HURLOCK ROOFING COMPANY

OSHRC Docket No. 76-357

Occupational Safety and Health Review Commission

January 24, 1979

[*1]

Before CLEARY, Chairman; BARNAKO, and COTTINE Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

Thomas Herlihy, III, for the employer

OPINIONBY: BARNAKO

OPINION:

Decision

BARNAKO, Commissioner:

The issue in this case is whether Respondent (Hurlock) violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 n1 by failing to protect its employees by means of catch platforms or safety belts from falling off the sloped roofs on which they were working. Judge William E. Brennan accepted Hurlock's contention that providing either of these means of protection would have subjected its employees to a fall hazard for a longer time than they were otherwise exposed, and therefore concluded that Hurlock did not violate the safety standards at 29 C.F.R. 1926.28(a) and 1926.451(u)(3). n2 We conclude that the Judge erred, and find Hurlock in serious violation of 1926.451(u)(3). We assess a $500 penalty.

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n1 29 U.S.C. 651 et seq. ("the Act"). Section 5(a)(2) requires, that employers comply with safety and health standards issued pursuant to the Act.

n2 Hurlock was originally cited for failing to use safety belts pursuant to 1926.28(a), which provides:

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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Five of Hurlock's employees were shingling the roofs of townhouses under construction in Dover, Delaware. The roofs had a slope of 5 inches in 12 inches, and the height at the eaves was 19 feet. There were no parapets at the edges of the roofs. The roofers were not using safety belts, catch platforms were not installed, and no other means of fall protection was employed.

When the roofers started their work, the roofs were composed of plywood decking supported by truss rafters on 24-inch centers. The roofers would first install a layer of 15-pound felt on the plywood deck, and then nail shingles over the felt. To install the shingles, a worker would squat on the roof facing the edge, and would nail a starter course of shingles along the edge. This work would take about 3 minutes and would bring the employee about one foot from the edge. The worker would then move up the roof, nailing subsequent courses of shingles parallel to the edge until be reached the peak.

Poore, the OSHA compliance officer who inspected Hurlock's worksite, suggested that Hurlock could install a lifeline on each roof by [*3] nailing a board to the opposite side of the roof on which an employee was nailing shingles, attaching an eyebolt to the board, and rigging a lifeline to the eyebolt. The lifeline could then be strung over the peak of the roof and the employee could tie off his safety belt to the lifeline. The position of the lifeline could be reversed when the other side of the roof was being shingled. Poore testified that alternatively, a lifeline could be rigged between eyebolts attached to concrete party walls that extended 18 inches above the roof between the townhouse units. Finally, Poore suggested that catch platforms could be attached by brackets to the side walls of each townhouse.

Hurlock's witnesses testified that use of lifelines or a catch platform would endanger respondent's employees. Bafundo, an experienced roofing contractor, opined that a lifeline would create a tripping hazard, particularly if there was more than one man in the same area. n3 Although he did not address the type of catch platform suggested by Poore, Bafundo referred to a freestanding scaffold. He stated that employees erecting this scaffold would be exposed to falling and that more time would be spent installing [*4] such a scaffold than is spent by the roofers working near the edge.

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n3 As noted above, however, the method of shingling that Hurlock employed required only one worker on each section of roof at any time.

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Orr, a structural engineer, assumed that lifelines would have to be rigged to a mast installed at the peak of the roof, rather than to the roof or between eyebolts attached to concrete party walls, as Poore suggested. Orr thought that this arrangement would lead to the roofers becoming tangled in each other's lifelines. Orr also opined that the mast would not be adequately secured if attached to only two rafters. He indicated that the mast could be tied to more than two rafters, but thought that this would create an additional hazard to the workers; he did not, however, specify the nature of this hazard. Finally, Orr calculated that the roof could not support the weight of a catch platform suspended from four rafters.

Hurlock's vice-president, Speakman, thought it would be more hazardous to install either a catch [*5] platform or a lifeline mast than to perform the shingling work without any fall protection. In Speakman's opinion, employees were only subject to a fall hazard when nailing the first few courses of shingles at the very edge of the roof. He stated that they spent only a small percentage of their time doing that and that it would take considerably more time to install either a roof-attached catch platform or a mast at the peak of the roof. Speakman did not, however, state how much time he thought would be required to install a catch platform or mast. Speakman indicated that a movable or portable catch platform would be practical but apparently thought that such a platform would not comply with OSHA requirements.

Before the Judge, Hurlock argued, among other things, that the use of either safety belts and lifelines or catch platforms would result in greater hazards to its employees, citing the testimony of Bafundo, Orr, and Speakman. The Judge agreed, concluding that Hurlock had established the "greater hazard" defense, n4 because installation of a lifeline or catch platform would expose the employees to a fall hazard for a longer period of time than they spent near the edge of [*6] the roof. He also noted that lifelines would create an additional tripping hazard. He therefore vacated the citation. n5

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n4 The Judge noted that the Commission has previously recognized such a defense, citing Industrial Steel Erectors, 74 OSAHRC 2/E5, 1 BNA OSHC 1497, 1973-74 CCH OSHD para. 17,136 (No. 703, 1974).

n5 Hurlock also argued that utilization of lifelines and safety belts was impossible because the roof in question would not withstand the stress of a lifeline capable of supporting 5400 pounds, the installation of the system would damage the structure, and there was no place on the roof to secure the lifeline above the point of operation. The Judge rejected respondent's impossibility claim, concluding that it would be physically possible to install adequate lifelines. He noted that Orr said a most tied to more than two rafters might support the necessary weight, and he also referred to Poore's suggestion that a lifeline could be strung between the concrete party walls.

Hurlock argued that the use of a catch platform was impossible because the structure could not support the weight of an attached catch platform, citing Orr's testimony to that effect. The Judge did not make a specific finding on this point but determined that a freestanding scaffold could have been used as a catch platform.

[*7]

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On review, the Secretary takes exception to the Judge's resolution of the greater hazard issue while Hurlock argues in support of it. In particular, the Secretary contends that the Judge erred in concluding that employees performing roofing work are only subjected to a fall hazard while working at the very edge of the roof; in the Secretary's view, employees anywhere on a roof this steeply sloped are in danger of falling. The Secretary also claims that it is improper to balance the lives and safety of one group of workers against the lives and safety of another group. Hurlock, on the other hand, argues that a fall hazard exists only at the edge of the roof, and it continues to assert that installation of any protective device would expose its employee to a fall hazard for a longer time. n6

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n6 Although both parties' arguments attempt to compare the time the employees are exposed to a fall hazard against the time necessary to install the various means of protection, the evidence of record concerning these various times is inconclusive. Although Bafundo and Speakman gave estimates of the percentage of the total time the roofers would spend on a roof at or near the edge, they did not testify to the total time that would be spent on the roof. Bafundo did say that a roofer "with any speed" could install shingles four feet up from the eaves on both sides of the roof in one hour. This indicates that several hours would be spent shingling each roof, which appears to be a reasonable figure. We also note that the roofers would have to spend more time on the roof than was required simply to nail the shingles. They had to move the necessary materials and equipment onto the roof, and had to install a layer of felt on top of the plywood before nailing the shingles. We also note that Exhibits C-1 through C-4, which depict the roofs in question, show only one of the five employees in the squatting position necessary to nail the shingles.

The Secretary contends that it would require 40 minutes to install an attached catch platform to the roof, citing testimony in which Speakman commented "where it would take four seconds to nail an asphalt shingle, it may take 40 minutes just to fasten the catch platform to that zone of peril." We do not think this remark represents a realistic estimate of the time necessary to install a catch platform. Speakman was not asked how long it would take to erect a catch platform; he made the remark in an offhand manner that does not suggest he was seriously estimating that a catch platform could be erected in 40 minutes. Accordingly, we do not consider his testimony probative on the question of the amount of time necessary to install a catch platform. As discussed later, however, neither the amount of time the employees spent on the roof nor the length of time necessary to erect a catch platform is important to our disposition of the case.

[*8]

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The Commission has noted that employees working on roofs may be subject to two distinct fall hazards: on steeply sloped roofs they may slide down the roof from any point and fall off, while on a roof of any slope they are exposed to a fall hazard while working near the edge. Hamilton Roofing Co., 78 OSAHRC 57/C1, 6 BNA OSHC 1771, 1978 CCH OSHD para. 22,856 (No. 14968, 1978). Section 1926.451(u)(3) is directed against the former hazard. In promulgating this standard, the Secretary determined that roofs sloped greater than 4 inches in 12 inches require protection against this hazard while more gently sloped roofs do not. Hamilton Roofing Co., supra. Accordingly, for the purpose of distinguishing between the two hazards, we will refer to roofs sloped greater than 4 in 12 as steeply sloped, and to roofs of lesser slope as gently sloped.

On gently sloped roofs, the fall hazard due to proximity to the edge may be cited under general standards such as 1926.28(a). John's Roofing & Sheet Metal Co., 78 OSAHRC 57/E8, 6 BNA OSHC 1792, 1978 CCH OSHD para. 22,857 (No. 76-1140, 1978). On steeply [*9] sloped roofs, however, the hazard presented by the slope of the roof exists everywhere on the roof, and precautions taken against this hazard will provide protection from a fall from near the edge as well as a fall from farther up the slope. Thus, on a steeply sloped roof, compliance with 1926.451(u)(3) will completely eliminate the fall hazard, and there is no need to look to more general standard for protection against a fall hazard arising solely from an employee's proximity to the edge. We therefore conclude that 1926.451(u)(3) is more specifically applicable to the hazard existing at Hurlock's worksite, and that it takes precedence over 1926.28(a) in this case. n7

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n7 In arguing that its employees are exposed to a fall hazard only while they are near the edge of the roof, Hurlock is essentially questioning the wisdom of the Secretary in establishing a slope of 4 in 12 as the minimum against which protection from falling due to the steepness of the slope is required. The Commission, however, has no authority to rule on the wisdom of the Secretary's rulemaking action. Borg-Warner Corp., 78 OSAHRC 18/A2 at p. 13, fn. 11, 6 BNA OSHC 1393, 1397, 1978 CCH OSHD para. 22,555 at p. 27,221 (No. 10757, 1978). We also note that, in a direct challenge to the promulgation of the standard under Section 6(f) of the Act, the Seventh Circuit, in upholding the validity of the standard, rejected the roofing industry's argument that the protection required by the standard was unnecessary. National Roofing Contractors Association v. Brennan, 495 F.2d 1294 (7th Cir. 1974).

[*10]

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In Hamilton Roofing Co., supra, we also noted that 1926.451(u)(3) explicitly requires that a catch platform be used to protect employees from falling off a steeply sloped roof. Although the standard permits safety belts to be used as an alternative to catch platforms, it nevertheless looks to catch platforms as the normal and preferred means of protection. Therefore, in considering Hurlock's greater hazard defense, we must first examine whether this defense has been stablished with respect to catch platforms.

Hurlock's evidence and argument regarding the hazard associated with the erection of catch platforms largely concern platforms attached either to the roof or the walls of the building. However, both Bafundo and Speakman, who testified for Hurlock, mentioned the possibility of using freestanding or movable scaffolds as catch platforms, and 1926.451(u)(3) does not preclude the use of such a catch platform; it merely requries that the platform be below the working area, extend two feet beyond the eaves, and be equipped with a guardrail, midrail, and toeboard. Hurlock's vice-president Speakman [*11] did not testify to any difficulties such a scaffold would present; he merely assumed it would not meet OSHA requirements, an assumption that has no valid basis. Bafundo stated that employees would be exposed to a fall hazard while erecting a freestanding scaffold, but he did not describe why such a hazard would exist and offered no basis for his opinion. Judge Brennan apparently credited this testimony since he found that "the installation of a catch platform, either attached to the eaves, or of other design, would place employees within [the] danger zone for longer periods of time." He did not however refer to Bafundo's testimony regarding freestanding scaffolds but only referred to evidence concerning attachment of catch platforms to the eaves. Although it is the policy of the Commission to ordinarily accept an Administrative Law Judge's evaluation of the credibility of witnesses, we do not believe Judge Brennan's finding is entitled to deference. Cf. C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA 1295, 1977-78 CCH OSHD para. 22,481 (No. 14249, 1978). In general, we will not credit an opinion that providing the means of protection required by a standard will be hazardous when [*12] no basis for the opinion or explanation of the hazard purportedly involved is offered. Thus, Bafundo's testimony does not establish that it would be hazardous to erect a freestanding scaffold for use as a catch platform.

Since Hurlock has not demonstrated that erection of a freestanding scaffold for use as a catch platform would be more hazardous than working on a roof without any fall protection, it has not established the fundamental element of the greater hazard defense. n8 We therefore need not determine whether erection of an attached catch platform or lifeline would be more hazardous than working without fall protection. We note, however, that a freestanding scaffold would alleviate some of the difficulties associated with the use of an attached catch platform or safety belts. It would, for example, eliminate the problem of whether the roof is sufficiently strong to support an attached catch platform or lifeline system. It would also eliminate any patching or finishing work that might have to be performed after removal of a device attached to the roof. It would not present a tripping hazard or otherwise hinder the roofers in their work.

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n8 In order to successfully establish a greater hazard defense, an employer must also use whatever alternative means of protection is reasonable in the circumstances or demonstrate that alternative means of protection are unavailable, and must show that a variance application is inappropriate. Russ Kaller, t/a Surfa-Shield, 76 OSAHRC 130/F10, 4 BNA OSHC 1758, 1976-77 CCH OSHD para. 21,152 (No. 11171, 1976); General Electric Co. v. Secretary of Labor, 576 F.2d 558 (3rd Cir. 1978); Concerning possible alternative protection, we note that Hurlock's foreman, Allen, testified that on some steeply sloped roofs, a type of scaffold consisting of ladders nailed to the roof, jacks attached to the ladders, and a working platform placed on the jacks, was used. While we express no opinion as to whether this would be an adequate or suitable form of protection on the roofs at Hurlock's worksite, this does suggest that alternatives to catch platforms or safety belts might be available. See also National Roofing Contractors Association v. Brennan, supra, 495 F.2d at 1298.

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Since Hurlock's employees were working on roofs under circumstances which did not comply with 1926.451(u)(3), and Hurlock has not established any affirmative defense, we conclude that Hurlock violated that standard. We also conclude that the violation is properly classified as serious, as the Secretary alleged. The ground under the roofs was hard, compact soil and various construction material were lying about. We agree with Poore's observation that, under the circumstances, common sense dictates that a fall would likely result in death or serious physical harm. Additionally, Hurlock obviously knew that its workers had no fall protection. Accordingly, the violation was serious in nature. See Truax & Hovey Drywall Corp., 78 OSAHRC 47/A14, 6 BNA OSHC 1654, 1978 CCH OSHD para. 22,799 (No. 14516, 1978).

We also conclude that the $500 penalty proposed by the Secretary is appropriate. The violation is of high gravity in that five employees were exposed to a potential fall of 19 feet during the entire time they worked on the roofs. Hurlock's good faith is questionable in that it took no precautions against such a fall, instead relying on its own opinion [*15] that fall protection was not necessary and was too expensive.

Accordingly, the amended citation for serious violation is affirmed insofar as it alleges a violation of 29 C.F.R. 1926.451(u)(3). A penalty of $500 is assessed.

CONCURBY: COTTINE

CONCUR:

COTTINE, Commissioner, concurring:

Hurlock contended before the judge that the Act violated various provisions of the United States Constitution. Specifically, it argued that it was denied its right to a jury trial under the seventh amendment of the Constitution and that the administrative trial of a contested citation ". . . deprives the Judiciary of a matter reserved for its jurisdiction." The judge concluded that he had no authority to rule on these constitutional challenges to the Act.

After the Judge's ruling in this case, the United States Supreme Court issued its decision in Atlas Roofing Co., Inc. v. OSHRC, 430 U.S. 442 (1977). The Court held that the process of administrative adjudication established by the Occupational Safety and Health Act does not violate the seventh amendment guarantee to a jury trial in suits at common law. In addition, the Court rejected the claim that adjudication under the Occupational Safety and Health Act is [*16] exclusively reserved to the federal judiciary. 430 U.S. 450, 460-61.

The Court's decision in Atlas Roofing is controlling in this case and Hurlock's constitutional contentions must be addressed by the Commission in order to fulfill our obligations under the supremacy and oath clauses of article VI of the Constitution. n1

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n1 Article VI, cl. 2 and 3, provide:

* * *

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any office or public Trust under the United States.

[*17]

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The supremacy clause necessarily requires the supremacy of the Constitution in all governmental activity including Commission proceedings. And, consistent with the final interpretative authority vested in the Supreme Court, United States v. Nixon, 418 U.S. 683 (1974); Marbury v. Madison, 1 Cr. (5 U.S.) 137 (1803), its interpretation of the Constitution is building on all judicial and executive officers of the federal government. See Joiner v. City of Dallas, 380 F.Supp. 754, 773 (N.D. Tex.1974), aff'd mem., 419 U.S. 1042 (1974), rehearing denied, 419 U.S. 1132 (1975). Also United States v. Nixon, supra. Cf. Ex parte Siebold, 100 U.S. 371, 392 (1880). Moreover, as officers confirmed by the Senate under article II, 2, cl. 2 and commissioned by the President under article II, 3, we are bound by the oath clause to support the Constitution. n2 This obligates each officer to conform his or her official action to the requirements of the Constitution as interpreted by the Supreme Court. Cf. United States v. Nixon, supra; Joiner v. City of [*18] Dallas, supra at 773; Cohens v. Virginia, 6 Wheat. (19 U.S.) 264, 404 (1821) (Marshall, C.J.). Our obligation is inescapable; we are bound to determine controversies brought before the Commission consistent with the Supreme Court's interpretation of the Constitution. The Commission majority errs in not affirmatively applying the rule of decision announced by the Court in Atlas Roofing with respect to the constitutional issue raised in this case.

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n2 See also 5 U.S.C. 3331.

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I otherwise join in the Commission's decision.