Tri-State Roofing & Sheet Metal, Inc. v. Occupational Safety & Health Review Com'n

• Decision Date: 21 June 1982
• Docket Number: No. 81-1778,TRI-STATE,81-1778
• Parties: 10 O.S.H. Cas.(BNA) 1715, 1982 O.S.H.D. (CCH) P 26,173 ROOFING & SHEET METAL, INC., Petitioner, v. OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION, et al., Respondents.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 878

685 F.2d 878

10 O.S.H. Cas.(BNA) 1715, 1982 O.S.H.D. (CCH)

P 26,173

TRI-STATE ROOFING & SHEET METAL, INC., Petitioner, v. OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION, et al., Respondents.

No. 81-1778.

United States Court of Appeals Fourth Circuit.

Argued April 2, 1982.

Decided June 21, 1982.

Ira J. Smotherman, Jr., Atlanta, Ga. (Stokes & Shapiro, Atlanta, Ga., on brief), for petitioner.

Domenique Kirchner, U. S. Dept. of Labor, Washington, D. C. (T. Timothy Ryan, Jr., Sol. of Labor, Frank A. White, Associate Sol. for Occupational Safety and Health, Washington, D. C., Marshall H. Harris, Regional Sol., Philadelphia, Pa., on brief), for respondents.

Before PHILLIPS and ERVIN, Circuit Judges, and KISER, ^* District Judge.

PER CURIAM:

This case comes before the Court pursuant to § 11(a) of the Occupational Safety and Health Act of 1970 (29 U.S.C. §§ 651 et seq.) (the Act) on petition of Tri-State Roofing & Sheet Metal, Inc. (Tri-State) to review the final order of the Occupational Safety & Health Review Commission (Commission) issued on July 1, 1981. Tri-State, engaged as a contractor doing roofing repairs, erected a material catch platform between two permanent catwalks. The platform was 44 feet above a concrete floor. In building the platform, lumber cross beams were rested upon steel handrails of the catwalks, but these beams were not secured to the handrails in any manner. Sheets of plywood were placed on top of the beams to create a platform. Tri-State employees would climb out onto a newly placed plywood sheet and nail it to the cross beams. After a row of sheets was nailed to the beams, the process was repeated until the entire platform surface was covered. While applying the plywood base, workers were exposed to the completely unguarded edge of the platform being constructed. The cross beams were not secured and could move, potentially resulting in an employee falling from the platform and incurring death or serious bodily harm. Yet Tri-State took no precautions to assure that employees would be protected from a falling hazard.

The Administrative Law Judge upheld the Secretary of Labor's citation of Tri-State for serious violations of 29 U.S.C. § 654(a)(2) and 29 CFR 1926.28(A) for exposing its employees to a potentially deadly fall during the erection of a material catch platform.

The regulations require that employees use appropriate personal protective equipment where there is either exposure to hazardous conditions or where other regulations under 29 CFR Part 1926 indicate the need for such equipment. See 29 CFR 1926.28(A). Either actual or constructive knowledge of a hazard in the workplace for which personal protective equipment should be used is sufficient to put an employer on notice as to his responsibilities under the standards. To uphold a standard against a due process challenge, it is necessary to satisfy a "reasonably prudent person" test that has been judicially implied into the regulations. Bristol Steel & Iron Works, Inc. v. OSHRC, 601 F.2d 717, 722 (4th Cir. 1979). The main inquiry is whether a reasonably prudent individual familiar with the circumstances of the industry would have protected against the hazard. Id. at 723. Industry custom and practice may be taken into account but are not controlling in determining hazard recognition. Id. ¹ The burden is on the Secretary to establish by substantial evidence that a reasonably prudent employer familiar with the roofing industry would have protected against the hazard of falling by means specified in the citation. Id. at 723-24.

The Commission's findings are completely supported by the record. The Compliance Officer made a professional inspection and ascertained that a lethal hazard existed due to the potential accidental movement of the cross boards as well as to the possibility that a worker might simply lose his balance and fall off the unguarded platform. Both a foreman and a laborer for Tri-State corroborated the Compliance Officer's testimony that employees were exposed to the unprotected edge of the platform when they constructed it. The Bristol Steel test was met in that the Administrative Law Judge had a basis to find that the fall hazard was apparent to persons familiar with the industry. Furthermore, the work situation was patently dangerous since the laborers were working without protective equipment on an unguarded platform in excess of 40 feet above a concrete floor. Where a hazard is obvious and glaring, the Commission may...