Diamond Roofing Co., Inc. v. Occupational Saf. & Health Review Comm'n & W. J. Usery, the Sec'y of Labor, S. D. Mullins Co., Inc. v. Occupational Saf. & Health Review Comm'n & W. J. Usery, the Sec'y of Labor, Lance Roofing Co., Inc. v. Occupational Saf. & Health Review Comm'n & W. J. Usery, the Sec'y of Labor, 528 F.2d 645 (5th Cir. 1976). · Go Syfert
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Diamond Roofing Co., Inc. v. Occupational Saf. & Health Review Comm'n & W. J. Usery, the Sec'y of Labor, S. D. Mullins Co., Inc. v. Occupational Saf. & Health Review Comm'n & W. J. Usery, the Sec'y of Labor, Lance Roofing Co., Inc. v. Occupational Saf. & Health Review Comm'n & W. J. Usery, the Sec'y of Labor, 528 F.2d 645 (5th Cir. 1976). Cases Citing This Book View Copy Cite
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cited 3× by 3 distinct cases · …if a violation of a regulation subjects private parties to criminal or civil sanctions, a regulation cannot be construed to mean what an agency intended but did not adequately express. ✓
281 citation events (81 in the last 25 years) across 34 distinct courts.
Strongest positive: United States v. CITGO Petroleum Corporation (ca5, 2015-09-09)
Treatment trajectory · 1976 → 2026 · click a year to view as-of
1976 2001 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) United States v. CITGO Petroleum Corporation
5th Cir. · 2015 · quote attribution · 1 verbatim quote · confidence high
if a violation of a regulation subjects private parties to criminal or civil sanctions, a regulation cannot be construed to mean what an agency intended but did not adequately express
discussed Cited as authority (verbatim quote) United States v. CITGO Petroleum Corporation
5th Cir. · 2015 · quote attribution · 1 verbatim quote · confidence high
if a violation of a regulation subjects private parties to criminal or civil sanctions, a regulation cannot be construed to mean what an agency intended but did not adequately express
discussed Cited as authority (verbatim quote) Elgin Nursing & Rehabilitation Center v. United States Department of Health & Human Services
5th Cir. · 2013 · signal: see · quote attribution · 1 verbatim quote · confidence high
tatutes and regulations which allow monetary penalties against those who violate them ... must give an employer fair warning of the conduct prohibit or require.
discussed Cited as authority (quoted) United States v. Black Elk Energy Offshore
5th Cir. · 2017 · signal: see also · quote attribution · 1 verbatim quote · confidence low
if a violation of a regulation subjects private parties to criminal or civil sanctions, a regulation cannot be construed to mean what an agency intended but did not adequately express.
discussed Cited as authority (quoted) United States v. Moss
5th Cir. · 2017 · signal: see also · quote attribution · 1 verbatim quote · confidence low
if a violation of a regulation subjects private parties to criminal or civil sanctions, a regulation cannot be construed to mean what an agency intended but did not adequately express.
discussed Cited as authority (quoted) United States v. Black Elk Energy Offshore
5th Cir. · 2017 · signal: see also · quote attribution · 1 verbatim quote · confidence low
if a violation of a regulation subjects private parties to criminal or civil sanctions, a regulation cannot be construed to mean what an agency intended but did not adequately express.
cited Cited as authority (rule) Federal Deposit Insurance Corporation v. Bank of America, N.A.
D.D.C. · 2025 · confidence medium
Comm’n, 528 F.2d 645, 649 (5th Cir. 1976)).
cited Cited as authority (rule) Federal Deposit Insurance Corporation v. Bank of America, N.A.
D.D.C. · 2025 · confidence medium
Comm’n, 528 F.2d 645, 649 (5th Cir. 1976)).
cited Cited as authority (rule) Career Colleges v. EDUC
5th Cir. · 2024 · confidence medium
Comm’n, 528 F.2d 645, 647 (5th Cir. 1976).
cited Cited as authority (rule) Commodity Futures v. EOX Holdings
5th Cir. · 2024 · confidence medium
Comm’n, 528 F.2d 645, 649 (5th Cir. 1976).
cited Cited as authority (rule) Wages and White Lion Invest v. FDA
5th Cir. · 2024 · confidence medium
Comm’n, 528 F.2d 645, 649 (5th Cir. 1976); see also Gates & Fox Co. v. Occupational Safety & Health Rev.
cited Cited as authority (rule) Cox v. Olde England's Lion & Rose Rim, LLC
W.D. Tex. · 2021 · confidence medium
Comm’n, 528 F.2d 645, 649 (Sth Cir. 1976).
cited Cited as authority (rule) Bruce v. Olde England's Lion & Rose Rim, LLC
W.D. Tex. · 2021 · confidence medium
Comm’n, 528 F.2d 645, 649 (Sth Cir. 1976).
cited Cited as authority (rule) Summers v. Olde England's Lion & Rose Rim, LLC
W.D. Tex. · 2021 · confidence medium
Comm’n, 528 F.2d 645, 649 (Sth Cir. 1976).
discussed Cited as authority (rule) United States v. Jason Alexander Phifer
11th Cir. · 2018 · confidence medium
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 regulation cannot be construed to mean what an agency intended but did not adequately express.” Rather, the regulatory agency “has the responsibility to state with ascertainable certainty what is meant by the standards [it] has promulgated.” 12 Id. 12 The former Fifth Circuit relied in part on M.
discussed Cited as authority (rule) Employer Solutions Staffing Group II, L.L.C. v. Office of the Chief Administrative Hearing Officer
5th Cir. · 2016 · confidence medium
Lack of Fair Notice “[SJtatutes and regulations which allow monetary penalties against those who violate them ... must give [a regulated party] fair warning of the conduct [they] prohibit[] or require[]_” Diamond Roofing Co., Inc. v. Occupational Safety & Health Review Comm’n, 528 F.2d 645, 649 (5th Cir. 1976).
discussed Cited as authority (rule) United States v. CITGO Petroleum Corporation
5th Cir. · 2015 · confidence medium
Further, where, as here, a regulatory violation carries criminal penalties, the regulation “must be strictly construed and cannot be enlarged by analogy or expanded beyond the plain meaning of the words used.” United States v. Clark, 412 F.2d 885, 890 (5th Cir.1969); accord United States v. Anzalone, 766 F.2d 676, 680 (1st Cir.1985); Diamond Roofing Co., Inc. v. OSHRC, 528 F.2d 645, 649 (5th Cir.1976) (“If a violation of a regulation subjects private parties to criminal or civil sanctions, a regulation cannot be construed to mean what an agency intended but did not adequately express”)…
cited Cited as authority (rule) Federal Trade Commission v. Wyndham Worldwide Corp.
3rd Cir. · 2015 · confidence medium
Comm’n, 528 F.2d 645, 649 (5th Cir.1976).
discussed Cited as authority (rule) Knapp v. United States Department of Agriculture
5th Cir. · 2015 · confidence medium
We have held that the Secretary must “state with ascertainable certainty what is meant by the standards he has promulgated.” Diamond Roofing Co. v. Occupational Safety & Health Review Comm’n, 528 F.2d 645, 649 (5th Cir.1976).
discussed Cited as authority (rule) United States v. Scully
E.D.N.Y · 2015 · confidence medium
Id. (citing Diamond Roofing Co. v. Occupational Safety & Health Review Comm’n, 528 F.2d 645, 649 (5th Cir.1976)); Fabi Const. Co. v. Sec’y of Labor, 508 F.3d 1077, 1088 (D.C.Cir.2007) (quoting General Elec Co.); see Univ.
cited Cited as authority (rule) In Re: Deepwater Horizon
5th Cir. · 2015 · confidence medium
See, e.g., Comm’r. v. Acker, 361 U.S. 87, 91 (1959); Diamond Roofing Co. v. Occupational Safety & Health Review Comm’n, 528 F.2d 645, 649 (5th Cir. 1976).
cited Cited as authority (rule) United States v. B.P. Exploration & Production, Inc.
5th Cir. · 2015 · confidence medium
See, e.g., Comm’r. v. Acker, 361 U.S. 87, 91 , 80 S.Ct. 144 , 4 L.Ed.2d 127 (1959); Diamond Roofing Co. v. Occupational Safety & Health Review Comm’n, 528 F.2d 645, 649 (5th Cir.1976).
discussed Cited as authority (rule) Federal Trade Commission v. Wyndham Worldwide Corp.
D.N.J. · 2014 · confidence medium
Hotels and Resorts insists that an agency “has the responsibility 'to state with ascertainable certainty what is meant by the standards [it] has promulgated.” Dravo Corp., 613 F.2d at 1232-33 (quoting Diamond Roofing Co. v. Occupational Safety & Health Review Comm’n, 528 F.2d 645, 649-50 (5th Cir.1976)).
discussed Cited as authority (rule) Christopher v. Smithkline Beecham Corp. (2×)
SCOTUS · 2012 · confidence medium
Accord, Phelps Dodge Corp. v. Federal Mine Safety and Health Review Comm’n, 681 F. 2d 1189, 1192 (CA9 1982) (recognizing that “the application of a regulation in a particular situation may be challenged on the ground that it does not give fair warning that the allegedly violative conduct was prohibited”); Kropp Forge Co. v. Secretary of Labor, 657 F. 2d 119, 122 (CA7 1981) (refusing to impose sanctions where standard the regulated party allegedly violated “d[id] not provide ‘fair warning’ of what is required or prohibited”); Dravo Corp. v. Occupational Safety and Health Review Co…
discussed Cited as authority (rule) Secretary of Labor v. Beverly Healthcare-Hillview (2×) also: Cited "see"
3rd Cir. · 2008 · confidence medium
Specifically, the majority concluded that neither the regulation itself, its preamble, nor any other documentation issued by the Secretary explained with “ascertainable certainty” what the BPS requires, relying on the standard laid out in Gates & Fox Co. v. Occupational Safety and Health Review Comm’n, 790 F.2d 154, 156 (D.C.Cir.1986) (citing Diamond Roofing Co. v. Occupational Safety and Health Review Comm’n, 528 F.2d 645, 649 (5th Cir.1976)).
cited Cited as authority (rule) FABI CONST. CO., INC. v. Secretary of Labor
D.C. Cir. · 2007 · confidence medium
Comm’n, 528 F.2d 645, 650 (5th Cir.1976).
cited Cited as authority (rule) Fabi Construction Co. v. Secretary of Labor
D.C. Cir. · 2007 · confidence medium
Comm’n, 528 F.2d 645, 650 (5th Cir.1976).
discussed Cited as authority (rule) Cobra Roofing Services, Inc. v. Department of Labor & Industries
Wash. · 2006 · confidence medium
It is well accepted that occupational safety and health acts “must provide a reasonably clear standard of culpability to circumscribe the discretion of the enforcing authority and its agents.” Diamond Roofing Co. v. Occupational Safety & Health Review Comm’n, 528 F.2d 645, 649 (5th Cir. 1976); Bethlehem Steel Corp. v. Occupational Safety & Health Review Comm’n, 573 F.2d 157, 161 (3d Cir. 1978). ¶31 The Department may and should impose substantially higher penalties when an employer “willfully or repeatedly violates the requirements ... of any safety or health standard promulgated [b…
discussed Cited as authority (rule) S.D. Ex Rel. Dickson v. Hood
5th Cir. · 2004 · confidence medium
Lam v. Cinemark USA, Inc., 207 F.3d 783, 787 (5th Cir.2000); United States v. Raymer, 876 F.2d 383, 389 (5th Cir.1989); Alabama Air Polhition Control Comm’n v. Republic Steel Corp., 646 F.2d 210, 213 (5th Cir.1981); Diamond Roofing, Inc. v. Occupational Safety and Health Review Comm’n, 528 F.2d 645, 649 (5th Cir.1976).
discussed Cited as authority (rule) S.A. Storer & Sons Co. v. Secretary of Labor
D.C. Cir. · 2004 · confidence medium
Diamond Roofing Co. v. Occupational Safety & Health Review Comm’n, 528 F.2d 645, 649 (5th Cir.1976) (“If a violation of a regulation subjects private parties to criminal or civil sanctions, a regulation cannot be construed to mean what an agency intended but did not adequately express.”).
discussed Cited as authority (rule) Kids'klub, Inc. v. State Dept. of Human Res.
Ala. Civ. App. · 2003 · confidence medium
In construing an agency regulation, a reviewing court is not at liberty to alter an existing regulation to require something more than the stated requirement because it determines that an "expanded" requirement is a good idea or is what the agency intended to charge. "`If a violation of a regulation subjects private parties to criminal or civil sanctions, a regulation cannot be construed to mean what an agency intended but did not adequately express.'" Phelps Dodge Corp. v. Federal Mine Safety & Health Review Comm'n, 681 F.2d 1189 , 1193 (9th Cir.1982) (quoting Diamond Roofing Co. v. Occupatio…
examined Cited as authority (rule) United States v. Southern Indiana Gas & Electric Co. (3×) also: Cited "see"
S.D. Ind. · 2003 · confidence medium
In an oft-cited passage, the court held, “If a violation of a regulation subjects private parties to criminal or civil sanctions, a regulation cannot be construed to mean what an agency intended but did. not adequately express ... [the agency] has the responsibility to state with ascertainable certainty what is meant by the standards he has promulgated.” Id. at 649 (citations omitted).
discussed Cited as authority (rule) W.G. Fairfield Company v. The Occupational Safety & Health Review Commission Secretary of Labor
6th Cir. · 2002 · confidence medium
In dictum, the court noted that the roofing industry covers or guards roof holes but not roof perimeters because falling off “is an obvious danger of which roofers are highly conscious.” Diamond Roofing, 528 F.2d at 650.
discussed Cited as authority (rule) Beaver Plant Operations, Inc. v. Alexis M. Herman, Secretary of Labor Occupational Safety and Health Review Commission
1st Cir. · 2000 · confidence medium
See Modern Continental, 196 F.3d at 281 ; Diebold, Inc. v. Marshall, 585 F.2d 1327, 1335 (6th Cir.1978); Diamond Roofing Co. v. Occupational Safety & Health Review Comm’n, 528 F.2d 645, 649 (5th Cir.1976).
discussed Cited as authority (rule) Crown Pacific v. Occupational Safety & Health Review Commission (2×)
9th Cir. · 1999 · confidence medium
“A regulation should be construed to give effect to the natural and plain meaning of its words.” Diamond *1039 Roofing Co., Inc. v. OSHRC, 528 F.2d 645, 649 (5th Cir.1976).
cited Cited as authority (rule) Shell Oil Co. v. Babbitt
D. Del. · 1996 · confidence medium
Id. at 1232-33 (quoting Diamond Roofing Co., Inc. v. Occupational Safety and Health Review Comm’n, 528 F.2d 645, 649 (5th Cir. 1976)).
cited Cited as authority (rule) United States v. Hoechst Celanese Corp.
D.S.C. · 1996 · confidence medium
See, e.g., General Electric Co., 53 F.3d at 1332 ; Diamond Roofing Co., 528 F.2d at 649.
discussed Cited as authority (rule) General Electric Company v. United States Environmental Protection Agency (2×) also: Cited "see"
D.C. Cir. · 1995 · confidence medium
Although we defer to EPA’s interpretation regarding distillation because it is “logically consistent with the language of the regulation[s],” Rollins, 937 F.2d at 652 , we must, because the agency imposed a fine, nonetheless determine whether that interpretation is “ascertainably certain” from the regulations, see Diamond Roofing, 528 F.2d at 649.
discussed Cited as authority (rule) Georgia Pacific Corporation v. Occupational Safety and Health Review Commission Secretary of Labor
11th Cir. · 1994 · confidence medium
Diamond Roofing Co. v. O.S.H.R.C., 528 F.2d 645, 649 (5th Cir.1976). 6 A statute or regulation is considered unconstitutionally vague under the due process clause of the Fifth or Fourteenth Amendments if it “forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” Connally v. General Constr.
cited Cited as authority (rule) Sid Goodman & Co., Inc. v. United States
4th Cir. · 1991 · confidence medium
Diamond Roofing Co. v. Occupational Safety and Health Review Comm'n, 528 F.2d 645, 649 (5th Cir.1976).
examined Cited as authority (rule) Lynn Martin, Secretary of Labor v. Occupational Safety and Health Review Commission, Cf & I Steel Corporation, Intervenor-Respondent (3×)
10th Cir. · 1991 · confidence medium
Co. v. OSHA, 593 F.2d 368 , 370-71 (10th Cir. 1979); Usery v. Kennecott Copper Corp., 577 F.2d 1113, 1118-19 (10th Cir.1977); Diamond Roofing, 528 F.2d at 648-49.
discussed Cited as authority (rule) Rollins Environmental Services (Nj) Inc. v. U.S. Environmental Protection Agency (2×)
D.C. Cir. · 1991 · confidence medium
It is a simple principle of administrative law that, in adopting administrative regulations, an agency "has the responsibility to state with ascertainable certainty what is meant by the standards ... promulgated." See Diamond Roofing, 528 F.2d at 649 (violation overturned because agency's regulation did not give regulated parties "fair warning" of prohibited conduct; no mention was made of the "due process clause").
discussed Cited as authority (rule) Secretary of Labor, Mine Safety and Health Administration v. Western Fuels-Utah, Inc., and Federal Mine Safety and Health Review Commission (2×)
D.C. Cir. · 1990 · confidence medium
That is why when, as in this case, "a violation of a regulation subjects private parties to criminal or civil sanctions, a regulation cannot be construed to mean what an agency intended but did not adequately express." Phelps Dodge Corp., 681 F.2d at 1193 (quoting Diamond Roofing Co., Inc. v. Occupational Safety and Health Review Comm'n, 528 F.2d 645, 649 (5th Cir.1976) (citations omitted)); accord Gates & Fox Co, Inc., 790 F.2d at 156 .
cited Cited as authority (rule) Fluor Constructors, Inc. v. Occupational Safety and Health Review Commission and Secretary of Labor
6th Cir. · 1988 · confidence medium
Trades Council v. Goldschmidt, 621 F.2d 697, 710 (5th Cir.1980); Diamond Roofing Co. v. Occupational Safety & Health Review Comm’n, 528 F.2d 645, 649 (5th Cir.1976).
cited Cited as authority (rule) Gates & Fox Co. v. Occupational Safety & Health Review Commission
D.C. Cir. · 1986 · confidence medium
Lockrem, Inc. v. United States, 609 F.2d 940, 943-44 (9th Cir.1979); Diebold, 585 F.2d at 1335-39; Diamond Roofing, 528 F.2d at 648-50.
discussed Cited as authority (rule) Gates & Fox Company, Inc. v. Occupational Safety and Health Review Commission and William E. Brock, Secretary of Labor, Gates & Fox Company, Inc. v. Occupational Safety and Health Review Commission and William E. Brock, Secretary of Labor, Gates & Fox Company, Inc. v. Occupational Safety and Health Review Commission and William E. Brock, Secretary of Labor, William E. Brock, Secretary of Labor v. Gates & Fox Company, Inc.
D.C. Cir. · 1986 · confidence medium
Lockrem, Inc. v. United States, 609 F.2d 940, 943-44 (9th Cir.1979); Diebold, 585 F.2d at 1335-39 ; Diamond Roofing, 528 F.2d at 648-50. 11 While we express no opinion on whether, in a non-penal context, the Commission's interpretation of Sec. 1926.800(b)(3) might be permissible, we hold that Gates & Fox did not receive constitutionally adequate notice that it could be sanctioned for failing to provide self-rescuers to employees not working near an advancing face.
discussed Cited as authority (rule) First American Bank of Virginia v. Dole
1st Cir. · 1985 · confidence medium
Regarding the requirement of adequate notice, the Fifth Circuit has explained that "statutes and regulations which allow monetary penalties against those who violate them, ... must give ... fair warning of the conduct it prohibits or requires, and it must provide a reasonably clear standard of culpability to circumscribe the discretion of the enforcing authority and its agents." Diamond Roofing Co. v. Occupational Safety and Health Review Comm'n, 528 F.2d 645, 649 (5th Cir.1976) (citation omitted); accord Montgomery Ward & Co. v. FTC, 691 F.2d 1322, 1332 (9th Cir.1982); In re Metro-East Mfg.
discussed Cited as authority (rule) First American Bank v. Dole
4th Cir. · 1985 · confidence medium
Regarding the requirement of adequate notice, the Fifth Circuit has explained that “statutes and regulations which allow monetary penalties against those who violate them, ... must give ... fair warning of the conduct it prohibits or requires, and it must provide a reasonably clear standard of culpability to circumscribe the discretion of the enforcing authority and its agents.” Diamond Roofing Co. v. Occupational Safety and Health Review Comm’n, 528 F.2d 645, 649 (5th Cir.1976) (citation omitted); accord Montgomery Ward & Co. v. FTC, 691 F.2d 1322, 1332 (9th Cir.1982); In re Metro-East …
discussed Cited as authority (rule) Montgomery Ward & Co., Incorporated v. Federal Trade Commission
9th Cir. · 1982 · confidence medium
“If a violation of a regulation subjects private parties to criminal or civil sanctions, a regulation cannot be construed to mean what an agency intended but did not adequately express.” Diamond Roofing Co., Inc. v. Occupational Safety and Health Review Comm., 528 F.2d 645, 649 (5th Cir.1976).
discussed Cited as authority (rule) Phelps Dodge Corporation v. Federal Mine Safety And Health Review Commission
9th Cir. · 1982 · confidence medium
Diamond Roofing Co., Inc. v. Occupational Safety and Health Review Commission, 528 F.2d 645, 649 (5th Cir. 1976). 18 Accordingly, the regulation cannot serve as the basis for issuance of the citation or for the levy of the fine. 19 REVERSED.
Retrieving the full opinion text from the archive…
Diamond Roofing Co., Inc.
v.
Occupational Safety and Health Review Commission and W. J. Usery, the Secretary of Labor, S. D. Mullins Company, Inc. v. Occupational Safety and Health Review Commission and W. J. Usery, the Secretary of Labor, Lance Roofing Company, Inc. v. Occupational Safety and Health Review Commission and W. J. Usery, the Secretary of Labor
74--1343.
Court of Appeals for the Fifth Circuit.
Mar 15, 1976.
528 F.2d 645
Cited by 87 opinions  |  Published
1 passages pin-cited by 3 cases
Pinpoint authority: #22,468 of 633,719
Citer courts: Fifth Circuit (3)

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.

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:

[*~645]1

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

2

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.

3

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 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).

4

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.

5

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.

6

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

Why A Roof Is Not A Floor

7

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

8

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.

9

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.

10

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 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.

11

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 conditions for employees. An employer, however, is entitled to fair notice in dealing with his government. Like other statutes and regulations which allow monetary penalties against those who violate them, an occupational safety and health standard must give an employer fair warning of the conduct it prohibits or requires, and it must provide a reasonably clear standard of culpability to circumscribe the discretion of the enforcing authority and its agents. Secretary v. California Stevedore and Ballast Co., OSHRC Docket No. 72 (June 16, 1972) (employers entitled to rely on standard's clear language, uncolored by additional subjective criteria). A regulation should be construed to give effect to the natural and plain meaning of its words. Johnson v. Udall, C.D.Cal., 1968, 292 F.Supp. 738, 750. See Commissioner v. Wodehouse, 1949, 337 U.S. 369, 69 S.Ct. 1120, 93 L.Ed. 1419, reh. denied, 338 U.S. 840, 70 S.Ct. 31, 94 L.Ed. 514 (tax regulation); M. Kraus & Bros., Inc. v. United States, 1946, 327 U.S. 614, 66 S.Ct. 705, 90 L.Ed. 894 (criminal prosecution for violation of maximum price regulation).

[*645]12

If a violation of a regulation subjects private parties to criminal or civil sanctions, a regulation cannot be construed to mean what an agency intended but did not adequately express. Brennan v. Occupational Safety and Health Review Commission, 5 Cir., 1973, supra; Meehan v. Macy, 1968, 129 U.S.App.D.C. 217, 392 F.2d 822; 4 Davis, Administrative Law Treatise § 30.12. Cf. Cole v. Young, 1956, 351 U.S. 536, 76 S.Ct. 861, 100 L.Ed. 1396 (ambiguity in Executive Order is fault of government and is resolved against it). We recognize that OSHA was enacted by Congress for the purpose stated by the respondents. Nonetheless, the Secretary as enforcer of the Act has the responsibility to state with ascertainable certainty what is meant by the standards he has promulgated. Because the Secretary has failed in this regulation to so state, we must conclude that § 1926.500(d)(1) does not apply to open-sided roofs. The Act grants the Secretary--not OSHRECOM or the courts--the means to amend the regulation if he so desires.

[*~648]13

Respondents OSHRECOM and the Secretary further argue that our conclusion presents the ludicrous anomaly of guarding employees working on opensided floors while leaving unprotected those employees working on open-sided roofs, which are always at greater heights. Similarly, in its opinion below OSHRECOM reasoned that the result we reach flies in the face of the practicalities of construction work and does violence to common sense. Assuming arguendo the validity of this 'common sense' approach, it is significant that there was disagreement even among OSHA Compliance Officers as to whether § 1926.500(d)(1) applied to open-sided roofs as well as floors. R. at 55. In addition, as powerful proof of the operational difference between a floor and a roof and at least as recognition that roofers have some basis for their reading of the intricate regulations, Administrative Law Judges of OSHRECOM have ruled in 10 of 12 previous cases that § 1926.500(d)(1) does not apply to open-sided roofs.[10] Furthermore, the practice in the roofing industry is to cover or guard roof holes and openings, which present a serious and unexpected hazard to roofers, but not to guard the roof perimeter, which is an obvious danger of which roofers are highly conscious.[11] R. at 104, 121--22. Finally, the American National Standard Institute's (ANSI) safety standard relating to the guarding of open-sided floors, platforms and runways,[12] from which § 1926.500(d)(1) has evolved with only minor changes, does not apply to open-sided roofs. R. at 131--32. Even if-- the distinction between an open-sided roof and an open-sided floor does not make safety sense, it is the regulation as written which must bear the blame.

14

The purpose of OSHA is to obtain safe and healthful working conditions through promulgation of occupational safety and health standards which tell employers what they must do to avoid hazardous conditions. To strain the plain and natural meaning of words for the purpose of alleviating a perceived safety hazard is to delay the day when the occupational safety and health regulations will be written in clear and concise language so that employers will be better able to understand and observe them.

[*~649]15

Reversed.

*

Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York, et al., 5 Cir., 1970, 431 F.2d 409, Part I

1

This acronym was first suggested in Atlas Roofing Co. v. Occupational Safety and Health Review Commission, 5 Cir., 1975, 518 F.2d 990, 992 n. 1, petition for cert. filed, 44 U.S.L.W. 3331 (Nov. 21, 1975) (No. 75--746)

2

See note 7, infra

3

Each petitioner further contends that (i) it cannot be charged with violating § 1926.500(d)(1) because the Secretary of Labor did not comply with the publication requirements of 29 U.S.C.A. § 655(b)(8), (ii) applying § 1926.500(d)(1) to require perimeter guarding of roofs violates due process, and (iii) the Occupational Safety and Health Act of 1970 (OSHA) and its enforcement procedures are unconstitutional on their face and as applied. Cf. Lance Roofing Co. v. Hodgson, N.D.Ga., 1972, 343 F.Supp. 685, aff'd 409 U.S. 1070, 93 S.Ct. 679, 34 L.Ed.2d 659 (earlier constitutional attack dismissed for failure to exhaust administrative remedies). Most of the constitutional attack in (iii) has been foreclosed by Dan J. Sheehan Co. v. Occupational Safety and Health Review Commission, 5 Cir., 1975, 520 F.2d 1036, petition for cert. filed, 44 U.S.L.W. 3331 (Nov. 21, 1975) (No. 75--747); Lake Butler Apparel Co. v. Secretary of Labor, 5 Cir. 1975, 519 F.2d 84; and Atlas Roofing Co. v. Occupational Safety and Health Review Commission, 5 Cir., 1975, supra note 1. Accord, Frank Irey, Jr., Inc. v. Occupational Safety and Health Review Commission, 3 Cir., 1975, 519 F.2d 1200 (en banc), petition for cert. filed, 44 U.S.L.W. 3331 (Nov. 21, 1975) (No. 75--748). But in any event, in light of our disposition of these petitions, we do not reach these further issues. See Atlantic Marine, Inc. v. Occupational Safety and Health Review Commission, 5 Cir., 1975, 524 F.2d 476, 477 n. 3

4

Since none of the roofs in issue were sloped, 29 CFR § 1926.451(u)(3), which requires a catch platform around roofs with a slope greater than 4 in 12, is not applicable. Though both parties argued that the existence of this provision supports their respective positions, we do not feel that it is significantly probative in this case. But see Langer Roofing & Sheet Metal, Inc. v. Secretary of Labor, 7 Cir., 1975, 524 F.2d 1337 (Terms of § 1926.451 indicate that § 1926.500(d)(1) does not apply to flat roof)

In this opinion, the term roof refers to a flat roof unless otherwise indicated.

5

Diamond was also cited for a nonserious violation of 29 CFR § 1910.314(d) (4), which is not in dispute

6

Lance was also cited for a nonserious violation

6

Lance was also cited for a nonserious violation disputed

7

Subpart M of 29 CFR § 1926 reads in relevant part as follows:

Subpart M--Floor and Wall Openings, and Stairways

§ 1926.500 Guardrails, handrails, and covers.

(a) General provision. This subpart shall apply to temporary or emergency conditions where there is danger of employees or materials falling through floor, roof, or wall openings, or from stairways or runways.

(b) Guarding of floor openings and floor holes. (1) Floor openings shall be guarded by a standard railing and toeboards or cover, as specified in paragraph (f) of this section. In general, the railing shall be provided on all exposed sides, except at entrances to stairways.

(8) Floor holes, into which persons can accidentally walk, shall be guarded by either a standard railing with standard toeboard on all exposed sides, or a floor hole cover of standard strength and construction that is secured against accidental displacement. While the cover is not in place, the floor hole shall be protected by a standard railing.

(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)(i) 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) Runways shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f) of this section, on all open sides, 4 feet or more above floor or ground level. Wherever tools, machine parts, or materials are likely to be used on the runway, a toeboard shall also be provided on each exposed side.

§ 1926.502 Definitions applicable to this subpart.

(a) 'Floor hole'--An opening measuring less than 12 inches but more than 1 inch in its least dimension in any floor, roof, or platform through which materials but not persons may fall, such as a belt hold, pipe opening, or slot opening.

(b) 'Floor opening'--An opening measuring 12 inches or more in its least dimension in any floor, roof, or platform through which persons may fall.

(e) 'Platform'--A working space for persons, elevated above the surrounding floor or ground, such as a balcony or platform for the operation of machinery and equipment.

(f) 'Runway'--A passageway for persons, elevated above the surrounding floor or ground level, such as a footwalk along shafting or a walkway between buildings.

8

The Act charges the Secretary with the responsibility of promulgating occupational safety and health standards, 29 U.S.C.A. § 655, and enforcing these standards through on-the-job inspections, the issuance of citations of violation and proposed penalties, and the prosecution of violators before OSHRECOM and the courts. §§ 657--60. OSHRECOM is charged with reviewing contested citations based on findings of fact after an opportunity for a hearing, and affirming, modifying or vacating the citation or directing other appropriate relief. § 659(c). Though it performs an adjudicatory function, OSHRECOM, required to be composed of safety and health experts, § 661(a), is properly a party similar to other administrative agencies in suits by the Secretary or private parties to review its orders. Brennan v. Gilles & Cotting, Inc., 4 Cir., 1974, 504 F.2d 1255, 1266--67; Subcommittee on Labor, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, 462, 465 (Comm. Print 1971). See F.R.A.P. 15(a). The Secretary, who can seek judicial review or enforcement of OSHRECOM rulings, § 660(b), is also frequently named as a party respondent along with OSHRECOM--as in the present case--in suits by private persons under § 660(a). See, e.g. Dan J. Sheehan Co. v. Occupational Safety and Health Review Commission (and John T. Dunlop), 5 Cir., 1975, supra; Accu-Namics, Inc. v. Occupational Safety and Health Review Commission (and Secretary of Labor), 5 Cir., 1975, 515 F.2d 828, petition for cert. filed, 44 U.S.L.W. 3380 (Dec. 22, 1975) (No. 75--878)

9

The number of fine-print, double-columned pages--982 by our count--required to set out the occupational safety and health standards in Title 29, Chapter XVII of the Code of Federal Regulations, attests to the specificity and thoroughness with which the standards are constructed. The number of CFR pages devoted to a few specific industries is as follows: agriculture 18, bakeries 15, construction 177, longshoring 44, papermills 14, ship building 38, ship repairing 52, telecommunications 17, welding 24

10

Layton Roofing Co., Inc., OSHRC Docket No. 2425 (Oct. 16, 1973); Brown & Kerr, Inc., OSHRC Docket No. 3055 (Aug. 20, 1973); State Sheet Metal & Roofing Co., OSHRC Docket No. 2579 (Aug. 10, 1973); Glen Construction Co., Inc., OSHRC Docket No. 2537 (July 24, 1973); Langer Roofing & Sheet Metal, OSHRC Docket No. 1536 (July 18, 1973); Moser Heating & Roofing Co., Inc., OSHRC Docket No. 1295 (March 2, 1973); J. F. Probst, Inc., OSHRC Docket No. 963 (Feb. 9, 1973); Hawkins Construction Co., OSHRC Docket Nos. 503 & 598 (Jan. 23, 1973); Heyse Sheet Metal & Roofing Co., Inc., OSHRC Docket No. 681 (Oct. 16, 1972); Tyee Construction Co., OSHRC Docket No. 532 (Sept. 11, 1972) (§ 1926.500(d)(1) does not apply to open-sided roofs)

Langer Roofing and Sheet Metal, Inc., OSHRC Docket No. 1208 (May 1, 1973); Psaty & Fuhrman, Inc., OSHRC Docket No. 1265 (March 26, 1973) (§ 1926.500(d)(1) does apply to open-sided roofs).

11

Petitioners' employees are roofers, who would not mistakenly expect the roof perimeter to be guarded, not general construction workers, who would be accustomed to working on railed or walled as well as open-sided floors

12

5

Guarding of Open-Sided Floors, Platforms, and Runways

5

1 Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in 7.3) on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a toe board wherever, beneath the open sides, (1) persons can pass, (2) there is moving machinery, or (3) there is equipment with which falling materials could create a hazard

The intermediate railing and the toe board regularly passed over the edge of the floor (as in lumber storage), or where the railing is set back 12 inches or more from the edge.

American National Standards Institute, USA Standard Safety Requirements for Floor and Wall Openings, Railings, and Toe Boards 9 (USAS A.12--1, 1967).