J. F. PROBST & CO., INC.
OSHRC Docket No. 963
Occupational Safety and Health Review Commission
September 3, 1974
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: VAN NAMEE
OPINION:
VAN NAMEE, COMMISSIONER: This matter is before the Commission upon my order directing review of a decision of Judge Louis J. Rubin. Judge Rubin vacated one item of Complainant's citation charging a non-serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter "the Act"), on the ground that the standard upon which Complainant relied (29 C.F.R. 1926.500(d)(1)) n1 is inapplicable to flat roofs.
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n1 The cited standard provides:
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)(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.
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We have reviewed the entire record. Judge Rubin's decision is adopted only to the extent it is consistent with this decision.
For the reasons stated in our decision in Secretary of Labor v. S.D. Mullins Company, Inc., Secretary of Labor v. Diamond Roofing Company, Inc. Secretary of Labor v. Heyse Sheet Metal and Roofing Company, Inc.,
We have considered the size of Respondent's business, the gravity of the violation, Respondent's good faith, and its history of previous violations. Considering these factors, we conclude that the proposed penalty of $25.00 is appropriate.
Accordingly, it is ORDERED that Complainant's citation for non-serious violation of section 5(a)(2) of the Act based on violation of 29 C.F.R. 1926.500(d)(1) is affirmed and a penalty [*3] of $25.00 is assessed therefor. In all other respects the decision of the Judge is affirmed.
CONCURBY: CLEARY
CONCUR:
CLEARY, COMMISSIONER, concurring: I concur in Commissioner Van Namee's conclusion that the standard at 29 CFR § 1926.500(d)(1) applies to the roof at issue in this case. As noted in the lead opinion, the Commission has consistently held that this standard applies to flat roofs. The photographs of the roof in this case and testimony at the hearing establish that this roof is not absolutely flat, but is "slightly inclined." There is nothing in either the standard or the cases that precludes application of the standard to the roof here.
Fall protection for employees working on a roof with a slope greater than 4 inches in 12 inches is required by the standard at 29 CFR § 1926.451(u)(3). I would apply section 1926.500(d)(1) to any roof on which employees are working that has a slope less than "4 in 12." To do otherwise would permit a hiatus in protection for employees working on a roof that is not flat but is not sloped to a pitch greater than "4 in 12." More likely than not no gap in protection was intended by the draftsmen. I, therefore, read section 1926.500(d)(1) [*4] and section 1926.451(u)(3) together as precluding any gap.
Before the hearing, respondent attempted to withdraw its notice of contest to the Secretary's proposed penalties. I believe that a notice of contest as to the violation must perforce bring possible penalties concerning that violation into issue. Florida East Coast Properties, Inc., No. 2354, n.3, (February 5, 1974).
Because of the attempted withdrawal of the notice of contest to the proposed penalties, there is little or no evidence in the record of the factors to be considered in assessing a penalty as required by section 17(j) of the Act. I believe, however, that the gravity of the violation requires the assessment of some penalty. The Commission is left with the dilemma of remanding the case in order to take evidence on the section 17(j) factors or of adopting the Secretary's proposed penalty. I do not believe that any useful purpose will be served by remand at this time. For this reason, I agree with Commissioner Van Namee in concluding that the Secretary's proposed penalty of $25 is appropriate. In doing so, I take official notice of the fact that the Secretary's Compliance Manual containing instructions [*5] for field officers requires consideration of the statutory criteria in determining the appropriateness of a proposed penalty. There is nothing before us suggesting that the Secretary has not followed this course.
DISSENTBY: MORAN
DISSENT:
MORAN, CHAIRMAN, dissenting: Judge Rubin and the Judges whose decisions are cited in his decision correctly decided that 29 C.F.R. § 1926.500(d)(1) does not apply to roofs. I have registered my agreement with them in Secretary v. S.D. Mullins Company,
In this case, the Commission errs for some new reasons.
Unless I have suddenly developed judicial, as well as visual, myopia the photographic exhibits conclusively establish that the alleged violation occurred on a slanted roof. The regulation for the guarding of a slanted roof that was applicable for the trial of this case required that a catch platform equipped with a guardrail, midrail, and toeboard be installed for the protection of workers where unparapeted roofs more than 10 feet from the ground to eaves had a slope greater than 3 inches in 12 inches. n2 The Commission disregards the importance of this matter [*6] and attempts to justify the result by reasons that cannot be supported in law or fact.
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n2 29 C.F.R. § 1926.451(u)(3) (1972).
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The lead opinion disregards the significance of the slope in the roof and affirms the violation on the basis of the former decisions pertaining to flat roofs. Clearly, the incline is sufficient to preclude classifying the roof as one that is virtually flat. In this regard, it is noteworthy that the concurring opinion carefully avoids agreeing that this case is governed by prior decisions which hold that a "flat roof" is the equivalent of a "floor."
The concurring opinion finds nothing in either the standard or the case law that precludes application of 29 C.F.R. § 1926.500(d)(1) to the roof in this case. I submit that this is irrelevant. The question is whether the standard applies to this roof, not whether coverage thereunder is specifically precluded.
Thereafter, my colleague goes on to justify affirmance of the violation by writing his own standard to fill the gap between [*7] the floor and roof guarding standards promulgated by the Secretary of Labor. This exceeds the authority of the Commission because Congress exclusively bestowed the power to promulgate occupational safety standards upon the Secretary of Labor. 29 U.S.C. § 655. Furthermore, the speculation that the draftsmen of the two guarding standards probably did not intend that there be a gap between the two standards is disproved by statements of the Secretary himself.
The slanted roof standard was changed after the trial of this case to require a catch platform where the slope is greater than 4 inches in 12 inches. The Secretary explained the reason for changing the slope requirement as follows:
The requirements for catch platforms apply where the slope of a roof exceeds 3 inches in 12 inches without a parapet. The greatest number of comments indicated the belief that this slope did not present any significant danger of falling. Accordingly, the Committee has recommended and I have decided to adopt a standard (37 Fed. Reg. 25712 (1972)) of 4 inches in 12 inches without a parapet
This makes two things obvious. First, unguarded slanted roofs with slopes less than that specified in the [*8] standard were never considered to present a significant hazard for workers. Second, the socalled gap in the floor and roof guarding standards was intentional.
Since this is a slanted roof and the evidence fails to establish the slope thereof, the affirmance of a violation of the Act upon the citation at issue here is clearly wrong.
[The Judge's decision referred to herein follows]
RUBIN, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq. (hereafter called the Act). Respondent contests a Citation dated May 19, 1972, and a Notification of Proposed Penalty dated May 19, 1972, issued by the Secretary of Labor pursuant to Section 9(a) of the Act.
The Citation alleges that an inspection on March 28, 1972, of a workplace under the ownership, operation or control of the Respondent, located at 76th Street and West Sheridan Avenue, Milwaukee, Wisconsin, disclosed that Respondent violated Section 5(a)(2) of the Act by failing to comply with occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.
The alleged violations, abatement dates, and [*9] penalties proposed by the Secretary are as follows:
Violation -- Abatement Date -- Proposed Penalty
1. -- Failed to guard an opensided roof by a standard railing, or an equivalent. (29 CFR 1926.500(d)(1) (formerly 29 CFR 1518.500(d)(1)) as adopted by 29 CFR 1910.12) -- June 6, 1972 -- 25.00
2. -- Failed to provide that side rails of an extension ladder extend not less than thirty-six inches above the roof landing. [29 CFR 1926.450(a)(9) (formerly 29 CFR 1518.450(a)(9)) as adopted by 29 CFR 1910.12] -- Immediate -- None
3. -- Employer failed to provide that damaged metal ladder be marked and taken out of service until repaired (bent top rail aluminum ladder used to ascend to roof). [29 CFR 1926.450(a)(4) A14.2-1956 Sec. 5, 2, 7 (ANSI Standards)] -- Immediate -- None
4. -- Failed to provide that adjustment of extension ladder be made by the user only when standing at the base of the ladder in accordance with the American National Standards Institute, A14.1-1968 Sec. 5.2.17, Safety Code for Portable Wood Ladders. [29 CFR 1926.450(a)(3) (formerly 29 CFR 1518.450(a)(3)) as adopted by 29 CFR 1910.12] -- May 31, 1972 -- 25.00
5. -- Employer failed to provide that shaft [*10] be guarded on tar pot machine [29 CFR 1910.219(c)(2)(i)] -- June 6, 1972 -- None
Respondent filed a Notice of Contest dated May 31, 1972, which indicated an intent to contest items 1, 2 and 4 of the Citation. The Secretary's Complaint and Respondent's Answer were filed on June 8, 1972, and August 2, 1972, respectively. Respondent's motion to reinstate the Notice of Contest, which had been dismissed for failure to file an Answer, was granted by the Commission after the Answer was filed.
Hearing was held in Milwaukee, Wisconsin, on November 3, 1972.
ISSUES
The parties have stipulated that the Occupational Safety and Health Review Commission has jurisdiction of this action, that Respondent is an employer within the meaning of Section 3(5) of the Act, and that Respondent may withdraw its notice of contest with respect to proposed penalties for the items contested. The issues to be resolved are whether the conditions cited in items 1, 2 and 4 of the Citation violate Section 5(a)(2) of the Act.
DISCUSSION
I. FAILURE TO PROVIDE STANDARD RAILING OR EQUIVALENT
The evidence shows that on March 28, 1972, Respondent's employees were working on an opensided roof which was [*11] not guarded by a standard railing or equivalent. The roof was about 20 feet above ground level. The sole question is whether the standard cited applies.
29 CFR 1926.500(d)(1) provides, "Guarding of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform six 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 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." Although this paragraph does not contain the word "roofs," Complainant contends that its application to roofs is apparent from the general provision paragraph of Subpart M, 1926.500(a), which reads "This subpart shall apply to temporary or emergency conditions where there is danger of employees or materials falling through floor, roof, or wall openings, or from stairways or runways"; and 1926.502(b) which defines a "floor opening" as "An opening measuring [*12] 12 inches or more in its least dimension in any floor, roof, or platform through which persons may fall."
Robert B. Hanna, Wisconsin Area Director for the Occupational Safety and Health Administration, testified that the roofing industry is a target industry because of the high frequency and severity of accidents. Mr. Hanna testified further that a standard railing is available to roofers. Harold I. White, Technical Advisor for Construction to the Occupational Safety and Health Administration, and Bruce G. Martin, Assistant Executive Manager of the Roof Contractors Association, have given conflicting testimony and opinions as to the history, scope, intent and application of 29 CFR 1926.500(d)(1). There are of record a letter dated January 28, 1972, from John A. Proctor, Chief, Office of Standards Development, Occupational Safety and Health Administration, U.S. Department of Labor, (Exhibit S-11); USAS A12.1-1967 (Exhibit R-1); and correspondence dated March 31, April 18 and May 2, 1972, from the Roofing Contractors Association and John A. Granchi, Assistant Regional Administrator for Technical Support, Occupational Safety and Health Administration, Region X, U.S. Department [*13] of Labor, (Exhibit R-3) bearing on 29 CFR 1926.500(d)(1). The testimony and documents have been considered but are not determinative.
It is evident that Respondent's employees are engaged in a hazardous occupation and should be protected by a railing, life line or other device from the hazard of falling off an open-sided roof. However, the question to be decided is not the desirability of such protection but whether 1926.500(d)(1) requires Respondent to provide a railing or equivalent. n1 The standard cited omits any specific reference to roofs. Complainant's contention that the term "open-sided floor" in 1926.500(d)(1) applies to an "open-sided roof" is tenuous at best. The paragraphs in Subpart M which do refer to a roof are concerned with the danger of a fall through a roof opening, a condition not pertinent here.
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n1 29 CFR 1926.451(u)(3) requires a catch platform or safety belt attached to a lifeline where the roof has a slope greater than 3 inches in 12 inches without a parapet. It is not alleged that the roof surface in the instant case comes within this slope gradation.
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There is evidence which suggests that the standard writers intended 1926.500(d)(1) to include an open-sided roof. However, fairness dictates that the standard relied upon clearly set forth an employer's responsibility and that it not necessitate a strained interpretation in its application. Secretary of Labor v. S.D. Mullins, Inc., Secretary of Labor v. Diamond Roofing Company, Inc., Secretary of Labor v. Heyse Sheet Metal and Roofing Co., Inc.,
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n2 These decisions are presently under review by the Commission.
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II. SIDE RAILS AND ADJUSTMENT OF EXTENSION LADDER
Peter E. Wasko, Compliance Officer, inspected the work site and noted that three employees of Respondent were on the roof laying roofing material and one was at ground level [*15] operating the tar kettle. Mr. Wasko took photographs at the site (Exhibits S-6 to S-9). He noticed an extension ladder leaning against the edge of the roof with the resting point on the second rung from the top. The distance between each rung was measured at 12 inches from the bottom of the ladder, so that the ladder did not extend more than 24 inches above the roof line. Mr. Wasko pointed this out to Earl Neuman, a representative of Nadler-Levin Developers. Mr. Neuman yelled to someone on the roof who then extended the ladder from the roof line. Thereafter, Mr. Wasko ascended the ladder and spoke to Irvin Rodewald, Respondent's job foreman.
Mr. Rodewald identified the ladder shown in Exhibit S-6 as an aluminum metal ladder he brought on the job. He stated only one ladder was removed from the truck and this was the ladder used by the Probst employees. Mr. Rodewald was uncertain whether the ladder in use was bent at the top but stated that the ladder in the photograph had no bent or dent. On being shown an enlargement of S-6, Mr. Rodewald conceded that the ladder in the photograph could be a wooden ladder. Mr. Rodewald testified further that Mr. Neuman came up [*16] the ladder to the roof followed by Mr. Wasko. Mr. Wasko stated he was from OSHA and mentioned that there was no railing, no guard on the shaft of the tar kettle and that the ladder did not extend 3 feet above the gutter. Mr. Rodewald could see the top of the ladder from where he was standing. He sent a man down to tell the kettle jack to raise the ladder one rung. The ladder was raised but Mr. Rodewald did not see it being raised. The company had instructed its employees to raise all ladders from the base not the top and this practice is followed. If there was a wooden ladder at the work site another crew must have placed it there.
The testimony of the Compliance Officer and the remedial action admittedly taken by the job foreman are convincing evidence that the side rails of the extension ladder, as depicted in Exhibit S-6, were less than 36 inches above the roof level. Mr. Rodewald has identified the ladder in the photograph as the one he removed from the truck and as the only ladder used by the Probst employees. Although he asserted it was an aluminum ladder, he later conceded that the ladder could have been wooden. The confusion in his testimony may be due to [*17] the fact that another ladder, a bent metal ladder, had been in use. (The Citation refers to an uncontested violation concerning a damaged metal ladder.) Since the ladder in the photograph is not damaged, obviously more than one of Respondent's ladders was at the work site. The evidence in its entirety supports the conclusion that it was Respondent's ladder, used by Respondent's employees, which is shown in Exhibit S-6 and that the ladder extended less than 36 inches above the roof landing in violation of 29 CFR 1926.450(a)(9).
The testimony of Mr. Wasko and Mr. Rodewald is in conflict as to when and how the ladder was adjusted. Greater credence is given to Mr. Wasko's testimony which is clear and unequivocal as to the time and manner of adjustment. However, Mr. Wasko had not satisfactorily identified the individual who raised the ladder as an employee of Respondent. Further, a representative of the developer and not an employee of Respondent ordered the adjustment to be made. This evidence is insufficient to establish a violation by Respondent.
The Citation alleging improper adjustment of the extension ladder fails in several other respects. The Citation is based upon ANSI [*18] A14.1-1968, Section 5.2.17, Safety Code for Portable Wooden Ladders which reads:
Adjustment of extension ladders should only be made by the user when standing at the base of the ladder, so that the user may observe when the locks are properly engaged. Adjustment of extension ladders from the top of the ladder (or any level over the locking device) is a dangerous practice and should not be attempted. Adjustment should not be made while the user is standing on the ladder (emphasis added).
Section 5.2.17 of the Safety Code is not specifically cited in the Regulations. Complainant contends it is incorporated by 29 CFR 1926.450(a)(3) which reads:
Manufactured portable wooden ladders provided by the employer shall be in accordance with the provisions of the American National Standards Institute, A14.1-1968, Safety Code for Portable Wood Ladders.
The scope of ANSI A14.1-1968, is set forth in Section 1.1:
This code is intended to prescribe rules and establish minimum requirements for the construction, care, and use of the common types of portable wood ladders, in order to insure safety under normal conditions of usage.
ANSI A14.1-1968 is a 24-page safety code [*19] for portable wood ladders which deals with materials, construction requirements, care and use, etc. Care and use rules which appear in the Safety Code, but not 5.2.17, have been specifically incorporated in 29 CFR 1926.450(a)(2), (6), (7), (8), (10) and (11). If, as Complainant contends, 29 CFR 1926.450(a)(3) incorporated by reference all of ANSI A14.1-1968, there would be no need to specifically include these care and use rules. Although the intended application of 29 CFR 1926.450(a)(3) is not entirely clear, the language of the regulation suggests that it has application solely to the materials and construction requirements of the Safety Code. Finally, it is noted that the rules which are incorporated specifically are all mandatory code rules whereas Section 5.2.17 is advisory. ANSI A14.1-1968, Section 1.5, distinguishes between mandatory and advisory rules: "Mandatory rules of this code are characterized by the word "shall." If a rule is of an advisory nature, it is indicated by the word "should" or is stated as a recommendation." Assuming arguendo that 29 CFR 1926.450(a)(3) does incorporate 5.2.17 of the Safety Code, the rule regarding adjustment of extension [*20] ladders is advisory only and thus not a violation of the regulation.
FINDINGS OF FACT
1. J.F. Probst & Co., Inc., Respondent herein, is a Wisconsin corporation with an office and place of business at 5161 North 124th Street, Milwaukee, Wisconsin.
2. Respondent is an employer within the meaning of the Act.
3. On March 28, 1972, an inspection of a workplace under the ownership, operation or control of Respondent disclosed that employees of Respondent were working on an open-sided roof which was not guarded by a standard railing or equivalent.
4. Occupational Safety and Health Regulation 29 CFR 1926.500(d)(1) does not apply to open-sided roofs.
5. On March 28, 1972, Respondent's employees were using an extension ladder at the work site, such ladder having been provided by Respondent, whose side rails extended less than 36 inches above the roof landing.
6. The evidence does not establish that an employee of Respondent adjusted a wooden extension ladder from the roof line or that such adjustment was made on instruction of one of Respondent's employees.
7. ANSI A14.1-1968, Section 5.2.17, is not incorporated by reference in 29 CFR 1926.450(a)(3).
8. ANSI A14.1-1968, [*21] Section 5.2.17, is an advisory, not a mandatory rule.
CONCLUSIONS OF LAW
1. On March 28, 1972, J.F. Probst & Co., Inc., was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.
2. The Occupational Safety and Health Review Commission has jurisdiction of the parties and subject matter herein pursuant to Section 10(c) of the Act.
3. Section 5(a)(2) of the Act imposed a duty upon Respondent to comply with safety and health regulations promulgated by the Secretary pursuant to Section 6(a)(2) of the Act.
4. Respondent violated Section 5(a)(2) of the Act on March 28, 1972, by failing to comply with the Occupational Safety and Health standard set forth in 29 CFR 1926.450(a)(9), as charged in item 2 of the Citation for a non-serious violation.
5. Respondent did not violate 29 CFR 1926.500(d)(1), as charged in item 1 of the Citation.
6. Respondent was not in violation of ANSI A14.1-1968, Section 5.2.17, Safety Code for Portable Wooden Ladders [29 CFR 1926.450(a)(3)], as charged in item 4 of the Citation.
ORDER
1. Item 1 of the Citation alleging a violation of 29 CFR 1926.500(d)(1) and the proposed [*22] penalty of $25 are hereby vacated.
2. Item 2 of the Citation alleging a violation of 29 CFR 1926.450(a)(9) and the zero penalty proposed are hereby affirmed.
3. Item 3 of the Citation alleging a violation of 29 CFR 1926.450(a)(4), for which no penalty was proposed, is not contested. The Citation and zero penalty are hereby affirmed.
4. Item 4 of the Citation alleging a violation of ANSI A14.1-1968, Section 5.2.17, Safety Code for Portable Wood Ladders [29 CFR 1926.450(a)(3)] and the proposed penalty of $25 are hereby vacated.
5. Item 5 of the Citation alleging a violation of 29 CFR 1910.219(c)(2)(i), for which no penalty was proposed, is not contested. The Citation and zero penalty are hereby affirmed.
6. Respondent's Motion for Dismissal is disposed of in accordance with the foregoing findings and conclusions.