MARTIN-TOMLINSON ROOFING COMPANY, INC.  

OSHRC Docket No. 76-2339

Occupational Safety and Health Review Commission

January 18, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Jim McCray, Martin-Tomlinson Roofing Co., Inc., for the employer

Jim Hodges, Safety Director, Associated General Contractors, of America, for the employer

OPINION:

DECISION

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678, hereinafter "the Act." The case is before the Review Commission pursuant to a direction for review by Chairman Cleary issued under section 12(j) of the Act, 29 U.S.C. §   661(i).   In this matter, the Secretary alleges that Martin-Tomlinson Roofing Company, Inc. (Martin-Tomlinson), respondent, violated the Act by failing to comply with the standard at 29 C.F.R. §   1926.28(a) n1 in that it did not require its employees working on a flat roof to use safety belts tied to a lifeline for fall protection. n2 Administrative Law Judge Henry F. Martin, Jr. concluded that the use of safety belts and lifelines was not feasible because using such devices would have subjected Martin-Tomlinson's employees to an increased hazard of severe burn injuries.   The judge therefore vacated [*2]   the citation.   We reverse the judge's decision and find that Martin-Tomlinson committed a serious violation of the Act as alleged.   We assess a penalty of $500.

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n1 This standard provides:

§   1926.28 Personal protective equipment

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(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.

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Ten of Martin-Tomlinson's employees were installing the roof of a new supermarket in Mount Pleasant, Texas, when an OSHA compliance officer inspected the worksite.   The roof [*3]   was approximately 20 feet above the ground, measured 180 feet long by 150 feet wide, and was essentially flat, with a slight slope from front to back for drainage.   Parapets ran along the front and the two sides of the roof. Those along the sides ranged from about two feet high in the back to one foot high in front. The parapet in front was approximately one foot high.   The compliance officer observed four of Martin-Tomlinson's employees working as close as one foot to the back edge of the roof, with no means employed to prevent them from falling to the ground below.   The compliance officer and witnesses for Martin-Tomlinson agreed that it was customary in the roofing industry not to use safety belts for fall protection on a flat roof like that in this case.

There is considerable testimony in the record concerning means by which a lifeline could be rigged, and problems that safety belts tied to such a lifeline might create.   Before discussing this testimony, however, it is useful to review the legal principles governing this case, so that the evidence can be discussed in the proper context.

In S & H Riggers and Erectors, Inc., 79 OSAHRC    , 7 BNA OSHC 1260, 1979 CCH OSHD   [*4]   P23,480 (No. 15855, 1979), appeal filed, No. 79-2358 (5th Cir., June 7, 1979), the Commission announced a comprehensive majority interpretation of section 1926.28(a).   We said that, in order to prove a prima facie violation of the standard, the Secretary must (1) establish employee exposure to a hazardous condition requiring the use of personal protective equipment and (2) identify the appropriate form of personal protective equipment to eliminate the hazard. We also stated that the crucial question in determining whether a hazardous condition exists within the meaning of section 1926.28(a) 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." 7 BNA OSHC at 1263, 1979 CCH OSHD at p. 28,436. We specifically rejected the suggestion that the Secretary must prove the feasible use of the protective equipment he identified. n3

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n3 The judge's disposition is largely predicated on his finding that the Secretary failed to prove that safety belts and lifelines could feasibly be used.   Although we hold that this interpretation of the standard is improper, we note that the judge acted in accordance with the applicable Commission precedent at the time he issued his decision, for at that time the Commission did place the burden of proving feasibility on the Secretary.   The decision imposing that burden, Frank Briscoe, Co., 76 OSAHRC 129/A2, 4 BNA OSHC 1729, 1976-77 CCH OSHD P21,162 (No. 7792, 1976), was overruled in S & H Riggers and Erectors, supra.

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Applying these principles here, we conclude the Secretary established a prima facie case that Martin-Tomlinson failed to comply with the standard at section 1926.28(a).   In Voegele, J.W. Conway, and Hurlock Roofing n4, we determined that a reasonable person would recognize that employees working at the perimeter of a flat roof without any fall protection are exposed to a hazard. On that point, this case is indistinguishable.   Furthermore, the Secretary's citation identified safety belts tied to a lifeline as a type of personal protective equipment that could be used to abate the hazard. The Secretary thus satisfied both elements of his burden of proof, and Martin-Tomlinson can avoid liability only by establishing an affirmative defense.

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n4 See note 2, supra.

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Martin-Tomlinson advances several reasons why it believes safety belts could not reasonably have been used.   It basically contends that a lifeline with sufficient [*6]   strength could not have been rigged, and that tied-off safety belts would create tripping hazards to its employees and thereby subject them to the danger of severe burn injuries from hot asphalt used in installing the roof. These arguments raise two defenses that the Commission recognizes: the impossibility of compliance defense and the greater hazard defense.   S & H Riggers and Erectors, supra.

IMPOSSIBILITY OF COMPLIANCE

Martin-Tomlinson's employees surfaced the roof by applying layers of insulation, hot asphalt, felt, and gravel.   After a layer of insulation was put down, one employee, called the mopper, would spread a strip of hot (450 degrees -500 degrees) asphalt along the back edge of the roof. Another employee would follow close behind with a roll of felt, laying the felt over the asphalt. When one strip was completed, the mopper would move back in the direction from which he came, applying another layer of asphalt partially overlapping the strip of felt that was just laid.   Again, the employee laying the felt would follow behind, laying another strip of felt.   This process would continue until the employees had worked their way to the front of the roof and [*7]   the entire roof was covered with felt.   During this time, other employees would bring supplies, including hot asphalt, from the front of the roof to the location at which the employees were laying felt.   At the same time, other employees were engaged in "stripping in" air vents, a hatch, and a skylight.   When the roof was entirely covered with felt, it was then coated with a layer of asphalt and gravel.

The compliance officer who conducted the inspection, Mistrot, suggested that the employees he observed working near the back edge of the roof could have tied off safety belts to a lifeline rigged between the two side parapets. n5 He suggested attaching the lifeline to the parapets so that the lifeline was several feet away from and parallel to the back edge. The employees could then use six-foot lanyards with sliding hooks connected to the lifeline so as to be able to move along the edge without being encumbered.   The lifeline should be placed at a distance from the edge that would permit the employees to get sufficiently close to the edge to perform their work, but not so close as to permit them to step off the roof.

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n5 All of the evidence concerning how employees could have tied off, and the difficulties this might create, related only to the back edge of the roof. Our discussion will therefore be limited to that aspect of the work.   We do not imply, however, that employees would not have to be protected when exposed to a fall hazard at other locations on the roof.

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One of the side parapets was made of precast concrete and the other was a material variously referred to as cinder block, hadite block, and hollow tile.   Martin-Tomlinson's president, Martin, and vice-president, McCray, both testified that the cinder block parapet could not support the force of a taut lifeline such as Mistrot proposed, let alone the 5400 pounds that the standard at 29 C.F.R. §   1926.104(b) n6 requires a lifeline to support.

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n6 This standard provides:

§   1926.104 Safety belts, lifelines, and lanyards

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(b) Lifelines shall be secured above the point of operation to an anchorage or structural member capable of supporting a minimum dead weight of 5400 pounds.

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Another compliance officer, Scott, suggested that a lifeline could be connected to clamps attached to each parapet. He testified that it was not necessary for such a lifeline to be able to support 5400 pounds. He explained that the 5400 pound requirement of section 1926.104 was to enable a lifeline to support the weight of a falling person with an adequate safety factor.   He did not believe the lifeline rigged as he suggested would support the weight of a person falling, but thought that this was not important, as the line's purpose was to restrain a person from being able to step off the edge, and it would be strong enough to serve this objective.   Scott also testified that additional strength could be gained by running the lifeline over a support on the block and anchoring it to the ground by means of an auger type anchor instead of clamping the line support directly to the cinder block parapet.

In order to establish, in general, the affirmative defense of impossibility, the employer must show that (1) compliance with the requirements of the cited standard either (a) would be functionally impossible,   [*10]   or (b) would preclude performance of the 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).   We conclude that Martin-Tomlinson did not prove either that it would have been impossible for its employees to tie off safety belts to a lifeline rigged as Mistrot and Scott proposed or that the use of safety belts would preclude performance of the required work.   Although such a lifeline may not have been able to support 5400 pounds, and thereby comply with section 1926.104, the testimony of the compliance officers establishes that it would have provided adequate protection to the employees by restraining them from being able to step off the edge of the roof. Indeed, Martin-Tomlinson's witnesses did not contend otherwise, but stated only that the lifeline would not support 5400 pounds. That does not prove that compliance is impossible, for we have held that the fact a lifeline cannot support 5400 pounds does not establish a defense to a violation of section 1926.28(a).   J.W. Conway, Inc., supra. Even if an employer cannot comply fully with all   [*11]   standards, it must still provide such protection as is possible.   Hurlock Roofing Co., supra. Thus, Martin-Tomlinson's impossibility defense must fail.

GREATER HAZARD

An employer's burden of proof under this defense is threefold: it must show that compliance with a standard would create a greater hazard than noncompliance, that alternative means of protection were unavailable or were in use, and that an application for a variance would be inappropriate.   S & H Riggers and Erectors, supra.

Since Martin-Tomlinson began to do roofing work in 1964, its employees have suffered 58 burn injuries due to hot asphalt, and two employees have fallen from roofs. Martin testified that hot asphalt causes particularly severe burns that easily become infected.   Some employees who had been burned were hospitalized for one to two weeks.   There is no evidence of the injuries resulting from the two falls Martin-Tomlinson employees had suffered. n7 Mistrot, however, testified that a fall from the roof involved here would likely have resulted in death or serious injury, and there was no contrary testimony.

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n7 In his brief on review, the Secretary states that one employee "apparently" fell to his death.   Martin-Tomlinson responds that neither employee was killed.   The record does not support either assertion.

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Three witnesses presented by Martin-Tomlinson, vice-president McCray and two long-time employees, Pedro and Eugene Lovato, were of the opinion that using tied-off safety belts would increase the overall hazard to roofers by increasing the danger that they would trip and suffer burns due to hot asphalt. They testified to three basic ways in which the tripping hazard would increase.   First, the manner in which the roofing material was set down required employees to criss-cross at various points, creating the possibility they could trip over each other's lanyards. Second, a lanyard dragging in asphalt could become stuck when the asphalt cooled, jerking a person down when he tried to move.   Third, the roofers generally are in constant motion moving materials all over the roof as well as putting the roofing material down, so the possibility exists that an employee will trip over another employee's [*13]   lanyard or that his own lanyard would become caught on material and cause him to trip.

In rebuttal, Scott, one of the compliance officers, testified that the criss-crossing problem could be overcome because employees only criss-crossed after each strip of felt was laid, when the workers would have to turn around.   At that point, one worker could simply unhook his belt, move past the other, and immediately rehook.   He also explained that the lanyards running from the safety belt to the lifeline are adjustable, so they could be made short enough not to drag on the roof. Scott also stated that the employees who were moving material and equipment into the work area would not have to be continually tied-off because the cable would serve as a warning line that they were approaching the edge of the roof; only if they went outside the line would they need to tie off.   Scott, therefore, was of the opinion that safety belts could be used without increasing the tripping hazard to the employees.

Martin-Tomlinson's basic contention is that having employees tied-off would increase the possibility of their tripping, which, together with their use of hot asphalt, would increase the danger they [*14]   would be burned.   Pointing to its history of having many more burn than fall injuries, Martin-Tomlinson asserts that a practice that increases the danger of burn injuries, even if it lessens the relatively minimal danger of a fall, would increase the overall danger to its employees.

We conclude that Martin-Tomlinson has not proven that the use of tied-off safety belts would increase the hazards to its employees.   The opinion of the company's witnesses that the hazard of tripping would be increased is based largely on the assumption that employees will be unable to adjust to the use of safety belts and will trip over each other's lanyards and drag their own lanyards in the hot asphalt. However, Scott testified to ways in which these problems could be avoided, and we see no reason why his suggestions could not be effective.   It is true, of course, that his suggestions will necessitate some changes in Martin-Tomlinson's present work practices.   That is, instead of moving around completely unfettered, the employees will have to move in a more controlled manner and will have to be alert to adjust their lanyards when necessary to avoid a tripping hazard. However, an employer cannot violate [*15]   a standard simply because compliance will necessitate changes in its work practices.   Taylor Building Associates, 77 OSAHRC 27/A10, 5 BNA OSHC 1083, 1977-78 CCH OSHD P21,592 (No. 3735, 1977).   Having concluded that the use of tied-off safety belts would not increase the hazard to Martin-Tomlinson's employees, we reject the company's greater hazard defense.

Accordingly, having found that the Secretary has established a prima facie case of noncompliance with section 1926.28(a) and that Martin-Tomlinson has failed to establish its defenses of impossibility and greater hazard, we hold that Martin-Tomlinson has violated the Act as alleged by the Secretary.

CLASSIFICATION AND PENALTY

The evidence establishes that a fall from the 20 foot high roof is likely to cause death or serious harm.   Moreover, it is obvious that Martin-Tomlinson knew its employees were working on the roof without any fall protection.   Accordingly, the violation was serious, as the Secretary has alleged.   29 U.S.C. §   666(j); Hurlock Roofing Co., 79 OSAHRC 7/A2, 7 BNA OSHC 1108, 1979 CCH OSHD P23,358 (No. 76-357, 1979).

The violation was of high gravity, as several employees were exposed to a serious fall [*16]   for a considerable length of time.   Moreover, Martin-Tomlinson's good faith is questionable, for it did not provide any fall protection for its employees.   We conclude, therefore, that the $500 penalty proposed by the Secretary is appropriate.

Accordingly, the judge's decision is set aside.   The citation for serious violation of the Act for failure to comply with the standard at 29 C.F.R. §   1926.28(a) is affirmed and a penalty of $500 is assessed.  

CONCURBY: BARNAKO

CONCUR:

BARNAKO, Commissioner, concurring:

I agree with my colleagues that Martin-Tomlinson violated 29 C.F.R. §   1926.28(a).   My views on the proper interpretation of section 1926.28(a), however, differ from those employed by the majority and are set forth in my concurring opinion in S & H Riggers and Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979), appeal filed, No. 79-2358 (5th Cir. June 7, 1979).

I would find that a hazard within the meaning of section 1926.28(a) exists when a reasonable person familiar with the circumstances of the cited employer's industry would recognize that a hazard exists.   In prior cases, I have concluded that a reasonable person familiar with the roofing industry [*17]   would recognize the obvious fall hazard that exists when employees work at the unguarded edge of a roof. Hurlock Roofing Co., 7 BNA OSHC 1873, 1979 CCH OSHD P24,006 (No. 14907, 1979) (concurring opinion); J.W. Conway, Inc., 7 BNA OSHC 1718, 1979 CCH OSHD P23,869 (No. 15942, 1979) (concurring opinion), Voegele Co., 7 BNA OSHC 1713, 1979 CCH OSHD P23,860 (No. 76-2199), 1979) (concurring opinion).   A similar hazard exists here, as Martin-Tomlinson's employees were required at times to work at the very edge of the roof. The existence of the hazard is also demonstrated by Martin-Tomlinson's experience of having two employees fall from roofs in the first thirteen years of the company's existence.   Although Martin-Tomlinson appears to regard this experience as demonstrating the relative infrequency of falls, in fact it illustrates that the danger of employees suffering death or serious injury by falling from roofs is very real.

The record establishes that it is not customary in the roofing industry to provide protection against this fall hazard. The failure of the industry to protect against the hazard, however, does not negate the existence of the hazard. As long as the [*18]   hazard is an obvious one, an abatement order under the standard may require that feasible safety precautions above those considered customary in the industry be employed.   See Morton Buildings, Inc., 7 BNA OSHC 1702, 1979 CCH OSHD P23,861 (No. 15565, 1979) (dissenting opinion).

Unlike the majority, I would place the burden of proving the feasibility and likely utility of a particular type of personal protective equipment on the Secretary in all cases where the Secretary has cited an employer for violating section 1926.28(a).   Moreover, in determining whether the use of personal protective equipment is feasible, I would consider evidence that normally concerns questions of greater hazards and impossibility as relating to the question of feasibility, rather than as bearing on separate defenses.   I would, however, place the burden on the employer in rebuttal to show that the use of the personal protective equipment recommended by the Secretary will cause consequences so adverse as to render its use infeasible.   S & H Riggers and Erectors, Inc., supra.

In this case, I would find that feasibility has been established.   The Secretary's witnesses, Mistrot and Scott, recommended [*19]   that the employees use safety belts tied to a lifeline strung between the two side parapets. Scott suggested that the lifeline could be tied to clamps attached to each parapet. Both witnesses agreed that the line should be set at such a distance from the edge to permit employees using six-foot lanyards to get close enough to the edge to perform their duties but not to step off the edge.

Martin-Tomlinson's witnesses did not testify that such a lifeline could not be rigged or would not prevent employees from being able to step off the roof. They were concerned only with the inability of the cinder block parapet to meet the requirement of 29 C.F.R. §   1926.104(b) that lifeline anchorages be able to support 5400 pounds. As Scott pointed out, however, the purpose of the 5400 pound requirement is to enable a lifeline to support the weight of a falling person with an adequate safety factor.   Here, however, the purpose of the lifeline is to restrain employees from stepping off the edge, and the lifeline does not need to be able to support a falling person.   There is no evidence contradicting Scott's testimony that the lifeline would be sufficient to prevent a person from stepping off   [*20]   the roof's edge. Accordingly, the Secretary made out a prima facie case that the use of safety belts would be a feasible means of fall protection, and the burden shifted to Martin-Tomlinson to show that such equipment would cause consequences so adverse as to render its use infeasible.

Martin-Tomlinson's witnesses expressed the opinion that using tied-off safety belts would create tripping hazards and would consequently expose the company's employees to an increased danger of burns from hot asphalt. As the majority observes, those opinions assume that employees will be unable to adjust to the use of tied-off safety belts and that the tripping hazard foreseen by Martin-Tomlinson's witnesses will be the result.   However, in the absence of evidence that employees have tried to use tied-off safety belts and have been unable to avoid tripping hazards while using such equipment, I cannot accept the premise that tripping hazards will necessarily be increased.   Inasmuch as Martin-Tomlinson's witnesses did not have actual experience using tied-off safety belts, their opinion that tripping hazards would inevitably result is not persuasive.   I therefore conclude that Martin-Tomlinson [*21]   has failed to rebut the Secretary's prima facie showing that safety belts tied to a lifeline could feasibly be used. n1

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n1 In S & H Riggers and Erectors, Inc., supra, I stated that other standards in Part 1926 must indicate the need for using the personal protective equipment which the Secretary asserts Respondent's employees should have used.   Here 29 C.F.R. §   1926.104 satisfies this criteria.

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