ACE SHEETING & REPAIR

OSHRC Docket No. 5284

Occupational Safety and Health Review Commission

December 31, 1975

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Ronald M. Gaswirth, Regional Solicitor, U.S. Department of Labor

Herman Wright, for the employer

OPINION:

DECISION

BY THE COMMISSION:

The question before us in this matter is whether Complainant must demonstrate feasible methods of compliance in order to sustain a citation for failure to comply with the standard published at 29 C.F.R. 1926.500(b)(4). n1 Judge Risteau in vacating Respondent's (Ace) citation for nonserious violation and the proposed $30 penalty answered in the affirmative. We reverse, affirm the citation, and assess the proposed penalty.

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n1 The standard provides: "Wherever there is danger of falling through a skylight opening, it shall be guarded by a fixed standard railing on all exposed sides or a cover capable of sustaining the weight of a 200-pound person."

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Ace's sole owner and one employee were working on the pitched roof of a warehouse in Houston, Texas. The roof surface was composed of corrugated metal sheets and provided with about 60 [*2] skylight openings. Each opening was about 4 feet square, and the openings were spaced approximately 12 feet apart. The openings were covered with translucent wire-reinforced glass, they were not guarded by railings, nor were they guarded by covers within the meaning of the standard. The two men were replacing corrugated sheets that had rusted. On September 21, 1973, the employee, who weighed 175 pounds, walked onto one of the glass panels. The panel did not support him, and he fell 25 feet to his death.

Judge Risteau vacated the citation and proposed penalty because in his view Complainant must demonstrate the methods which Ace might have used to comply with the cited standard before a violation can be affirmed. The Judge read the court's opinion in National Realty & Construction Co. v. OSAHRC n2 as requiring such a showing by Complainant. That case, however, involved a citation for violation of section 5(a)(1) of the Act not, as here, a violation of a particular standard under Section 5(a)(2).

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n2 489 F.2d 1257 (D.C. Cir. 1973).

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The National Realty panel required that Complainant show the feasibility and likely utility of measures which, if taken, would have prevented the existence of a recognized hazard. But this requirement arose out of the language of section 5(a)(1), i.e., the general duty clause. The court was concerned that employers would otherwise not receive notice of the exact nature of the alleged violation and of the means for compliance. n3

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n3 Id. at 1267-68.

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Such fears are unwarranted in this case. Respondent was cited for violating the standard at 1926.500(b)(4). The standard itself suggests feasible means of compliance (guardrails or covers) thus enabling Respondent to know the nature of the violation and the means for compliance. See: Lee Way Motor Freight, Inc. 7 OSAHRC 1128 (1974), aff'd., Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864 (10th Cir. 1975). Therefore in the ordinary case, a citation is to be affirmed when a violation of the terms of a standard is [*4] shown unless the defense of impossibility of compliance has been raised and is established on the record. W.B. Meredith II, Inc., 9 OSAHRC 245 (1974); Dic Underhill, A Joint Venture, 15 OSAHRC 695 (1975).

Impossibility has not been established in this case. Complainant's witness established that it was possible to use skylight covers, and Respondent did not rebut the evidence. Accordingly, the record demonstrates non-compliance, impossibility was not established, and the citation will be affirmed.

With regard to the question of an appropriate penalty we find the gravity to be very high as evidenced by the employee's death. Indeed, the circumstances might well have supported a citation for serious violation. But in the circumstances we conclude that the proposed penalty should be assessed. Respondent is very small and has no history of prior violations. Moreover, it is clear from the record that it exhibited good faith.

Accordingly, the citation for violation of 29 C.F.R. 1926.500(b)(4) is affirmed, a penalty of $30 is assessed therefor and the judge's report is modified so as to be consistent herewith. It is SO ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

Judge [*5] Risteau correctly decided this case and his decision (attached hereto as Appendix A) should be affirmed.

Relying on National Realty and Construction Company, Inc. v. OSAHRC, 489 F.2d 1257 (D.C. Cir. 1973), Judge Risteau dismissed the citation because the complainant failed to establish "the feasibility and likely utility" of the corrective measures enumerated in 29 C.F.R. 1926.500(b)(4). My colleagues erroneously hold that the Judge's reliance on National Realty is misplaced because that decision is applicable only to violations of 29 U.S.C. 654(a)(1), the so-called general duty clause, and not to cases involving noncompliance with a particular standard in violation of 29 U.S.C. 654(a)(2). This is a distinction without a difference.

In my opinion, the point of law expounded by the circuit court applies irrespective of whether the charge was framed under 654(a)(1) or 654(a)(2). Logic requires no other conclusion.

The decision in National Realty states that "Congress intended to require elimination only of preventable hazards" and that "[t]he employer's duty is . . . qualified by the simple requirement that it be achievable and not be a mere vehicle for strict [*6] liability." 489 F.2d at 1266. It also provides the following:

"To assure that citations issue only upon careful deliberation, the Secretary must be constrained to specify the particular steps a cited employer should have taken to avoid citation, and to demonstrate the feasibility and likely utility of those measures." 489 F.2d 1268 (emphasis added).

Such rules clearly have applicability to any violation of the Act.

Several circuit court decisions involving alleged violations of 654(a)(2) cite to the sound rules pronounced in National Realty. In particular, Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Company, 511 F.2d 1139, 1145 (9th Cir. 1975), specifically adopts the National Realty rule that "[t]he employer's duty . . . must be one which is achievable" for 654(a)(2) violations. Any other rule would be grossly unfair. There is nothing in this Act or its legislative history which would permit an employer to be penalized because he didn't do something which is not feasible to accomplish. Obviously, a person cannot be punished for not doing the impossible.

The standard in issue here, 29 C.F.R. 1926.500(b)(4), requires that, when there is a [*7] danger of falling through a skylight opening, it shall be guarded by a fixed standard railing or a cover.

Two of the complainant's inspectors testified that the use of guardrails as a means of protection was not feasible. One of them testified as follows concerning the feasibility of covering the skylights:

"Then the thought of putting some type of a cover over the skylights could be used. And the concern there was that because of the pitch of the roof and the type of surface of the roof, that any cover put over the skylights could slide off." n4

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n4 He also testified as to discussions of putting some type of abrasive surface on the bottom of a covering to prevent sliding. However, the record is silent as to the feasibility thereof under the existing conditions.

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Rather than establishing that compliance with 29 C.F.R. 1926.500(h)(4) was feasible, the testimony of the complainant's witnesses tends to prove the contrary. Therefore, vacation of the citation is required. See Secretary v. W.B. Meredith II, [*8] Inc., 9 OSAHRC 245 (1974); Secretary v. W.C. Sivers Company, 8 OSAHRC 480, 488 (1974); Secretary v. J.H. Baxter and Company, 4 OSAHRC 496, 506-507 (1973).

APPENDIX A

DECISION AND ORDER

Harvey M. Shapan, for the Secretary of Labor

John N. Barnhart, for the respondent

RISTEAU, Judge

STATEMENT OF THE CASE

This is a proceeding pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 [29 USC 651 et seq., hereafter called the Act], contesting a Citation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act. The Citation alleges that as the result of an inspection on September 25, 1973, of a workplace under the ownership, operation or control of the Respondent, located at 1140 Lockwood Drive, Houston, Texas, and described as "Roofing," Respondent violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citation, which was issued on October 16, 1973, alleges that the violation, resulted from a failure to comply with standards promulgated by the Secretary [*9] by publication in the Federal Register, and codified in 29 CFR 1910. The description of the alleged violation contained in said Citation states:

NONSERIOUS VIOLATION

Standard, regulation

Item

or section of the Act

number

allegedly violated

Description of alleged violation

1

29 CFR 1926.500(b)

The skylight openings in the working area were

(4)

not guarded or covered to prevent accidental

falling through. Location: on the roof.

The standard promulgated by the Secretary provides as follows:

Item

Number

Standard

1

1926.500 Guardrails, handrails, and

covers.

(b) Guarding of floor openings and

floor holes.

(4) Wherever there is danger of fall-

ing through a skylight opening, it shall

be guarded by a fixed standard railing

on all exposed sides or a cover capable

of sustaining the weight of a 200-pound

person.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, Respondent was notified by letter dated October 16, 1973, from Thomas T. Curry, Director of Area 3280, Occupational Safety and Health Administration, U.S. Department of Labor, that he proposed to assess a penalty for the violation alleged [*10] in the following amount:

NONSERIOUS VIOLATION: Item No. 1

$30

Total

$30

After Respondent contested this enforcement action and a Complaint had been filed, the case came on for hearing at Houston, Texas, on March 21, 1974. No question concerning the Respondent's status as an employer as defined in the Act or the jurisdiction of this Commission has been raised.

DISCUSSION

At the outset attention must be given to Complainant's Motion to Dismiss by reason of Respondent's failure to file an Answer in accordance with Rule 33(b) of the Commission's Rules of Procedure. The filing of an Answer has, however, been held by the Commission not to be an absolute requirement for maintenance of a contest, provided that good cause is shown by the Respondent. Specifically, in Secretary v. Aqua View Apartments, No. 3701, (October 19, 1973,) the Commission vacated a Judge's order dismissing a Notice of Contest for failure to file an Answer when it was evident that Respondent wanted to defend and that it did not clearly understand the pleading requirements. The facts here are not dissimilar and should be construed strongly in Respondent's favor in view of his difficulties [*11] in obtaining representation. (Tr. 4, 6, 26). Complainant's Motion to Dismiss should accordingly be denied.

With respect to the merits of the case, the facts are that Respondent and an employee were replacing corrugated metal panels on a warehouse roof approximately 130 feet wide by 300 feet long. (Tr. 9-11). Interspersed among the metal areas at 12 foot intervals were approximately 60 openings about 3 or 4 feet wide by 4 or 5 feet long. (Ex. C-1 and C-2. Tr. 15, 35-36, 53-54). These openings were covered with sheets of translucent plastic bolted to the metal. The plastic formed part of the roof and had the same slope. (Tr. 15, 41). The surface of the plastic protruded a few inches above that of the metal. (Ex. C-1, C-2).

On September 21, 1973, Respondent's employee stepped through one of these plastic panels and fell to his death on the floor below. (Tr. 18). He had been warned of the hazards resulting from the manner in which the roof was constructed, and had performed construction work in the past. (Tr. 12-13, 22).

Respondent first maintains that the cited Regulation is inapplicable to the present facts because the plastic panels in the roof were not skylights as [*12] that term is used by persons in the roofing trade. (Ex. R-3, Tr. 37-40). At the same time, however, Webster's New World Dictionary, Second College Edition, defines the term as "a window in a roof or ceiling" and it would appear that the roof openings here meet this definition.

Respondent also defends on the grounds that there is no way for him to comply with the cited Regulation, and Complainant's witnesses are in at least partial agreement with him. The Compliance Officer who conducted the inspection considered that stanchions would not provide adequate protection. (Tr. 60). A Senior Compliance Office referred to a conversation with Respondent's owner after the accident and inspection as follows:

. . . one of the initial thoughts were somehow actually putting up guard rails around the openings. After some discussion, I felt that this could not be done. Then the thought of putting some type of a cover over the skylights could be used. And the concern there was that because of the pitch of the roof and the type of surface of the roof, that any cover put over the skylights could alide off. And then we further discussed methods of putting some type of abrasive aurface on the [*13] bottom of a covering to act against the skylight openings to prevent the covering from sliding off the roof. And I believe possibly we talked about lifelines or life belts. (Tr. 64)

Considering this testimony, this Judge must find that Complainant has not fulfilled the burden placed upon him by the Court of Appeals for the District of Columbia Circuit in National Realty and Construction Co., Inc. v. Occupational Safety and Health Review Commission, 489 F. 2d 1257 (1973). It was there held (p. 1268)

. . . the Secretary must be constrained to specify the particular steps a cited employer should have taken to avoid citation, and to demonstrate the feasibility and likely utility of those measures.

Mr. Layne's testimony and the rest of the record as well does not establish that Respondent was given the required information. Indeed, it cannot be ascertained whether there does exist a practicable method of overcoming the hazard here encountered or similar ones in comparable factual settings. Aside from the general nature of the comments concerning use of "some kind of abrasive surface" on covers over the openings, there is no reference to the number of such covers which would [*14] be required. (Would all 60 openings have to be covered before repair work on the roof could begin?) or to the hazards encountered while covering the openings. For these reasons the Citation of October 16, 1973, must be dismissed and the proposed penalty vacated. n1

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n1 Complainant cites Secretary v. Merit Construction Co., No. 4079 (January 25, 1974) in support of its position that the charges are substantiated by the evidence. This case is presently up for review by the Commission.

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FINDINGS OF FACT

1. On september 21, 1973, Respondent and an employee were employed at 1140 Lockwood Drive, Houston, Texas.

2. Their work at that time consisted of replacing worn and rusty metal plates in a sloping metal roof approximately 130' X 200', about 20 to 25 feet above ground. Interspersed with the metal sheets comprising the roof were 60 translucent plastic sheets about 4' X 4' in size. These plastic sheets would not bear the weight of a 175 pound man.

3. On September 25, 1973, an inspection of Respondent's [*15] workplace was conducted by a representative of Complainant.

4. Complainant and his representative did not, either at the time of such inspection or at a later date, specify the particular steps which Respondent should have taken to avoid hazards to his employees resulting from working on the roof described in Finding 2, above. Complainant further did not demonstrate to Respondent the feasibility and likely utility of such measures.

CONCLUSIONS OF LAW

1. Respondent, by failure to deny, is an "employer" and a person engaged in a business affecting interstate commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.

2. Respondent was not on September 25, 1973, in violation of Section 1910 of Title 29, Code of Regulations, comprising a Safety Standard promulgated by the Secretary of Labor pursuant to the Occupational Safety and Health Act of 1970.

3. No monetary penalty should be assessed against Respondent.

ORDER

Based on the foregoing findings of fact, conclusions of law, and the entire record, it is ORDERED that the Citation issued herein on October 16, 1973, be, and the same is DISMISSED. It is further ORDERED that the proposed [*16] penalty in the amount of $30 be vacated.

WILLIAM J. RISTEAU, JUDGE

Dated: June 10, 1974