OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 8275
NATIONAL ROOFING OF SIOUX CITY, INC
Respondent.

August 3, 1976

DECISION

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

MORAN, Commissioner:

A decision of Review Commission Judge Alan M. Wienman, dated March 11, 1975, is before this Commission for review pursuant to 29 U.S.C. § 661(i). That decision, which is attached hereto as Appendix A[1] held in part that respondent violated 29 U.S.C. § 654(a)(2) by failing to install perimeter guarding on a flat roof in contravention of 29 C.F.R. § 1926.500(d)(§)  For reasons that follow, that holding is reversed.

In Secretary v. Central City Roofing Co., OSAHRC Docket No. 8173, June 4, 1976, we held that 29 C.F.R. § 1926.500(d)(1) does not apply to flat roofs. That decision is applicable in the instant case.

Complainant, however, now moves in his review brief before this Commission to amend the pleadings in the alternative to allege a violation of 29 C.F.R. § 1926.28(a).[2] There being no mention whatsoever at the hearing of this particular standards, we hold that to permit such an amendment at this late date could prejudice respondent by not allowing it an opportunity to introduce rebuttal evidence on the elements of the new charge. See Secretary v. Marquette Cement Manufacturing Co., OSAHRC Docket No. 4725, January 27, 1976;[3] Secretary v. Maryland Shipbuilding & Drydock Co., OSAHRC Docket No. 4503, October 9, 1975.

In so holding, we specifically reject complainant’s contention that the issue of compliance with 29 C.F.R. § 1926.28(a) was tried by consent. Although the parties at various times introduced evidence that might have been relevant to the amended charge, implied consent will only be found when the party against whom the amendment is sought was fairly apprised that the unpleaded charge was in issue. Niedland v. United States, 338 F.2d 254, 258 (3rd Cir. 1964); Kuhn v. Civil Aeronautics Board, 183 F.2d 839, 842 (D.C. Cir. 1950); Secretary v. Marquette Cement Manufacturing Co., supra. It clearly cannot be said in this case that respondent was in any way aware that the standard at 29 C.F.R. § 1926.28(a) was in issue. As noted previously, this standard was never even mentioned by complainant until well after the hearing, and there is nothing whatsoever in the record to indicate that respondent was aware of any need to defend against the new charge.

Accordingly, the citation for a violation of 29 C.F.R. § 1926.500(d)(1) and the $100.00 penalty assessed therefor are vacated. The Judge’s finding on the remaining citation is affirmed.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATED: AUG 3, 1976

CLEARY, Commissioner, DISSENTING:

I dissent from the disposition of this case because amendment to section 1926.58(a) is appropriate under Rule 15(b) of the Federal Rules of Civil Procedure and the notice provisions of the Administrative Procedure Act, 5 U.S.C. § 554(b)(3). Kaiser Aluminum & Steel Corp., No. 3685, BNA 4 OSHC 1162, CCH 1975–76 OSHD para. 20,675 (1976); Marquette Cement Manufacturing Co., No. 4725, BNA 3 OSHC 1928, CCH 1975–76 OSHD para. 20,353 (1976) (dissenting opinion) (appeal docketed No. 76–4083, 2d Cir.).3a

The issue of the use of a life line rope system was dealt with in testimony no less than five times at the hearing, without objection by respondent. In fact, respondent raised the defense that life lines might create a greater hazard than no protection. (Tr. 88–89) Therefore, I would amend the complaint to allege a failure to comply with the standard at 29 CFR § 1926.28(a).

APPENDIX A

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 8275
NATIONAL ROOFING OF SIOUX CITY, INC
Respondent.

March 11, 1975

APPEARANCES:

DONALD McCOY, Esq., United States Department of Labor, Office of the Solicitor, Kansas City, Missouri, for the Secretary of Labor

CHARLES R. WOLLE, Esq., Shull, Marshall & Marks, Sioux City, Iowa, for the Respondent

Wienman, Judge, OSAHRC:

STATEMENT OF THE CASE

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting a citation for repeated violation issued by the complainant against the respondent May 13, 1974, under the authority vested in complainant by section 9(a) of that Act. The citation alleged on the basis of an inspection of a workplace at 35th and G Streets, South Sioux City, Nebraska, on May 2, 1974, that the respondent violated the Act by failing to comply with an occupational safety and health regulation promulgated by the Secretary of Labor and codified as 29 CFR 1926.500(d)(1). The citation described the alleged violation as follows:

(Job Site) The perimeter railings were not in use, but were stored in flatbed truck, one employee mopping tar and another employee throwing water along south center edge of the roof.

Regulation 29 CFR 1926.500(d)(1) provides:

(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) 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 the standard toe board wherever, beneath the open sides, persons can pass, where there is moving machinery, or there is equipment with which falling materials could create a hazard.

Pursuant to enforcement procedures set forth in section 10(a) of the Act, respondent was notified by letter dated May 13, 1974, from Warren Wright, Area Director, Occupational Safety and Health Administration, United States Department of Labor, that he proposed to assess a penalty of $596 for the alleged repeated violation. Respondent gave due notice of its intention to contest the citation and the proposed penalty.[4] After complaint and answer were filed by the parties, hearing was held on December 20, 1974, at which time both complainant and respondent appeared and presented evidence.

THE ISSUES

No jurisdictional issues are in dispute, the parties having pleaded facts sufficient to establish that the respondent is subject to the Act, and that the Commission has jurisdiction of the parties and the subject matter.

The primary issue for resolution is whether the respondent violated occupational safety regulation 29 CFR 1926.500(d)(1) as alleged in the citation for repeated violation, and, if so, what penalty is appropriate for said violation.

SUMMARY OF THE EVIDENCE AND DISCUSSION

OSHA Compliance Officer Robert Bruno testified that on May 2, 1974, he inspected respondent’s worksite at a schoolhouse in South Sioux City, Nebraska. Bruno had been assigned to conduct a reinspection after an earlier inspection at the same worksite resulted in a citation for roofing violations including regulation 29 CFR 1926.500(d)(1) (T. 10). (The citation issued March 12, (1974, was not contested. On April, 24, 1974, respondent’s president, Robert Wiskus, wrote Warren Wright a letter describing respondent’s efforts to correct violations (Ex. G–2, G–3).)

Bruno testified that he and Ray Larson, respondent’s foreman, climbed ladders to the second elevation of the structure (T. 13) where respondent’s employees were applying tar within two feet of the roof’s south edge (T. 13–17). The distance between the two roof elevations was approximately 13 feet (T. 17). No guarding was in place, and the employees were not wearing life lines, belts, or any other form of protection (T. 16, 18). Bruno, who believed that the likelihood of a fall was quite high while employees were working within three or four feet of the edge, computed the proposed penalty for repeated violation. After according the respondent a 10 percent credit for history, 5 percent for size and zero for good faith, a penalty of $596 was proposed (T. 24, 26).

On cross-examination Bruno repeated his observation that one employee mopping tar initially was within 2 feet of the edge of the floor, although he moved away from the edge as he mopped (T. 35, 36). Bruno recalled that Larson showed him guard devices which were stored in a truck and told him how they were employed. The devices consisted of wooden standards or platforms with ropes strung between them. They were customarily placed atop the roof and held in position with sandbags (T. 37, Ex. R–5, 6, 7, 8, 9, 10). Bruno did not see them erected (T. 36, 37), but it was his opinion that devices could not have been employed close to the roof edge because an employee would have to mop where the standard would be erected (T. 38). Bruno believed the roofers could have been equipped with safety lines and belts while working at the edge, and the barriers could have been employed after the men moved in four feet (T. 38, 39). Bruno also testified that the guard devices would not constitute a ‘standard railing’ but would serve to warn employees rather than prevent a fall (T. 46, 48).

Robert Wiskus, respondent’s president and general manager, testified that after receiving the first citation he met with OSHA Area Director, Warren Wright, to discuss compliance with perimeter guarding regulations. He showed Wright a sketch of a railing and rope arrangement designed to provide a warning to employees and Wiscus understood that this type of ‘railing for warning’ would constitute compliance with the Act as interpreted by Mr. Wright (T. 62).

Wiskus also stated that the nature of the construction made is impossible to put a fixed barricade around the perimeter of all the roof areas at the school; the fascia system was constructed of light concrete panels and there was no way of fastening to it without ruining the material (T. 62–63). Wiskus stated that he knew no practical way to provide perimeter protection other than a warning line on this project (T. 63). He also testified that none of his employees had ever fallen from a flat roof and he knew of no laborer in the area who had done so (T. 66).

Wiskus testified candidly that the function of the apparatus he designed was to warn an employee he was approaching the edge of the roof rather than support him (T. 72).

Under cross-examination Mr. Wiskus admitted that he could not recall his conversation with Warren Wright exactly and could neither admit nor deny that Wright told him that either a standard guardrail or a life line with a safety belt was required when it was necessary for men to work at the edge of the roof (T. 74–77). However, Wiskus was of the opinion that attaching a life line to a roofer would serve to restrict his movements and make the job more hazardous (T. 77–78).

Foreman Raymond Larson testified that on the morning of the inspection his crew had worked with warning railings in place, but they took them down and quit work because of wind conditions after dinner. However, when the wind died they returned to work without erecting the railings (T. 85). This was his sole decision and was done to save time. (T. 94)

Larson testified that his crew was applying asphalt no closer than three feet from the sough edge of the roof (T. 91). He disputed Bruno’s observation that one employee was working within two feet of the edge (T. 92). The warning devices were generally erected about two or three feet from the edge, and Larson stated that they could have been placed in their usual position without interfering with the work (T. 94).

Also testifying for respondent was Chester Vandever, a ‘partially retired’ roofing foreman with 44 years experience in the industry (T. 96–97). He testified that he knew of no practical way that a permanent or fixed perimeter railing could be placed on a roof while people were working on it; that during his years in the industry no outside barriers or warning lines were used on flat roofs (T. 98). When asked if a stable series of uprights could support a guardrail without physically fastening to the roof, Mr. Vandever indicated such an arrangement might be possible but would require a carpenter’s skill for its construction (T. 103).

A review of the record reveals no dispute about the physical facts, i.e., respondent’s employees were working on an open-sided flat roof some 13 feet or more above the next adjacent level, and the roof sides were not guarded by a standard railing or its equivalent. Respondent readily concedes this fact, but nevertheless resists the enforcement action on several counts. The first and foremost defense is the proposition that regulation 29 CFR 1926.500(d)(1) is not applicable to flat roofs. Respondent maintains that a roof is not an ‘open-sided floor or platform’ and that a reasonable interpretation of the regulation makes it inapplicable to a flat roof. Unfortunately for respondent’s position, this argument has been considered and rejected by the Commission. See Secretary of Labor v. Diamond Roofing Company, 4 OSAHRC 1415 (Docket No. 459) and Secretary of Labor v. Heyse Sheet Metal and Roofing Company, 4 OSAHRC 1395 (Docket No. 681). The Diamond Roofing Company case is presently pending on appeal, but the decision is controlling at this point.

In addition to challenging the validity of the regulation, respondent also contends that (1) compliance with the cited regulation was impossible under the conditions existing at the worksite, and that (2) respondent reasonably relied on conversations with the Area Director which indicated that a ‘standard railing’ had been discarded as a requirement on the particular project. Considerable testimony was devoted to these contentions, and each merits discussion.

Impossibility of compliance is a well-recognized defense in construction cases. See Secretary of Labor v. Brown and Kerr, Inc., 4 OSAHRC 1429 (Docket No. 3055). However, employers utilizing this defense customarily make an affirmative showing that the requirements of the standard would have made performance of the work impossible. Such was not the case existing at the instant worksite. Respondent’s employees were performing no work at the very edge of the roof, and perimeter railings would not have interfered with their labors. Respondent, however, suggests ‘impossibility’ in another sense, namely that no means were available to erect railings without damage to the roof structure. The record does not reveal that respondent sought technical assistance to solve the problem, and complainant suggests that a carpenter might have erected a satisfactory railing system without damaging any fragile roofing material. In the present state of the record we conclude that respondent has not established the defense of impossibility of performance by a preponderance of the evidence.

Respondent’s final defense gives us pause. It is axiomatic that the government cannot be estopped by the acts of its agents entering into arrangements to do or cause to be done that which the law does not sanction or permit. See Utah Power and Light Company v. United States, 243 U.S. 389, 409, 37 S.Ct. 387, 391. There is no reason to doubt the bona fides of Mr. Wiskus’ belief that erection of a warning device system would serve to comply with perimeter railing regulations. Wiskus’ April 24, 1974, letter to Warren Wright makes specific reference to construction of a railing to provide warning at the perimeter (Ex. G–3). Despite the classic legal principles which deny the assertion of estoppel in this situation, it would be strange justice if an employer who abated a hazardous condition in conformity with an agreement reached in discussions with an OSHA Area Director were later subjected to a substantial penalty as a result of his reliance upon the agreement. Had respondent’s warning devices been in place on the afternoon of May 2, 1974, this would indeed be a difficult case. However, the record is clear that neither railings nor warning devices were employed to diminish the hazard when Bruno inspected the project, and respondent’s final defense fails. In this regard it avails the respondent little to point out that the citation makes reference to perimeter railings stored in the flatbed truck when the devices in the truck were not, in fact, standard railings as defined in the regulations. The citation clearly charged a violation of regulation 29 CFR 1926.500(d)(1) and provided adequate notice of the charge so fully contested at the December 20, 1974, hearing.

In summary, we find the conditions existing at the worksite on the afternoon of May 2, 1974, constituted a violation of regulation 29 CFR 1926.500(d)(1). In view of the record that respondent had earlier violated the identical regulation at the same worksite we are constrained to conclude that the May 2, 1974, violation was ‘repeated’ within the meaning of section 17(a) of the statute. We do not, however, agree with the Area Director that a civil penalty in the sum of $596 is appropriate for the violation. Rather, we find that the employer made a bona fide albeit ineffective attempt to achieve compliance, and the lack of any perimeter guarding or railing on the afternoon of May 2, 1974, resulted from a foreman’s decision and not from company policy. The testimony that no roofer in the area had ever fallen over the edge of a flat roof was unrebutted, and we conclude that the probability of an accident occuring under the conditions revealed by the inspection was remote. After due consideration of all relevant factors, including the gravity of the offense, respondent’s size, good faith and safety history, we find a penalty of $100 appropriate.

FINDINGS OF FACT

Having held a hearing and considered the entire record herein, it is concluded that the substantial evidence in the record as a whole supports the following findings of fact:

1. Respondent, National Roofing of Sioux City, Inc., is a corporation with its principal office at 1819 Dace Avenue, Sioux City, Iowa, where it is engaged in construction contracting in the roofing industry.

2. Respondent employs approximately 22 employs in its construction activities, regularly receives goods and equipment in commerce, performs construction work in states other than the state of Iowa, and is engaged in a business affecting commerce.

3. On May 2, 1974, OSHA Compliance Officer Robert Bruno inspected a worksite of respondent located at South Sioux City, Nebraska. On May 13, 1974, respondent was issued a citation for nonserious violation, a citation for repeated violation, and a notification of proposed penalty.

4. In its answer respondent admitted that at the time of the inspection it was in violation of occupational safety regulation 29 CFR 1926.300(b)(2) as alleged in the citation for nonserious violation.

5. Representatives of the Secretary of Labor had previously inspected the same worksite at 35th and G Street, South Sioux City, Nebraska, on February 26, 1974, and issued a citation to respondent alleging various violations of occupational safety standards including regulation 29 CFR 1926.500(d)(1). The foregoing citation, issued March 12, 1974, was not contested by respondent, but by letter dated April 24, 1974, respondent’s president, Robert Wiskus, advised the OSHA Area Director that the items cited therein ‘had been corrected.’

6. On May 2, 1974, three employees of respondent were laying tar along the south edge of the second roof elevation of the worksite, a high school building under construction. The employees were exposed to a fall of approximately 13 feet from the upper roof elevation to the next lower floor or ground level. No guardrails or perimeter guards were in place along the edge of the upper roof elevation, nor were the employees wearing lifelines or any other form of protection.

CONCLUSIONS OF LAW

1. Respondent is and at all times material hereto was an employer engaged in a business affecting commerce within the meaning of the Act.

2. On May 2, 1974, respondent violated occupational safety and health regulation 29 CFR 1926.300(b)(2).

3. On May 2, 1974, respondent violated occupational safety and health regulation 29 CFR 1926.500(d)(1). Said violation constituted a repeated violation within the meaning of section 17(a) of the Act, and a civil penalty of $100 is appropriate for said violation.

ORDER

Based on the above finding of facts and conclusions of law, it is ORDERED that:

1. The citation for nonserious violation issued to respondent May 13, 1974, is hereby affirmed.

2. The citation for repeated violation issued to respondent May 13, 1974, is hereby affirmed and a civil penalty in the sum of $100 is assessed therefor.

Alan M. Wienman

Judge, OSAHRC

Dated: March 11, 1975

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[1] Chairman Barnako does not agree to this attachment.

[2] That standard provides as follows:

The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions of where this part indicates the need for using such equipment to reduce the hazards to the employees.

[3] Appeal docketed, No. 76–4083, 2d Cir., March 24, 1976.

3a In addition, although I agree that Central City Roofing Co. is dispositive of the 29 CFR § 1926.500(d)(1) issue in this case, I would limit the application of Central City to only the roofing industry.

[4] Respondent also contested a citation issued May 13, 1974, for nonserious violation of regulation 29 CFR 1926.300(b)(2) in connection with an unguarded chain drive on a tar pump. However, no penalty was proposed in connection with this citation, and in subsequent pleadings respondent admitted the violation, thereby terminating any dispute with reference to the nonserious citation.