ARKANSAS RICE GROWERS COOPERATIVE ASSOCIATION

OSHRC Docket No. 77-3974

Occupational Safety and Health Review Commission

May 6, 1982

[*1]

Before ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of The Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Oscar E. Davis, Jr., for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge John S. Patton is before the Commission for review pursuant to section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). In his decision, Judge Patton vacated a citation issued after an employee of Respondent was fatally injured when he fell through an opening on the sixth level of Respondent's workplace, a by-products plant in Jonesboro, Arkansas. As amended in the Secretary's complaint, the citation alleged a serious violation of the Act in that the opening was not guarded in compliance with the requirements of 29 C.F.R. 1910.23(a)(5) or, in the alternative, 29 C.F.R. 1910.23(a)(3). n1

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n1 The standards at issue provide as follows:

Subpart D - Walking-Working Surfaces

1910.23 Guarding floor and wall openings and holes.

(a) Protection for floor openings.

* * *

(3) Every hatchway and chute floor opening shall be guarded by one of the following:

(i) Hinged floor opening cover of standard strength and construction equipped with standard railings or permanently attached thereto so as to leave only one exposed side. When the opening is not in use, the cover shall be closed or the exposed side shall be guarded at both top and intermediate positions by removable standard railings.

(ii) A removable railing with toeboard on not more than two sides of the opening and fixed standard railings with toeboards on all other exposed sides. The removable railings shall be kept in place when the opening is not in use and should preferably be hinged or otherwise mounted so as to be conveniently replaceable.

Where operating conditions necessitate the feeding of material into any hatchway or chute opening, protection shall be provided to prevent a person from falling through the opening.

* * *

(5) Every pit and trapdoor floor opening, infrequently used, shall be guarded by a floor opening cover of standard strength and construction which should be hinged in place. While the cover is not in place, the pit or trap opening shall be constantly attended by someone or shall be protected on all exposed sides by removable standard railings.

[*2]

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Throughout this proceeding, Respondent has presented two principal defenses to the citation. First, it contends that the cited standards do not apply to the cited conditions because the sixth level of its workplace is a roof and not a "floor" within the meaning of the cited standards. n2 Second, it contends that it lacked either actual or constructive knowledge of the violative conditions because it had proveded a cover for the opening and it could not have known that an independent contractor would leave the hatchway cover unsecured, thereby assertedly creating the violative condition. Judge Patton rejected Respondent's contention that the standards at issue are inapplicable, but agreed with Respondent that the citation must be vacated because Respondent neither knew nor, with the exercise of reasonable diligence, could have known of the violation. The Secretary petitioned for discretionary review of the judge's conclusion on the knowledge issue and Respondent cross-petitioned on his conclusion that the standards apply. Commissioner Cleary directed review on both issues.

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n2 The key term "floor opening," as used in the standards at issue, is defined as follows:

1910.21 Definitions.

(a) As used in 1910.23, unless the context requires otherwise, floor and wall opening, railing and toe board terms shall have the meanings ascribed in this paragraph.

* * *

(2) Floor opening. An opening measuring 12 inches or more in its least dimension, in any floor, platform, pavement, or yard through which person may fall; such as a hatchway, stair or ladder opening, pit, or large manhole. Floor openings occupied by elevators, dumb waiters, conveyors, machinery, or containers are excluded from this subpart.

In addition, the term "platform" is defined, at 1910.21(a)(4), as follows:

(4) Platform. A working space for persons, elevated above the aurrounding floor or ground; such as a balcony or platform for the operation of machinery and equipment.

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We hold that the judge erred in concluding that the cited standards apply to the cited working conditions. It light of this holding, we do not reach the knowledge [*4] issue. Accordingly, we affirm the judge's order vacating the citation, but for reasons different than those stated by the judge.

I

Construction was begun on Respondent's by-products plant approximately fourteen months before the incident that led to the citation now before us. Production operations, i.e., the receiving and processing of chicken feed bran and hulls, commenced approximately two months before the incident. At the time of the fatality, both activities were taking place concurrently and, for the most part, independently. Thus, 15 to 20 of Respondent's employees, working under the plant manager and other supervisory personnel employed by Respondent, were engaged in production operations. During this same period, specifically, the two to three weeks immediately before the incident, approximately 35 construction workers employed by 8 to 10 or more construction contractors worked in the plant on projects such as the installation of wiring, lighting, and a fire control (sprinkler) system.

Respondent's by-products plant consists of six levels. The sixth level is one of four roofs on the plant. Two other roofs are at lower elevations and the fourth is on top [*5] of the manlift that is located on the sixth level. Also located on the sixth level are three receiving filters ("cyclones" or "bins") used in the processing of Respondent's product and a hatchway opening used to raise and lower machinery, motors and other heavy objects into and within the building through the vertical shaft directly beneath the opening.

The fatality in question occurred while Respondent's employees were on the sixth level to clean up a large volume of ground rice hulls that had spilled from one of the receiving filters. A member of Respondent's cleanup crew, while carrying a large bag filled with the spilled hulls, stepped on the middle section of the cover that was installed over the hatchway opening on the sixth level. Apparently, that section had been left unbolted by a construction worker who had previously used the hatchway opening to raise or lower materials used in the construction work. As a result, when Respondent's employee stepped on the cover, both he and the middle section fell through the opening. The employee was fatally injured by the fall.

II

As indicated, Respondent has contended throughout this proceeding that the cited standards do not [*6] apply to the hatchway opening in question because that opening is located in a roof rather than a floor. In Central City Roofing Co., 76 OSAHRC 61/A2, 4 BNA OSHC 1286, 1976-77 CCH OSHD P20,761 (No. 8173, 1976), a divided Commission overruled its prior precedent and adopted the holdings of two appellate courts that the guarding of roofs is not required under the construction safety standard at 29 C.F.R. 1926.500(d)(1). n3 See Diamond Roofing Co. v. OSHRC, 528 F.2d 645 (5th Cir. 1976), and Langer Roofing & Sheet Metal, Inc. v. Secretary of Labor, 524 F.2d 1337 (7th Cir. 1975). Specifically, the Commission agreed with the Diamond Roofing and Langer Roofing courts that section 1926.500(d)(1) does not apply to open-sided roofs because a roof is not a "floor" within the meaning of that standard.

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n3 The standard provides:

Subpart M -- Floor and Wall Openings, and Stairways.

1926.500 Guardrails, handrails and covers.

* * *

(d) Guarding of open-sided floors, platforms, and runways.

(1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(1)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.

[*7]

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In the case now before us, Judge Patton rejected Respondent's contention that sections 1910.23(a)(3) and (a)(5) do not apply to roof openings. Though agreeing with Respondent's contention that the holdings of Diamond Roofing, Langer Roofing, and Central City Roofing are applicable to the general industry standards at issue in this case, the judge nevertheless distinguished those cases on the ground that the sixth level of Respondent's facility housed "substantial equipment" used as a permanent part of Respondent's production operation. Because the sixth level provided a surface on which a part of Respondent's processing work was performed, the judge considered it analogous to a floor regardless of the fact that it also served to cover and complete the building structure.

On review, Respondent contends that Judge Patton erred because he misinterpreted the cases decided under Part 1926. In Respondent's view, those cases stand for the proposition that a roof is not a "floor" within the plain meaning of that term. Because that proposition is equally applicable in interpreting the term "floor [*8] opening" as it is used in sections 1910.23(a)(3) and (a)(5), Respondent concludes that the judge erred in distinguishing the instant case from the cases defining the scope of 29 C.F.R. 1926.500(d)(1).

On review, the Secretary agress with the judge's conclusion that the sixth level constituted a floor on the facts of this case. The Secretary also reasons that his interpretation of section 1926.500(d)(1) was rejected because it was inconsistent with the roofing industry's practice of not guarding open-sided roofs. In contrast, the Secretary argues that his interpretation of sections 1910.23(a)(3) and (a)(5) in this case "is entirely consistent with the practices embodied in" 29 C.F.R. 1926.500(b)(1), which expressly requires guarding of roof openings by employers engaged in construction activities. n4 In support of his analysis, the Secretary cites language in Diamond Roofing, 528 F.2d at 650, to the effect that the customary practice in the roofing industry is to cover or guard roof holes and openings but not to guard the roof perimeter.

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n4 Section 1926.500(b) is captioned "Guarding of floor openings and floor holes" and it sets forth requirements for such guarding. The definitions that apply to 1926.500(b) are contained in 1926.502. Pursuant to those definitions, the terms "floor hole" and "floor opening" as used in 1926.500(b) refer to specified openings in "any floor, roof, or platform." (emphasis added). Sections 1926.502(a) & (b). For this reason, 1926.500(b) requires the guarding of roof openings in the context of Part 1926.

[*9]

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In the alternative, the Secretary contends that, if the sixth level is not a "floor," then it is a "platform," as that term is defined at 29 C.F.R. 1910.21(a)(4). Because the term "floor opening," as defined at 29 C.F.R. 1910.21(a)(2), includes an opening in a "platform," the Secretary argues that the cited standards apply even if the sixth level was a "platform" rather than a "floor." See note 2 supra.

III

We agree with Respondent's contention that Commission precedent on the scope of 29 C.F.R. 1926.500(d)(1) is dispositive of the issue before us concerning the scope of the standards in 29 C.F.R. 1910.23(a). In holding that section 1926.500(d)(1) does not apply to open-sided roofs, the court in Diamond Roofing stated that "[a] regulation should be construed to give effect to the natural and plain meaning of its words" and that "a regulation cannot be construed to mean what an agency intended but did not adequately express." 528 F.2d at 649. In addition, the court noted that, where the Secretary intended to include roofs within the coverage of standards imposing requirements for [*10] guardrails, he specifically used the term "roof" in those standards. See sections 1926.502(a) & (b), cited at note 4 supra. The Secretary's failure to include the term "roof" in the open-sided floor provision at section 1926.500(d)(1) indicated, in the court's view, an intent to distinguish between a floor and a roof. 528 F.2d at 648.

The Commission majority in Central City Roofing, supra, expressly agreed with the rationale of Diamond Roofing. Moreover, when the Commission reaffirmed this holding in Dun-Par Engineered Form Co., 80 OSAHRC 14/E6, 8 BNA OSHC 1044, 1980 CCH OSHD P24,238 (No. 16062, 1980), aff'd on other grounds, No. 80-1401 (10th Cir. Apr. 21, 1982), it again stated that it accepted the reasoning of the Diamond Roofing court. 8 BNA OSHC at 1049, 1980 CCH OSHD at p. 29,491. We therefore agree with Respondent's argument that based on applicable Commission precedent a roof is not a "floor" within the plain meaning of that term. n5

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n5 We note that Subpart D of the general industry standards in which the cited standard is found contains the same distinction between a floor and a roof that the court referred to in Diamond Roofing. See 29 C.F.R. 1910.22(d)(2) (excessive loads placed "on any floor or roof of a building"). We further note that the Secretary promulgated these standards as an integrated whole notwithstanding the differing source committees within the American National Standards Institute.

[*11]

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We further conclude that this case cannot be distinguished from Central City Roofing based on the factors relied upon by Judge Patton and by the Secretary. In Dun-Par Engineered Form Co., supra, the Commission rejected the Secretary's contention that it should draw a distinction between roofs on which professional roofers are performing work, as in Central City Roofing, and roofs on which other types of construction workers are employed, as in Dun-Par. The Commission stated the following:

The argument that Central City Roofing should apply only when the employees involved are roofers is not persuasive. The Commission in Central City Roofing agreed with the reasoning of the 5th Circuit in Diamond Roofing. The court's decision was based primarily on an interpretation of the language of the standard. The court held, essentially, that the term floor, as used in section 1926.500(d)(1), was not intended to include a roof. To distinguish between roofers and non-roofers would have no effect on this interpretation.

8 BNA OSHC at 1049, 1980 CCH OSHD at p. 29,491. We therefore [*12] hold that 29 C.F.R. 1910.23(a)(3) & (a)(5) do not apply to the hatchway opening on the roof of Respondent's workplace. n6 Because we base this holding on the language of those standards and of the applicable definitions, we conclude, as the Commission did in Dun-Par, that the asserted distinctions relied upon by Judge Patton and by the Secretary are of no legal significance. In particular, we conclude that this case is not distinguishable from the precedent under Part 1926 on the ground that "the roof serves a dual purpose" in this case. In each of the cases under Part 1926, the roofs also served the dual purpose of being both "a covering to protect against the weather and to complete the building" and a walking-working surface for employees. n7

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n6 We reject the Secretary's contention that the standards apply because the sixth level at Respondent's workplace was a "platform." Because 1926.500(d)(1) applies to "[e]very open-sided floor or platform etc.," the cases decided under that standard implicitly hold that a roof is neither a "floor" nor a "platform." We expressly hold in the case now before us that the roof of a building is not a "platform" within the plain meaning of that term.

n7 The Secretary's analogy to 1926.500(b) is also unpersuasive. The terms "floor hole" and "floor opening" as defined and used in that standard expressly include roof openings. See note 4 supra. In contrast, the definition of "floor opening" as that term is used in the standard at issue in this case, 1910.23(a), does not include any reference to openings in roofs. See note 2 supra. Therefore, the analogy the Secretary proposes based on customary practice in the industry is contrary to the plain wording of the standards.

[*13]

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For the reasons above stated, we affirm the judge's order vacating the amended citation for noncompliance with 29 C.F.R. 1910.23(a)(5) or, in the alternative, 29 C.F.R. 1910.23(a)(3) and further vacating the proposed penalty.

SO ORDERED.

DISSENTBY: CLEARY

DISSENT:

CLEARY, Commissioner, dissenting:

I respectfully dissent from the majority's decision to vacate the citation on review. Based on a narrow and literalistic interpretation of the term "floor," the majority holds that Respondent is not required to guard an opening on the sixth level of Respondent's workplace even though that opening is 4 feet wide, 9 feet long, and 83 feet 9 inches above the first floor level, to which an employee of Respondent fell to his death. As a result of this holding, workers in general industry, who are usually not accustomed to working around the hazards associated with roofs, will not be provided the same protection against unguarded roof openings that is provided even to the most skilled roofers under 29 C.F.R. 1926.500(b)(3). n8

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n8 The standard at 1926.500(b)(3) is almost identical to the standard that, in my view, applies in the case now before us. See 29 C.F.R. 1910.23(a)(3), quoted at note 1 of the lead opinion. Although the applicable definitions of "floor opening" as used in the two standards differ, I do not agree with the majority's conclusion that the scope of these two essentially identical standards differs.

[*14]

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It is undisputed that the sixth level of Respondent's workplace is a roof. Nevertheless, it is also clear from the record that during the time period in question the sixth level was used extensively by several employees as a working and walking surface. For example, the three receiving filters permanently installed on the sixth level were each provided with cage ladders on their sides and platforms on their tops. The purpose of these devices was to enable employees to perform routine and recurring tasks that were an integral and ongoing part of Respondent's production operations, more specifically, the operation of the receiving filters. Thus, employees go onto the platforms to install "bags" or "socks" (long tubes used to collect dust), to check the bags, to change them when necessary, or to "set the pulse rate" of the air flowing through the bags. In addition, members of Respondent's cleanup crew perform maintenance and house-keeping work on the sixth level on a regular and recurring basis. Finally, during the time period in question, an unspecified but apparently large number of construction [*15] workers employed by independent contractors performed various construction tasks on and from the sixth level. Included among their activities was the apparently frequent use of the sixth level hatchway opening to hoist construction materials to and from the sixth level.

Based on this record, Judge Patton concluded that the cited standards apply to the hatchway opening at issue. In rejecting Respondent's contention that the standards are inapplicable because the sixth level of Respondent's workplace is a roof, the judge stated the following:

If the roof in the case at bar only served the usual purpose of a roof, constituting a covering to protect against the weather and to complete the building, the position of the respondent in this regard would be sound and would be sustained. It will be noted, however, in this case the roof serves a dual purpose. In the case at bar, there was substantial equipment permanently upon the roof, which equipment was a permanent part of the operations of respondent. The roof . . . was a surface upon which a part of the operation of the respondent was to be permanently performed . . . .

Therefore, . . . the particular facts of this case make the [*16] roof not only a roof in the usual sense in which the term is used but make it as well a floor, bringing it under the standards relating to a floor.

The judge's findings, including his ultimate finding that the sixth level of Respondent's workplace served a dual purpose, are fully supported by the record. Therefore, I would adopt the judge's conclusion that the sixth level was not only a roof but also a floor, bringing it within the coverage of the cited standards, for the reasons he stated. See Central City Roofing Co., 76 OSAHRC 61/A2, 4 BNA OSHC 1286, 1976-77 CCH OSHD P20,761 (No. 8173, 1976) (dissenting opinion).

The majority rejects the judge's reasoning and instead accepts and extends the reasoning of the appellate court in Diamond Roofing Co. v. OSHRC, 528 F.2d 645 (5th Cir. 1976). I do not agree with either my colleagues' decision to adopt the Diamond Roofing reasoning or their decision to apply that reasoning in interpreting the standards that are now at issue.

As indicated in the lead opinion, the court's holding in Diamond Roofing is based on two primary lines of reasoning: the plain meaning doctrine (a roof is not a floor within the plain meaning [*17] of that term) and the principle of statutory construction expressio unius est exclusio alterius ("the expression of one thing [here, floors] is the exclusion of another [here, roofs]"). In my view, the Commission should not follow either of these principles in interpreting the standards before us. The term "floor" does not have a single, restricted meaning. In fact, dictionaries contain numerous definitions of the term "floor," including "the surface or the platform of a structure on which to walk, work or travel." Webster's Third New International Dictionary (1971 ed.). I conclude that the sixth level of Respondent's workplace falls squarely within this definition. Therefore, it was a "floor" within the plain meaning of that term. With respect to the principle expressio unius est exclusio alterius, I adhere to may statement in Central City Roofing Co. that the principle is inapplicable in interpreting the term "floor" because a surface can be both a "roof" and a "floor"; "because a roof can be and for . . . [Respondent's employees in this case] is, a walking surface, the terms cannot be considered mutually exclusive." 4 BNA OSHC at 1288, 1976-77 CCH OSHD at [*18] p. 24,897. In particular, I do not agree with the majority's implied conclusion that the principle expressio unius est exclusio alterius applies in the context of 29 C.F.R. Part 1910, Subpart D. n9

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n9 The majority erroneously relies on the fact that the term "roof" is used in a single subsection of Subpart D, 29 C.F.R. 1910.22(d)(2). See note 5 of the lead opinion. The standards at issue in this case and the standards in 1910.22(d) were adopted by the Secretary as "national consensus standards" under 6(a) of the Act, 29 U.S.C. 655(a). Yet, the standards contrasted by the majority were derived from two separate and independent sources. See 29 C.F.R. 1910.31. Section 1910.23, including the standards cited in this case, was derived from ANSI A12.1-1967, Safety Requirements for Floor and Wall Openings, Railings and Toeboards. However, 1910.22(d) was derived from ANSI A58.1-1955, Minimum Design Loads in Buildings and Other Structures.

In Diamond Roofing, the court reasoned that, because the Secretary had used the terms "roof" and "floor" in one standard but only used the term "floor" in a second standard, the Secretary intended the second standard to apply only to floors and not to roofs. Here, in sharp contrast, neither of the standards being compared by my colleagues were drafted by the Secretary. Instead, they were drafted by two separate ANSI committees acting 12 years apart. Accordingly, there is no basis for concluding that the Secretary intended the term "floor" in 1910.23(a) to exclude roofs because 1910.22(d)(2) refers to both floors and roofs.

[*19]

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Although I would adopt Judge Patton's conclusion that the standards in question apply to the cited working conditions, I would reverse his conclusion that Respondent lacked actual or constructive knowledge of the alleged violation. Section 1910.23(a)(3), note 1 of the lead opinion supra, requires employers to guard "[e]very hatchway" by one of two specified means: a "hinged floor opening cover of standard strength and construction equipped with standard railings or permanently attached thereto so as to leave only one exposed side" or "[a] removable railing with toeboard to not more than two sides of the opening and fixed standard railings with toeboards on all other exposed sides." The record clearly establishes that a hatchway opening on the sixth level of Respondent's workplace was not guarded by either of these specified means. While Respondent provided a cover, that cover was not hinged and not equipped with standard railings. n10 Therefore, I conclude that the Secretary established his alternative allegation that Respondent failed to comply with 29 C.F.R. 1910.23(a)(3) in that it failed [*20] to guard a hatchway in accordance with the specifications of that standard. n11

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n10 Respondent argues in effect that it provided equivalent protection by providing a cover that could be bolted into place. On this record I cannot accept that contention. The fatality in question apparently occurred as a result of a construction worker's failure to bolt the middle segment of the cover after using the hatchway. Because the cover was unbolted, it moved when Respondent's employee stepped on it, thereby causing the employee to fall through the opening. However, the fatality could not have occurred if Respondent had provided a hinged cover as required under the standard. The hinges would have kept the cover from moving when the employee stepped on it. Indeed, a cover with guardrails would probably have prevented the employee from repeatedly walking across the cover in the performance of his work.

n11 Respondent argues that it would be denied due process if the Commission considered the issue of whether the cover it provided complied with the standard's requirements. It asserts that this case was tried on the theory that Respondent failed to comply with the standard by failing to assure that the hatchway cover was properly bolted and that the Secretary's contention on review that the opening was improperly guarded comes too late in the proceeding. I disagree. The complaint filed by the Secretary in this case clearly and plainly set forth the allegation that Respondent failed to comply with 1910.23(a)(3) by failing to provide either of the protective devices specified in the standard. There is no denial of due process in affirming the express allegation of the Secretary's complaint.

[*21]

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I further conclude that Respondent either knew or could, with the exercise of reasonable diligence, have known of the violation because it should have been aware that the cover it provided was neither hinged nor equipped with guardrails. Judge Patton concluded and Respondent argues that Respondent lacked knowledge of the violation because it could not have known that an employee of an independent contractor would leave the hatchway cover unsecured. However, in my view, the cover provided by Respondent failed to comply with the standard regardless of whether it was bolted in place. Therefore, it is irrelevant to the knowledge finding whether Respondent could have known that the cover was unsecuted.

For the reasons stated, I would reverse the judge's decision and affirm the Secretary's citation.