Stevens Construction Corp.

Plain-English summary

Stevens Construction was installing roof trusses and sheathing on a wood-frame apartment project in Racine, Wisconsin. OSHA cited the company for unprotected residential roofing work and for failing to place its alternative fall-protection plan under a competent person's supervision. The judge vacated the roofing item because the compliance officer did not see Stevens employees applying roofing material, and the record did not show that Stevens performed the earlier tar-paper work or that it was done unsafely. Stevens was allowed to use an alternative fall-protection plan for its residential truss and sheathing work. The plan was not properly supervised because the acting competent person was snapping lines on a concrete slab below and could not continually monitor or communicate with the workers on the roof. That violation was affirmed as serious, and the proposed $3,000 penalty was assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(13), 29 C.F.R. § 1926.502(k)(4)
• Outcome: Mixed. The residential roofing item was vacated; the fall-protection plan supervision item was affirmed as serious with a $3,000 penalty.
• Key point: A competent person supervising an alternative fall-protection plan must continually monitor the work and cannot be occupied with another task that prevents effective oversight.

Full text (OSHRC public release)

                                                            United States of America
                    OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                                     1244 Speer Boulevard, Room 250
                                                       Denver, Colorado 80204-3582

Phone: (303) 844-3409 Fax: (303) 844-3759

SECRETARY OF LABOR,
Complainant,

                           v.                              OSHRC DOCKET NO. 00-1827

STEVENS CONSTRUCTION CORP.,
Respondent.

APPEARANCES:

      For the Complainant:
               Helen Schuitmaker, Esq., Office of the Solicitor, U.S. Department of Labor, Chicago, Illinois

      For the Respondent:
               Gerald L. Henrich, P.E., President, Stevens Construction Corp., Madison, Wisconsin

Before: Administrative Law Judge: Stanley M. Schwartz

                                         DECISION AND ORDER

      This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C.

Section 651 et seq.; hereafter called the “Act”).
Respondent, Stevens Construction Corp. (Stevens), at all times relevant to this action
maintained a place of business at Hwy. 32 and Douglas Avenue, Racine, Wisconsin, where it was
engaged in construction. Respondent admits it is an employer engaged in a business affecting
commerce and is subject to the requirements of the Act.
On August 1-2, 2000 the Occupational Safety and Health Administration (OSHA) conducted an
inspection of Stevens’ Racine work site. As a result of that inspection, Stevens was issued citations
alleging violations of the Act together with proposed penalties. By filing a timely notice of contest
Stevens brought this proceeding before the Occupational Safety and Health Review Commission
(Commission).
On December 12, 2000, an E-Z hearing was held in Milwaukee, Wisconsin. At the hearing, the
Secretary moved to amend citation 1, item 1 to allege, in the alternative, a violation of
§1926.501(b)(2)(ii) (Tr. 6). This judge reserved ruling on that motion (Tr. 10). No briefs are required
in E-Z proceedings; this matter is, therefore, ready for disposition.
 Background
George Petaway, a Compliance Officer (CO) with OSHA, testified that as he drove by Stevens’
Racine work site on August 1, 2000, he noticed employees working on top of a building without the
benefit of any kind of fall protection (Tr. 12-13, 17). Petaway stopped and videotaped a number of
employees on the peak of a building. Those workers were installing wood trusses while standing on
previously installed plywood roof sheathing (Tr. 16, 19-20, 28; Exh. C-2). In addition, Petaway
observed employees working near a tar papered portion of the roof near the eaves (Tr. 46). A “slide
guard” had been placed immediately below the tar papered area (Tr. 47-48). Although he saw
someone working in the vicinity of the tar papered portion of the roof, Petaway did not see anyone
actually applying tar paper during his inspection (Tr. 55-57).
Alleged Violation of §1926.501(b)(13)
Serious citation 1, item 1 alleges:
29 CFR 1926.501(b)(13): Roofing Work on Residential Construction. Each employee engaged in
residential roofing activities 6-feet (1.8m) or more above lower levels were not protected from falling by
guardrail system(s), safety nets system(s), or personal fail arrest system(s).

    (a) Employees engaged in roofing activities at a residential housing project located on Douglas
    Ave.; Racine, Wisconsin, were not protected from falling (25-ft. to 35-ft.) to the ground below
    by conventional fall protection such as; a guardrail system or personal fall arrest system.

    The cited standard provides:

    Each employee engaged in residential construction activities 6 feet (1.8 m) or more
    above lower levels shall be protected by guardrail systems, safety net system, or personal
    fall arrest system unless another provision in paragraph (b) of this section provides for an
    alternative fall protection measure. Exception: When the employer can demonstrate that
    it is infeasible or creates a greater hazard to use these systems, the employer shall
    develop and implement a fall protection plan which meets the requirements of paragraph
    (k) of §1926.502.

Facts
Although he saw someone working in the vicinity of the tar papered portion of the roof,
Petaway admitted he did not see anyone actually applying tar paper during his inspection (Tr. 55-57).
Hauke testified that a roofing subcontractor tar papered one portion of the roof the previous Saturday,
so that the electrician could work below (Tr. 125). Nothing in the record indicates whether fall
protection was used during the installation of the tar paper.

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Discussion
The CO did not observe the performance of any work other than Stevens’ installation of roof
trusses, governed by §1926.502, and discussed above. Because there is no evidence that the cited
roofing work was performed by Stevens, or was performed in an unsafe manner, citation 1, item 1 is
vacated. Because the Secretary’s motion to amend would not affect the disposition of this item, it is
deemed moot.
Alleged Violation of §1926.502(k)(4)
Serious citation 1, item 2 alleges:
29 CFR 1926.502(k)(4): Fall Protection Plan. The implementation of the fall protection plan was not
under the supervision of a competent person.

    (a) During the implementation of the employers fall protection plan, the competent person
    and/or a designated safety monitor was not within verbal and visual proximity on top of a roof,
    to supervise and monitor the employees engaged [in] roofing activities at a residential housing
    project located on Douglas Ave.; Racine, Wisconsin.

    The cited standard provides:
    (k) Fall protection plan. This option is available only to employees engaged in leading
    edge work, precast concrete erection work, or residential construction work (See
    §1926.501(b)(2), (b)(12), and (b)(13) who can demonstrate that it is infeasible or it
    creates a greater hazard to use conventional fall protection equipment. The fall
    protection plan must conform to the following provisions.
                                               ***
    (4) The implementation of the fall protection plan shall be under the supervision of a
    competent person.
                                         Applicability

Facts
Section 1926.502(k), cited above, allows an employer engaged in residential construction work,
which is normally governed by §1926.501(b)(13) [cited below] to implement a fall protection plan in
lieu of using conventional fall protection, if the employer can demonstrate that it is infeasible or it
creates a greater hazard to use conventional equipment. OSHA issued Directive STD3-0.1A (Exh. C-3)
on June 6, 1999, to provide compliance officers and employers with plain language guidance as to the
means of complying with OSHA regulations for residential construction. The directive states:
VIII. AVAILABILITY OF ALTERNATIVE PROCEDURES. Alternative
procedures are available to employers who are (1) engaged in residential
construction, and (2) doing one of the listed activities.

            A.      Definition of "residential construction."


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1. For purposes of this instruction, an employer is engaged in residential
construction where the working environment, materials, methods and
procedures are essentially the same as those used in building a typical
single-family home or townhouse.

                   2.      Residential construction is characterized by:
                           Materials: Wood framing (not steel or concrete); wooden floor joists and
                           roof structures.
                           Methods: Traditional wood frame construction techniques.
                                             * * *

           B.      Listed Activities and Alternative Procedures. There are four groups of residential
                   construction activities for which alternative fall protection plans are available.
                   Each group has its own set of alternative procedures and will be discussed in
                   Sections IX through XII. The groups are:

                   1.      GROUP 1. Installation of floor joists, floor sheathing, and roof sheathing;
                           erecting exterior walls; setting and bracing roof trusses and rafters.

                                   * * *
   IX.     ALTERNATIVE PROCEDURES FOR GROUP 1: INSTALLATION OF
           FLOOR JOISTS, FLOOR SHEATHING, AND ROOF SHEATHING;
           ERECTING EXTERIOR WALLS; SETTING AND BRACING ROOF
           TRUSSES AND RAFTERS.

   The alternative measures for this group are set out in Appendix E to Subpart M. Appendix E
   requires the employer to implement a Fall Protection Plan. Such a plan must lay out the safest
   procedures to be followed at the work site to prevent falls. Although the plan need not be in
   writing, it must be communicated to all employees on site who might be subject to fall hazards.

   NOTE: Height Limitation: The Appendix E plan may only be used on structures up to
   three and a half stories or 48 feet (including basement, two finished levels, attic). The 48'
   measure is from the base of the building, at the lowest ground level (including any
   excavation), to the point of greatest height.

   The building under construction on Stevens’ Racine site was an apartment complex for senior

citizens (Tr. 92). It is not disputed that Stevens was engaged in the installation of roof sheathing, and
setting and bracing roof trusses, a Group 1 activity (Tr. 19-20, 139; Exh. C-2). Scott Brooks, a senior
CO with OSHA, testified that the work Stevens was doing appeared to be residential construction (Tr.
93). CO Petaway cited the alleged violations under two separate standards dealing with residential
construction (Tr. 106-109). CO Petaway did not measure the height of the building, or of the individual
floors; he stated that it was hard to tell whether the distance from the foundation to the peak of the
building was greater than 48 feet (Tr. 25, 34, 75).

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Stevens’ safety director, John Hauke, did not know the exact dimensions of the building, but
testified that he spoke with Stevens’ superintendent, Bill Quade, who told him that the structure was
less than 48 feet high (Tr. 128). Hauke estimated that the facility’s underground parking is between 9
and 9-1/2 feet high; each of the three stories measures approximately 8 feet; the joists between the
floors are between 12 and 18 inches (Tr. 133). Hauke stated that the roof trusses sit on the top plate of
the third floor; from the top plate to the peak of the roof is no more than 11 feet, 6 inches (Tr. 134-35).
Discussion
This judge held during the hearing, and now reaffirms that, as a matter of fact, Stevens’
construction project was wood frame residential construction work falling under OSHA Directive STD
3-0.1A. The directive presumes that it is infeasible, or creates a greater hazard to use conventional fall
protection during performance of the identified work, i.e., installation of roof sheathing and bracing of
roof trusses. Accordingly, Stevens was entitled to implement a fall protection plan in lieu of requiring
conventional fall protection while performing such work. The question presented by the citation is
whether the fall protection plan was properly implemented on August 1-2, 2000.
The Violation
Facts
John Hauke stated that Stevens used STD 3-0.1A as its fall protection plan (Tr. 7-8, 122).
Hauke followed the program set forth in the STD when training Steven’s employees; each employee
signed off on the back of a copy of the STD, indicating that they had received the required training (Tr.
122, Exh. R-1).
Hauke testified that, pursuant to its fall protection plan, Stevens established a controlled access
zone, restricting access to the roof where Group 1 activities were taking place, by eliminating all means
of access other than by ladder (Tr. 129-30).
CO Petaway testified that the Stevens’ foreman, Kevin Rogan, was the competent person on
site. Hauke testified that Bill Quade, a superintendent, was the competent person; Kevin Rogan was the
crew supervisor, or foreman (Tr. 123-24, 128-29). Hauke testified that Quade was not on the site
when Petaway arrived on August 1, and confirmed that Rogan was designated the competent person in
Quade’s absence (Tr. 131-32). It is undisputed that Kevin Rogan was not assisting with the trusses on
August 1, but was “snapping lines” on the concrete slab some distance away (Tr. 32-33, 41, 129).
Petaway stated that Rogan was not adequately monitoring the fall protection plan, because he was
primarily engaged in an activity other than monitoring the workers on the roof (Tr. 42). Petaway
testified that although Rogan could probably see the employees installing the trusses from his position,

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he could not give any verbal instructions or warnings, because of his distance from the employees and
the noise in the area (Tr. 33, 41, 51).
CO Petaway stated that he returned to the site on August 2 (Tr. 27). Employees were still
working on the peaked roof without fall protection (Tr. 27-31). Bill Quade was on the site on August 2
(Tr. 132). The Secretary introduced no evidence about either Quade or Rogan’s whereabouts on
August 2, 2000.
Discussion
Stevens maintains that it implemented a fall protection plan pursuant to §1926.502(k), using
OSHA’s STD 3-0.1A as its blueprint. The sufficiency of Stevens’ plan was not raised by the Secretary,
and for purposes of this litigation, this judge will assume that Stevens’ plan was sufficient.
The evidence establishes that Stevens’ plan included the designation of a Controlled Access
Zone (CAZ), restricting access to the roof. Stevens did not introduce any evidence regarding a safety
monitoring program; however, in the Secretary’s interpretation of the standard, set forth in the
Preamble to the Final Rule, 59 Fed. Reg. 40672, 40719 (Aug. 9, 1994), she states that, in order to
comply with §1926.502(k), “[a]t the very minimum, [a] safety monitoring system [see paragraph (k)(8)]
must be employed and all of the criteria in paragraph (h) of this section followed.” Paragraph (k)(8), to
which the preamble refers, states that “[w]here no other alternative measure1 has been implemented, the
employer shall implement a safety monitoring system in conformance with §1926.502(h).” STD 3-0.1A
¶ IX.A.3.b requires that the crew supervisor/foreman monitor the workers in the CAZ to ensure that
they do not engage in unsafe practices. Section 1926.502(h) Safety monitoring systems., states at
subparagraph (iv) that “[t]he safety monitor shall be close enough to communicate orally with the
employee.” At subsection (v) the standard states that “[t]he safety monitor shall not have other
responsibilities which could take the monitor’s attention from the monitoring function.” Because an
adequate fall protection program must include a safety monitoring system in conformance with
§1926.502(h), this judge assumes that Stevens’ plan included such a safety monitoring system.
The cited standard requires that the implementation of the safety monitoring system, as well as
the other aspects of the fall protection plan be under the supervision of a competent person. The
required supervision must be effective. Moreover, it must be continual, to ensure that any deviations
from the plan are corrected immediately. See, Appendix E to Subpart M, Sample Fall Protection Plan

       1
           Such as scaffolds, ladders, or vehicle mounted work platforms, see §1926.503(k)(6).

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for Residential Construction. See also, OSHA’s STD 3-0.1A which states, at Implementation/
Supervision ¶IX.A.2.a:
Competent Person. The employer must designate a Competent Person, who will be charged
with implementing the Plan. The Competent Person must continually monitor compliance with
the Plan, including the provision of training and the proper use of Controlled Access Zones.

   On August 1, 2000, Kevin Rogan was acting both as the competent person and the crew

foreman. In addition, Rogan was “snapping lines” on a concrete slab below. While snapping lines,
Rogan was unable to devote his full attention to his duty, as crew foreman, to act as safety monitor for
the employees working in the CAZ.
For the same reason, Rogan could not fulfill his duty, as the competent person on site, to
continually supervise the implementation of the fall protection plan.
The evidence establishes that, at the time of the August 1, 2000, OSHA inspection, Stevens was
in violation of §1926.502(k)(4). The implementation of Stevens’ fall protection plan was inadequately
supervised here, where the role of competent person was passed on to a crew foreman who was
engaged in other tasks.
Penalty
CO Petaway testified that should an employee engaged in installing trusses fall to the ground,
the probable outcome would be that employee’s death (Tr. 52). Petaway testified that he considered
Steven’s size, history and good faith in proposing a penalty of $3,000.00. Stevens introduced no
evidence on this issue. The proposed penalty will be assessed.
ORDER

1. Serious citation 1, item 1, alleging violation of 29 CFR 1926.501(b)(13) is VACATED.
2. Serious citation 1, item 2, alleging violation of 29 CFR 1926.502(k)(4) is AFFIRMED, and a
   penalty of $3,000.00 is ASSESSED.

                                                   Stanley M. Schwartz
                                                   Judge, OSHRC
   

Dated: February 1, 2001

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