UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76-1844
FOREST PARK ROOFINING COMPANY,
Respondent.

March 31, 1980

DECISION

BEFORE CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

BY THE COMMISSION:

A decision of Administrative Law Judge J. Paul Brenton is before the Commission for review under section 12(j)[1] of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’). The issue is whether the judge erred in vacating a citation for a serious violation issued to the Respondent, Forest Park Roofing Co. (‘Forest Park’). The citation alleged that Forest Park failed to comply with the standard at 29 C.F.R. § 1926.28(a),[2] or, in the alternative, the standard at 29 C.F.R. § 1926.105(a),[3] by failing to provided fall protection for its employees, who were engaged in roof construction.[4]

The citation was issued as a result of the Secretary’s inspection of the Respondent’s worksite on November 4 and 5, 1975. Respondent was installing tar roofing on the flat roof of a three-story office building under construction in Stone Mountain, Georgia. The roof was 27 feet above the ground. At the time of the inspection, according to the compliance officer, the employees ‘were actually packing up to go home.’ At times, three to four of its employees were working within one foot of the edge of the roof. There were no guardrails, safety nets, or other means of fall protection around the perimeter of the roof, and the employees were not wearing or provided any personal protective equipment. The Respondent knew of these conditions.

At the hearing, the compliance officer testified as to the feasibility of safety belts, lifelines, and safety nets. He testified that in his opinion[5] upright steel members could be welded to the steel structural beams on the periphery of the roof; that lifelines could be attached to and strung between the welded upright members above the point of operation; and that the roofers could work with their safety belts connected to the lifelines by six-foot lanyards. The compliance officer testified that the welding of the structural steel beams could be done from ladders properly secured in compliance with OSHA standards.

William Higdon, Forest Park’s president, was its sole witness. He testified that he was not aware of any method of using safety belts and lifelines or other means of fall protection on the roof in question. He also testified that lifelines could cause employees to trip into buggies of asphalt, which might fatally burn them. Mr. Hidgon said, with regard to the roof welding, ‘a contractor is not going to allow it, the owners are not going to allow it, and you just plain not going to be able to do it.’ He testified that approximately four roofers quit a previous job when he required lifelines. According to Higdon, they said they would not risk tripping over the lines and perhaps landing in hot asphalt. Higdon testified that if an employee transporting asphalt fell over the edge while attached to a lifeline, the asphalt might pour over him and kill him before help arrived. The compliance officer testified, however, that tripping hazards could be averted by having employees unhook their lanyards from the lifeline when they have to change position.

Regarding the feasibility of safety nets, the compliance officer testified that they could be installed by attaching brackets to the existing structure and supporting the safety nets from the brackets and cables secured to the structure. Mr. Higdon argued that greater hazards might be caused by the use of safety nets because employees would have to spend substantial amounts of time putting them up and taking them down while being exposed to the very hazards nets are designed to prevent. He testified that he believed other trades would not permit his company to erect nets that would get in their way.

Regarding other methods of protection, Mr. Higdon testified that catch platforms could not be erected because they would interfere with the work of other trades and because they would be prohibitively expensive. He argued that guardrails could not be attached to the roof’s edge. Mr. Higdon, however, never talked to any safety experts, his general contractor, or anyone else specifically about available methods of fall protection.

Judge Brenton vacated the citation and the $600 proposed penalty on two grounds.[6] First, he held that neither standard used as the basis for the Secretary’s citation applies to flat roofs. Second, he held that the evidence does not demonstrate a violation, even if the standards are applicable.

The judge found that the use of lifelines and safety belts would involve greater hazards than the Respondent’s present method of operating and that they were neither feasible nor practical in the circumstances. He concluded that workers on flat roofs are not required to wear safety belts, lanyards, and lifelines unless there is an ‘appropriate pre-existing anchorage lifeline system’ for that purpose.

With respect to safety nets, the judge found that they also could not be installed without subjecting employees to greater hazards. He found that the roofing industry custom and practice is not to use safety belts or the other suggested safety devices in similar circumstances. The judge also found that the various alternative safety devices listed in section 1926.105(a) were impractical. He concluded that catch platforms are exempted from use on flat roofs by section 1926.451(u)(3) and that they also would subject employees to greater falling hazards during installation. The judge found that ladders and temporary floors also would be impractical and would create greater hazards. As to scaffolding, he stated that he did not know how it could be used without creating greater hazards.

The Secretary petitioned for review of the judge’s decision on a number of grounds. In the petition he argues that both of the cited standards apply to the working conditions on the flat roof in question. He also argues that an industry does not ‘exempt itself from the application of a standard solely on the basis of ‘industry practice.” The Secretary contends that it is not his burden to prove that a practicable means of compliance exists under either of the cited standards. He specifically disagrees with the Commission’s assignment of that burden to him in Frank Briscoe Co., 76 OSAHRC 129/A2, 4 BNA OSHC 1729, 1976–77 CCH OSHD ¶ 21,162 (No. 7792, 1976), for cases involving section 1926.28(a). He contends that it is the Respondent’s burden to show as an affirmative defense that compliance with the standards is impossible. Notwithstanding that contention, the Secretary excepts to the judge’s finding that the use of safety nets, safety belts, safety lines, or the alternative protective devices mentioned in section 1926.105(a) was impractical. Finally, he argues that Forest Park did not show that compliance with either of the cited standards would involve greater hazards than its existing practices, that alternative means of protection were unavailable, or that a variance application would be inappropriate. Thus, the Secretary contends that the judge erred in dismissing the citation and proposed penalty. Forest Park has made no submissions on review.

Subsequent to the judge’s decision, the Commission has determined that both section 1926.28(a) and section 1926.105(a) are applicable to working conditions on flat roofs. John’s Roofing & Sheet Metal Co., 78 OSAHRC 57/E8, 6 BNA OSHC 1792, 1978 CCH OSHD ¶ 22,857 (No. 76–1140, 1978) (applicability of section 1926.28(a)); Hamilton Roofing Co., 78 OSAHRC 57/C1, 6 BNA OSHC 1771, 1978 CCH OSHD ¶ 22,856 (No. 14968, 1978) (applicability of section 1926.105(a)). Thus, we turn to the merits of the citation.

The Commission recently has held that in determining whether a hazardous condition exists within the meaning of section 1926.28(a), the question to be answered is whether a reasonable person familiar with the factual circumstances surrounding the allegedly hazardous condition, including any facts unique to the Respondent’s industry, would recognize a hazard warranting the use of personal protective equipment. Although industry custom and practice are useful points of reference with respect to whether a reasonable person familiar with the circumstances would recognize a hazard requiring the use of personal protective equipment, they are not controlling. S & H Riggers & Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD ¶ 23,480 (No. 15855, 1979), appeal docketed, No. 79–2358 (5th Cir., June 7, 1979.)[7] In S & H Riggers, the Commission held that where the Secretary alleges noncompliance with section 1926.28(a), he has the burden of (1) establishing employee exposure to a hazardous condition requiring the use of personal protective equipment and (2) identifying the appropriate form of equipment to eliminate the hazard.

Here, the evidence shows that Forest Park’s employees were working within one foot of the edge of the flat roof, 27 feet above the ground, without any fall protection. The Secretary’s compliance officer identified safety belts and lifelines as an appropriate form of protection against the hazards. He testified that his suggested means of protection, welding upright steel pieces along the roof’s edge with attachments of lifelines, could be accomplished from ladders in compliance with OSHA regulations and would abate the fall hazards. The Secretary thus has made a sufficient initial showing that a reasonable person knowing the pertinent facts would have recognized a hazard warranting the use of personal protective equipment. He has shown that the Respondent’s employees were exposed to an obvious fall hazard and has identified an appropriate means of personal protective equipment to abate the hazards.

III

At the hearing before Judge Brenton, Forest Park submitted evidence relevant to certain affirmative defenses with respect to the alleged noncompliance with section 1926.28(a). Specifically, the evidence submitted goes to the affirmative defenses of greater hazard and impossibility of compliance. Respondent also asserted, as a defense, that it generally did not have the necessary control over the violative condition.

To establish a greater hazard defense, a respondent must prove that (1) compliance with the standard would have diminished rather than enhanced employee safety, (2) alternative means of protecting the employees were unavailable, and (3) a variance application would have been inappropriate. S & H Riggers, supra. To establish the defense of impossibility, whether of compliance or performance, an employer must prove that (1) compliance with the requirements of the cited standard was either (a) functionally impossible or (b) would have precluded performance of required work, and (2) that alternative means of employee protection were unavailable. M. J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD ¶ 23,330 (No. 15094, 1979).

Turning to the greater hazards defense, we note Forest Park’s argument that safety belts and safety lines would create a greater hazard because they would cause employees to trip into hot asphalt and be seriously or fatally burned. Also, there was testimony that a person falling over the edge while attached to a lifeline could be fatally injured if hot asphalt spilled on him. The judge stated that hooking and unhooking safety lines at the roof’s edge as necessary during the work would expose employees to falling hazards, and that the initial welding of the stanchions to which the safety belts would be attached would create greater falling hazards than Respondent’s present method of operating.

We find that the evidence is insufficient to establish the existence of a greater hazard. The compliance officer stated that tripping hazards such as those mentioned by Forest Park could be averted by having the employees unhook when necessary to change position at the roof’s edge.[8] Such maneuvers might be cumbersome, but there is no indication that they could not be accomplished safely. Also, the possibility that a person might fall over the edge while attached to a lifeline and be killed or injured by having hot asphalt spill on him must be considered minimal.

Regarding the fall hazards associated with hooking and unhooking safety lines at the roof’s edge, we find that the brief, conscious moments of exposure while hooking and unhooking would be less hazardous than performing roofing work near the edge with no protection, and there is no evidence to the contrary. Finally, as to the hazards associated with initial welding of the stanchions, we note that the compliance officer testified that the welding of the stanchions could be done from ladders in compliance with OSHA standards. The evidence does not indicate that the hazards of welding stanchions and then tying off to them during roofing work are greater than those of working without any personal protective equipment. We conclude that the evidence does not support the various arguments that the use of safety belts and safety lines would create greater hazards than respondent’s practices.

Although the Respondent argued vigorously that safety belts and lifelines would not be feasible during the roofing work, there is no evidence that the use of a safety belt system such as that described by the compliance officer would be functionally impossible or would preclude performance of required work. Therefore, Forest Park’s assertions do not meet the initial test of the affirmative defense of impossibility.

Forest Park also argues that it generally did not have sufficient control over the violative condition to install a safety belt and lifeline system because the general contractor and the other trades would not permit it to install such a system. In a case involving a multi-employer construction site, the employer has the opportunity to demonstrate that it did not create the hazard, nor did it control the hazard such that it realistically had the means to rectify the condition in the manner contemplated by the cited standard. Once the employer establishes that it neither created nor controlled the hazardous condition, it may affirmatively defend by showing either (a) that its employees who had access to the hazards were protected by means of realistic measures taken as an alternative to literal compliance with the cited standard, or (b) that it did not have, nor with the exercise of reasonable diligence could have had, notice that the conditions were hazardous. Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975–76 CCH OSHD ¶ 20, 690 (Nos. 3694 & 4409, 1976); Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975–76 CCH OSHD ¶ 20,691 (No. 12775, 1976).

While Respondent has argued generally that the general contractor and other trades on the worksite would not permit it to install a safety belt and lifeline system, the record does not establish this general claim as a fact. Even assuming arguendo that Forest Park did not have sufficient control over the worksite to install a safety belt and lifeline system, the evidence still is insufficient to support the Anning-Johnson, Grossman Steel affirmative defense. Forest Park’s president admitted that performing roofing work near a roof’s edge is hazardous. Thus, it may not defend on the basis that it did not have notice of the hazards. Also, the record is devoid of any evidence that Forest Park took realistic alternative steps to protect its employees or that such alternatives were unavailable. Forest Park’s president testified that catch platforms and guardrails could not be used, and that safety nets would not be permitted by the other trades. He also testified, however, that he had never talked to anyone, including the general contractor, about available methods of fall protection. For the most part, his testimony regarding what could be done and could not be done was based on his own assumptions.[9]

At a minimum the Respondent should have asked the general contractor to provide the necessary protection. Bill C. Carroll Co., 7 BNA OSHC 1806, 1979 CCH OSHD ¶ 23,940 (No. 76–2748, 1979); J. H. Mackay Electric Co., et al., 78 OSAHRC 77/B10, 6 BNA OSHC 1947, 1978 CCH OSHD ¶ 23,026 (Nos. 16110 & 16111, 1978).[10] Since Forest Park was aware of the hazards involved in performing roofing work near the roof’s edge, and since it failed to take realistic measures as an alternative to literal compliance in order to protect its employees, it would have been unable to sustain the Anning-Johnson, Grossman Steel defense in any event. See Bill C. Carroll Co., supra; J. H. Mackay Electric Co., supra. Thus, the evidence is insufficient to sustain any affirmative defenses to the section 1926.28(a) item, and a violation of the Act has been made out with respect to that charge.

The Secretary alleged in the alternative that Forest Park failed to comply with section 1926.105(a), because it did not provide safety nets or the other forms of fall protection referred to in that standard.[11] That charge was based on the same conditions as the section 1926.28(a) charge. Since the Secretary pleaded noncompliance with the two sections, sections 1926.28(a) and 1926. 105(a), in the alternative, and since we have sustained the allegation of noncompliance with section 1926.28(a), we will dismiss the item alleging noncompliance with section 1926.105(a) in circumstances of this case. This action is proper because the Commission has held that section 1926.105(a) is not more specifically applicable to the situation presented here than is section 1926.28(a). Diamond Roofing Co., February 29, 1980 (No. 76–3653).

Regarding the appropriate penalty for the section 1926.28(a) item, a number of Forest Park’s employees worked close to the roof’s edge and a 27-foot fall to the ground, which was cluttered with construction debris, would likely have resulted in serious injury or death. The chance of a fall from this roof was relatively small, however, based on the compliance officer’s testimony. Also, given the possible difficulties indicated by the record in employing a safety belt system or other fall protection system on this roof, we find no substantial reason to question the respondent’s good faith, even though it took no steps to provide fall protection. The compliance officer testified that this was Forest Park’s first OSHA inspection and that Forest Park is a small employer, with less than 20 employees. We conclude that in the circumstances a penalty of $200 is appropriate.

Accordingly, we affirm a violation of the Act for failure to comply with section 1926.28(a) and assess a $200 penalty for the violation. The item alleging, in the alternative, noncompliance with section 1926.105(a) is dismissed for the reasons given herein.

It is so ORDERED.

FOR THE COMMISSION:

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: MAR 31, 1980

BARNAKO, Commissioner, Concurring:

I agree with my colleagues in finding that Forest Park Roofing Company violated 29 C.F.R. § 1926.28(a)[12] by failing to require its employees to wear appropriate personal protective equipment. However, my analysis differs concerning interpretation of § 1926.28(a) and applicability of the impossibility, greater hazard, and Anning-Johnson/Grossman Steel defenses to an alleged violation of that standard.

My views concerning establishment of a violation of 29 C.F.R. § 1926.28(a) are set forth in my concurring opinion in S & H Riggers & Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD ¶ 23,480 (No. 15855, 1979), appeal docketed, No. 79–2358 (5th Cir. June 7, 1979). As I noted there, I would find that a hazard within the meaning of § 1926.28(a) exists if a reasonable person familiar with the cited employer’s industry would recognize the cited condition as constituting a hazard. Here, Forest Park’s employees, who were constructing a flat roof of a building, worked at times at the edge of the roof twenty-seven feet above the adjacent ground. No fall protection of any type was provided. I find that these circumstances present an obvious fall hazard within the meaning of § 1926.28(a). Martin-Tomlinson Roofing Co., 7 BNA OSHC 2122, 2126, 1979 CCH OSHD ¶ 24,167 (No. 76–2339, 1980) (concurring opinion); Hurlock Roofing Co., 79 OSAHRC 93/A2, 7 BNA OSHC 1867, 1873, 1979 CCH OSHD ¶ 24,006 (No. 14907, 1979) (concurring opinion); J. W. Conway, Inc., 79 OSAHRC 75/E1, 7 BNA OSHC 1718, 1721, 1979 CCH OSHD ¶ 23, 869 (No. 15942, 1979) (concurring opinion); Voegele Co., 79 OSAHRC 76/A2, 7 BNA OSHC 1713, 1717, 1979 CCH OSHD ¶ 23,860 (No. 76–2199, 1979) (concurring opinion).

As I also noted in S & H Riggers, supra, an additional element in establishing a violation of § 1926.28(a) is demonstrating that another standard contained in 29 C.F.R. Part 1926 indicates the need for using the protective equipment which the Secretary asserts should have been used by Respondent’s employees. In this case, 29 C.F.R. § 1926.104 establishes specifications for safety belts, lanyards, and lifelines and thereby places employers on notice that use of such equipment constitutes an appropriate means of protecting against fall hazards. Thus, fall hazards for which such equipment provides appropriate protection may be cited under § 1926.28(a).

Finally, unlike my colleagues, I believe that to establish a violation of § 1926.28(a), the Secretary must demonstrate that there is a feasible means of protecting against the cited hazard through the use of personal protective equipment. In determining whether the use of personal protective equipment is feasible, I would consider evidence which normally bears on the affirmative defenses of greater hazard or impossibility as relating to the issue of feasibility. S & H Riggers, supra; cf., Royal Logging Co., 79 OSAHRC 84/A2, 7 BNA OSHC 1744, 1751, 1979 CCH OSHD ¶ 23,914 (No. 15169, 1979) (asserted defense of greater hazard regarded as bearing on issue of feasibility in case brought under § 5(a)(1) of Act).[13] Likewise, while my colleagues regard Forest Park’s contention that it lacked control over the alleged violative condition as an assertion of the multi-employer construction worksite defense articulated in Grossman Steel and Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975–76 CCH OSHD ¶ 20,691 (No. 12775, 1976) and Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975–76 CCH OSHD ¶ 20, 690 (No. 4409, 1976), I would view it instead as bearing on the issue of feasibility. Forest Park’s contention that it lacked control over the means necessary to effectuate abatement of the alleged violation clearly relates to the feasibility of the method urged by the Secretary to protect against the cited hazard.

However, once the Secretary shows that the means of abatement he favors can be used on Respondent’s worksite and that its use would provide protection against the hazard in issue, I would place the burden on the employer to rebut this showing by demonstrating that use of the recommended personal protective equipment will cause consequences so adverse as to render the method of abatement infeasible or that it lacks control to implement the Secretary’s recommendation. Under this allocation of the burden of proof, the employer need not show that a variance application would be inappropriate or that alternative methods of abatement could not be used, as it would otherwise be required to do in a case involving the impossibility and greater hazards defenses. S & H Riggers, supra; cf. Royal Logging Co., supra. Nor must the employer show that its employees were protected by realistic measures taken as an alternative to the abatement method recommended by the Secretary, as would be required to establish the Anning-Johnson and Grossman Steel defense.

The Secretary demonstrated a feasible means of protection here through the compliance officer’s testimony showing that a safety belt system could be installed and utilized to provide fall protection to Forest Park’s employees. The compliance officer testified that steel uprights could be welded to the roof edge and a lifeline strung between the uprights. Roofers could wear safety belts and hook the lanyards of their belts to the lifeline when working within six feet of the roof edge.

Although Forest Park objected to this system on several grounds, it failed to show that the system would be infeasible. Forest Park argued that greater danger would be presented by use of safety belts than by providing no fall protection at all. Forest Park’s president testified that safety lines posed a tripping hazard to roofers and might cause them to fall into containers of hot tar on the roof. He also asserted that a roofer who fell from the edge while wearing a safety belt might have hot tar spilled on him while suspended from the safety line. Additionally, he argued that the task of erecting uprights for the lifelines and the necessity of walking to the roof edge to hook the lanyard to the lifeline would subject employees to greater exposure to fall hazards than would permitting the roofers to work on a roof without protection.

However, contrary to Forest Park’s contentions, it is clear that the safety belt system would not create a significant tripping hazard because the steel uprights could be made high enough that roofers wearing safety belts would be tied off above the point of operation. Thus, their lanyards would not be close enough to the roof surface to present a tripping hazard. Moreover, employees who unhooked their lanyards in order to work in the interior area of the roof need not allow their lanyards to drag on the ground and thereby present a tripping hazard; rather, they could simply tuck the loose end of the lanyards into their belts. The compliance officer testified that this was a common practice among employees who regularly wore safety belts. Moreover, the likelihood that an employee would fall from the roof edge and have hot tar spilled on him is remote.

As to exposure to a fall hazard while constructing the lifeline supports, the record establishes that an employee erecting the steel uprights could perform this task while standing on a ladder at the level of the roof edge. Working in this manner would comply with OSHA standards as long as the ladder was secured to the building structure or held by an employee at its base. Moreover, the amount of additional exposure to the roof edge required of employees in order to attach their lanyards to the lifeline does not appear to be substantial.[14]

Forest Park also contended that the general contractor and building owner would not permit it to weld steel uprights to the roof perimeter. However, Forest Park’s president admitted that this was merely an assumption on his part, and he had not asked anyone for permission to erect steel uprights.

Thus, despite its numerous objections to the safety belt system proposed by the Secretary, Forest Park failed to rebut the Secretary’s showing that this system would provide a feasible method of protecting Forest Park’s employees. I therefore concur in affirming the citation against Forest Park for violation of 29 C.F.R. § 1926.28(a).

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76-1844
FOREST PARK ROOFINING COMPANY,
Respondent.

January 11, 1977

DECISION AND ORDER

APPEARANCES

Stephen J. Simko, Jr., Esquire, Office of the Solicitor, U. S. Department of Labor, Atlanta, Georgia, on behalf of complainant

William H. Higdon, Pro se

J. Paul Brenton, Judge:

STATEMENT OF CASE

Complainant withdrew [date not revealed on the record] his citation issued to respondent for allegedly violating on November 4–5, 1975, the guardrail standard, 29 C.F.R. 1926.500(d)(1), at its flat roofing construction site, the erection of a three-story office building, in Stone Mountain, Georgia. Five months thereafter he issued a second citation alleging a serious violation of the personal protective equipment standard, 29 C.F.R. 1926.28(a), and/or, in the alternative the safety net standard, 29 C.F.R. 1926.105(a), at the same location and on the same dates. A $600.00 penalty was proposed by complainant for these alleged violations which respondent contested together with the citation.

This action and conduct by the parties was pursuant to the Occupational Safety and Health Act of 1970 (hereinafter referred to as the ‘Act’).

After a complaint, an answer, and a stipulation were filed by the parties, the case came on for hearing in Atlanta, Georgia, on July 26, 1976.

REASONABLE PROMPTNESS ISSUE

Although respondent did not affirmatively plead this issue as a defense, it did raise the issue on the record without any objection from complainant. Respondent maintains that a five month lag from the inspection to citation is unfair as well as unreasonable. Complainant’s response consisted merely of asserting that he was bound by the Act and what he sees in his administrative techniques.

That kind of response is nugatory. If he is bound by the Act, he certainly failed to issue the citation with reasonable promptness. Moreover, being bound by administrative techniques was not by the evidence related in any way to exceptional circumstances causing the delay.

The Review Commission’s position on this issue has shifted with each case it has decided. Presently, it appears that a respondent must show prejudice because of the delay. It is obvious from the record that complainant made no showing of exceptional circumstances which could or did cause the delay. On the other hand, it is also obvious that respondent is prejudiced because the withdrawal of the first citation took away his defense of the inapplicability of the standard alleged to its detriment and disadvantage by complainant thrusting upon it the task of making a defense against the inapplicability of two other separate and distinct standards. But this kind of prejudice, in all common probability is not within the contemplation of the Review Commission. Apparently respondent must show actual prejudice to his detriment in defending because of the delay, such as, the loss of some substantial or favorable right affecting the defense.

The enforcement action and conduct of the complainant is probably unfair, as characterized by respondent. Complainant is having difficulty ascertaining the method or process, if any there be, which should be utilized by the flat roofing contractor which affords utility and at the same time is feasible with respect to the guarding of roofers from a fall off the roof’s edge. It is officially noticed that complainant has and is trying to enforce the personal protective equipment standard, the life saving safety net standard where the height of the roof is more than 25 feet, and the general duty clause, section 5(a)(1) of the Act, after the Fifth Circuit Court of Appeals eliminated the guardrail standard. Complainant is painting with a broad brush because there is a chance of a fall, however slight, thus imposing upon the employer the duty to take some means of guarding against it. Complainant is unconcerned with the means and holds that in order for the flat roofing contractor to avoid a citation he must under any and all conditions provide appropriate protection, regardless of the feasibility and likely utility of the means he chooses to impose.

Thus, it is understandable that respondent feels it has been treated unfairly. But unfairness in administrative proceedings must be characterized by the evidence as irregular or unethical practice tantamount to capriciousness to justify a vacation of the citation on that basis standing alone.

An unexplained five month delay in issuing the citation is unconscionable and unreasonable. And, it is unfair to abandon the first charge and impose sanctions on different charges five months later. But, without a showing of detrimental prejudice, complainant, according to the latest Review Commission decisions, is entitled to his day in court.

THE CHARGE

The citation citing regulations under § 1926.28(a) and § 1926.105(a), describes the alleged violation as follows:

Failed to require the use of protective equipment as specified in 1926.104, in all operations where there is an exposure to hazardous conditions in that no fall protection of any kind was provided the employees working near the edge of the roof exposing them to the hazard of a 27 foot fall.’ (or in the alternative)

Failed to provide safety net when the work place was more than 25 feet above the ground and where the use of ladders, scaffold, catch platforms, safety lines or safety belts was impractical, in that no fall protection of any kind was provided the employees working near the edge of the roof, exposing them to the hazard of a 27 foot fall.

The standards alleged to have been violated provide:

29 C.F.R. 1926.28(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.

29 C.F.R. 1926.105(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.

FACTS

The undisputed facts are:

1. Respondent conceded that it is engaged in a business affecting commerce.

2. Three to four roofers periodically engaged in roofing operations, not to exceed a total of four hours over a four-day period, during which no one of them was closer than one foot to the roof’s edge.

3. The roof top was flat and 27 feet above the earth which was covered with some debris.

4. There was no structural system provided around the perimeter of the roof to prevent a fall or an injury if a fall occurred.

5. Safety belts, lanyards, and lifelines were not required to be worn by the roofers.

6. Respondent knew the existing conditions under which its employees worked upon the flat roof.

7. Various items protruded through the roof top at irregular locations. Work materials and equipment were in place upon the roof.

8. Other trades were engaged in the performance of their work on the roof as well as on all other parts of the building.

ISSUES

Whether Brennan v. Southern Contractors Service, 492 F.2d 498 (5th Cir. 1974), stands for the proposition that a flat roofing contractor who fails to utilize a safety net in lieu of one of the safety devices enumerated in 29 C.F.R. 1926.105(a) is amenable to sanctions.

Whether the preponderance of the evidence and propositions of law and authorities establishes the application of the personal safety equipment standard to flat roofs requiring the wearing of safety belts, lanyards, and lifelines.

If the regulations have application to flat roofs, was either or both regulations violated?

If there is a violation, what penalty, if any, is appropriate?

LAW AND OPINION

The citation should be vacated because neither alleged standard is applicable to the flat roof depicted by the evidence in this case. Moreover, even if one or both could or should be so adjudged the evidence of record will not sustain a violation of either regulation.

Complainant tends to rest his case for affirmance of the citation upon the stipulation of the parties and his evidence in chief. In effect complainant claims respondent stipulated itself right out of court. The admission of failure to utilize any method of protection to reduce injury from a fall off the edge of a flat roof does not in and of itself prove a violation of either standard alleged. Respondent denied that it was in violation of either standard alleged and the issues were raised and tried on the record without objection.

29 C.F.R. 1928(a)

This standard has been interpreted by the Review Commission to mean that safety belts tied off to lifelines are only required where this is shown to be a practical and feasible means of fall protection. Secretary v. Frank Briscoe Co., OSHRC Docket No. 7792 (10/4/76); Secretary v. Crawford Steel Construction Co., OSHRC Docket No. 9622 (12/7/76).

The Commission has held in those cases that complainant is duty bound to show that the use of safety belts is an appropriate means of fall protection. Specifically, that complainant must allege the specific measures the cited employer should have taken to avoid a citation and prove the feasibility and utility of those measures.

Here complainant under this regulation charged respondent with failure to use safety belts, lanyards, and lifelines which by stipulation was admitted. But not until cross-examination and redirect examination of complainant’s sole witness, Mr. Stephen A. Kramer, the inspection and compliance officer in this case, was there any attempt to show how this kind of personal protective equipment could have been utilized. Kramer proposed that each perpendicular steel beam around the entire perimeter of the building be extended, by welding on a piece of steel, to which a cable could be circumscribed upon which each employee could tie his lifeline. This system would require the cable to be above the point of operation and perpendicular to the extreme edge of the roof thereby bringing the employee closer to the roof’s edge each time he was required to hook up or unhook his lifeline than in the performance of installing roofing materials one foot from its edge. Moreover, it appears self-evident from the evidence that the erection and installation of such a system would expose the three to four employees of respondent to a greater hazard of falling for a much longer period of time than a total of four man-hours. In such a situation they would necessarily have to work at the extreme edge in erecting and welding the beams and stringing and attaching the cable. Mr. Kramer had no idea the period of time that any one of the roofers was within the danger zone of the roof’s edge during the progress of their work. Thus, it is undisputed that it was a total of four man-hours. This would indicate that not to exceed 3–1/4 percent of the total man-hours [92 to 128 inferred] was required of the roofers within the danger zone. There was no other anchorage or structural member to which a lifeline could be secured.

There was just no feasible or practical means by which this respondent could utilize the personal protective equipment which complainant claims it should have used. Further, to have employed the suggested means would have exposed the employees to greater and increased risks of falling. Therefore, that equipment is inappropriate and impractical under the facts and circumstances of this case.

The Review Commission has not addressed itself to the issue of whether the standard requiring the wearing of personal protective equipment in the nature of safety belts, lanyards, and lifelines is applicable to flat roofs. It is observed, however, that the Commission has recently granted a roofer’s petition for review on that issue among others. Secretary v. Hurlock Roofing Co., OSHRC Docket No. 14907 (11/20/75). Nevertheless, the confrontation here is immediate and should be decided. Therefore, this tribunal holds that roofers engaged in their ordinary work practices upon a flat roof are not required to wear safety belts, lanyards, and lifelines unless there is on that roof an appropriate pre-existing anchorage lifeline system, which the roofers can utilize without being subjected to greater or increased hazards than otherwise exist without them, with respect to the risk involved while engaged in working within the danger zone of the edge of the roof.

29 C.F.R. 1926.105(a)

Complainant is on a collision course with the roofing contractors whenever and wherever he finds one engaged in roofing operations on a flat roof.

Following the demise of 29 C.F.R. 1926.500(d)(1) for a flat roof violation he has tried to enforce the personal protective equipment standard upon them when found working on a flat roof. In this case, apparently being somewhat tremulous as to his success with 29 C.F.R. 1926.28(a), he has advanced another step and would require respondent to erect a system of safety nets around the perimeter of the building in the event safety lines and safety belts prove to be impractical. This kind of situation presents an enigmatic anomaly. One minute complainant requires the wearing of safety belts and lifelines and the next minute he in effect says they are impractical thus he requires the erection and installation of safety nets under the same facts and circumstances. That kind of action is, at the very least, perplexing and contradictory.

In fact and in truth complainant unequivocally alleged and charged in his citation that the use of safety lines and safety belts was practical and in the next breath that it was impractical. This is so because inherent in the charge under 29 C.F.R. 1926.28(a) is the proposition that they are practical because they are appropriate in the sense that the use is feasible. His language in the charge under 29 C.F.R. 1926.105(a) is explicit.

The citation should be vacated on the grounds of incongruity, however, this constraint is suppressed.

Southern Contractors, supra, would appear to mandate under 29 C.F.R. 1926.105(a) either a safety net or one of the other safety devices listed in the regulation if there is a possibility of a fall from a workplace more than 25 feet in height. Surely that court would not enforce that construction in a situation where the evidence would show each listed device impractical together with a showing that safety nets are either impossible to use or that the use thereof is infeasible with no likely utility afforded. It would be absurd to believe that its decision was so conceived.

In Southern Contractors, supra, the risk of a fall was from beams of one of the members of a structural steel launching tower during dismantling operations. The workmen were engaged in working in open space. Similar conditions existed in Crawford Steel Construction Co., supra. Steel erection or dismantling is normally a natural setting for the use of safety nets and is the kind of situation and condition that the fashioners of § 1926.105(a) must have had in mind. The point is, why exempt the other listed safety devices which are mandated in other standards. For example, catch platforms in 29 C.F.R. 1926.451(u)(3) are required on a roof used as a work area if its slope is greater than 4 inches in 12 inches without a parapet.

It this case complainant strove to show how a system of safety nets could be installed but without effect. Kramer, the compliance officer, testified concerning this situation as follows:

Q Okay. Well, you also, in the alternative show that you could have used catch platforms. And they have the same problem in attaching catch platforms as they would in standing these steel beams up. That’s this particular Respondent.

A In on[c]e sense it would require coordination with the engineers and architects as to where to attach them. There was scaffolding on the site. A catch platform could have been built from the ground up, possibly, now.

Q You mean a mobile scaffolding or what would it be attached to on the building?

A It’s a welded frame scaffold. Not molded in the sense it didn’t have wheels on it.

Q I see. How would you employ[ee] that in this kind of situation?

A Let’s see. There’s the various net systems.

Q To employ[ee] a net they’d have to build a frame work around the periphery of the building. That’s where the man going to fall isn’t it? If he falls?

A Yes sir.

Q The only way you could get a net out there would be to build something to hold the net, then you’re going to have to attach it to something under the building. Isn’t that right?

A There’s a system, Your Honor, where you attach a bracket at this level here (Pointing to an exhibit.) and there’s another holding point and you stretch a cable down, the nets swing out from the second level here, and then there’s again attached down to another point at the base of this column in the picture, that still would prevent a fall to the ground.

This explanation may be characterized as ignoble. The witness switched from a catch platform from the ground up to scaffolding to various net systems. Just how these could be built and utilized by respondent without subjecting his employees to greater hazards is beyond comprehension.

It appears obvious that catch platforms are exempt by § 1926.451(u)(3) with respect to flat roofs. Moreover, the testimony of the respondent coupled with plain common sense demonstrates the futility of catch platforms because of the greater and increased risks of falls over many hours from the top of the roof in the erection and installation of that device.

The use of ladders was impracticable because the roof materials and equipment could not be handled from positions on the ladder. Moreover, working at that height from a ladder would expose the roofers to longer period and a greater hazard of falling than working back from the roof’s edge on top.

Installation of temporary floors, another exemption to safety nets, while not mentioned by either party, would undoubtedly run into the same problems encountered with the other devices. That is, the increased exposure and greater risk involved in working at the roof’s edge to install and anchor such a device. Moreover, that kind of construction off the edge of a flat roof could not conceivably be termed a floor. All the more reason to believe that the safety net standard applies to fall protection within a structure rather than on its periphery.

With respect to the use of safety nets by this respondent in this kind of operation the greater weight of the evidence shows conclusively that any suitable system of safety nets that would safely snare an errant roofer, if he went over the roof’s edge, would require substantial more man-hours at heights up to and over 25 feet and at the edge of the roof to erect and secure than the four man-hours spent in normal roofing operations. Thus, subjecting the employees to greater and increased risks of falling.

The evidence in this case fails to show that the use of safety nets, by this respondent under the facts and circumstances in evidence, would reduce the risk incident to the danger zone at the roof’s perimeter. In fact, the incident to the same risk would be greater because of the longer period of exposure and working on and at the extreme edge in hanging and securing the net system. Also, erecting a framework so the nets would be supported and extended at least eight feet beyond the edge would require working in open space in assembling the framework and attaching the nets.

The evidence establishes that it is not flat roofing industry custom to utilize safety nets or any other alleged safety device under the existing conditions. Also, that their use is neither practical nor feasible. This tribunal officially notices that this negative custom is prevalent in the roofing industry.

Accordingly, it is concluded that § 1926.105(a) does not have application to flat roofs unless the evidence shows that safety nets or any one of the other safety devices listed in that regulation can be utilized without subjecting the roofers to greater and increased hazards.

Finally, this tribunal would observe, in light of the foregoing discussion, that the rationale of the decision in Langer Roofing & Sheet Metal Co., Inc. v. Secretary of Labor, 524 F.2d 1337 (7th Cir. 1975), makes sense with respect to the application of regulations to roofing operations on flat roofs outside the scope of 29 C.F.R. 1926.451(u)(3). With due respect to the observation by the court in Diamond Roofing v. Occupational Safety and Health Review Commission, 528 F.2d 645 (5th Cir. 1976), the probative effect of Langer, supra, should emerge to greater heights as an authoritative source in resolving the contradictory positions now occupied by the complainant. The point is, the Secretary of Labor having published in the Federal Register, 37 Fed. Reg. 233 (Dec. 2, 1972), the fact that roofs with lesser slopes than 4 inches in 12 inches were not covered by 29 C.F.R. 1926.451(u)(3) because such slopes did not present a substantial danger of falls, should not be permitted to chase after the flat roofer with other regulations which are suspect in their application. The view of the Secretary as published is undoubtedly an expression of the long standing consensus of the fashioners of the regulations and the roofing industry.

Those conclusions are supported by the proposition announced by the court in Diamond Roofing, supra, that because of the Secretary’s flexible regulation promulgation authority structured in the Act, 29 U.S.C. § 655(b) & (e); 29 C.F.R. Part 1911, there is no need for the Secretary to press the limits of the regulations by judicial construction in an industrial area [roofing industry] presenting infinite operational situations.

Concluding there is no violation, penalty consideration is moot.

CONCLUSIONS OF LAW

1. The Review Commission has jurisdiction to hear and decide this case.

2. Respondent neither violated 29 C.F.R. 1926.28(a) nor, in the alternative, 29 C.F.R. 1926.105(a) as charged by the citation and complaint and as tried upon the record as a whole.

3. 29 C.F.R. 1926.28(a) and 29 C.F.R. 1926.105(a) are each inapplicable to a flat roof unless there is a preexisting system on or about that roof which permits the utilization of any one of the safety devices listed or referred to in those regulations without subjecting the employees, roofers, to greater or increased hazards.

ORDER

It is Ordered that:

The citation and notification of proposed penalty to be assessed be and each hereby is, vacated.

So ordered.

J. PAUL BRENTON

Judge

Date: January 11, 1977

Atlanta, Georgia

[2] Section 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.

[3] Section 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.

[4] The direction for review in this case was issued by former Commissioner Moran for the stated purpose of determining whether the judge’s rulings on the cited standards were justified by the law and the evidence. Neither party has indicated an interest in Commission review of any aspects of the judge’s decision except those discussed herein. Also, there is no compelling public interest warranting further review of other aspects of the judge’s decision. Therefore, those other aspects of the judge’s decision will not be considered on review. Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976–77 CCH OSHD ¶ 20,780 (No. 4136, 1976); Abbott-Sommer, Inc., 76 OSAHRC 21/a2, 3 BNA OSHC 2032, 1975–76 CCH OSHD ¶ 20,428 (No. 9507, 1976). Those portions of the decision are accorded the significance of an unreviewed judge’s decision. Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975–76 CCH OSHD ¶ 20,387 (No.4090, 1976).

[5] The compliance officer was not tendered as an expert witness, but he is nonetheless an experienced inspector.

[6] In his decision the judge rejected Forest Park’s claim that the current citation was not issued with reasonable promptness as required under section 9(a) of the Act, 29 U.S.C. § 658(a), finding there was no actual prejudice to Forest Park’s case. That issue is not before us and will not be considered on review. See note 4, supra.

[7] The judge found that it is roofing industry custom and practice not to use safety belts or any of the other forms of protection suggested in § 1926.105(a) in circumstances such as these. He also stated he was taking official notice of this custom. An administrative agency may take official notice not just of commonly known facts, but of technical or scientific facts that are within the agency’s area of expertise. The scope of official notice extends in theory to those matters within the specialized knowledge of the agency. See NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 349 (1953); Cable Car Advertisers, ¶ 17,019 (Nos. 354 & 480, 1973); See also 4 Mezines, et al., Administrative Law, § 25.01, pp. 25–2 to 25–5 (1979).

Here, however, there was no support given for the judge’s conclusion. The judge cited no evidence or authority tending to establish a clear, consistent roofing industry custom and practice never to wear safety belts or other means of personal protective equipment while exposed to possibly fatal falls. Although we are aware that many roofing employers in the past have failed to provide fall protection such as safety belts and lifelines, we are not aware of any such uniform custom and practice in that industry, either now or in 1975. Therefore, we do not accept the judge’s use of official notice regarding roofing industry custom and practice. Of course, industry custom and practice is not controlling in the analysis of whether § 1926.28(a) is applicable in any event. S & H Riggers, supra.

[8] As noted above, the compliance officer testified that the lifeline could be attached above the point of operation.

[9] Mr. Hidgon talked to the general contractor about standup walls, and was told he did not know when they would be put up. There was no testimony, however, that Forest Park made any inquiry specifically about providing fall protection during the roofing work.

[10] Merely speaking with the general contractor is not in itself adequate to establish the affirmative defense when there are other alternative means of protection available, except in the case of minor violations, which is not the case here. It is incumbent on an employer at a multi-employer worksite, however, to at least request abatement if there are no means available to it to physically protect its employees from the violative conditions. McLean-Behm Steel Erectors, Inc., 78 OSAHRC 54/A2, 6 BNA OSHC 1712, 1978 CCH OSHD ¶ 22, 812 (No. 76–2390, 1978); See J. H. Mackay Electric Co., supra.

[11] Alternative pleading is permitted in our proceedings. Environmental Utilities Corp., 77 OSAHRC 40/A2, 5 BNA OSHC 1195, 1977–78 CCH OSHD ¶ 21, 709 (No. 5324, 1977).

[12] 29 C.F.R. § 1926.28(a) states the following:

Personal protective equipment.

[13] Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678.

[14] Forest Park also asserted that there was no feasible way to provide fall protection for the roofers in question without incurring great cost. However, Forest Park adduced no evidence of the cost of constructing a safety belt system and thus failed to show the system was infeasible on this basis.