B. & S. ROOFING CO., INC.

OSHRC Docket No. 76-312

Occupational Safety and Health Review Commission

April 11, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Albert H. Ross, Regional Solicitor

Arthus W. Beauregard, Pres., B & S. Roofing Company, Inc., for the employer

OPINION:

DECISION

This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded the significance [*2] of an unreviewed Judge's decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A. For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.

APPENDIX A

Decision and Order

Albert H. Ross, Regional Solicitor, U.S. Department of Labor and Nicholas J. Laezza, for the Complainant

Arthur W. Beauregard, President, B. & S. Roofing Co., Inc., for the Respondent

Statement of Proceedings:

On December 23, 1975, the Occupational Safety and Health Administration of the U.S. Department of Labor (OSHA or complainant) issued n1 a citation to B. & S. Roofing Co., Inc., of Pawtucket, Rhode Island (respondent), a Rhode Island corporation, alleging four nonserious n2 violations of safety standards at a worksite located at 1730 Elmwood Avenue, Cranston, Rhode Island, [*3] following an inspection on December 17, 1975. The citation alleges:

Standard Violated

Proposed

Correction

29 C.F.R. 1926.

Violation

Penalty

Date

1) .28(a)

Three employees near

$125

Immediate

edge of roof without

personal protective

equipment.

2) .250(b)(1) n3

3) .450(a)(2)

A 20-foot ladder was

$50

Immediate

in use with broken,

splintered side rails

and a broken rung.

4) .450(a)(10) n4

The 20-foot ladder was

$0

Immediate

not secured against

displacement.

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n1 Under section 658(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq.

n2 Nonserious means that death or serious physical harm would not -- with any substantial probability -- result from the conditions alleged to exist, cf., 29 U.S.C. 666(j).

n3 This item was withdrawn at the hearing by the complainant. It is vacated in the order below (Transcript, Tr., 6-7).

n4 The citation charges a violation of .450(a)(3). It was amended at the hearing as shown above (Tr. 5).

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By letter dated January [*4] 15, 1976, respondent notified complainant of its intent to contest the citation. On January 29, 1976, notice of the pendency of this proceeding was given to affected employees according to respondent's certificate.

Complaint and answer were filed, and the matter came on for hearing on March 31, 1976, at Providence, Rhode Island. Respondent was represented by its president. No affected employees came forward to claim party status after due notice (Tr. 4-5). Neither party filed any post-hearing requests or briefs.

Jurisdictional Statement:

Respondent's answer to the complaint is silent on the jurisdictional facts alleged; and while it states that the materials it uses are purchased in Rhode Island, it admits that it and its employees have engaged in roofing activities outside of that state prior to the inspection by OSHA (see requests for admissions and answers, items 7 and 8). I conclude that respondent affects interstate commerce and is subject to the jurisdiction of the Act, 29 U.S.C. 652(3) and (5) and 653(a).

The Evidence:

Complainant's compliance officer inspected the worksite on December 17, 1975, which was a warehouse and bakery building where employees [*5] were installing a new flat roof (Tr. 8-10). He identified himself to respondent's foreman and saw men working near the edge of the roof, about 24 feet from ground level (Tr. 10, 11 and 15). These men had no personal protective equipment (Tr. 11), and he saw three employees move roofing material in packages four feet by two feet from the edge (Tr. 17-18). He deseribed their efforts as straining (Tr. 18). There were no guardrails, lifelines or platforms (Tr. 12-13).

The officer suggested the use of safety belts with lanyards tied off "somewhere" when employees are working at the edge of the roof (Tr. 35-36). That "somewhere" could be the parapet where a clamp could be affixed (Tr. 41). Or a line could be installed around the edge onto which an employee could snap his lanyard (Tr. 36-37). But there was no place where a man could snap onto while at the edge (Tr. 41-42). The building's chimney could be used, but the usual lanyard, ranging from eight to 12 feet in length, would not be sufficient (Tr. 42). In response to the question of whether nine men installing a one-inch thick layer of insulation and a three-ply membrane of asphalt paper laminated at 450 degrees on a roof measuring [*6] 90 feet deep and 145 feet across could accomplish their task with long lines attached to them, the officer stated that they would have to be tied off only when they were near the roof's edge (Tr. 36).

He described a 20-foot wooden extension ladder at the site as not being fully extended (Tr. 43) and having split siderails and broken rungs (Tr. 13). Men were using the ladder (Tr. 23), and 8-penny nails were driven into the edge of the roof and bent over the ladder's siderails to keep it from falling or moving sideways (Tr. 13-14 and 28). These nails, measuring two-and-a-half inches long with the siderail being two-and-three-quarters inches high and one-and-five-eights inches wide (Tr. 14) were not sufficient to support a 200-pound man and were the only securing devices used (Tr. 16, 50-51). The nail might swing around and the ladder could move (Tr. 28).

The siderails of the ladder were splintered and not split (Tr. 15 and 45). One rung was broken and one split (Tr. 45). The broken rung had the pulley by which the ladder is extended attached (Tr. 30 and 48) and a man could put his weight on it (Tr. 31). The ladder was not extended at this point, and two rungs were parallel (Tr. [*7] 40). The broken rung was nearest n5 the building or innermost (Tr. 41). The split rung was below the pulley rung and on the innermost part (Tr. 48-49).

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n5 At another point in his testimony, the officer appears to place the pulley rung on the outside portion of the ladder furthest from the building (Tr. 48-49).

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The officer recommended the penalties proposed, and he considered the probability and severity of any accident and the extent of the alleged violations. He considered the absence of protective equipment to be very severe. He then applied certain credits for respondent's good faith, size and -- mistakenly -- history of no prior violations (Tr. 17-22 and exhibit C-1, the penalty worksheet) to arrive at the net penalties proposed.

Arthus W. Beauregard is president of the respondent company (Tr. 61). The roof at the worksite measured 90 by 140 feet, and the chimney was 70 feet from the edge where the materials were placed. The rope attached to a lanyard to be tied off to the chimney would have to be 95 to [*8] 100 feet long. This arrangement would be completely impractical; the ropes would be overhead and underfoot and the work couldn't be done (Tr. 63-64). The roofing materials are layered and bonded with hot asphalt (Tr. 64).

Respondent has never had a serious accident and the men respect the roof's edge (Tr. 64). As they mop the material on, a man would be about three feet back from the edge; and when the metal trim is placed, the employee is on his hands and knees at the edge and in some cases but not all, leaning over (Tr. 66-67).

Safety devices are not impossible but are impractical (Tr. 67-68). Mr. Beauregard testified that they require extra expenditures and the competitors do not use them and the low bidder will get the job. The bids are estimated without cost for safety devices such as towers to hold the guide ropes. It is hoped that the jobs will get done without an inspection by complainant (Tr. 68). Ninety-nine percent of respondent's jobs are on flat roofs (Tr. 77).

The ladder was secured by 10-penny nails and these coupled with the weight of a man on it prevent displacement. It would have been tied off to prevent it from being blown away (Tr. 69). The ladders [*9] become weathered and the men trim off splinters with their roofing knives. This is normal housekeeping (Tr. 69-70).

The pulley rung is on the fixed section of the 36-foot extension ladder which will extend to a 32-foot length. There is always another rung in front of the pulley rung, one to one-and-a-half inches away, and no one could step on the pulley rung since it is in the back. With a 20 to 30 degree lean of the ladder when it is positioned, a man always steps on the foremost rung (Tr. 70-71). If this rung broke, the rope would fall 12 inches to the next rung and stop (Tr. 80-81).

The ledger board shown on exhibit R-1 at the edge is not permanently fixed and cannot be used for life-line anchoring (Tr. 73-74). Stagings or peripheral railings are financially prohibitive (Tr. 74-75). Platforms would have to about 500 feet around the roof and would unnecessarily extend a job that could be done in three days completely (Tr. 75). Metal stanchions to hold the cable which lines are tied off to are not used in this industry. A roofer has very little protection now (Tr. 76). Any protection could be erected but the cost would not be paid by the owner (Tr. 77).

Findings of Fact: [*10]

There is no dispute over the following facts:

1. Respondent's employees were repairing a flat roof, between 20 and 24 feet from ground level, on December 17, 1975, with no personal protective equipment or any other device to prevent a man from falling off or catching him to avoid injury if he should fall.

2. Three employees were seen at the edge moving materials delivered there to that area of the roof where the materials were needed.

3. Other employees would come within three feet of the edge while mopping roofing materials and affixing the metal trim around the perimeter requires a man to be exactly at the edge and, at times, leaning over to attach the trim to the building's side as well as the roof. Respondent has never had a serious accident on or from the roof.

4. The siderails of the 36-foot extension (1 so find this length) were splintered but not in any way weakened or in danger of breaking. There is no evidence on which to judge the extent of this condition.

5. The rung on this extension ladder to which the pulley is attached was broken. This rung was parallel to another and closest (or inner) to the building. Given the lean of the ladder against the building [*11] of 20 to 30 degrees, a climbing man could not step on the broken rung and its existence presented no danger to employees. Even if this rung were to completely break away, the pulley rope would come to rest on the next lower rung 12 inches below.

On facts in dispute, I find that:

6. The chimney, located more than 70 feet from the area where the materials were being delivered was not -- because of the distance -- a practical tie-off location for lanyards. These would have to be about 100 feet long; they would interfere with the work of laying the hot roofing materials; and they would present a tripping hazard. There existed no contrivance on the roof to which a man could practicably tie off a lanyard. The compliance officer's testimony that a clamp could be attached "somewhere" is not sufficient.

7. I find no evidence that the use of safety belts and lanyards is a roofing industry practice to protect men working near the edge. In fact, based on Mr. Beauregard's testimony, the industry practice is not to employ these devices.

8. Men working at or near the edge are aware of the hazard of this area; but except for the man placing the roof's metal trim down at the edge, the [*12] men work from and along three feet of the edge toward the interior sections.

9. Under the conditions of this job, i.e., no evidence that the weather was other than calm, the use of 8- or 10-penny nails holding the siderails of the ladder where it met the roof was sufficient to secure the ladder against displacement.

10. The proposed penalty of $50 for the use of a ladder with a broken rung overemphasizes the gravity of this violation because no man steps on it, and no hazardous results would occur even of it were to break completely away. The proposed penalty for the lack of personal protective equipment ($125) is appropriate if this alleged violation is to be affirmed.

Conclusions and Order:

Concerning the ladder, I conclude that respondent violated 29 C.F.R. 1926.450(a)(2) which reads:

(2) The use of ladders with broken or missing rungs or steps, broken or split side rails, or other faulty or defective construction is prohibited. When ladders with such defects are discovered, they shall be immediately withdrawn from service. Inspection of metal ladders shall include checking for corrosion of interiors of open end hollow rungs.

But the ladder was not dangerous to [*13] use even with the broken pulley rung, and the worst that could happen is that a man would get a splinter from the siderails. No penalty is warranted for this violation.

The standard relating to a ladder's stability, 29 C.F.R. 1926.450(a)(10), commands:

(10) Protable ladders in use shall be tied, blocked, or otherwise secured to prevent their being displaced.

The evidence is insufficient to support a conclusion that the use of 8- or 10-penny nails holding the siderails at the roof level is not a proper "otherwise secured" method to prevent displacement. I conclude that this alleged violation must be vacated.

Finally, I conclude that the standard requiring the use of personal protective equipment, 29 C.F.R. 1926.28(a) which reads:

(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.

is insufficient notice to this respondent of what is required. While respondent's employees work within a hazardous area (especially the man at the edge placing the trim and [*14] less so for the moppers who will be about three feet from the edge), there must be a showing that these activities necessitate the use of protective equipment under a standard as general as this. In Brennan v. Smoke-Craft, Inc., 530 F. 2d 843 (9th Cir., 1976), the analogous regulation within the General Industry Standards, 29 C.F.R. 1910.132(a) n6 was interpreted as requiring that a reasonably prudent man would protect against the hazard; and it approved the test set forth in Cape & Vineyard Div. v. OSHRC, 512 F. 2d 1148 (1st Cir., 1975) quoting it as follows:

But in any event OSHA had to establish here that a prudent man familiar with [industry practice] would have understood that more protective equipment was "necessary" in the situation at issue. 530 F. 2d at 845.

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n6 29 C.F.R. 1910.132(a) requires, "Protective equipment . . . shall be provided . . . whenever it is necessary by reason of hazards of processes or environment. . . ."

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In this case, the evidence shows that a reasonably prudent man n7 would [*15] not use safety belts and lanyards because:

1) Respondent has never had a serious accident;

2) No roofer in respondent's area uses them;

3) The necessary length of a lanyard itself creates a tripping hazard; and

4) It was not shown how any anchor could be established necessary to support at least 5,400 pounds before breaking as required by 29 C.F.R. 1926.104(b) and (d) other than the chimney.

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But a majority of the Commission did not appear to adopt this view.

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Given these elements coupled with the fact that respondent's employees "respect the edge," I cannot conclude that the standard's very general wording is sufficient to tell this respondent what is expected of it. It is not fair warning, cf., Diamond Roofing v. Occupational S. & H. Review Com'n., 528 F. 2d 645 (5th Cir., 1976), n8 and this citation must [*16] be vacated together with the penalty proposed therefor.

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All of these are on review.

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Based on the foregoing, it is ORDERED that:

1) Items 1, 2 and 4 of the citation issued December 23, 1975, alleging nonserious violations of 29 C.F.R. 1926.28(a), .250(b)(1), and.450(a)(10), respectively, together with the $125 penalty proposed for item 1 are vacated; and

2) Item 3 of the citation alleging a nonserious violation of 29 C.F.R. 1926.450(a)(2) is affirmed, but the proposed $50 penalty is vacated.

DAVID J. KNIGHT, Judge, OSHRC

Dated: July 8, 1976

Boston, Massachusetts