Sloan Roofing Company

Plain-English summary

Sloan Roofing employees installed roofing material on a flat roof at a Michelin Tire facility in Edison, New Jersey. The roof was 24 feet above the ground, but the judge found that the employees stayed at least 40 feet from its edge and were not exposed to a perimeter fall hazard. OSHA alleged a serious violation of the open-sided-floor guarding standard and proposed a $650 penalty. The Commission did not decide the exposure issue because its Central City Roofing precedent held that the cited standard did not apply to flat roofs. It affirmed vacation of the citation and proposed penalty. Commissioner Cleary stated that he would limit that precedent's application to the roofing industry.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.500(d)(1); 29 U.S.C. § 654(a)(2)
• Outcome: The serious flat-roof guarding citation and proposed $650 penalty were vacated.
• Key point: The Commission's flat-roof precedent controlled, so it did not need to decide whether employees working far from the edge were exposed.

Full text (OSHRC public release)

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EN-US
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UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND
HEALTH REVIEW COMMISSION

SECRETARY
OF LABOR,

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Complainant,

������������������������ v.

OSHRC
DOCKET NO. 11533

SLOAN ROOFING COMPANY,

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Respondent.

September 2, 1976

DECISION

BEFORE
BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

CLEARY,
Commissioner:

On
August 25, 1975, Administrative Law Judge Erwin L. Stuller rendered a decision
vacating a citation that alleged failure to comply with the occupational safety
and health standard set out at 29 CFR � 1926.500(d)(1). [1] Judge Stuller vacated the
citation because he found that none of respondent�s employees was subjected to
the possibility of falling off the perimeter of the building at respondent�s
workplace in Edison, New Jersey.

The
Secretary petitioned for review of the Judge�s decision, and on September 24,
1975, I granted the petition pursuant to section 12(j) of the Occupational
Safety and Health Act of 1970, 29 U.S.C. � 651 et seq., [hereinafter �the
Act�]. I noted that the issue raised by the petition is:

Whether
the Administrative Law Judge erred in vacating the citation on the finding that
respondent�s employees were not exposed to the hazard contemplated by the cited
standard?

����������� It is unnecessary for the Commission
to address the issue of employee exposure here. In Central City Roofing Co. ,
BNA 4 OSHC 1286, CCH 1975-76 OSHD para. 20,761 (No. 8173, 1976), a divided
Commission held that 29 CFR � 1926.500(d)(1) does not apply to flat roofs. [2] Respondent, a roofing
contractor, was working on a flat roof when cited.

Therefore,
we affirm the Judge�s vacation of the citation and proposed penalty.

FOR THE COMMISSION:

�

William S. McLaughlin

Executive Secretary

DATED: SEP 2, 1976

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND
HEALTH REVIEW COMMISSION

SECRETARY
OF LABOR,

��������������������������������������������
Complainant,

������������������������ v.

OSHRC
DOCKET NO. 11533

T. F. SLOAN
COMPANY,

���������������������������������������������
Respondent.

August 25, 1975

DECISION
AND ORDER

Appearances:

Ian P. Spier,
Esquire Office of the Solicitor

U. S. Department
of Labor 1515 Broadway, Room 3555 New York, New York Attorney for the
Complainant

Hugh P. Francis,
Esquire

Apruzzese &
McDermott Independence Plaza 500 Morris Avenue Springfield, New Jersey Attorney
for the Respondent

�

DECISION

On
December 13, 1974, the Secretary of Labor issued a citation charging that on
December 4, 1974, the respondent failed to comply with a safety regulation in
serious violation of section 654(a)(2) of the Occupational Safety and Health
Act of 1970 (29 USC 651, et seq., hereinafter referred to as the Act).
Notification of Proposed Penalty was issued to the respondent on December 13,
1974, indicating a proposed penalty of $650.00. A timely notice of contest was
filed by the respondent, and this Commission thereby acquired jurisdiction over
the subject matter under section 659 of the Act. A hearing was held on this
matter in New York City, New York, on April 4, 1975.

A
description of the alleged violation and the standard concerned are as follows:

The open-sided
floor on which the employees were working was not guarded by a standard
railing, or the equivalents, on all open sides. The open-sided floor referred
to is approximately 24 feet above adjacent ground level. �

In violation of 29
CFR 1926.500(d)(1)

29 CFR
1926.500(d)(1)

�

(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) 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
respondent herein is a roofing and waterproofing contractor. Many of the
materials and supplies used by the respondent were manufactured outside of the
State of New Jersey and used by the respondent in that state, therefore, the
respondent is engaged in a business affecting commerce within the meaning of
the Act.

On
December 4, 1974, the complainant�s Compliance agent inspected the respondent�s
worksite in Edison, New Jersey. The respondent had a foreman and four employees
working on the roof of the Michelin Tire Corporation building in that city.
Access to the roof was obtained by a ladder in an opening in the middle of the
roof. The roof was 24-feet above the surrounding ground level. Upon reaching
the roof, the compliance officer saw four of the employees working on an
expansion joint. They were laying in rubber with hot tar. The roof of the
building was square, each side being 442-feet long. The expansion joint lay in
a straight line halfway between the north and south edges of the roof and going
from the east edge of the roof to the west edge. The work was progressing from
the east to the west. The employees at no time worked any closer than 40-foot
from the edge of the roof. At the time the compliance officer observed the
employees, they were working within 10 to 15-feet of the center of the roof.
The roof was flat. There was no evidence of any unusual conditions that would
make this roof particularly hazardous.

The
respondent had been working on this roof for approximately one hundred days,
and, on the day of the inspection, the job was completed.

When
the compliance officer reached the roof with the respondent�s foreman during
the inspection, the compliance officer pointed out to the foreman that there
was no perimeter protection, in that there were no railings. He stated that
this was a �violation of the law.� When the foreman complained that the
employees were working in the center of the roof, and apparently not near the
edge, the compliance officer �informed him that it was still a violation of the
law to have his people on a floor with no perimeter protection.�

At
arriving at the above finding of facts, it was necessary to weigh the
conflicting testimony of the compliance officer and the respondent�s employees.
It is found that in regard to the size of the roof the compliance officer was
very unsure when he testified that the roof was between 70 and 80-feet wide and
120-feet long. He appeared to have some difficulty in remembering the
dimensions and appeared to be guessing. On the other hand, the respondent�s
witnesses were quite sure of the dimensions of the roof and, in addition,
photographs of the roof received in evidence would appear to support their
testimony.

Based
on the foregoing findings of fact, it must be concluded that no hazard existed.
As none of the respondent�s employees had gone closer than 40-feet from the
edge of the roof in question, it cannot be found that any of these employees
were subjected to any possibility of falling off the perimeter of the building.
Therefore, the citation herein will be vacated.

ORDER

Based
on the foregoing, it is ordered that the citation and the proposed penalty
herein be and are hereby VACATED.

�

Erwin
L. Stuller,

Judge

Dated:
August 25, 1975

[1] The citation alleged that:

The open-sided
floor on which the employees were working was not guarded by a standard
railing, or the equivalents, on all open-sides. The open-sided floor referred
to is approximately 24 feet above adjacent ground level.

29 CFR � 1926.500(d)(1)
provides:

(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) 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.

[2] In my opinion, the application of Central
City should be limited to the roofing industry.