UNIVERSAL ROOFING AND SHEET METAL COMPANY, INC.  

OSHRC Docket No. 77-1756

Occupational Safety and Health Review Commission

May 28, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Albert H. Ross, Regional Solicitor, USDOL

Robert L. Surprenant, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Abraham Gold is before the Commission for review pursuant to section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   Judge Gold vacated a citation alleging that Respondent, Universal Roofing and Sheet Metal Company, Inc., violated section 5(a)(2) of the Act n2 in that an employee worked near the edge of a roof without using personal fall protection equipment.   The citation alleged that Respondent failed to comply with 29 C.F.R. §   1926.28(a) n3 in that the employee was not protected by either personal protective equipment or a guardrail. In addition to citing section 1926.28(a), the citation also referred to 29 C.F.R. § §   1926.104 and 1926.105. n4

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n1 29 U.S.C. §   661(i).

n2 29 U.S.C. §   654(a)(2).

n3 This 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.

n4 This standard provides, in pertinent part:

§   1926.105 Safety nets.

(a) Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.

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Judge Gold concluded that Respondent was in compliance with section 1926.105.   He noted that this standard permits the use of a temporary floor as a means of fall protection and concluded that the roof on which Respondent's employee was working was safer than a temporary floor. He therefore found that Respondent had "met, or surpassed, the safety requirement of 1926.105(a)." The judge further concluded that section 1926.28(a) did not apply to the facts of this case.   He reasoned that 29 C.F.R. §   1926.451(u)(3), n5 a standard requiring fall protection on certain sloped roofs, establishes exclusive requirements for fall protection for employees working on roofs and that the more general standard at section 1926.28(a) therefore did not apply in such circumstances.   The Secretary's petition for review of these aspects of the judge's decision was granted. n6

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n5 This standard provides:

§   1926.451 Scaffolding.

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(u) Roofing brackets.

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(3) 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.

n6 Judge Gold stated that "[i]t is well settled that the perimeter of a flat roof does not require the protection of a railing," citing Diamond Roofing Co. v. OSHRC, 528 F.2d 645 (5th Cir. 1976), and Langer Roofing and Sheet Metal, Inc. v. Secretary of Labor, 524 F.2d 1337 (7th Cir. 1975). He also concluded that there was no evidence indicating that Respondent had failed to comply with §   1926.104.   The Secretary has not taken exception to these aspects of the judge's decision.

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The Commission has held that a roof cannot be considered a temporary floor within the meaning of section 1926.105(a) and that, in any event, an employer is not in compliance with that standard if its employees are exposed to a fall hazard when they work near the unguarded perimeter of a temporary floor. Diamond Roofing Co., 80 OSAHRC    , 8 BNA OSHC 1080, 1980 CCH OSHD P24,274 (No. 76-3653, Feb. 29, 1980).   The Commission has also held that section 1926.451(u)(3) does not provide exclusive fall protection requirements for employees working on roofs, but that section 1926.28(a) can be appropriately cited when employees are exposed to fall hazards not within the purview of section 1926.451(u)(3).   hurlock Roofing Co., 79 OSAHRC 7/A2, 7 BNA OSHC 1108, 1979 CCH OSHD P23,358 (No. 76-357, 1979); John's Roofing & Sheet Metal Co., 78 OSAHRC 57/E8, 6 BNA OSHC 1792, 1978 CCH OSHD P22,857 (No. 76-1140, 1978); Hamilton Roofing Co., 78 OSAHRC 57/C1, 6 BNA OSHC 1771, 1978 CCH OSHD P22,856 (No. 14968, 1979).   Accordingly, the judge's conclusion that Respondent was in compliance with section 1926.105(a)   [*4]   and his conclusion that section 1926.28(a) does not apply to the facts of this case are set aside.

On review, the Secretary contends that the record establishes that Respondent failed to comply with section 1926.28(a). n7 Since the parties filed their review briefs in this case, the Commission has comprehensively interpreted and applied section 1926.28(a) to similar factual situations on a number of occasions.   S & H Riggers and Erectors, Inc., 79 OSAHRC 32/A2, 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979), appeal filed, No. 79-2358 (5th Cir. June 7, 1979); Forest Park Roofing Co., supra note 7; Martin-Tomlinson Roofing Co., 80 OSAHRC    , 7 BNA OSHC 2122, 1980 CCH OSHD P24,167 (No. 76-2339, Jan. 18, 1980); Hurlock Roofing Co., 79 OSAHRC 93/A2, 7 BNA OSHC 1867, 1979 CCH OSHD P24,006 (No. 14907, 1979); Voegele Co., 79 OSAHRC 76/A2, 7 BNA OSHC 1713, 1979 CCH OSHD P23,860 (No. 76-2199, 1979), appeal filed, No. 79-2439 (3d Cir. Oct. 15, 1979); J.W. Conway, Inc., 79 OSAHRC 75/F1, 7 BNA OSHC 1718, 1979 CCH OSHD P23,869 (No. 15942, 1979).   The Commission will remand this case to an administrative law judge to consider the parties arguments [*5]   concerning the merits of the section 1926.28(a) citation under current Commission precedent. n8

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n7 The Secretary does not contend that Respondent's alleged noncompliance with §   1926.105(a) constitutes a separate violation of the Act.   We agree that the allegations are duplicative under the circumstances of this case.   Forest Park Roofing Co., 80 OSAHRC    , 8 BNA OSHC 1181, 1980 CCH OSHD P24,344 (No. 76-1844, March 31, 1980).

In Commissioner Barnako's opinion, §   1926.105(a) should be cited when the proper means of abating a fall hazard is a safety net and the falling hazard exceeds 25 feet, while §   1926.28(a) should be cited when the appropriate type of fall protection is tied-off safety belts. Diamond Roofing Co., supra, 8 BNA OSHC at 1083 n. 5, 1980 CCH OSHD at 29,563 n. 5. In this case the Secretary alleged and attempted to establish that Respondent's employee should have used a safety belt or been protected by a guardrail. As noted previously, that portion of the citation relating to Respondent's alleged failure to use a guardrail is not before us.   With respect to Respondent's alleged failure to use a safety belt, it is Commissioner Barnako's view that §   1926.28(a), rather than §   1926.105(a), is specifically applicable.

n8 In S & H Riggers and Erectors, Inc., supra (concurring opinion), Commissioner Barnako set forth his interpretation of 29 C.F.R. §   1926.28(a).   That interpretation differs in some respects from that of the Commission majority.   Commissioner Barnako continues to adhere to the position set forth by him in S & H Riggers and Erectors. However, he has previously recognized that the orderly administration of the Act requires that the Commission's administrative law judges follow precedents established by the Commission.   Gulf & Western Food Products Co., 77 OSAHRC 72/A2, 4 BNA OSHC 1436 at 1439, 1976-77 CCH OSHD P20,884 at 25,067 (Nos. 6804 & 6805, 1976).   For this reason, he joins with his colleagues in their remand order.

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Accordingly, the case is remanded to the chief judge for assignment to an administrative law judge to issue a decision and order disposing of the citation alleging noncompliance with 29 C.F.R. §   1926.28(a). n9 SO ORDERED.

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n9 Judge Gold has retired from the Commission since the issuance of his decision in this case.

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