Diamond Roofing Co., Inc. v. Occupational Safety and Health Review Com'n, Nos. 73--3704

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore BROWN, Chief Judge, THORNBERRY and AINSWORTH; JOHN R. BROWN
Citation528 F.2d 645
Parties4 O.S.H. Cas.(BNA) 1001, 1975-1976 O.S.H.D. ( 20,521 DIAMOND ROOFING CO., INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and W. J. Usery, the Secretary of Labor, Respondents. S. D. MULLINS COMPANY, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and W. J. Usery, the Secretary of Labor, Respondents. LANCE ROOFING COMPANY, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and W. J. Usery, the Secretary of Labor, Respondents. Summary Calendar. *
Decision Date15 March 1976
Docket NumberNos. 73--3704,74--1343,73--3705

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528 F.2d 645
4 O.S.H. Cas.(BNA) 1001, 1975-1976 O.S.H.D. ( 20,521
DIAMOND ROOFING CO., INC., Petitioner,
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and W. J.
Usery, the Secretary of Labor, Respondents.
S. D. MULLINS COMPANY, INC., Petitioner,
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and W. J.
Usery, the Secretary of Labor, Respondents.
LANCE ROOFING COMPANY, INC., Petitioner,
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and W. J.
Usery, the Secretary of Labor, Respondents.
Nos. 73--3704, 73--3705, 74--1343 Summary Calendar.
*
United States Court of Appeals,
Fifth Circuit.
March 15, 1976.

Ira J. Smotherman, Jr., McNeill Stokes, Atlanta, Ga., for petitioners.

Page 646

William S. McLaughlin, Executive Secretary, OSHRC, Baruch A. Fellner, Counsel for Regional Litigation, William J. Kilberg, Sol. of Labor, U.S. Dept. of Labor, Barbara L. Herwig, Atty., Dept. of Justice, Washington, D.C., Beverley R. Worrell, Regional Sol., U.S. Dept. of Labor, Atlanta, Ga., Stephen F. Eilperin, Thomas S. Moore, Karen K. Siegel, Dept. of Justice, Michael H. Levin, Counsel, Dept. of Labor, Washington, D.C., for respondents.

Petitions for Review of Orders of the Occupational Safety and Health Review Commission (Georgia case).

Before BROWN, Chief Judge, THORNBERRY and AINSWORTH, Circuit Judges.

JOHN R. BROWN, Chief Judge:

These petitions for review of orders of the Occupational Safety and Health Review Commission (OSHRECOM) 1 are being considered together because they all require us to address the same question: Does 29 CFR § 1926.500(d)(1) 2 of OSHA's regulations for construction, which requires that a standard railing be placed around an open-sided floor, also apply to an open-sided roof? We answer the question in the negative and reverse. 3

The Roofers

Petitioners Diamond Roofing Company, Inc. (Diamond) and S. D. Mullins Company, Inc. (Mullins) install roofs for industrial and commercial buildings in the Atlanta, Georgia area. They employed 12 and 8 roofing employees, respectively, at the time of the inspections which resulted in their citations. In December 1971 both Diamond and Mullins were installing a flat 4 roof 25 feet above ground at 6,000 Boat Rock Boulevard in Atlanta. The roof perimeter did not contain a safety railing.

The Secretary of Labor (Secretary) issued citations against both Diamond and Mullins for nonserious violations of § 1926.500(d)(1), Diamond for 'employees working on roof with unguarded sides or edges' and Mullins for 'no guards on open-sided floors (roof).' 5 The petitioners contested the citations. The two cases were consolidated and a hearing

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was held in Atlanta on July 6, 1972. An Administrative Law Judge of OSHRECOM vacated the citations, finding that § 1926.500(d)(1)'s safety railing requirement for open-sided floors did not apply to open-sided roofs. Hodgson v. Diamond Roofing Co., Inc., OSHRC Docket No. 459 (Sept. 15, 1972). OSHRECOM reversed, Chairman Moran dissenting, concluding that the term 'open-sided floor' in § 1926.500(d)(1) did include a flat roof. Secretary of Labor v. S. D. Mullins Co., Inc., OSHRC Docket Nos. 364 & 459 (Oct. 24, 1973).

Petitioner Lance Roofing Company, Inc. (Lance) is another Atlanta roofing company which installs roofs for industrial and commercial buildings. On June 6, 1972 it was inspected while installing a flat roof at 4888 Frontage Road in Forest Park, Georgia. Lance employed 10 roofers at this job site. The roof perimeter did not contain a safety railing.

The Secretary issued a citation for 'no guardrailings, nor were the employees secured so as to prevent them from falling off the roof,' in violation of § 1926.500(d)(1). 6 Lance contested the citation. After a hearing on August 31, 1972, an ALJ of OSHRECOM vacated the citation, refusing to apply § 1926.500(d)(1) to open-sided roofs. Secretary of Labor v. Lance Roofing Co., Inc., OSHRC Docket No. 1102 (March 12, 1973). OSHRECOM reversed, Chairman Moran again dissenting, on the strength of its previous holding in Secretary of Labor v. S. D. Mullins Co., Inc., supra, which applied § 1926.500(d)(1) to roofs as well as floors.

We have jurisdiction of these petitions for review under 29 U.S.C.A. § 660(a).

Why A Roof Is Not A Floor

Subpart M of OSHA's regulations for construction, 29 CFR § 1926, is entitled 'Floor and Wall Openings, and Stairways.' 7 According to its introductory

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provision, Subpart M applies 'where there is danger of employees or materials falling through floor, roof, or wall openings.' § 1926.500(a) (emphasis added). Subsection (b) applies to floor openings and floor holes, while open-sided floors, platforms and runways are treated in subsection (d). 'Floor opening' and 'floor hole' are specifically defined at § 1926.502(a) & (b) to include an opening or a hole in a roof. Thus, the standard railing requirement of subsection (b) applies to roof openings and roof holes as well as to floor openings and floor holes.

The term 'open-sided floor' in subsection (d), however, is not defined. (Nor are the general terms 'floor' or 'roof.') Since the definitions of 'platform' and 'runway' to which subsection (d) also applies do not indicate that they should be construed to include a roof, we conclude that--in contrast to subsection (b)--the standard railing requirement in subsection (d) applies only to open-sided floors and not to open-sided roofs.

Since Subpart M applies to roof as well as floor openings, respondents 8 OSHRECOM and the Secretary argue that the term open-sided floor should be construed to include an open-sided roof. The fallacy in this argument is that the very regulation in dispute twice recognizes a distinction between a floor and a roof. First, the general provision clause, § 1926.500(a), uses the terms floor and roof cumulatively to describe the kinds of openings to which Subpart M applies. Second, the terms floor opening and floor hole are specifically defined to include an opening or a hole in a roof. § 1926.502(a) & (b). The inclusion of the term roof in the general provision clause and in the definitions of floor opening and floor hole, combined with its absence from the open-sided floor provision of subsection (d)(1), can only be construed as an intent to distinguish between a floor and a roof and therefore to exclude open-sided roofs from the requirement of a safety railing.

This conclusion comports with the rule of construction that where a term is carefully employed in one place and excluded in another, it should not be implied where excluded. Federal Trade Commission v. Sun Oil Co., 1963,371 U.S. 505, 514--15, 83 S.Ct. 358, 364, 9 L.Ed.2d 466, 475; Bott v. American Hydrocarbon Corp., 5 Cir., 1972, 458 F.2d 229, 233; J. Ray McDermott & Co., Inc. v. Vessel Morning Star, 5 Cir., 1972, 457 F.2d 815, 818. Had the drafters of this regulation intended that § 1926.500(d)(1) apply to open-sided roofs, they very easily could have and should have said so, as they did with reference to roof openings and roof holes. If the regulation missed

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its mark, the fault lies in the wording of the regulation--a matter easily remedied under the flexible regulation promulgating structure,29 U.S.C.A. § 655(b) & (e); 29 CFR Part 1911, with no need to press limits by judicial construction in an industrial area presenting infinite operational situations. 9 Cf. Brennan v. Occupational Safety and Health Review Commission, 5 Cir., 1973, 488 F.2d 337.

The respondents contend that the regulations should be liberally construed to give broad coverage because of the intent of Congress to provide safe and healthful working...

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128 practice notes
  • United States v. Phifer, No. 17-10397
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 21, 2018
    ...Court effectively reached that very conclusion. In Diamond Roofing Co., Inc. v. Occupational Safety & Health Review Commission , 528 F.2d 645, 649 (5th Cir. 1976), the Court expressly held, "If a violation of a regulation subjects private parties to criminal or civil sanctions, a r......
  • United States v. Phifer, No. 17-10397
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 21, 2018
    ...Court effectively reached that very conclusion. In Diamond Roofing Co., Inc. v. Occupational Safety & Health Review Commission, 528 F.2d 645, 649 (5th Cir. 1976), the Court expressly held, "If a violation of a regulation subjects private parties to criminal or civil sanctions, a re......
  • U.S. v. Marine Shale Processors, No. 94-30664
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 18, 1996
    ...a court construing a regulation "to mean what an agency intended but did not adequately express." Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649 (5th Cir.1976). The regulations were clear, MSP did not follow them, and it cannot now be heard to complain on the ground of lack of fa......
  • Fed. Trade Comm'n v. Wyndham Worldwide Corp., No. 14–3514.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 24, 2015
    ...Safety & Health Rev. Comm'n, 25 F.3d 999, 1005 (11th Cir.1994) ; Diamond Roofing Co. v. Occupational Safety & Health Rev. Comm'n, 528 F.2d 645, 649 (5th Cir.1976). In fact, the Supreme Court applied Skidmore to an interpretation by an agency of a regulation it adopted instead of def......
  • Request a trial to view additional results
128 cases
  • United States v. Phifer, No. 17-10397
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 21, 2018
    ...Court effectively reached that very conclusion. In Diamond Roofing Co., Inc. v. Occupational Safety & Health Review Commission , 528 F.2d 645, 649 (5th Cir. 1976), the Court expressly held, "If a violation of a regulation subjects private parties to criminal or civil sanctions, a r......
  • United States v. Phifer, No. 17-10397
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 21, 2018
    ...Court effectively reached that very conclusion. In Diamond Roofing Co., Inc. v. Occupational Safety & Health Review Commission, 528 F.2d 645, 649 (5th Cir. 1976), the Court expressly held, "If a violation of a regulation subjects private parties to criminal or civil sanctions, a re......
  • U.S. v. Marine Shale Processors, No. 94-30664
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 18, 1996
    ...a court construing a regulation "to mean what an agency intended but did not adequately express." Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649 (5th Cir.1976). The regulations were clear, MSP did not follow them, and it cannot now be heard to complain on the ground of lack of fa......
  • Fed. Trade Comm'n v. Wyndham Worldwide Corp., No. 14–3514.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 24, 2015
    ...Safety & Health Rev. Comm'n, 25 F.3d 999, 1005 (11th Cir.1994) ; Diamond Roofing Co. v. Occupational Safety & Health Rev. Comm'n, 528 F.2d 645, 649 (5th Cir.1976). In fact, the Supreme Court applied Skidmore to an interpretation by an agency of a regulation it adopted instead of def......
  • Request a trial to view additional results

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