole, we find that the procedure used on the morning of the incident entailed removal of the box (not including the steel braces) prior to machine removal of old roofing material in an area from 3 to 10 feet of the opening. We thus conclude that the hole was open longer than necessary. Machine stripping of roofing prior to the box removal would have required the hole to be open only for the time required to accomplish hand cleaning of that small area within 2 or 3 feet of the hole which could not be reached by the stripping machine when the box was in place.

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n3 The probative weight to be assigned to this testimony is lessened by the fact that Adams arrived at the jobsite approximately one hour after Corby. Nevertheless, the fact that the box was removed prior to the operation of the tear-off machine is corroborated by employee Guzman's testimony that he saw Corby help remove the box sometime earlier in the morning.


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The descriptive phrase "around the hole" was used by various witnesses to mean an area as far as 50 feet from the hole to as close as immediately adjacent to the hole. Inasmuch as the witnesses use of the phrase was dependent upon the context of the question to which they were responding or their own perception of the physical distance encompassed by the word "around," no single definition of the phrase can be applied to all instance in which it was used at the hearing.

The record supports the conclusion that the hole was not left unattended. Approximately 15 to 20 minutes elapsed from the time of the completion of the removal of the box (not including the steel braces) to the time Corby fell through the hole. Guzman testified that he saw Corby help remove the box and that he (Guzman) had been working "around the hole" for 15 or 20 minutes before Corby's fall. Indeed, Guzman warned Corby that he was coming too close to the hole, a warning which Corby acknowledged by saying "I'm looking at it."

The court requested the Commission to "make a finding on whether the required barricade would provide [*8] the necessary protection, cf. 29 C.F.R. 1926.201(a)(1)." n4 Pursuant to the mandate of the court we answer the question.

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n4 The standard provides:

1926.201 Signaling.

(a) Flagmen. (1) When operations are such that signs, signals, and barricades do not provide the necessary protection on or adjacent to a highway or street, flagmen or other appropriate traffic controls shall be provided.

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Generally, the promulgation of a standard presupposes the existence of a hazard when its terms are not met. See e.g., Greyhound Lines-West v. Marshall, 575 F.2d 759, 762 (9th Cir. 1978); Del-Cook Lumber Co., 78 OSAHRC 14/A2, 6 BNA OSHC 1362, 1978 CCH OSHD P22,544 (No. 16093, 1978). the barriers required by the standard under which Smelser was cited, 29 C.F.R. 1926.500(b)(1), n5 must meet the detailed specifications set forth in 29 C.F.R. 1926.500(f). n6 Such a railing is expected to prevent accidental or inadvertent movement by an employee into an area where he would be in danger of falling through [*9] the roof hole. The protection necessary for employees engaged in other activities (e.g. stripping old roofing) in an area containing openings through which they could fall is, at a minimum, a system of effectively preventing their approach to such holes. Cf. Concrete Construction Co., 76 OSAHRC 139/A2, 4 BNA 1828, 1976-77 CCH OSHD P21,269 (Nos. 5692 & 7329, 1976), aff'd per curiam, 598 F.2d 1031 (6th Cir. 1979) (a workman giving oral warnings is not a "barricade" under a standard, 29 C.F.R. 1926.550(a)(9), requiring the swing radius of a crane to be barricaded so as to prevent inadvertent employee entry into a dangerous area.) The standard railings required by 29 C.F.R. 1926.500(b)(1) would have provided the necessary protection.

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n5 See note 1 supra.

n6 This standard sets out specifications for the construction of railings of various materials, viz: wood, pipe, and structural steel. In addition, the specifications allow railings to be constructed of other materials, provided they meet stated conditions regardless of materials used in their construction. Railings must have a top rail approximately 42 inches from the floor and be able to withstand at least "200 pounds top rail pressure with a minimum of deflection."


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Finally, under the circumstances of this case, we consider a roof hole to be "open" upon completion of the removal of the wooden or metal frame and box even though steel support braces remained.


Upon our review of the record in its entirety we conclude that Smelser was in violation of the Act as alleged. We further conclude that Smelser has not established its asserted affirmative defense.

In order to establish a violation of section 5(a)(2) of the Act, 29 U.S.C. 654(a)(2), the Secretary must show by a preponderance of the evidence an employer's noncompliance with an applicable standard and employee access to the hazard created by the violation condition. Otis Elevator Co., 78 OSAHRC 88/E5, 6 BNA OSHC 2048, 1978 CCH OSHD P23,135 (No. 16057, 1978) (lead and concurring and dissenting opinion). In this case evidence as to the existence of a condition which did not comply with the cited standard (the unguarded, uncovered hole) as well as evidence of employee access to that condition (Corby's operation of the tear-off machine within 3 feet of the unguarded edge as well as his actual fall through [*11] the hole) is undisputed. Moreover, Corby's acknowledgement of Guzman's warning demonstrates that Corby knew of the existence of the condition. As a foreman, Corby's knowledge is imputed to his employer. See Wander Iron Works, Inc., 80 OSAHRC 40/A2, 8 BNA OSHC 1354, 1980 CCH OSHD P24,457 (No. 76-3105, 1980).

The Commission recognizes the affirmative defense of impossibility of performance, a defense raised by Smelser in this case. In order to establish the defense an employer must show that (1) compliance with the standard would preclude performance of required work and (2) alternative means of employee protection are unavailable. M.J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD P23,330 (No. 15094, 1979). Moreover, an employer is not excused from complying with a standard's requirements solely because compliance is difficult or expensive. Hughes Brothers, Inc., 78 OSAHRC 65/A2, 6 BNA 1830, 1980 CCH OSHD P22,909 (No. 12523, 1978).

Smelser argues that during the process of removing old roofing the installation of guardrails would have been impractical and if installed would have made it impossible to perform the work. Roofer Guzman [*12] opined that he could not clean the roof off if a barricade were built after the wooden box and steel braces were removed. Smelser's argument in this regard concern the cleaning of the 2- or 3-foot area surrounding the box. The Secretary, however, did not allege or contend, nor does the cited standard require, that guardrails be located this close to the hole. It is clear that once machine stripping was completed within 2 or 3 feet of a box the erection of guardrails on a clean portion of the roof would have protected employees operating machinery in the general area. Indeed, Corby as engaged in such a process when he fell to his death. The fact that one roofer would be required to do hand cleaning within such railings does not preclude affirming this alleged violation. An employer must provide such protection as is reasonable even if the protection provides safeguards for some but not all employees. Hurlock Roofing Co., 79 OSAHRC 93/A2, 7 BNA OSHC 1867, 1979 CCH OSHD P24,006 (No. 14907, 1979).

The testimony of Foreman Adams to the effect that the job could not be performed if "barricades" were installed does not support Smelser's asserted defense. Adams' testimony regarding [*13] "barricades" referred to the construction of something similar to the boxes which were being removed. Since it was not based upon the use of guardrails of the type required by the standard we find his testimony inapposite. Further, Adams' statement that a cover could not be put into place over a roof hole until the steel braces had been removed is not an explanation as to why the erection of guardrails would have precluded cleaning of the area. Moreover, Smelser's argument that compliance with the standard "would have involved the perpetual building and removal of barricades" amounts to a claim of added expense or inconvenience which we reject under our holding in Hughes Brothers, Inc. Finally, even if guardrails, once installed, would have prevented the installation of a new roof, Smelser can not prevail on its asserted affirmative defense because Smelser made no attempt to demonstrate that alternative means of employee protection were unavailable. We thus reject Smelser's asserted defense of impossibility of performance.

Accordingly, the citation alleging a violation of 29 C.F.R. 1926.500(b)(1) is affirmed, and the proposed penalty of $55 is assessed.