“OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 8275 NATIONAL ROOFING OF SIOUX CITY, INC \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0August 3, 1976DECISION?BEFORE BARNAKO, Chairman; MORAN and CLEARY,Commissioners.MORAN, Commissioner:Adecision of Review Commission Judge Alan M. Wienman, dated March 11, 1975, isbefore this Commission for review pursuant to 29 U.S.C. ? 661(i). Thatdecision, which is attached hereto as Appendix A[1] held in part thatrespondent violated 29 U.S.C. ? 654(a)(2) by failing to install perimeterguarding on a flat roof in contravention of 29 C.F.R. ?\u00a01926.500(d)(?)\u00a0For reasons that follow, that holding is reversed.InSecretary 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 thepleadings in the alternative to allege a violation of 29 C.F.R. ? 1926.28(a).[2] There being no mentionwhatsoever at the hearing of this particular standards, we hold that to permitsuch an amendment at this late date could prejudice respondent by not allowingit an opportunity to introduce rebuttal evidence on the elements of the newcharge. See Secretary v. Marquette Cement Manufacturing Co., OSAHRCDocket No. 4725, January 27, 1976;[3] Secretary v. MarylandShipbuilding & Drydock Co., OSAHRC Docket No. 4503, October 9, 1975.Inso holding, we specifically reject complainant?s contention that the issue ofcompliance with 29 C.F.R. ? 1926.28(a) was tried by consent. Although theparties at various times introduced evidence that might have been relevant tothe amended charge, implied consent will only be found when the party againstwhom the amendment is sought was fairly apprised that the unpleaded charge wasin issue. Niedland v. United States, 338 F.2d 254, 258 (3rd Cir. 1964); Kuhnv. Civil Aeronautics Board, 183 F.2d 839, 842 (D.C. Cir. 1950); Secretaryv. Marquette Cement Manufacturing Co., supra. It clearly cannot besaid in this case that respondent was in any way aware that the standard at 29C.F.R. ? 1926.28(a) was in issue. As noted previously, this standard was nevereven mentioned by complainant until well after the hearing, and there is nothingwhatsoever in the record to indicate that respondent was aware of any need todefend against the new charge.Accordingly,the citation for a violation of 29 C.F.R. ? 1926.500(d)(1) and the $100.00penalty assessed therefor are vacated. The Judge?s finding on the remainingcitation is affirmed.?FOR THE COMMISSION:?William S. McLaughlinExecutive SecretaryDATED: AUG 3, 1976?CLEARY, Commissioner,DISSENTING:Idissent from the disposition of this case because amendment to section1926.58(a) is appropriate under Rule 15(b) of the Federal Rules of CivilProcedure and the notice provisions of the Administrative Procedure Act, 5U.S.C. ? 554(b)(3). Kaiser Aluminum & Steel Corp., No. 3685, BNA 4OSHC 1162, CCH 1975?76 OSHD para. 20,675 (1976); Marquette CementManufacturing Co., No. 4725, BNA 3 OSHC 1928, CCH 1975?76 OSHD para. 20,353(1976) (dissenting opinion) (appeal docketed No. 76?4083, 2d Cir.).3aTheissue of the use of a life line rope system was dealt with in testimony no lessthan five times at the hearing, without objection by respondent. In fact,respondent raised the defense that life lines might create a greater hazardthan no protection. (Tr. 88?89) Therefore, I would amend the complaint toallege a failure to comply with the standard at 29 CFR ? 1926.28(a).?APPENDIX A\u00a0\u00a0OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 8275 NATIONAL ROOFING OF SIOUX CITY, INC \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0March 11, 1975APPEARANCES:DONALD McCOY,Esq., United States Department of Labor, Office of the Solicitor, Kansas City,Missouri, for the Secretary of Labor\u00a0CHARLES R. WOLLE,Esq., Shull, Marshall & Marks, Sioux City, Iowa, for the Respondent\u00a0Wienman, Judge, OSAHRC:STATEMENTOF THE CASEThisis a proceeding pursuant to section 10 of the Occupational Safety and HealthAct of 1970 (29 USC 651 et seq., hereafter called the Act) contesting acitation for repeated violation issued by the complainant against therespondent May 13, 1974, under the authority vested in complainant by section9(a) of that Act. The citation alleged on the basis of an inspection of a workplaceat 35th and G Streets, South Sioux City, Nebraska, on May 2, 1974, that therespondent violated the Act by failing to comply with an occupational safetyand health regulation promulgated by the Secretary of Labor and codified as 29CFR 1926.500(d)(1). The citation described the alleged violation as follows:(Job Site) Theperimeter railings were not in use, but were stored in flatbed truck, oneemployee mopping tar and another employee throwing water along south centeredge of the roof.\u00a0Regulation29 CFR 1926.500(d)(1) provides:(1) Everyopen-sided floor or platform 6 feet or more above adjacent floor or groundlevel shall be guarded by a standard railing, or the equivalent, as specifiedin paragraph (f)(1) of this section, on all open sides, except where there isentrance to a ramp, stairway, or fixed ladder. The railing shall be providedwith the standard toe board wherever, beneath the open sides, persons can pass,where there is moving machinery, or there is equipment with which falling materialscould create a hazard.?Pursuantto enforcement procedures set forth in section 10(a) of the Act, respondent wasnotified by letter dated May 13, 1974, from Warren Wright, Area Director,Occupational Safety and Health Administration, United States Department ofLabor, that he proposed to assess a penalty of $596 for the alleged repeatedviolation. Respondent gave due notice of its intention to contest the citationand the proposed penalty.[4] After complaint and answerwere filed by the parties, hearing was held on December 20, 1974, at which timeboth complainant and respondent appeared and presented evidence.THEISSUESNojurisdictional issues are in dispute, the parties having pleaded factssufficient to establish that the respondent is subject to the Act, and that theCommission has jurisdiction of the parties and the subject matter.Theprimary issue for resolution is whether the respondent violated occupationalsafety regulation 29 CFR 1926.500(d)(1) as alleged in the citation for repeatedviolation, and, if so, what penalty is appropriate for said violation.SUMMARYOF THE EVIDENCE AND DISCUSSIONOSHACompliance Officer Robert Bruno testified that on May 2, 1974, he inspectedrespondent?s worksite at a schoolhouse in South Sioux City, Nebraska. Bruno hadbeen assigned to conduct a reinspection after an earlier inspection at the sameworksite resulted in a citation for roofing violations including regulation 29CFR 1926.500(d)(1) (T. 10). (The citation issued March 12, (1974, was notcontested. On April, 24, 1974, respondent?s president, Robert Wiskus, wroteWarren Wright a letter describing respondent?s efforts to correct violations(Ex. G?2, G?3).)Brunotestified that he and Ray Larson, respondent?s foreman, climbed ladders to thesecond elevation of the structure (T. 13) where respondent?s employees wereapplying tar within two feet of the roof?s south edge (T. 13?17). The distancebetween the two roof elevations was approximately 13 feet (T. 17). No guardingwas in place, and the employees were not wearing life lines, belts, or anyother form of protection (T. 16, 18). Bruno, who believed that the likelihoodof a fall was quite high while employees were working within three or four feetof the edge, computed the proposed penalty for repeated violation. Afteraccording the respondent a 10 percent credit for history, 5 percent for sizeand zero for good faith, a penalty of $596 was proposed (T. 24, 26).Oncross-examination Bruno repeated his observation that one employee mopping tarinitially was within 2 feet of the edge of the floor, although he moved awayfrom the edge as he mopped (T. 35, 36). Bruno recalled that Larson showed himguard devices which were stored in a truck and told him how they were employed.The devices consisted of wooden standards or platforms with ropes strungbetween them. They were customarily placed atop the roof and held in positionwith 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 employedclose to the roof edge because an employee would have to mop where the standardwould be erected (T. 38). Bruno believed the roofers could have been equippedwith safety lines and belts while working at the edge, and the barriers couldhave been employed after the men moved in four feet (T. 38, 39). Bruno alsotestified that the guard devices would not constitute a ?standard railing? butwould serve to warn employees rather than prevent a fall (T. 46, 48).RobertWiskus, respondent?s president and general manager, testified that afterreceiving the first citation he met with OSHA Area Director, Warren Wright, todiscuss compliance with perimeter guarding regulations. He showed Wright asketch of a railing and rope arrangement designed to provide a warning toemployees and Wiscus understood that this type of ?railing for warning? wouldconstitute compliance with the Act as interpreted by Mr. Wright (T. 62).Wiskusalso stated that the nature of the construction made is impossible to put afixed barricade around the perimeter of all the roof areas at the school; thefascia system was constructed of light concrete panels and there was no way offastening to it without ruining the material (T. 62?63). Wiskus stated that heknew no practical way to provide perimeter protection other than a warning lineon this project (T. 63). He also testified that none of his employees had everfallen from a flat roof and he knew of no laborer in the area who had done so(T. 66).Wiskustestified candidly that the function of the apparatus he designed was to warnan employee he was approaching the edge of the roof rather than support him (T.72).Undercross-examination Mr. Wiskus admitted that he could not recall his conversationwith Warren Wright exactly and could neither admit nor deny that Wright toldhim that either a standard guardrail or a life line with a safety belt wasrequired 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 aroofer would serve to restrict his movements and make the job more hazardous(T. 77?78).ForemanRaymond Larson testified that on the morning of the inspection his crew hadworked with warning railings in place, but they took them down and quit work becauseof wind conditions after dinner. However, when the wind died they returned towork without erecting the railings (T. 85). This was his sole decision and wasdone to save time. (T. 94)Larsontestified that his crew was applying asphalt no closer than three feet from thesough edge of the roof (T. 91). He disputed Bruno?s observation that oneemployee was working within two feet of the edge (T. 92). The warning deviceswere generally erected about two or three feet from the edge, and Larson statedthat they could have been placed in their usual position without interferingwith the work (T. 94).Alsotestifying for respondent was Chester Vandever, a ?partially retired? roofingforeman with 44 years experience in the industry (T. 96?97). He testified thathe knew of no practical way that a permanent or fixed perimeter railing couldbe placed on a roof while people were working on it; that during his years inthe 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 guardrailwithout physically fastening to the roof, Mr. Vandever indicated such anarrangement might be possible but would require a carpenter?s skill for itsconstruction (T. 103).Areview 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 ormore above the next adjacent level, and the roof sides were not guarded by astandard railing or its equivalent. Respondent readily concedes this fact, butnevertheless resists the enforcement action on several counts. The first andforemost defense is the proposition that regulation 29 CFR 1926.500(d)(1) isnot applicable to flat roofs. Respondent maintains that a roof is not an ?open-sidedfloor or platform? and that a reasonable interpretation of the regulation makesit inapplicable to a flat roof. Unfortunately for respondent?s position, thisargument has been considered and rejected by the Commission. See Secretaryof Labor v. Diamond Roofing Company, 4 OSAHRC 1415 (Docket No. 459) and Secretaryof Labor v. Heyse Sheet Metal and Roofing Company, 4 OSAHRC 1395 (DocketNo. 681). The Diamond Roofing Company case is presently pending onappeal, but the decision is controlling at this point.Inaddition to challenging the validity of the regulation, respondent alsocontends that (1) compliance with the cited regulation was impossible under theconditions existing at the worksite, and that (2) respondent reasonably reliedon conversations with the Area Director which indicated that a ?standardrailing? had been discarded as a requirement on the particular project.Considerable testimony was devoted to these contentions, and each meritsdiscussion.Impossibilityof compliance is a well-recognized defense in construction cases. See Secretaryof Labor v. Brown and Kerr, Inc., 4 OSAHRC 1429 (Docket No. 3055). However,employers utilizing this defense customarily make an affirmative showing thatthe requirements of the standard would have made performance of the workimpossible. 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 wereavailable to erect railings without damage to the roof structure. The recorddoes not reveal that respondent sought technical assistance to solve theproblem, and complainant suggests that a carpenter might have erected asatisfactory railing system without damaging any fragile roofing material. Inthe present state of the record we conclude that respondent has not establishedthe defense of impossibility of performance by a preponderance of the evidence.Respondent?sfinal defense gives us pause. It is axiomatic that the government cannot beestopped by the acts of its agents entering into arrangements to do or cause tobe done that which the law does not sanction or permit. See Utah Power andLight Company v. United States, 243 U.S. 389, 409, 37 S.Ct. 387, 391. Thereis no reason to doubt the bona fides of Mr. Wiskus? belief that erection of awarning device system would serve to comply with perimeter railing regulations.Wiskus? April 24, 1974, letter to Warren Wright makes specific reference toconstruction of a railing to provide warning at the perimeter (Ex. G?3).Despite the classic legal principles which deny the assertion of estoppel inthis situation, it would be strange justice if an employer who abated ahazardous condition in conformity with an agreement reached in discussions withan OSHA Area Director were later subjected to a substantial penalty as a resultof his reliance upon the agreement. Had respondent?s warning devices been inplace 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 wereemployed to diminish the hazard when Bruno inspected the project, andrespondent?s final defense fails. In this regard it avails the respondentlittle to point out that the citation makes reference to perimeter railingsstored 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 aviolation of regulation 29 CFR 1926.500(d)(1) and provided adequate notice ofthe charge so fully contested at the December 20, 1974, hearing.Insummary, we find the conditions existing at the worksite on the afternoon ofMay 2, 1974, constituted a violation of regulation 29 CFR 1926.500(d)(1). Inview of the record that respondent had earlier violated the identicalregulation 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 thestatute. We do not, however, agree with the Area Director that a civil penaltyin the sum of $596 is appropriate for the violation. Rather, we find that theemployer made a bona fide albeit ineffective attempt to achieve compliance, andthe 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 testimonythat 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 theconditions revealed by the inspection was remote. After due consideration ofall relevant factors, including the gravity of the offense, respondent?s size,good faith and safety history, we find a penalty of $100 appropriate.FINDINGSOF FACTHavingheld a hearing and considered the entire record herein, it is concluded thatthe substantial evidence in the record as a whole supports the followingfindings of fact:1.Respondent, National Roofing of Sioux City, Inc., is a corporation with itsprincipal office at 1819 Dace Avenue, Sioux City, Iowa, where it is engaged inconstruction contracting in the roofing industry.2.Respondent employs approximately 22 employs in its construction activities,regularly receives goods and equipment in commerce, performs construction workin states other than the state of Iowa, and is engaged in a business affectingcommerce.3.On May 2, 1974, OSHA Compliance Officer Robert Bruno inspected a worksite ofrespondent located at South Sioux City, Nebraska. On May 13, 1974, respondentwas issued a citation for nonserious violation, a citation for repeatedviolation, and a notification of proposed penalty.4.In its answer respondent admitted that at the time of the inspection it was inviolation of occupational safety regulation 29 CFR 1926.300(b)(2) as alleged inthe citation for nonserious violation.5.Representatives of the Secretary of Labor had previously inspected the sameworksite at 35th and G Street, South Sioux City, Nebraska, on February 26,1974, and issued a citation to respondent alleging various violations ofoccupational safety standards including regulation 29 CFR 1926.500(d)(1). Theforegoing citation, issued March 12, 1974, was not contested by respondent, butby letter dated April 24, 1974, respondent?s president, Robert Wiskus, advisedthe 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 southedge of the second roof elevation of the worksite, a high school building underconstruction. The employees were exposed to a fall of approximately 13 feetfrom the upper roof elevation to the next lower floor or ground level. Noguardrails or perimeter guards were in place along the edge of the upper roofelevation, nor were the employees wearing lifelines or any other form ofprotection.CONCLUSIONSOF LAW1.Respondent is and at all times material hereto was an employer engaged in abusiness affecting commerce within the meaning of the Act.2.On May 2, 1974, respondent violated occupational safety and health regulation29 CFR 1926.300(b)(2).3.On May 2, 1974, respondent violated occupational safety and health regulation29 CFR 1926.500(d)(1). Said violation constituted a repeated violation withinthe meaning of section 17(a) of the Act, and a civil penalty of $100 isappropriate for said violation.ORDERBasedon 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, ishereby affirmed.2.The citation for repeated violation issued to respondent May 13, 1974, ishereby affirmed and a civil penalty in the sum of $100 is assessed therefor.?Alan M. WienmanJudge, OSAHRCDated: March 11, 1975[1] Chairman Barnakodoes not agree to this attachment.\u00a0[2] That standardprovides as follows:The employer isresponsible for requiring the wearing of appropriate personal protectiveequipment in all operations where there is an exposure to hazardous conditionsof where this part indicates the need for using such equipment to reduce thehazards to the employees.[3] Appealdocketed, No. 76?4083, 2d Cir., March 24, 1976. 3a In addition, although I agree thatCentral City Roofing Co. is dispositive of the 29 CFR ? 1926.500(d)(1) issue inthis case, I would limit the application of Central City to only the roofingindustry.[4] Respondent alsocontested a citation issued May 13, 1974, for nonserious violation ofregulation 29 CFR 1926.300(b)(2) in connection with an unguarded chain drive ona tar pump. However, no penalty was proposed in connection with this citation,and in subsequent pleadings respondent admitted the violation, therebyterminating any dispute with reference to the nonserious citation.”