HEYSE SHEET METAL AND ROOFING COMPANY, INC.
OSHRC Docket No. 681
Occupational Safety and Health Review Commission
October 24, 1973
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: VAN NAMEE
VAN NAMEE, COMMISSIONER: This matter arose out of a citation issued by Complainant for alleged violations of the standards prescribed by 29 CFR 1926.450(a) and 1926.500(d)(1) and of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). The citation was issued as the result of an inspection of Respondent's workplace located at 4th Street and El Paso Street, Colorado Springs, Colorado.
The relevant facts are not in dispute. Respondent was engaged at said location in installing a roof on a building. The roof was located approximately thirty feet above ground, and it was virtually flat. The outside perimeter of the roof was not protected by railings, and four employees were affected by this condition.
Respondent duly contested, and the matter went to trial before Judge Alan M. Wienman. Thereafter, Judge Wienman issued his decision whereby he affirmed the alleged violation of 29 CFR 1926.450(a) and assessed a civil penalty of $500 therefor. n1 The allegation that Respondent had violated 29 CFR 1926.500(d)(1) n2 was vacated. Judge Wienman's reason for vacation was that the application of the cited standard to all roofs would be so inconsistent with 29 CFR 1926.451(u)(3) n3 as to negate any reason for the latter's existence. Judge Wienman also relied upon Judge John J. Larkin's decision in Secretary of Labor v. Diamond Roofing Company, Inc.,
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n1 We concur in Judge Wienman's disposition of this allegation.
n2 29 C.F.R. 1926.500(d)(1) provides:
Guarding of open-sided floors, platforms, and runways. (1) 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.
n3 29 C.F.R. 1926.451(u)(3) provides:
A catch platform shall be installed below the working area of roofs more than 16 feet from the ground to eaves with a slope greater than 4 inches in 12 inches without a parapet. In width, the platform shall extend 2 feet beyond the protection 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.
n4 The case was consolidated with Secretary of Labor v. S.D. Mullins Company, Inc.,
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Thereafter, I directed review of the Judge's decision. We have reviewed the record including the Judge's decision and the briefs filed by the parties. The decision of the Judge is affirmed only to the extent that it is consistent with the following.
In Secretary of Labor v. Diamond Roofing Company, Inc., supra, we determined that the term "floor" appearing in 29 CFR 1926.500(d)(1) includes the flat roof of a building or structure that is under construction, alteration, or repair. As we said, when employees walk, travel, or work on a flat roof, it is a floor to such employees. On the facts of this case, the decision in Diamond Roofing is controlling.
This case differs, however, from Diamond Roofing in the aspect that the Judge saw what appeared to him to be a conflict between the cited standard and the standard prescribed by subparagraph 451(u)(3) if both are applied to roofs. It is our view that these standards can be harmonized to effectuate the purposes of the Act.
To this end we note that the provisions of subsection 500(d) deal with what are essentially flat-horizontal surfaces whereas the provisions of subsection 451(u) deal with sloped surfaces. Thus, paragraph 451(u)(3) requires the use of catch platforms only if the slope of a roof exceeds 4 in 12 inches. n5 Similarly, paragraph 451(u)(1) required n6 that roofing brackets be constructed ". . . to fit the pitch of the roof." Subsection 500(d), on the other hand, is entitled " Guarding of opensided floors, platforms, and runways" and therefore is concerned with horizontal surfaces.
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n5 At the time of trial the standard required the installation of catch platforms when the slope was in excess of 3 inches in 12.
n6 This paragraph was declared unenforceably vague by the majority decision in Secretary of Labor v. Tilo Company, Inc.,
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Obviously, both subsections prescribe means for protecting employees from falls. Just as obviously, they treat different conditions which give rise to the hazard. In view of the language used in the different subsections and for the reason that the conditions differ we believe both provisions were intended to afford employees with protection against falls from roofs. Accordingly, we reaffirm our decision in Secretary of Labor v. Diamond Roofing Company, Inc., supra, and find this Respondent in violation of 29 CFR 1926.500(d)(1). We have reviewed the facts of this case and find that Complainant's proposed penalty was determined in accordance with the criteria prescribed by section 17(j) of the Act.
It is therefore ORDERED that: the Judge's order insofar as it vacates the citation for violation of 29 CFR 1926.500(d) be and the same is hereby set aside; the citation be and the same is hereby affirmed, Respondent be and is hereby assessed a civil penalty in the amount of $125 for said violation; and that the remainder of the Judge's decision and order be and the same is hereby affirmed in all respects.
MORAN, CHAIRMAN, dissenting: I dissent to the Commission's ruling in this case. I would affirm the decision of the Judge both for the reasons given therein and those set forth in my dissenting opinion in the case of Secretary v. S.D. Mullins, Inc. et al.,
[The Judge's decision referred to herein follows]
WIENMAN, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 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 the inspection of the workplace under the ownership, operation or control of the Respondent, located at El Paso and 4th Streets, Colorado Springs, Colorado, the Respondent has 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 March 9, 1972, alleges that a serious violation of the Act resulted from a failure to comply with a standard promulgated by the Secretary and formerly codified in 29 CFR 1518.450(a) and a non-serious violation resulted from a failure to comply with a standard formerly codified in 29 CFR 1518.500(c).
The description of the alleged serious violation contained on said Citation states:
Employees were not using a ladder to gain access to their working area on a 30 foot high roof at El Paso and 4th Streets, Colorado Springs, Colorado, in that they were using a material hoist frame as a ladder.
The standard codified in 29 CFR 1518.450(a) provides:
Except where either permanent or temporary stairways or suitable ramps or runways are provided, ladders . . . shall be used to give safe access to all elevations. . . .
(4) Manufactured portable metal ladders provided by the employer shall be in accordance with the provisions of the American National Standards Institute, A 14.2-1956, Safety Code for Portable Metal Ladders.
The description of the alleged non-serious violation contained on said violation states:
A standard railing or equivalent was not provided on open sides of 30-foot high roof on which four employee roofers were working at 4th and El Paso Streets, Colorado Springs, Colorado.
29 CFR 1518.500(c) provides as follows:
(d) Guarding of open-sided floors, platforms and runways.
(1) Every open-sided floor or platform six feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent . . . 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.
Pursuant to the enforcement procedures set forth in Section 10(a) of the Act, the Respondent was notified by letter dated March 9, 1972, from J. J. Williams, Area Director of the Occupational Safety and Health Administration, U.S. Department of Labor, that he proposed to assess a penalty for the alleged serious violation in the amount of $500 and a penalty for the alleged non-serious violation in the sum of $125.
After Respondent contested this enforcement action, and the Complaint and Answer had been filed by the parties, the case came on for hearing at Colorado Springs, Colorado, on July 31, and August 1, 1972.
The primary issues for resolution are whether the Respondent violated the safety standards as alleged in the Citation, and, if so, what penalty or penalties are appropriate. In addition, Respondent has also raised by motion issues relative to the constitutionality of the Act and certain enforcement procedures employed by the Complainant.
A challenge to the constitutionality of the Act was raised by Respondent is a motion for judgment on the pleadings. On August 17, 1972, the undersigned Judge denied the motion on the ground that the Commission did not have jurisdiction to pass on the constitutionality of the statute from which it derives its authority. The Respondent is entitled to have the constitutional questions determined by a court, but this decision and order is limited to matters within the jurisdiction of the Commission.
Prior to the hearing, the Respondent also moved for summary judgment under Rule 56 of the Federal Rules of Civil Procedure on the ground that Complainant had failed to provide a representative of the employer and a representative authorized by his employees an opportunity to accompany the Secretary or his authorized representative during the physical inspection of the workplace as directed by Section 8(e) of the Act. Both parties filed affidavits, and the motion was denied on the ground that a substantial factual controversy existed relative to the matter. At the hearing the parties presented testimony concerning walkaround privileges, and the Section 8(e) issues are now ripe for resolution.
SUMMARY OF THE EVIDENCE AND DISCUSSION
SECTION 8(e) -- WALKAROUND PRIVILEGES
The testimony developed certain undisputed facts relative to the inspection of the construction site at 4th Street and El Paso Street, Colorado Springs, Colorado, conducted by OSHA Compliance Officer Harry C. Hutton, February 17, 1972. Mr. Hutton was accompanied by a representative of the general contractor; by Earl Strutton, a roofer-foreman employed by Respondent; and by Bob Pearson of Carpenters Local 515. Mr. Pearson had no relationship to Respondent's employees (T. 50). No other employee representative accompanied Mr. Hutton, although he testified he talked to some of Respondent's employees on the roof of the building (T. 51).
Harold Heyse, Respondent's President, identified Earl Strutton as a roofer who served as a foreman at times when three or more people were on a job and union regulations required a foreman (T. 83). Mr. Strutton was the individual highest in Respondent's chain of command present at the job site on February 17, 1972 (T. 93).
Earl Strutton testified he had been employed by the Respondent for 16 years as a roofer and also served as crew foreman. He recalled that Mr. Hutton climbed on the roof and was told by a workman that Strutton was "the man in charge." He and Hutton "kind of introduced ourselves and talked a little while." At the conclusion of their talk Strutton asked the compliance officer "how we stood according to the rules and regulations. And he said we should have a different ladder to get up on the roof" (T. 106, 107).
Respondent contends that:
(1) Mr. Strutton was not an employer representative within the meaning of Section 8(e) and that
(2) In any event, he was not given an opportunity to accompany the compliance officer during the latter's inspection of the worksite.
We cannot agree with either point. That Mr. Strutton (1) was a union member paid an hourly wage and (2) was not a member of management in the sense that he could change policy, are facts which would normally identify him as one who is not a representative of the employer. But despite these indicia of employee status, he occupied a special role on the day of the inspection -- he was "the man in charge," the individual highest in Respondent's command chain at the site. This status was the result of special designation by the employer, and Strutton affirmed his role as an employer's representative by participating in conversation with the compliance officer and inquiring how we (emphasis added) stood according to the rules and regulations.
The conversation occurred on the roof of the construction site, the work area with which Respondent was concerned, and there is no testimony relative to any other inspection concerning Respondent conducted in Strutton's absence.
The requirements of Section 8(e) with respect to opportunity for an employer's representative to accompany the Secretary's representative during an inspection are satisfied. Respondent also urges, however, that there has been a failure on the part of the Complainant to comply with certain paragraphs (relative to inspections) of its Compliance Operations Manual, a publication designed to provide guidelines for Department of Labor personnel implementing the Act. It is noted that this publication does not have a force of the statute, but is directional only. The foreword states that "instructions and procedures contained within this manual shall be followed to the degree necessary to assure effective and uniform implementation of the Act."
A procedure grossly departing from the Department of Labor guidelines would be suspect, but a review of the compliance officer's conduct of the inspection reveals little basis for Respondent's complaints relative to the inspection. It was afforded an opportunity to participate consonant with the circumstances.
Not afforded an opportunity to accompany the compliance officer during the inspection were any Heyse employees or their representative. Mr. Hutton did testify, however, that he consulted with employees of the Respondent, an alternate procedure set forth in Section 8(e). In any event, the Respondent has no standing to raise the issue for he does not represent the employees. It would be an ironic interpretation of the Act to countenance violations of standards designed to further employee's safety on the theory that the employees were not given an adequate opportunity to participate in inspections and point out unsafe practices. Such a theory is unacceptable.
THE "LADDER" ISSUE
The Citation for serious violation charged Respondent with violating 29 CFR 1518.450(a) which requires the use of ladders to give safe access to all elevations except where stairways or suitable ramps or runways are provided.
There is no factual dispute relative to this issue.
The elevation herein was the roof area 30 feet above the ground. On the day of the inspection no stairways, ramps or runways were provided to reach the roof, and the Respondent's workmen were obtaining this height by climbing a material hoist. The hoist, in place at the worksite, is portrayed in photographic exhibits G-3, G-4, R-a, R-b, and R-c. Evident from the photographs are the pulleys, ropes, widely-spaced cross supports and the "bucket" or "hopper" employed to transport materials.
Respondent not only contends that the hoist satisfies the definition of "ladder" as set forth in the regulations, but further suggests that the device is safer to climb than an ordinary 30-foot extension ladder because it is more stable. The argument is ingenious, but not persuasive.
The device fails as a ladder for several reasons. First and foremost is the 29 CFR 1518.450(a)(4) requirement that manufactured portable metal ladders conform to American National Standards Institute, A 14.2-1956, Safety Code for Portable Metal Ladders. Established therein is a 12-inch rung spacing. The cross supports on Respondent's material hoist were 36 inches apart, providing an evident challenge to a climber's agility.
In addition, 29 CFR 1518.450(a)(6) states: "Portable ladder feet shall be placed on a substantial base and the area around the top and bottom of the ladder shall be kept clear." The compliance officer testified that an employee would be required to climb over the material bucket at either the top or the base of the hoist (Transcript, page 35).
The compliance officer also testified as to the serious nature of this violation, i.e., that the hazard was the danger of a fall from a height up to 30 feet, and he had investigated a fall from a lesser height which resulted in a death. The evidence is persuasive that use of the material hoist in lieu of a proper portable ladder created a substantial probability of death or serious physical harm, and that the employer had positive knowlege of the practice (Transcript, pages 86, 87).
Exhibit G-6 indicates the manner in which Complainant computed the proposed penalty. Respondent was given credit for good faith, size, and history in reducing an unadjusted penalty from $1,000 to $500. The penalty appears appropriate under the circumstances and should be affirmed.
THE "RAILING" ISSUE
The Citation for non-serious violation charged Respondent with violating 29 CFR 1518.500(d) by failing to provide a standard railing or equivalent on the open side of a 30-foot high roof. Respondent, however, contends that 1518.500(d) is not applicable to roofs, and marshals a number of cogent points in support of this position:
First, 1518.500(d)(1) is codified under "Subpart M" which does not apply to roofs. Its title refers to "Floor and Wall Openings and Stairways."
Second, 1518.500(a) limits the application of Subpart M to the danger of "falling through" a structure, not to "falling off" as in the instant fact situation.
Third, 1518.500(d)(1) refers only to open-sided floors and platforms and does not refer to roofs.
And fourth, 1518.451(u)(3) prescribes requirements for perimeter scaffolding for roofs, and requires protection only for ". . . roofs more than ten feet from the ground to eaves with a slope greater than three inches in 12 feet without a parapet. . . ."
The final argument is most persuasive, since application of 1518.500(d)(1) to all roofs would be so inconsistent with 1518.451(u)(3) as to negate any reason for its existence.
This precise issue was recently decided by Judge John J. Larkin in the case of Hodgson v. Diamond Roofing Company, Inc., Judge Larkin concluded that 29 CFR 1518.500(d)(1) was not applicable to roof perimeters, and we agree.
FINDINGS OF FACT
(1) Heyse Sheet Metal and Roofing Co., Inc., Respondent, is a corporation with its place of business located at 802 South Wasatch Avenue, Colorado Springs, Colorado, where it is engaged in the business of roofing contractor.
(2) The Respondent on February 17, 1972, employed approximately four employees at El Paso and Fourth Streets, Colorado Springs, Colorado, where it was engaged in fulfilling a roofing contract.
(3) On January 17, 1972, Respondent's employees were not using a ladder to gain access to the working area on a 30-foot high roof at El Paso and Fourth Streets, Colorado Springs, Colorado, but were using a material hoist frame as a substitute for a ladder, in violation of a safety standard formerly codified as 29 CFR 1518.450(a).
(4) Violation of 29 CFR 1518.450(a) created a substantial probability that death or serious physical harm could result from said violation, and the Respondent knew, or with the exercise of reasonable diligence, should have known of the presence of the aforesaid violation.
(5) The evidence failed to prove any violation of Safety Regulation 29 CFR 1518.500(d), and Respondent was not in violation of this Standard for failure to provide a safety railing around the perimeter of a flat roof.
CONCLUSIONS OF LAW
(1) While Respondent was engaged in the construction of a roof on a building at El Paso and Fourth Streets, Colorado Springs, Colorado, it was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970, hereinafter referred to as the Act. The Occupational Safety and Health Review Commission has jurisdiction of the parties and the subjet matter herein pursuant to Section 10(c) of the Act.
(2) Section 5(a)(2) of the Act (29 U.S.C. 654(a)(2)) imposed a duty on Respondent to comply with the safety and health regulations for construction promulgated by the Secretary of Labor pursuant to Section 6(a)(2) of the Act and published in 29 CFR 1926 et seq.
(3) Respondent violated Section 5(a)(2) of the Act on February 17, 1972, by its non-compliance with Occupational Safety and Health Regulation 29 CFR 1518.450(a), now codified as 1926.450(a). This violation was serious in that there was substantial probability that death or serious physical harm could result from the condition. Under the circumstances, a proposed penalty of $500 for said serious violation is reasonable and appropriate giving due consideration of the size of the business of the employer, the gravity of the violation, the good faith of the employer and the employer's previous safety history.
(4) Occupational Safety and Health Regulation 29 CFR 1518.500(d)(1), now codified as 1926.500(d)(1), does not apply to roof perimeters and Respondent was not in violation of this Standard for its failure to provide a safety railing on the roof at El Paso and Fourth Streets, Colorado Springs, Colorado, on February 17, 1972.
Based on the above findings of fact and conclusions of law, it is ORDERED that:
(1) A Citation for serious violation issued Respondent on March 9, 1972, alleging a violation of 29 CFR 1518.450(a), now codified as 29 CFR 1926.450(a) and a proposed penalty of $500 assessed thereon is hereby confirmed.
(2) A Citation for non-serious violation issued Respondent on March 9, 1972, for an alleged violation of 29 CFR 1518.500(d), now codified as 29 CFR 1926.500(d) and the proposed penalty assessed thereon is hereby vacated.