Evelyn D. Komes d/b/a Economy Roofing and Sheet Metal, and its successors

Plain-English summary

Economy Roofing employees worked on a 30-foot-high flat roof without guardrails, warning lines, a safety monitor, or personal fall arrest equipment. OSHA observed one employee kneeling within three feet of the edge. Economy did not appear at the hearing, and the Secretary established a prima facie violation. The judge found that the company's lack of any fall protection and two prior fall-protection citations did not justify the proposed reduction from the $5,000 gravity-based penalty. He affirmed the violation and assessed $5,000 rather than the proposed $1,500.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(10)
• Outcome: Low-slope roof fall-protection violation affirmed; $5,000 penalty assessed.
• Key point: Prior fall-protection citations and complete absence of protective measures supported assessment of the full gravity-based penalty.

Full text (OSHRC public release)

                           United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1244 North Speer Boulevard, Room 250
Denver, Colorado 80204-3582

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

SECRETARY OF LABOR,
Comp lainant,

                             v.                                OSHRC DOCKET NO. 01-2117

EVELYN D. KOMES d/b/a ECONOMY
ROOFING AND SHEET METAL, and its
successors,
Respon dent.

APPEARANCES:
For the Co mplainant:
Kevin K oplin, Esq ., Office of the So licitor, U.S. D epartmen t of Labor, C hicago, Illinois

Before: Administrative Law Judge: James H. Barkley

                                           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, Evelyn D. Komes d/b/a Economy Roofing and Sheet Metal, and its successors
(Economy), at all times relevant to this action maintained a place of business at Higgins and Landmeier
Streets, Elk Grove Village, Illinois, where it was engaged in construction. The Commission has held
that construction is in a class of activity which as a whole affects interstate commerce. Clarence M.
Jones d/b/a C. Jones Company, 11 BNA OSHC 1529, 1983 CCH OSHD ¶26,516 (No. 77-3676, 1983).
Because Respondent is an employer engaged in a business affecting commerce, it is subject to the
requirements of the Act.
On May 25, 2001 the Occupational Safety and Health Administration (OSHA) conducted an
inspection of Economy’s Elk Grove Village work site. As a result of that inspection, Economy was
issued citations alleging violations of the Act together with proposed penalties. By filing a timely
notice of contest Economy brought this proceeding before the Occupational Safety and Health Review
Commission (Commission).
 On June 5, 2002, a hearing was held in Milwaukee, Wisconsin. Prior to the hearing,
Complainant withdrew items 1, 3a and 3b of citation No. 1; item 2 remains at issue. Only Complainant
appeared at the hearing. This judge’s decision was rendered at the close of Complainant’s presentation
of a prima facie case, as set forth below.
Alleged Violations
Citation 1, item 2 alleges:
29 CFR 1926.501(b)(10): Each employee engaged in roofing activities on low-sloped roofs, with
unprotected sides and edges 6 feet or more above lower levels were not protected from falling by the
use of guardrail systems, safety net systems, personal fall arrest systems, or a combination of warning
line systems and safety monitoring system:

(a) Higgins & Landmeier Rd., Elk Grove Village, Il.: Employees were working on a flat roof that was
160 feet x 130 feet. The employees were working without any fall protection and were exposed to a
fall hazard of 30 feet.

Facts
Anthony Smith, the OSHA Compliance Officer (CO) who conducted the May 25, 2001
inspection, testified that upon his arrival on the Elk Grove work site he noted Economy employees
Charles Sullivan, Howard Ferguson, Chad Naranjo and Dan Pascally moving about the 130' x 160'
roof (Tr. 6, 9-11). Smith observed one man working very near the edge of the 30' high building
without the benefit of fall protection (Tr. 6-7, 9). Smith called up and identified himself to Economy’s
foreman, Charles Sullivan; Sullivan accompanied Smith as he inspected the roof (Tr. 8). According to
Smith, Economy’s employees were laying a tarp on top of the roof and covering it with gravel to
prevent it from blowing away (Tr. 10). Smith testified that one employee was kneeling within three
feet of the edge of the roof (Tr. 9). No warning lines had been installed, no monitor had been
designated, no safety harnesses were available for the employee’s use (Tr. 11-12).
According to Smith an employer may lose track of his position while working and slip or back
over an unguarded edge (Tr. 16). Smith testified that the gravity of the violation is high, as a 30' fall
could result in fractures and/or death (Tr. 13, 18). Smith stated he computed a gravity based penalty of
$5,000.00 (Tr. 13). Because Economy is a small company, and because Smith was unaware that
Economy had received prior OSHA citations concerning fall protection violations, he proposed a
reduced penalty of $1,500.00 (Tr. 14). At the hearing, Complainant produced evidence that Economy
had, in fact, been cited in July 1998 and again in October 1999 for violations of OSHA fall protection
regulations. Both cases were settled informally and substantially reduced penalties were assessed (Tr.
19-20; Exh. C-4, C-5).

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Discussion
As noted in the record, Complainant has established her prima facie case (Tr. 22). I find that
the gravity based penalty originally proposed by Complainant is appropriate. I further find that
Respondent is not entitled to any reduction in that penalty based on its failure to provide any kind of
fall protection for its employees and based on two prior citations disposed of with informal settlement
agreements wherein Economy agreed to comply with applicable OSHA regulations. A penalty of
$5,000.00 is assessed.
ORDER

1. Citation 1, item 1, alleging violation of §1926.501(b)(10) is AFFIRMED, and a penalty of
   $5,000.00 is ASSESSED.

                                                         /s/
                                                   James H. Barkley
                                                   Judge, OSHRC
   

Dated: July 15, 2002

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