VOEGELE COMPANY, INC.

OSHRC Docket No. 76-2199

Occupational Safety and Health Review Commission

September 7, 1979

[*1]

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

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall Harris, Reg. Sol., USDOL

Theodore Goldberg, for the employer

OPINION:

DECISION

BY THE COMMISSION:

The issue before us is whether respondent (Voegele) violated the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ["the Act"], by failing to comply with the standard published at 29 C.F.R. 1926.28(a). n1 Voegele was cited under the Act for failing to protect its employees working on a roof from the hazard of falling by requiring the use of personal protective equipment. Judge Henry K. Osterman concluded that Voegele violated the standard as alleged and assessed a $525 penalty for the serious violation. Commissioner Barnako, acting under 12(j) of the Act, 29 U.S.C. 661(i), granted Voegele's petition for discretionary review. n2 For the reasons given below, we affirm the judge's decision.

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n1 The standard provides:

1926.28 Personal protective equipment.

(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

n2 Due to a clearical error, copies of the Judge's decision that were circulated to the Commission members were stamped with a final order date of April 29, 1977, rather than April 28, 1977. Commissioner Barnako, relying on the stamped final order date and believing his direction for review to be within the thirty day review period under 12(j) of the Act, directed this case for review on a date that was actually thirty-one days after the Judge filed his decision with the Commission.

Fed. R. Civ. P. 60(a) provides, in pertinent part, that "[c]lerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative. . . ." This rule has been interpreted to cover "such things as misprisions, oversights and omissions, unintended acts or failures to act." 6A Moore's Federal Practice para. 60.06 [1] at 4054-55 (2d ed. 1974). See also American Trucking Ass'n v. Frisco Transportation Co., 358 U.S. 133 (1958); Pattiz v. Schwartz, 386 F.2d 300 (8th Cir. 1968).

In Monroe & Sons, Inc., 77 OSAHRC 14/B7, 4 BNA OSHC 2016, 1976-77 CCH OSHD para. 21, 470 (No. 6031, 1977), appeal docketed, No. 77-3157 (6th Cir., Mar. 16, 1977), the Commission concluded that the 30-day finality provision of 12(j) was not an impenetrable barrier to review by the Commission and did not preclude relief from a final order under Fed. R. Civ. P. 60(b). Rather, the Commission could exercise limited jurisdiction over final orders when justice so requires and the Federal Rules of Civil Procedure provide for such an exercise. For reasons similar to those expressed in Monroe, we conclude that we have jurisdiction to review the case here.

In this case, the stamping of the Judge's decision with an erroneous final order date was a clerical mistake falling under the purview of Rule 60(a). The subsequent late direction for review was a result of reliance on the stamped date. Further, there is no indication that any party would be prejudiced by Commission review. Application of Rule 60(a) is therefore appropriate. Accordingly, we find this case to be properly before the Commission on review.

[*2]

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At the time of the April 12, 1976 inspection, Voegele was installing a new roof on an old A & P building in Vandergrift, Pennsylvania.

The roof being installed was a composition roof, consisting of numerous layers of felt and paper with hot tar applied between the layers. The height of the building varied from 14 feet at the front of the building to 35 feet at the rear. The surface of ground at the front of the building was concrete sidewalk. Photographic evidence indicates that the ground surface near portions of the sides and rear of the building was asphalt or stone. At the rear of the building, the roofs of adjacent buildings limited the fall distance from some portions of the roof. There was, however, an area of 15-19 feet from the rear of the building where there were no adjacent buildings that would obstruct a fall to the ground.

The major portion of the roof was essentially flat, sloping 2-3 degrees downward from the center of the roof. In the front of the building, a parapet extended the width of the roof at the front edge. The height of the parapet was about 18-20 inches above the [*3] roof at the center and approximately 32-36 inches above the roof at the two ends. This variation in height was due to the slight slope of the roof for drainage. At the rear of the building, there was a similar parapet that rose about 8 inches above the roof at the center and 12-14 inches at the two ends.

On the two sides of the building, approximately 4 feet from each edge, the roof sloped sharply into gutters, dropping 3 feet at approximately a 45 degrees angle. The gutters were about 18 inches wide and 8 inches deep. There were parapets about 8-10 inches high and 12-18 inches wide on the edge of the roof outside of the gutters on these two sides of the building.

During the inspection, Compliance Officer Jervis went on the roof and observed two of Voegele's employees working about 4 1/2 feet from the edge. Jervis did not see any employees wearing safety belts or using any other form of fall protection. Voegele does not dispute the fact that on this job no safety belts or perimeter guarding of any kind was used.

Jervis opined that there was a fall hazard requiring protection when employees worked within 5 1/2-7 feet from the edge of the roof. He also stated that it was impossible [*4] to lay a flat roof without employees going to the edge of the roof.

Jervis testified that there were several safety belt systems that were feasible for the roof in question. One method is to slip anchortype angle iron brackets over the parapets and secure them to the wall by means of a wing nut. From these angle brackets, a static line could be strung the length of the roof. Such a static line would be further supported by poles at a height of about 42 inches above the roof. Another potential system involves the use of a maypole. This system would consist of a pole that would be mounted vertically on a flat roof. Lifelines would then be tied off to the maypole. The maypole would be ballasted to support the weight of the employees. Third, safety belts and lanyards could be secured to air conditioners on the roof. A fourth possible system could consist of an angle iron or post that would project through a hole in the roof and attach to an I-beam below. Jervis also testified that employees' lifelines could be connected to a retractable reel. This reel could be attached to a static line, which in turn could be attached to a maypole or an angle iron. The use of the retractable [*5] reel would ensure that the employees' lifelines were kept taut.

Jervis testified that he had seen several lifeline systems similar to those he proposed. Most of these systems were seen on roofs with greater pitch; however, Jervis testified that several years ago he saw a safety belt system that was used during the laying of a flat roof at a small school.

Roberts, a roofer with four years experience, testified that he and four other employees were working on the roof at issue. He stated that he worked "all over the roof," and that he replaced the gutters located on the two sides of the roof. He did not believe there was any hazard of falling on this job. Roberts testified that on this job two employees installed roofing materials along the gutter on the sides of the roof. One employee (the roll man) stood in the gutter and placed the roofing material, while the other employee (the mopper) stood above the sloped part of the roof and mopped tar over the material. When the mopper applied the tar, the roll man would step back about 10 feet to avoid the hot, splashing tar. The roll man would then step forward, taking about 15 seconds to move to where the tar had just been applied, [*6] and with the help of the mopper place down the roofing material. During this operation the roll man in the gutter would be almost on one knee against the parapet, with his body facing the slope and leaning away from the parapet.

Harangozo, responent's foreman, testified that he installed the flashings on the roof. When he nailed the flashings, he stood or kneeled in the gutter and he leaned toward the parapet. There was no hot tar in the vicinity when the flashings were being installed.

Although he admitted that a man standing in the gutter could possibly fall over the edge of the roof, Harangozo testified that he did not consider this to be a falling hazard since the roof was flat. He knew of no one falling off a roof with a parapet, such as the roof here, in his 15 years in the roofing business.

Much of the testimony was directed at whether the use of the lifelines and safety belts on this roof would pose a greater hazard to workers than the absence of fall protection. Jervis testified that whether lifelines would increase the risks of employees tripping and burning themselves on the hot tar depended upon how they were installed and the amount of movement by the workmen. [*7] Jervis did not believe that lifelines would cause spillage of tar since heavy buggies could be used rather than tar buckets. The lifeline system would not result in a hazard of splashing tar if the static line were rigged above the mopper so that he could reach to his right or left with his mop to get tar out of the buggy. Jervis admitted that employees working in the gutter below the sharply sloping part of the roof might occasionally have their lanyards touch the hot tar; however, with a little planning by the foreman, the lanyards could be installed above the employees so that the lanyards would not lie in the tar or drag back and forth. Jervis testified that employees need not be exposed to a fall hazard when installing a lifeline system, because they could tie off to the air conditioning units, which were 18-20 feet from the edge. Jervis also stated that the mopper and roll man could position themselves while they worked so that generally their lifelines would not tangle. Although the lines might become entangled as the employees moved back from the edge, the employees would not be impaired in their movement or tripped. These two employees, according to Jervis, were the [*8] only ones that would have to be tied off, since the employee who fills the tar bucket or buggy need not come closer than 8-9 feet from the edge of the roof. Mops with 8-foot handles were used on the job; thus, a tar bucket placed 8-9 feet from the edge would be within reach of the mopper.

Roberts and Harangozo both testified that the use of safety belts posed greater hazards to workers than the absence of fall protection. They testified that the movement of the roll man could upset the tar bucket, the slack of the lifeline would drag through the roof material and stick to the tar, the mop handle would hit the static line and cause tar to splash, and the lifelines of the workers would entangle causing employees to trip and get burned. On cross-examination, however, both Roberts and Harangozo admitted that if a lifeline system were attached high enough with tension on it, it would not drag in the tar. The parties stipulated that four additional Voegele employees would offer the same testimony as Harangozo with respect to the hazards that would be created by the use of safety lines.

Judge Osterman found that one or more of the lifeline systems described by the Secretary's compliance [*9] officer could have been employed by Voegele with minimal interference to the work being performed and without creating an additional hazard either from hot tar or from tripping. He also found that the configuration of this particular roof increased the hazard of falling over the edge far beyond the hazard which normally exists on a "flat roof", since the sharply sloping sides of the roof presented a hazard similar to that which exists for unprotected employees who work on a peaked roof. The judge concluded that the danger of falling off the roof far exceeds the potential danger of tripping or being burned by hot tar.

On review, Voegele contends that it has not violated the standard at 1926.28(a), since a "reasonable employer in the industry" would not use lifelines. It argues, citing Croom Construction Company, 77 OSAHRC 33/A2, 5 BNA OSHC 1145, 1977-78 CCH OSHD para. 21,628 (No. 12686, 1977), that it was not given any advance guidance or warning that workers on flat roofs must wear personal protective equipment and hence the standard is unenforceable in this case. In respondent's view, the evidence establishing that safety belts and lifelines are not used in the [*10] roofing industry on roofs of the type Voegele was installing negates a conclusion that a reasonable person would have recognized a hazard under the facts present in this case.

We have recently decided that the question of whether there is a hazard requiring the use of personal protective equipment within the meaning of 1926.28(a) should be determined by application of a reasonable person test. S & H Riggers & Erectors, Inc., 79 OSAHRC    , 7 BNA OSHC 1260, 1979 CCH OSHD para. 23,480 (No. 15855, 1979), pet. for review docketed, No. 79-2358 (5th Cir., June 7, 1979). We stated, however, that while industry custom and practice are relevant under that test, those factors are not conclusive. The ultimate inquiry is "whether a reasonable person familiar with the factual circumstances surrounding the allegedly hazardous condition, including any facts unique to a particular industry, would recognize a hazard warranting the use of personal protective equipment." Id., 7 BNA OSHC 1263, 1979 CCH OSHD 28,436 (footnote and citation omitted). We rejected a test based solely on industry custom and practice because we concluded that an industry's [*11] failure to deal adequately with preventable hazards should not excuse an individual employer's failure to provide the protection required by a specific standard. We do not read Croom Construction Company, supra, as holding that industry practices or customs are solely determative of whether a hazardous condition existed within the meaning of 1926.28(a). To the extent that Croom may be so read, it no longer represents the view of the Commission. See S & H Riggers, supra. With respect to respondent's argument that it was not given sufficient guidance as to the required conduct, we conclude that 29 C.F.R. 1926.28(a), as applied with the "reasonable person" test discussed above, provides sufficient notice to respondent of fall protection requirements here. See s & H Riggers, supra.

Applying the reasonable person test to the facts of this case, we conclude that a hazard existed that warranted the use of personal protective equipment. The employees here worked at the very edge of the roof and were obviously exposed to the hazard of falling. See S & H Riggers, supra. The parapets, which [*12] were only 8-10 inches high on the two sides of the roof, were insufficient to protect employees from falling, especially when it is considered that work was being performed while employees stood with their feet against the parapet. Further, we agree with Judge Osterman that the configuration of this particular roof increased the hazard of falling beyond the hazard that normally exists on a flat roof. Even though there was no evidence that employment climbed up or down the steep slope on two sides of the roof, the fact that the employees had to stand in the 18-inch wide gutter between the parapet and the steep slope increased the hazard of falling. Finally, the act of the foreman, standing or kneeling in the gutter and leaning over the parapet while installing the flashings, was extremely hazardous. Fall protection is particularly necessary in the case of such operations.

In its petition for review Voegele reiterates the greater hazard defense it had asserted before Judge Osterman. In order to establish a greater hazard defense, an employer must show that the hazards of compliance are greater than those of noncompliance, that alternative means of protection were used or were [*13] unavailable, and that an application for a variance would have been inappropriate. Hughes Brothers, Inc., 78 OSAHRC 65/A2, 6 BNA OSHC 1830, 1978 CCH OSHD para. 22,909 (No. 12523, 1978).

We agree with Judge Osterman that Voegele has not established this defense. Testimony by Voegele's employees that a lifeline system might create tripping and burning hazards was chiefly addressed to systems in which the lifelines might drag in the hot tar on the roof. As testimony by the compliance officer indicated, however, a lifeline system that was rigged above the employees and that employed a taut line hitch or retractable reel would eliminate the problem of dragging lifelines. Thus, it appears that most of the hazards foreseen by Voegele need not arise if the lifelines are properly rigged.

The Judge's decision is affirmed. SO ORDERED.

CONCURBY: BARNAKO

CONCUR:

BARNAKO, Commissioner, Concurring:

I agree with the majority that Voegele violated 29 C.F.R. 1926.28(a). However, my rationale for concluding that Voegele violated 29 C.F.R. 1926.28(a) differs from that of my colleagues.

In S & H Riggers and Erectors, Inc., 79 OSAHRC    , 7 BNA OSHC 1260, 1979 CCH OSHD P 23,480 (No. 15855, 1979) [*14] (concurring opinion), I stated that I would affirm a citation for violation of 29 C.F.R. 1926.28(a) only if the following conditions were met: 1) evidence of record establishes Respondent's employees were exposed to a hazard which a reasonable person familiar with the industry would recognize as requiring the use of personal protective equipment, 2) the Secretary establishes a feasible means of protecting against the cited hazard and 3) reference to other standards in Part 1926 indicates the need for using the personal protective equipment which the Secretary asserts Respondent's employees should have used.

Voegele was cited for a violation of 29 C.F.R. 1926.28(a) because its employees were not wearing safety belts while installing a roof. With respect to the first criteria set forth above, my colleagues aptly note the evidence establishing that Voegele's employees were exposed to a fall hazard and that a reasonable person familiar with the industry would recognize a hazard requiring the use of personal protective equipment.

With respect to the second criteria noted above, the compliance officer testified that Voegele could have utilized several safety belt systems and explained [*15] how those systems could have been rigged. Respondent argues, however, that the use of safety belts would create an increased hazard caused by the spilling of hot tar due to tripping and entanglement in safety lines. Respondent introduced evidence that employees could get burned when their safety lines come into contact with the hot tar and that the safety lines would drag upon the hot tar, thereby adversely affecting the quality of the work.

The majority concludes that such evidence is relevant to a greater hazards defense and that Voegele has not established this defense. I disagree that the evidence is relevant to a greater hazards defense. In S & H Riggers and Erectors, Inc., I stated that I would consider any separate hazards arising from the use of the personal protective equipment recommended by the Secretary as relating to the question of feasibility rather than bearing on a separate defense. I would not, however, require the Secretary to anticipate all possible problems that personal protective equipment might create and to negate such problems in establishing his prima facie case. Rather once the Secretary has shown that personal protective equipment can be used [*16] and that its use would provide protection against the cited hazard, the burden then shifts to the employer to show that the use of such equipment will cause consequences so adverse as to render its use infeasible. n1

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n1 Since I would consider evidence relevant to the creation of separate hazards as bearing on the feasibility issue, I would not require Respondent to prove that alternative means of protection were used or were unavailable, and that an application for a variance would have been inappropriate.

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In the instant case, the compliance officer testified that the methods he recommended for the rigging of safety belts would not result in the hazards and difficulties to which Respondent's witnesses had referred. Indeed as the majority notes, a lifeline system that was rigged above the employees and that utilized a taut line or retractable reel would eliminate most of the problems to which Voegele's employees referred. I therefore conclude that the Secretary has established a feasible means of protecting against [*17] the cited hazard.

Finally, as I stated in S & H Riggers and Erectors, Inc., 29 C.F.R. 1926.104 places employers on notice that lifelines, lanyards, and safety belts are an appropriate means of protecting against fall hazards and therefore satisfies the third criteria set forth above. Accordingly, since the criteria I set forth in S & H Riggers and Erectors, Inc. have been satisfied, I would affirm the citation for violation of 29 C.F.R. 1926.28(a).