DIAMOND ROOFING COMPANY, INC.  

OSHRC Docket No. 76-3653

Occupational Safety and Health Review Commission

February 29, 1980

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Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, USDOL

Richard L. Engel, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Abraham Gold is before the Commission for review under 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 Gold vacated a citation issued by the Secretary of Labor ("the Secretary"). n1 The citation alleged that respondent committed a serious violation of the Act by failing to comply with the standard at 29 C.F.R. §   1926.500(d)(1). n2 In his complaint the Secretary amended the citation to allege that respondent failed to comply with 29 C.F.R. §   1926.28(a) because it did not require the wearing of safety belts or, in the alternative, that respondent failed to comply with 29 C.F.R. §   1926.105(a) in that safety nets were not provided in workplaces 25 feet above the ground. n3 The Secretary petitioned the Commission for review of the judge's decision with respect to the vacated citation, and Chairman Cleary granted the Secretary's petition [*2]   on all issues raised by the Secretary including: (1) Whether the administrative law judge erred in concluding that section 1926.105(a) is specifically applicable to the facts of this case; n4 and (2) Whether the judge erred in concluding that the metal decking of the roof where respondent's employees were working was as safe as a temporary floor, thereby satisfying the requirements of 29 C.F.R. §   1926.105(a).

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n1 In his decision, Judge Gold also affirmed a nonserious citation alleging a violation of the Act for failure to comply with the standard at 29 C.F.R. §   1926.100(a) and assessed no penalty for this violation.   This portion of the judge's decision is not before us on review.

n2 The standard provides as follows:

§   1926.500 Guardrails, handrails, and covers,

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(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.

The citation states in pertinent part:

The open-sided roof, 6 feet or more above adjacent ground level, was not guarded by a standard railing or its equivalent (i.e.; lifelines, safety nets, scaffolding) on all open sides:

(a) Top of north bridge, of South Salina and Washington Street, Syracuse, New York.

n3 The standards provide as follows:

§   1926.28 Personal protective equipment.

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

§   1926.105 Safety nets.

(a) Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.

n4 While the Secretary in his petition for discretionary review generally takes exception to those pages of the judge's decision in which the §   1926.28(a) allegation is vacated, in his brief the Secretary interprets his own petition for discretionary review as not encompassing the §   1926.28(a) allegation.   Inasmuch as the Secretary's complaint alleged violations of §   1926.28(a) and §   1926.105(a) in the alternative and the issue of the more specifically applicable standard has not been raised on review, we do not consider the correctness of the judge's vacating the §   1926.28(a) violation.   The only issue addressed by this decision is whether the judge's disposition of the alleged §   1926.105(a) violation was proper.

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At the time of the inspection, respondent was engaged in the construction of the roof of an elevated pedestrian walkway in Syracuse, New York.   The walkway, approximately 89 feet long and 9 1/2 feet wide, linked the Syracuse Mall with a parking garage.   The walkway spanned a major four lane road.   The distances from the top of the walkway to the sidewalk and road below were 26 feet 11 inches and 27 feet 5 inches, respectively.   The roofing job was performed on a prefabricated flat metal deck that had been installed before respondent's employees arrived on the job.   Respondent's employees first attached 1 inch thick insulation boards to the metal deck with special adhesive material.   Four layers of roofing material, with asphalt applied between each layer, were placed on top of the insulation boards.   An aluminum exterior coating was placed on top of the roofing material.

During his inspection, Compliance Officer Filippi observed three employees working as close as 6 inches to the edge of the roof. He testified that the employees were at the edge of the roof for about 50 percent of the hour and a half [*4]   that it took him to complete his inspection.   Filippi saw no safety belts, safety nets, guard railing, or other fall protection at the worksite.   Filippi testified that a sudden gust of wind, dizziness, or tripping over a tool or piece of material could cause an employee to fall from the roof. He further testified that the result of a fall from the roof was likely to be death or serious bodily harm.

Filippi stated that a lifeline system could have been installed above the roof by fastening a static line to the brick wall of the Syracuse Mall.   Employees wearing lanyards and safety belts could move up and down the static line.   However, while he opined that the use of safety belts was practical, he stated that, if he were in respondent's position, he would use safety nets instead of a static line system.   Filippi stated that he had seen safety nets used for roof and floor protection on steel girder, cement, and concrete buildings.

Karl Bea, an architectural engineer testifying for respondent, discussed the problems associated with using safety belts and lifelines, scaffolding, or safety nets.   Concerning safety belts and lifelines, Bea testified that it would be difficult to construct [*5]   a lifeline system that would extend the length of the roof and still be taut enough to protect workers.   Bea also stated that lifelines could create tripping and burning hazards for workers.   Bea testified that the safety net system suggested by Filippi was impractical since a falling employee might be impaled by the 2 X 4's or 2 X 6's used as structural supports.   However, he suggested that use of other material for supports could eliminate this problem.   Bea opined that use of a safety net system would increase the hazard to workmen since it might take longer and be more difficult to install the safety net system over a 90 foot span with moving traffic below than to do the roofing job itself.   Bea testified that the roof in question was a safe work platform and that it was industry practice to do a roofing job at this height without safety nets or lifelines.

John Amie, the roofers' local union business representative, testified that the roof was hand mopped with hot bituminous asphalt heated to about 400-500 degrees.   The mop is long-handled, with the handle varying in length from 6 to 10 feet. The mop itself is about two feet long and weighs about 25 pounds.   Amie testified that [*6]   employees need not go to the edge of the roof since long-handled mops were used and the roofing material came in 12, 27 and 36 inch lengths.   However, he stated that the short width of the roof in question required workers to "know what they're doing . . . at all times" so that they did not go "too far in one direction [and] fall off. . . ." Amie further testified that "qualified" workers are required for such work because work on a narrow roof is hazardous.

William Steffan, the construction manager for the project, testified that Diamond Roofing Company did not have the right to attach lifelines to the buildings that the bridge connected because the buildings were not owned by parties to its contract.   He stated that use of lifelines or safety nets would interfere with traffic and therefore would not be allowed by the city.   Steffan also opined that welding, clamping or lashing uprights to the bridge to provide fall protection would be impractical.

Louis DeStefano, secretary of respondent corporation, testified that installing the roof was basically a two man operation, with one man putting down material and the other mopping asphalt.   He said at no time did a worker need to get [*7]   closer than 3 1/2 feet from the edge of the roof, since the roofing felt was three feet wide.   According to DeStefano, the mop man stands in the center of the roof, while the roll man is facing the edge at all times.   He stated that none of his employees had ever fallen off a flat roof. DeStefano testified that he protected workers by using a pump tar kettle so tar did not have to be carried up to the roof, by laying the rolls of roofing material down so the wind could not blow them over, by placing the roofing materials in areas where employees would not trip over them, and by employing only experienced roofers.

In his decision, Judge Gold stated that the Ninth Circuit in Hoffman Construction Co. v. OSHRC, 546 F.2d 281 (9th Cir. 1976), ruled that 29 C.F.R. §   1926.28(a) was "ineffective as a standard due to vagueness".   Judge Gold further concluded that 29 C.F.R. §   1926.105(a) is more specifically applicable to the facts of this case and therefore preempts the application of section 1926.28(a).   Accordingly, the judge concluded that respondent did not violate the Act for failure to comply with section 1926.28(a). n5

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n5 As discussed previously in note 4, the §   1926.28(a) allegation is not before the Commission on review.   We note, however, that the judge's conclusion that §   1926.28(a) is unenforceable due to its vagueness is contrary to Commission precedent.   The Commission has declined to follow the court's decision in Hoffman and has held that the standard properly can be read to require the use of personal protective equipment when an employee is exposed to a hazard of falling. S & H Riggers and Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD para. 23,480 (No. 15855, 1979), pet. for review filed, No. 79-2358 (5th Cir., June 7, 1979); B & B Insulation, Inc., 77 OSAHRC 49/A2, 5 BNA OSHC 1265, 1977-78 CCH OSHD para. 21,747 (No. 9985, 1977), rev'd on other grounds, 583 F.2d 1364 (5th Cir. 1978). See also Jensen Construction Co. v. OSHRC, 597 F.2d 246 (10th Cir., 1979).   Further, in S & H Riggers we held, contrary to the judge's conclusion in the present case, that §   1926.105(a) is not more specifically applicable than §   1926.28(a) in working conditions similar to those presented here.   See also Structural Painting Corp.,    OSAHRC   , 7 BNA OSHC 1682, 1979 CCH OSHD para. 23,817 (No. 15450, 1979).

Commissioner Barnako notes that in S & H Riggers the Respondent was cited for failure to use safety belts and it was in this context that the Commission concluded that section 1926.105(a) is not more specifically applicable than section 1926.28(a).   The reasoning of the Commission in S & H Riggers, however, is not equally applicable here where the Respondent was cited for both a violation of section 1926.28(a) for failure to use safety belts and a violation of section 1926.105(a) for failure to use safety nets.

Although both sections 1926.28(a) and 1926.105(a) address falling hazards, both contemplate different means of abatement. In Commissioner Barnako's view employers should be cited under the standard which requires the appropriate means of abatement applicable to the situation.   Hence if safety belts are the appropriate means to abate a hazard, section 1926.28(a) is the more specifically applicable standard.   On the other hand, if safety nets are the more appropriate means of abatement and the falling hazard exceeds 25 feet, the Secretary should cite section 1926.105(a).   See Warnel Corp., 76 OSAHRC 41/C5, 4 BNA 1034, 1975-76 CCH OSHD P20,576 (No. 4537, 1976).

In this case the Secretary apparently concluded that either safety belts or safety nets were appropriate and hence cited both sections 1926.28(a) and 1926.105(a) in the alternative.   Commissioner Barnako recognizes the right of the Secretary to plead in the alternative.   In such circumstances he would not address which standard is the more specifically applicable, noting instead that section 1926.105(a) is properly cited when the Secretary alleges a violation for failure to use safety nets.

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With respect to the alleged failure to comply with section 1926.105(a), Judge Gold cited several courts of appeals cases for the proposition that compliance with section 1926.105(a) is achieved if one of the safety devices listed in the standard is used by respondent. n6 He concluded that respondent's employees were working on metal decking, a solid, permanent surface "at least as safe as a temporary floor, and perhaps safer." Therefore, he concluded that respondent complied with section 1926.105(a) by using the equivalent of a temporary floor and vacated the citation without ruling on other contentions raised by respondent in defense to the citation.

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n6 The judge cited the following cases: Brennan v. Ron F. Fiegen, Inc., 513 F.2d 713 (8th Cir. 1975); Brennan v. Southern Contractors Service, 492 F.2d 498 (5th Cir. 1974); Brennan v. Verne-Woodrow Co. 494 F.2d 1181 (5th Cir. 1974); and Brennan v. OSHRC and J. W. Bounds (Pearl Steel Erection Company), 488 F.2d 337 (5th Cir. 1973).

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On review, the Secretary takes exception to the judge's conclusion that the roof decking upon which respondent's employees were working was equivalent to a "temporary floor" for purposes of determining compliance with 29 C.F.R. §   1926.105(a).   He argues that the Commission should not follow previous decisions that have held that an employer is in compliance with section 1926.105(a) if it merely uses one of the safety devices listed in the standard, regardless of the effectiveness of the device used. n7 Such a reading of the standard, in the Secretary's view, conflicts with the remedial purposes of the Act.   Rather, the Secretary contends that section 1926.105(a) should be interpreted to require employers to protect employees against falls through effective use of one of the enumerated devices.   Additionally, the Secretary argues that as used in section 1926.105(a) the term "temporary floor" should not be construed to include the very surface upon which employees are working.   The Secretary submits that because the employees in this case were working upon the metal decking of the roof, this metal decking should not be considered to be a temporary [*11]   floor for purposes of compliance with section 1926.105(a).   Finally, the Secretary contends that the Commission should, to be consistent with the rationale in Central City Roofing Company, Inc., 76 OSAHRC 61/A2, 4 BNA OSHC 1286, 1976-77 CCH OSHD para. 20,761 (No. 8173, 1976), conclude that the metal decking of the roof at issue is not a temporary floor for the purposes of section 1926.105(a).

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n7 The Secretary cites Brennan v. Ron F. Fiegen, Inc., supra; Roanoke Iron & Bridge Works, Inc., 77 OSAHRC 74/C9, 5 BNA OSHC 1391, 1977-78 CCH OSHD 22,522 (No. 10411, 1977); and Robert W. Setterlin & Sons Co., 76 OSAHRC 53/D8, 4 BNA OSHC 1214, 1975-76 CCH OSHD para. 20,682 (No. 7377, 1976).

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Respondent argues that the judge did not err in concluding that the metal decking of the roof was as safe as a temporary floor and, therefore, that respondent complied with section 1926.105(a).   Respondent submits that the court's interpretation of section 1926.105(a) in Ron M. Feigen, supra, is correct.

For the reasons that [*12]   follow, we reverse the judge's decision and remand for further proceedings.

First, we conclude that the judge erred in comparing the metal decking of the roof with temporary flooring.   The decking is not a floor, but a roof. As previous cases under the Act involving the standard at section 1926.500(d)(1) indicate, the term "roof" as it is used in Subpart M of 29 C.F.R. §   1926 has a meaning distinct from the term "floor".   See Diamond Roofing Company v. OSAHRC, 528 F.2d 645 (5th Cir. 1976); White Plains Iron Works, Inc., 77 OSAHRC 205/A2, 6 BNA OSHC 1135, 1977-78 CCH OSHD para. 22,355 (No. 13384, 1977); and Central City Roofing Company, Inc., supra. Indeed, it appears that the Secretary requested to amend the citation in this case from alleging a failure to comply with section 1926.500(d)(1) as a result of these decisions.   It would therefore be anomalous to conclude that a "roof" is a "temporary floor" under section 1926.105(a) while a "roof" is not a "floor" under section 1926.500(d)(1).   We further note that the roof is not temporary, but is a permanent and integral part of the walkway structure.

Second, even if we were to conclude that the roof were akin to a [*13]   temporary floor, we have rejected the argument that an unguarded temporary floor from which employees are working is one of the alternative safety devices contemplated by section 1926.105(a) and that a violation of the Act for failure to comply with the standard cannot be found if employees are working from this type of surface. S & H Riggers and Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD para. 23,480 (No. 15855, 1979), pet. for review filed, No. 79-2358 (5th Cir., June 7, 1979).   If the unguarded perimeter of a temporary floor itself gives rise to a fall hazard, it would be anomalous to conclude that the temporary floor constitutes an adequate method of fall protection.   Id. See also Marshall v. Southwestern Industrial Contractors and Riggers, Inc., 576 F.2d 42 (5th Cir. 1978). Furthermore, the construction safety standards at 29 C.F.R. Part 1926 clearly require perimeter guarding for open-sided floors, whether temporary or permanent, to protect employees from fall hazards. 29 C.F.R. §   1926.500(d)(1).   Since the metal decking here was without perimeter guarding, use of this surface as a fall protection device would not constitute compliance [*14]   with section 1926.105(a).

The Commission has held that a prima facie violation of the Act for failure to comply with section 1926.105(a) is established when it is proved that employees are exposed to fall hazards in excess of 25 feet and none of the safety devices listed in the standard are used.   Sierra Construction Corp., 78 OSAHRC 2/E6, 6 BNA OSHC 1278, 1978 CCH OSHD para. 22,506 (No. 13638, 1978).   See also Southern Colorado Prestress Company v. OSHRC, 586 F.2d 1342 (10th Cir. 1978); Brennan v. Southern Contractors Service, 492 F.2d 498 (5th Cir. 1974). The record indicates that respondent's employees were working at a height over 25 feet, the employees were exposed to a fall hazard, and none of the safety devices enumerated in section 1926.105(a) was used. n8 Therefore, a prima facie violation of the Act for failure to comply with section 1926.105(a) has been established.

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n8 The falling hazard posed by working on the roof was confirmed by respondent's witness Amie who has over 30 years experience in the roofing industry.

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We also conclude that the elements of proof required to establish that the alleged violation was serious under section 17(k) of the Act have been established.   The employees were working without fall protection approximately 27 feet above concrete sidewalk and a heavily travelled road.   We agree with the compliance officer's observation that, under the circumstances, a fall would likely result in death or serious physical harm.   See Truax & Hovey Drywell Corporation, 78 OSAHRC 47/A14, 6 BNA OSHC 1654, 1978 CCH OSHD para. 22,799 (No. 14516, 1978); Jensen Construction Co. v. OSAHRC, supra. Additionally, respondent knew or with the exercise of reasonable diligence could have known of the presence of this obvious hazardous condition.

In light of his disposition, however, the judge found it unnecessary to resolve several arguments raised by respondent concerning the impossibility or impracticality of using various fall protection methods suggested by the Secretary, and the likelihood that use of such methods would have increased the hazards to the employees.   Respondent reasserts these arguments on review.   The Secretary requests that the case be remanded [*16]   to the judge for initial determinations on these issues.

Respondent's contentions involve elements of three affirmative defenses recognized under Commission precedent, i.e., impossibility of compliance, impossibility of performance, and the greater hazard defense.   See M.J. Lee Construction Company, 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD para. 23,330 (No. 15094, 1979).   In order to establish either of the impossibility defenses, the employer must prove that (1) compliance with the requirements of the cited standard either would be functionally impossible or would preclude performance of required work, and (2) alternative means of employee protection are unavailable.   Id. See, e.g., Julius Nasso Concrete Corp., S & A Concrete Co., Inc., a Joint Venture, 77 OSAHRC 208/F2, 6 BNA OSHC 1171, 1977-78 CCH OSHD para. 22,401 (No. 16012, 1977) (impossibility of compliance); Alberici-Koch Laumand, a Joint Venture, 77 OSAHRC 179/A2, 5 BNA OSHC 1895, 1977-78 CCH OSHD para. 22,211 (No. 13026, 1977) (impossibility of performance).   In order to establish a greater hazard defense, the employer must prove that (1) the hazards created by compliance with the requirements [*17]   of the cited standard are greater than those resulting from noncompliance, (2) alternative means of protecting employees are unavailable, and (3) a variance application under section 6(d) of the Act would be inappropriate.   See, e.g., National Steel & Shipbuilding Co., 78 OSAHRC 48/A2, 6 BNA OSHC 1680, 1978 CCH OSHD para. 22,808 (Nos. 11011 & 11769, 1978), aff'd, 607 F.2d 311 (9th Cir. 1979).

In a case where the evidence permits only one result, the Commission can make necessary factual findings.   Asplundh Tree Expert Company, 78 OSAHRC 77/E12, 6 BNA OSHC 1951, 1978 CCH OSHD para. 23,033 (No. 16162, 1978).   See C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1977-78 CCH OSHD para. 22,481 (No. 14249, 1978).   However, in a case such as this, where much of the evidence adduced at the hearing with respect to the defenses is contradictory and requires credibility determinations which the judge is best qualified to make, it is appropriate for the judge to make the factual findings.   We therefore remand the case to the judge for consideration of whether respondent established an affirmative defense of impossibility of compliance, impossibility of performance,   [*18]   or greater hazard.

Accordingly, it is ORDERED that the judge's decision is set aside and the case is remanded for further proceedings consistent with this decision.