GLEN CONSTRUCTION COMPANY, INC.
OSHRC Docket No. 2537
Occupational Safety and Health Review Commission
November 8, 1973
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 Ben D. Worcester. Judge Worcester granted Respondent's motion for summary judgment and 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, including the post trial submissions of the parties. We do not adopt the decision of the Judge.
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 Complainant's proposed penalty of $100 is appropriate.
Accordingly, it is ORDERED that the decision of the Judge is set aside. Complainant's citation and proposed penalty 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.
DISSENTBY: MORAN
DISSENT:
MORAN, CHAIRMAN, dissenting: I dissent. I would affirm the decision of the Judge both for the reasons given therein and those set forth in my dissenting opinion in the case of Secretary v. S.D. Mullins, Inc. et al.,
[The Judge's decision referred to herein follows]
WORCESTER, JUDGE, OSAHRC: This case arises from a notice of Contest filed by the Respondent, Glen Construction Company, of Item 1 of a Citation alleging a violation of 29 CFR 1926.500(d)(1) on the roof of a building under construction by the Respondent. This standard pertains to guarding of open-sided floors, platforms, and runways. Items 2 and 3 of the Citation were not contested within 15 days and have accordingly become a final order and for that reason are not in issue. The Respondent has filed a motion for summary judgment on the ground that the cited standard does not apply to roofs. The Complainant was granted until July 16, 1973 to respond to this motion but has failed to do so.
It has been held by Review Commission judges on numerous occassions that the ommission of the term "roof" from Section 1926.500(d)(1) reflects an intention to exclude roofs from coverage by this section. n1 In the case of Secretary v. Hawkins Construction Co.,
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n1 Secretary v. S.D. Mullins, Inc., Secretary v. Diamond Roofing Co., Secretary v. Tyee Construction Co., Secretary v. Heyse Sheet Metal and Roofing Co., Inc.,
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It is therefore hereby ordered that Item 1, Citation 1 alleging that the Respondent violated 29 CFR 1926.500(d)(1) dated March 20, 1973, and the proposed penalty thereon be vacated and that the Respondent's motion to dismiss the proceeding be granted.