M & M Roofing, Inc.

Plain-English summary

M & M Roofing is a residential roofing contractor. OSHA inspected a Mason, Ohio jobsite in August 2000 and issued two citations: a serious citation for not having a program of frequent, regular jobsite inspections by a competent person, and a willful citation for not protecting workers from falls on a steep 10/12-pitch roof. The company, appearing without a lawyer through owner Michael Stewart, contested both. After a short bench trial, the judge found the company was the workers' employer, that at least one worker was on the roof without fall protection, and that the employer knew of the conditions. The judge affirmed the inspection-program violation and a $700 penalty. On the fall-protection item, the judge found the company had taken some steps (harnesses on site, some slide guards) so the conduct did not rise to willful, and reclassified it to serious with a $1,000 penalty. The total penalty was $1,700.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.20(b)(2), 29 C.F.R. § 1926.501(b)(13)
• Outcome: Modified. Citation 1 affirmed serious ($700); Citation 2 reclassified from willful to serious and affirmed ($1,000); total $1,700.
• Key point: Some genuine, if incomplete, effort to protect workers (harnesses available, slide guards partly in place) can defeat a willful classification while the underlying violation still stands as serious.

Full text (OSHRC public release)

Secretary of Labor,
   Complainant,

      v.    OSHRC Docket No. 00-1655 EZ

M & M Roofing, Inc.,
   Respondent.

Appearances:

Patrick L. Depace, Esquire, Office of the Solicitor, U. S. Department of Labor, Cleveland, Ohio, For Complainant

Mr. Michael Stewart, M & M Roofing, Hamilton, Ohio, For Respondent Pro Se

Before: Administrative Law Judge Stephen J. Simko, Jr.

DECISION AND ORDER

M & M Roofing is engaged in the business of roofing construction. On August 3, 2000, respondent was engaged in construction work at a jobsite in Mason, Ohio. The Occupational Safety and Health Administration (OSHA) conducted an inspection of respondent's jobsite on August 3, 2000. As a result of this inspection, respondent was issued two citations. Respondent filed a timely notice contesting the citations and proposed penalties.

Citation No. 1, item 1, alleges a serious violation of 29 C.F.R. § 1926.20(b)(2) as follows:

The employer's accident prevention program did not provide for frequent and regular inspections of the job sites, materials, and equipment to be made by competent persons designated by the employer.

(a) The employer's accident prevention program did not provide for frequent and regular inspections of the jobsite and equipment to be made by a competent person in that such a person would have addressed the need to utilize recognized safety procedures and practices while installing roofing material on a residential construction project with working heights greater than 29.7 feet from ground level surfaces.

Citation No. 2, item 1, alleges a willful violation of 29 C.F.R. § 1926.501(b)(13) as follows:

(a) In lieu of conventional fall protection, the employer did not utilize an alternative fall protection plan nor comply with Appendix E, Subpart M, Fall Protection while engaged in roofing operations for residential construction activities:

(1) Each employee was not trained in the procedures detailed in Appendix E;
(2) A Controlled Access Zone (CAZ) was not established;
(3) Slide Guards were not in place along the eves of the roof;
(4) Enforcement and use of full body harness, lanyard, and fall arrest was available but not utilized.

A hearing was held pursuant to the EZ trial procedures in Cincinnati, Ohio, on March 14, 2001. At the conclusion of the hearing, a bench decision was entered affirming Citation No. 1, item 1, as a serious violation and assessing a penalty of $700 for that item. Citation No. 2, item 1, was reclassified to a serious violation, affirmed as serious, and a penalty of $1,000 was assessed for that item.

Excerpts of relevant transcript pages and paragraphs, including findings of fact and conclusions of law, are attached hereto in accordance with 29 C.F.R. § 2200.209(f).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The foregoing decision constitutes the findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a).

ORDER

Based upon the foregoing decision, it is ORDERED:

1. Citation No. 1, item 1, is affirmed as a serious violation and a penalty of $700 is hereby assessed.

2. Citation No. 2, item 1, is affirmed as a serious violation and a penalty of $1,000 is hereby assessed.

/s/
STEPHEN J. SIMKO, JR.
Judge

Date: March 30, 2001

[Attached transcript excerpts, page 155 forward:]

JUDGE SIMKO: Any other witnesses?

MR. STEWART: That's it.

JUDGE SIMKO: Did you want to testify?

MR. STEWART: No, I've pretty much told you everything it is, Your Honor. I mean, you can find us guilty or not guilty. That's the way it is.

JUDGE SIMKO: Are we at the end of the day on this part?

MR. DEPACE: I believe so.

JUDGE SIMKO: Let's take 15 minutes, and if you will come back in 15 minutes, I will give you a decision.

(Whereupon, a short recess was taken off the record)

JUDGE SIMKO: Is there anything either side would like to say at this time before I issue a decision?

MR. DEPACE: No, Your Honor.

MR. STEWART: No, Your Honor.

JUDGE SIMKO: Okay, a written decision will follow. It will consist of a very short decision, a few pages attached, the applicable transcript pages which I relate would to during this decision.

The threshold issue that I have to decide here is whether the employer is, in fact, or the Respondent is, in fact, employer with employees.

Now, that term is a term which is broadly construed under the Occupational Safety and Health Act, in light of the remedial statutory purpose to provide safe work places for all individuals and the economic realities of the relationship between the Company and the individuals working for that Company. So, it's a broadly construed term.

Here, the Respondent sets the rates of pay for the two individuals who were testifying here today and controls the work of those individuals. He sends them home if needed if they don~t perform the work properly or don't comply with his instructions, and he tells the employees when to start the various jobs.

So, in light of the applicable case law in this matter, I am ruling that the Company is the employer, in fact, of these two individuals who have testified here today; therefore, is an employer with employees under the Act.

To prove any violation of the Act, the Secretary must prove four elements of a violation: One is the applicability of the standard -- that is, the construction standard -- whether they apply to your work site or not; whether the Company failed to meet the requirements of the standard; whether employees were exposed to the hazard; and whether the Company had knowledge of the violative conditions, not of the law but of the actual conditions.

So, keeping that in mind, I'm going to talk about each individual item separately.

The first alleged violation is an alleged violation of 29 CFR Section 1926.20(b)(2), that's 20(b)(2). Specifically, it is alleged the employer's accident prevention program did not provide for frequent and regular inspections of the job sites, materials and equipment to be made by a competent person designated by the employer.

Specifically, it's alleged that the employerts accident prevention program did not provide for frequent regular inspections of the work site and equipment to be made by a competent person, and that such person would have addressed the need to utilize, recognize safety procedures and practices while installing roofing material on residential construction projects with working heights greater than 29.7 feet from the ground level surfaces.

Here, the Respondent admitted -- Mr. Stewart admitted on the stand -- that they had no fall protection program. There was some testimony by Mr. Stewart that an inspection was made prior to the start of the work on this day. However, he made a statement to the compliance officer at the time of the inspection that no such inspection was made.

Given this conflict in testimony, I have to conclude that no complete inspection was made. While there may have been a viewing of the roof area, there was no inspection made on that day, and there were no regular inspections made of that job site by a competent person as designated by OSHA, in that such person might have addressed the need to utilize various recognized safety procedures and practices while installing the roofing materials, specifically a fall protection system.

The standard is clearly applicable to this job. It is a roofing job; it is in construction. There was a violation of the standard. The elements of the standard were violated, and the employees were working on this roof, at least one of the employees was working on the roof without fall protection. That would be Mr. Swope. The knowledge of the employer was admitted in an admission to the compliance officer that no such inspection was done, and the testimony here today that there was no fall protection program in place.

With regard to Citation 2, Item Number 2, there was testimony by Mr. Swope that he was on the roof beating down boards and removing scrap materials and getting the roof ready at the beginning of the day of the day of the inspection and that he was not wearing safety equipment. There were the boards that were up there, these slide boards or guide boards, that were nailed up there; but he was up there without a harness, and it was a 10/12 pitch roof.

Now, there was also testimony by Mr. Swope that Mr. Stewart does tell him -- hollers at him from time to time to get safety equipment on, but he makes up his own mind. And, he also testified that he finds that the harnesses and the ropes can be dangerous.

In the past he has used the boards and not the harnesses and Mr. Stewart, the representative of M & M, has seen this. Mr. Swope testified that he uses his own judgment on what equipment to use, and his response also was that, "Time is money. The most important thing is getting the job done quickly.

Mr. Dryden testified that OSHA requirements are known by all roofers; requirements for fall protection system. Also, there was at least one employee on the roof, Mr. Swope, without any fall protection. He was observed getting off the ladder without a harness. This was a 10/12 pitch roof.

The general contractor requires fall protection, and the Respondent has told his employees to use fall protection but says the employees don't listen.

Now, one employee, Mr. Dryden, assessing all the testimony, I have to conclude that Mr. Dryden -- it was not proven that Mr. Dryden did not have on adequate fall protection. The reverse of that has not been proven that he actually did; it's just the Government has not proven that he did not. However, Mr. Swope did not have on adequate fall protection for this job.

Here, the standard is clearly applicable. The terms of the standard were violated by not having sufficient guardrails or other fall protection system. This was an alleged violation of 29 CFR Section 1926.501(b)(13) that says generally that each employee engaged in residential construction activity at six or more feet above the lower levels was not protected by guardrail system, safety net system, or personal fall arrest system, and it gives alternative means of protection in the citation.

In lieu of the conventional fall protection, the employer did not utilize an alternative fall protection plan or comply with Appendix E, Subpart (m), fall protection, while engaged in roofing operations for residential construction activities:

(1) each employee was not trained in the procedures detailed in Appendix (e). Mr. Swope testified that he was not trained. A controlled access zone was not established. Mr. Stewart testified that this was not a controlled access zone job. Slide guards were not in place along the eaves of the roof.

There was some testimony that at least part of the time, there were slide guards in place along the eaves of the roof. Enforcement of a full body harness and lanyard and fall arrest system was available but not utilized. And, the proof has gone that Mr. Swope did not utilize that.

So, the terms of the standard were not met. At least one employee was exposed to the hazard. And, these individuals were working anywhere from 10 to 30 feet above the ground without said protection.

That brings us to the question of willfulness. Now, while this employer did not comply with the terms of the standard, he did take some steps in attempt to protect his employees. There were harnesses on the job site. There were some -- I don't remember the names of these things -- slide guards in place, but this being a 10/12 pitch roof, a very steep roof, there was some evidence that one employee might have had such a harness on but the other one definitely did not.

So, this falls short of proving an intentional disregard of the requirements of the OSHA standard or plain indifference to the safety of employees. This does not mean that the Company was without knowledge of the violations. It just means it does not rise to the level of willfulness for this case.

So, I'm going to affirm Citation 1, Item 1, as a serious violation. I'm going to affirm Citation 2, Item 1, also as a serious violation. On Item 1 of Citation 1, I'm assessing a total penalty of $700.00. Item 1 of Citation Number 2, I'm assessing a total penalty of $1,000.00. So the total penalty is $1,700.00.

Anything further, gentlemen? Mr. Stewart?

MR. STEWART: No.

JUDGE SIMKO: Mr. Depace?

MR. DEPACE: No, Your Honor.

JUDGE SIMKO: All right, are we concluded today?

MR. DEPACE: Yes.

JUDGE SIMKO: All right, thank you.

---o0o--

(Whereupon, the proceeding was concluded at 1:35 p.m.)