National Roofing Contractors Association v. Brennan

• Citation: 495 F.2d 1294
• Decision Date: 30 April 1974
• Docket Number: No. 73-1082.,73-1082.
• Parties: NATIONAL ROOFING CONTRACTORS ASSOCIATION et al., Petitioners, v. Peter J. BRENNAN, Secretary of Labor, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

495 F.2d 1294 (1974)

NATIONAL ROOFING CONTRACTORS ASSOCIATION et al., Petitioners, v. Peter J. BRENNAN, Secretary of Labor, Respondent.

No. 73-1082.

United States Court of Appeals, Seventh Circuit.

Argued October 29, 1973.

Decided April 30, 1974.

Ira J. Smotherman, Jr., McNeill Stokes, Atlanta, Ga., Michael J. Hamblet, Chicago, Ill., for petitioners.

Harlington Wood, Jr., Asst. Atty. Gen., Eloise E. Davies, Atty., Dept. of Justice, Washington, D. C., for respondent.

Before KILEY, Senior Circuit Judge, and PELL and SPRECHER, Circuit Judges.

KILEY, Senior Circuit Judge.

Petitioners,¹ representatives of employers in the roofing industry, filed their petition in this court, pursuant to 29 U.S.C. § 655(f),² to set aside a safety standard promulgated by respondent Secretary, acting by virtue of § 6(a) and (b) of the Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. § 651 et seq., to protect workers on sloping roofs of buildings. We deny the petition.

OSHA is the "first comprehensive effort by the federal government to regulate safety and health conditions in the workplace."³ In enacting OSHA Congress stated that the purpose is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources." 29 U.S.C. § 651(b).

The Secretary was authorized in OSHA, § 651(b)(3), to set mandatory standards for safety and health of employees. In promulgating the standard before us he followed the statutory procedures in § 655(b). Briefly stated, those procedures are as follows: When the Secretary receives or develops information upon which he determines a standard is needed, he may request recommendations from an advisory committee appointed by him. He then submits his proposal and the information he has received or developed to the committee. Upon receiving the committee's recommendations, he publishes the proposed standard and affords interested persons an opportunity to submit written data or comments.

Should objections be made to the proposal, and upon a request for a hearing, the Secretary is to publish in the Federal Register a notice specifying the proposal and set a time and place for a hearing. After the hearing he "shall" promulgate, or determine not to promulgate, the standard.

I.

Petitioners contend that the standard is void because the composition of the advisory committee appointed by the Secretary did not comply with the requirement of § 656(b) that the committee be representative of employers as well as employees and public representatives.

A.

Section 656(b) provides that any advisory committee appointed by the Secretary shall consist of not more than fifteen members and must include one or more designees of the Secretary of Health, Education and Welfare (HEW); "an equal number of persons qualified by experience and affiliation" to present the views of employers and employees; one or more representatives of state safety and health agencies; and "such other persons as the Secretary may appoint who are qualified by knowledge and experience . . . including one or more representatives of professional organizations of technicians or professionals specializing in occupational safety or health . . ."; but the number of professionals appointed cannot exceed the number appointed as representatives of HEW and state agencies.

Petitioners argue that no roofing industry member was appointed and that general contractors on the committee do not adequately represent them.

The Secretary, before the effective date of OSHA, had exercised his authority under the Contract Work Hours and Safety Standards Act of 1969, 40 U.S.C. § 333 et seq. (CWHSSA) by appointing a nine-man advisory committee to make recommendations for a safety standard to protect employees working on sloping roofs. After enactment of OSHA he enlarged the committee to the new requirements of fifteen members.

It is not sufficient to charge that because a roofing subcontractor is not appointed to the committee, petitioners are ipso facto prejudiced. There is nothing to show that, although roofing contractors may be the group most affected by the standards, general contractors in conjunction with worker representatives and the other representatives are not competent to determine suitable safety standards for employees working on sloping roofs. The testimony does not show that the general contractors prejudiced petitioners' position at the hearing. On the contrary, on this record the interests of the petitioners and the general contractors are plainly the same: general contractors must absorb the cost of safety devices required by the standard and they may be liable for subcontractor violations.⁴

Absent a showing of "specific prejudice" suffered by petitioners, we see no substance in the contention urged by petitioners that failure to appoint a representative of the roofing industry violated § 656(b). United States v. Pierce Auto Lines, 327 U.S. 515, 527-529, 66 S.Ct. 687, 90 L.Ed. 821 (1946).

B.

Petitioners argue also that the CWHSSA and OSHA advisory committees were improperly composed.⁵ We consider this argument frivolous.

As his affidavit before us states, CWHSSA member MacCollum was not appointed as an employer representative as petitioner erroneously contends, but as a public member. And, contrary to petitioner's claim, OSHA committee member Anania, an acting chief of the National Institute of Occupational Safety and Health, was a proper HEW designee. Finally, there is no merit in the claim that the CWHSSA committee had an unequal number of employer and employee representatives. Petitioners' contention that Mr. Burks was a public member is contradicted by a Department of Labor release announcing his appointment as a "management representative."

We hold that the standard before us is not void for failure of the Secretary to meet the requirements of 29 U.S.C. § 656(b) of OSHA in composing the advisory committee which recommended the standard. None of the cases referred to in petitioners' brief aids them in their contentions.⁶

II.

The challenged safety standard states:

A catch platform shall be installed below the working area of roofs more than 16 feet from the ground to eaves with a slope greater than 4 inches in 12 inches without a parapet. In width, the platform shall extend 2 feet beyond the protection of the eaves and shall be provided with a guardrail, midrail, and toeboard. This provision shall not apply where employees engaged in work upon such roofs are protected by a safety belt attached to a lifeline.⁷

The "16 feet" height and "4 inches in 12 inches" slope standard departs from the standards previously promulgated by the Secretary of 20 feet for industry in general (the "national consensus")⁸ and 10 feet for construction work, and a 3 inches in 12 inches slope requirement.

Petitioners contend that the departure is not supported by "substantial evidence in the record as a whole,"⁹ and is "capricious, arbitrary and unreasonable."

Testimony, contentions and arguments, for petitioners at the hearing, and before us, are, first, that the 16 feet height is unnecessary — since overprotection makes workers careless, and less expensive devices are available; is without precedent; and compliance with it is too costly.¹⁰

The testimony that the 20 feet height was the appropriate standard implies that protection at some height was needed. Whether that should be 20 feet or 10 feet or 16 feet was considered by the committee. The 20 feet standard was rejected for the reason that a safer standard was needed in order to protect against falls from lower roofs which resulted in more serious injuries.¹¹ The Secretary recognized the factor of cost of catch platforms and left room in his promulgation for "temporary parapets," to be built by contractors, which could qualify under the standard as alternatives to catch platforms. We think this will enable those covered by the standards and sensitive to the costs involved for catch platforms to use ingenuity in providing less costly alternatives which could qualify. Finally, the committee could well have ignored the claim that overprotection makes workers careless.

The fact that the American National Standards Institute (ANSI) adopted the "national consensus" standard of 20 feet, and that several states¹² had adopted the same or greater height standards, is not binding on the Secretary. In fact, OSHA was enacted to supply the protection Congress deemed lacking in state regulations.¹³ He is required under § 655(a) to determine whether a standard different from the "national consensus" would result in improved safety or health.

Similarly, while a layman would see little difference, perhaps, between a 4 inches and 5 inches in 12 inches slope, it was within the Secretary's discretion to choose the more gentle slope. As one committee member stated, "You can work on a 4 inch roof. You get up to 5 inches or 6 inches and this is real tough."

Petitioners also argue that safety belts, which can be used in place of scaffolds, are dangerous, since ropes purporting to hold the workers safely have caused tripping of employees and more injuries than that protection prevented. The committee properly recognized the self-serving element implicit in this argument and cited the experience of iron workers who originally resisted safety belts but have come gradually to accept them as effective safety equipment.

Finally, petitioners argue that the majority of injuries to employees engaged in roofing were due not to the lack of adequate safety protection but to negligence of workers, and that catch platforms in preventing falls could cause greater injury than the falls, and that the best protection against employee injury was efficiency on the part of employers and due care on the part of employees. Apparently the committee found, as we find, this argument unpersuasive. There is no showing in the statistics to bear out the first...