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Voegele Co. v. Occupational Safety and Health Review Commission and Ray Marshall

decided: June 26, 1980.

VOEGELE COMPANY, INC., PETITIONER
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION AND RAY MARSHALL, SECRETARY OF LABOR, RESPONDENTS



ON PETITION FOR REVIEW OF A FINAL ORDER OF THE OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Before Gibbons, Weis and Sloviter, Circuit Judges.

Author: Gibbons

Opinion OF THE COURT

Voegele Co., Inc. (Voegele) petitions pursuant to 29 U.S.C. § 660(a) (1976) for review of a final order of the Occupational Safety and Health Review Commission (OSHRC) that held Voegele in violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (1976) (OSHA) for the company's failure to comply with the general safety standard of section 1926.28(a), 29 C.F.R. § 1926.28(a) (1979). We are presented with the question whether OSHRC erred in refusing to apply a standard enunciated by the Fifth Circuit that makes recognized industry practice determinative of whether a violation of section 1926.28(a) has occurred. We conclude that OSHRC applied the correct legal standard and we also affirm that there was substantial evidence to support the finding of a violation.

I. FACTUAL AND PROCEDURAL BACKGROUND.

Voegele installed a composition roof for an A&P building in Vandergrift, Pennsylvania. The height of the building varied from 14 feet at the front to 35 feet at the rear. The roofs of adjacent buildings limited the fall distance to the ground. However, there was an area of about 15-19 feet from the rear of the building where there were no obstructions. The major portion of the roof was essentially flat, sloping 2-3 degrees downward from the center for drainage. A parapet extended the width of the roof along the front and rear of the building. The front parapet ranged from 18-20 inches in the center to 32-36 inches at either end. The rear parapet varied from 8 inches in the center to 12-14 inches at both ends.

Gutters, approximately 18 inches wide and 8 inches deep, extended along the sides of the roof. There were also parapets about 8-10 inches high and 12-18 inches wide on the edge of the roof outside of the gutters. The roof on these two sides of the building sloped sharply into the gutters and dropped 3 feet at about a 45 degree angle. This slope started approximately 4 feet from each edge. The ground surface surrounding the building consisted of concrete or asphalt.

On April 12, 1976, OSHA compliance officer Harlan Jarvis conducted an inspection of the work site. Mr. Jarvis observed the employees performing two roofing procedures: the application of layers of felt and paper with hot tar and the installation of flashing. The tar is about 350-450 degrees when it is applied to the surface with an eight foot long mop. Working with the "mopper" is a roll man who places the felt or paper on the hot tar. Mr. Jarvis observed the team at about 51/2-7 feet from the edge and stated that it was impossible to lay a flat roof without the employees going to the edge. The person installing the flashing was also required to be on the edge of the roof and to kneel in the gutter. It is undisputed that the employees did not use safety belts or lifelines and that the company did not require them to do so.

Based on Jarvis' observations, the agency issued a citation charging the company with a serious violation of 29 C.F.R. § 1926.500(d)(1) and 29 C.F.R. § 1926.28(a) and a proposed penalty of $525. The 29 C.F.R. § 1926.500(d)(1) reference was deleted on the Secretary of Labor's unopposed motion to amend the citation. The nonserious items were not contested. The relevant contested portion of the citation charges:

Employees working on the roof were not protected by safety belts, used in conjunction with lifelines and/or lanyards, from the hazard of falling.

App. 5a-6a.

A hearing on the merits was held before ALJ Osterman who held that (1) the roof presented a fall hazard and (2) the company could have devised a lifeline system without creating greater hazards. On discretionary review, the Commission affirmed the ALJ, holding (1) that the company had a duty to provide lifeline protection despite evidence that industry practice would not have required it, and (2) that the use of safety belts and lifelines would not have created greater hazards.

II. THE STANDARD FOR THE DETERMINATION OF A VIOLATION UNDER 29 C.F.R. § 1926.28(a).

Section 1926.28(a) is a construction industry standard promulgated under 29 U.S.C. § 654(a)(2) of the Occupational Safety and ...


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