Staz-On Roofing

Plain-English summary

Staz-On Roofing employees, including a foreman, worked on a residential roof more than 30 feet above the ground without remaining tied off. The company argued that workers had to unhook to retrieve rolls of felt and that conventional or additional protection was infeasible or created a greater hazard. The judge found that additional anchors could have allowed workers to relay materials while protected, and that Staz-On had no written fall-protection plan, controlled access zone, or monitoring system. The employee-misconduct defense also failed because management condoned working without protection when it was convenient. The training item was withdrawn, and the judge affirmed the serious fall-protection violation with a $5,000 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.21(b)(2) and 1926.501(b)(13)
• Outcome: The training item was withdrawn, and the serious residential fall-protection violation was affirmed with a $5,000 penalty.
• Key point: Convenience does not establish infeasibility or greater hazard, especially when additional anchors or a compliant fall-protection plan could protect workers.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Compla inant,

                            v.                                OSHRC DOCKET NO. 02-2229

STAZ-ON ROOFING, INC., and its successors,
Resp ond ent.

APPEARANCES:

      For the Co mpla inant:
               Mike Shoen , Esq., Office of the So licitor, U.S. Dep artment of Lab or, Dallas, T exas

      For the Re spondent:
               Robert E. Rader, Jr., Esq., Rader & Campbell, Dallas, Texas

Before: Administrative Law Judge: Robert A. Yetman

                                        DECISION AND ORDER

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

Section 651-678; hereafter called the “Act”).
Respondent, Staz-On Roofing, Inc., and its successors (Staz-On), at all times relevant to
this action maintained a place of business at 5350 Fossil Creek Road, Haltom City, Texas, where
it was engaged in roofing. Respondent admits it is an employer engaged in a business affecting
commerce and is subject to the requirements of the Act.
On November 12-14, 2002, the Occupational Safety and Health Administration (OSHA)
conducted an inspection of Staz-On’s Fossil Creek work site. As a result of that inspection, Staz-
On was issued a citation alleging violations of 29 C.F.R. §§1926.21(b)(2) and 1926.501(b)(13) of
the Act together with proposed penalties. By filing a timely notice of contest Staz-On brought
this proceeding before the Occupational Safety and Health Review Commission (Commission).
On April 9, 2003, a hearing was held in Dallas, Texas. At that hearing, citation 1, item 1,
alleging violation of 29 C.F.R. §1926.21(b)(2) was withdrawn (Tr. 6). The parties have
submitted briefs on the remaining issues and this matter is ready for disposition.

                                             Alleged Violations
      Serious citation 1, item 2 alleges:

29 CFR 1926.501(b)(13): Each employee engaged in residential construction activities 6 feet or
more above lower levels was not protected by personal fall arrest systems, safety net system or
guardrails.

Employer did not ensure that each employee engaged in residential construction activities and 6
feet or more above lower levels was protected from falling by a personal fall arrest system.

    a. On or about November 12, 2002 at the work site located at 5350 Fossil Creek,
    Haltom City, Texas, employees were potentially exposed to a fall of 29 feet and 6
    inches to the ground below.

    b. Also on or about November 14, 2002 at same location, employees were again
    observed working at heights above 30 feet. Employees were potentially exposed
    to a fall of more than 30 feet to the ground below.

Facts
At the April 9, 2003 hearing, OSHA Compliance Officer (CO) Ruth Rodriguez testified
that on November 12, 2002, she observed four workers laying felt on the roof at Staz-On’s Fossil
Creek site. Two of the workers were not using fall protection (Tr. 11, 19, 49). Rodriguez
stopped and photographed what she believed were violations of the Act (Tr. 11, 14; Exh. C-2, C-
3, C-4). Two of her photographs show one of the unprotected employees carrying a roll of felt
along the ridge line of the roof, while a second unprotected worker walks across the sloped roof
front to the right hand eave, where two other workers are kneeling (Tr. 131-32; Exh. C-2, C-3).
In Complainant’s exhibit C-4, the first employee has handed off the roll of felt to the second
worker, who carries it to the kneeling workers (Tr. C-4).
Because she was on her way to a scheduled trench inspection on November 12, 2002,
Rodriguez was unable to visit the Fossil Creek site until November 14, 2003 (Tr. 11-13). When
she arrived at the site on November 14, 2003, Rodriguez observed and photographed Staz-On’s
foreman, James Copley, on the roof putting on his harness (Tr. 13, 15, 19; Exh. C-1). Another
Staz-On employee, Omar Torres, was not tied off (Tr. 23). A third employee, Miguel Angel
Morales was neither tied off, nor was he wearing a harness (Tr. 23-24, 27, 39-40, 46). Rodriguez
testified that though an anchor had been affixed to the roof and lines attached to it, the lines were
not being used by employees (Tr. 25). According to Rodriguez, all five Staz-On employees on
the site that day admitted that there were times when they did not tie off (Tr. 35-36).
Only Staz-On employees were working on the cited roof on November 12, 2002 (Tr. 52-
53). Through her employee interviews, Rodriguez was able to identify the two unprotected
workers she photographed on November 12 as foreman Copley and laborer Torres (Tr. 16, 24,
50, 56-58).
At the hearing, Omar Torres identified himself and James Copley as the unprotected employees
in Complainant’s exhibits C-2, C-3, and C-4 (Tr. 172). Torres testified that he and James Copley
were the only employees retrieving felt (Tr. 171). Torres stated that his feet got tired from
walking along the top of the roof ridge, and, as pictured in Complainant’s exhibit C-4, he passed
the roll of felt on to Copley (Tr. 175, 179). On other occasions Torres handed off the roll of felt
to Copley or one of the other workers (Tr. 180). Torres testified that the hand-off did not feel
awkward or unsafe (Tr. 181). According to Torres, all the other men on the crew tied off all the
time (Tr. 171).
Torres testified that he was reprimanded by Staz-On for not being tied off at the Fossil
Creek site (Tr. 185). That reprimand was not withdrawn by the company although Torres told
David Crawford, Staz-On’s safety director, that he was only going for materials (Tr. 186).
Copley received a first reprimand based on Crawford’s observation of him working on the roof
without fall protection on November 13, 2002 (Exh. R-11). He received a second reprimand
based on his failure to don his harness on November 14, 2002 (Exh. R-11). Both reprimands
were issued on December 9, 2002, after issuance of the OSHA citation.
Safety Director Crawford testified that he was aware that Copley and Torres were
working without fall protection at the Fossil Creek site (Tr. 57-58, 60, 62). According to
Crawford, Staz-On normally stores materials all along the roof so that employees can access the
rolls while remaining tied off (Tr. 62-63; see also, testimony of Paul Graham, Tr. 119). At the
Fossil Creek location, however, the rolls of felt that Staz-On was using to cover the roof had
been placed by the framer in the only accessible area of the 70 x 170 foot roof, i.e., in the center,
on the front edge (Tr. 83-84, 88, 120). The rolls were too far away to be reached by the workers,
who were wearing 50-foot lanyards (Tr. 85). Crawford testified that he knew that employees
unhooked from the anchor and walked, unprotected, 20-25 feet to the area where the rolls of felt
were stored (Tr. 58, 86). After retrieving their materials the employees would hook up to the
anchor to lay the felt (Tr. 63).
Crawford testified that he was not aware of a feasible way for his employees to remain
tied off to the existing anchors while retrieving felt on this job. However, he agreed that anchors
could have been attached along the roof edge “with as many lines as necessary so that employees
could [walk] from one end of the building to the other [and] stay tied off at all times” (Tr. 67-
68).1 Crawford also acknowledged that fall protection could have been provided to the
individual carrying the roll of felt (Tr. 69, 70 Exh. C-2). Crawford claimed to have investigated
the feasibility of guardrails and safety nets (Tr. 92). Paul Graham, Staz-On’s president, testified
that he discussed erecting scaffolding (Tr. 123). However, the anchors for the fall arrest system
were already in place (Tr. 92). Both Crawford and Graham felt that adding a second fall
protection system would expose employees to a greater hazard than simply unhooking for those
periods when they would be required to retrieve rolls of felt unprotected (Tr. 96, 123). Crawford
testified that the employees had to retrieve felt for approximately five minutes, five or six times a
day, and would be exposed to the cited fall hazard for only 30 minutes or so each day (Tr. 96,
123). Erecting guardrails or scaffolding could take two or three hours (or days, depending on
who was testifying), during which employees would be exposed to the danger of falling (Tr. 96,
123, 125, 158). Graham admitted that employees would not actually be exposed to the hazard of
falling while erecting guardrails or scaffolding, because they could be tied off; however, Graham
claimed to be worried that the workers might be frightened if they fell and were left dangling
from the edge (Tr. 147, 157).
Crawford further testified that additional anchors and/or a safety line were infeasible.
According to Crawford, two or three men cannot attach to a safety line on a roof where the men
are working in different areas and causing the line to deflect in different directions, unless
additional anchors are added (Tr. 195). Graham testified that it would be cumbersome and
dangerous to switch between multiple anchor points while carrying a roll of felt, which weighs
approximately 35-40 pounds (Tr. 72, 150, 156). He also stated it would be dangerous for two
employees, tied off to separate anchors, to pass off the heavy roll of felt (Tr. 161-62).
Crawford admitted that it was unsafe for an employee to walk along the peak of the roof
carrying a roll of felt, and that an employee falling from that height would be seriously injured or
killed (Tr. 93-94). Nonetheless, Crawford testified, he believed it was permissible to allow
employees to unhook their lanyards when it was impractical for them to retrieve working

     1
       Mr. Crawford contra dicted his testimo ny during cro ss exam ination b y stating that emplo yees carrying felt

could not be tied off at all times (Tr. 86, 9 0, 92 ).
materials while tied off (Tr. 75).
Staz-On did not develop a written fall protection plan in accordance with 29 C.F.R.
§1926.502(k) (Tr. 94-95, 137). No controlled access zone was established and no monitoring
system was in place (Tr. 139-40). Graham testified that it “just wasn’t necessary” given the short
period of time his employees would not be tied off (Tr. 137-39).
Discussion
With regard to instance a), Staz-On admits that both foreman Copley and laborer Torres
were working on the cited roof on November 12, 2002 without fall protection. Staz-On argues
that it was not required to comply with 29 CFR §1926.501(b)(13), however, because it was
infeasible to do so, and because providing alternative fall protection would have created a greater
hazard. Though clearly required by the standard, Respondent apparently maintains that it did not
need to develop a written plan complying with subparagraph (k), reproduced below, and, inter
alia, describing attempts to find a feasible means of protecting its employees from fall hazards.
Staz-On also admits that Copley did not tie off before accessing the roof on November
12, 2002, as alleged in instance b). Staz-On claims that Copley had been trained to do so, and
that his failure to tie off constituted unpreventable employee misconduct. The cited standard
states in pertinent part, that:
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)2 of §1926.502.

     2
         (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 Sec. 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 m ust conform to the following provisions.
(1) The fall protection plan shall be prepared by a qualified person and developed specifically for the
site where the leading edge work, precast concrete work, or residential construction work is being performed and the
plan must be maintained up to date.
(2) Any changes to the fall protection plan shall be approved by a qualified person.
(3) A copy of the fall protection plan with all approved changes shall be maintained at the job site.
(4) The implementation of the fall protection plan shall be under the supervision of a competent
person.
(5) The fall protection plan shall document the reasons why the use of conventional fall protection
systems (guard rail systems, perso nal fall arrest systems, o r safety nets systems) are infea sible or why their use wo uld
 Note: There is a presumption that it is feasible and will not create a greater hazard
to implement at least one of the above-listed fall protection systems. Accordingly,
the employer has the burden of establishing that it is appropriate to implement a
fall protection plan which complies with § 1926.502(k) for a particular workplace
situation, in lieu of implementing any of those systems.
Instance a). To establish the affirmative defense of infeasibility, an employer must show
that: 1) the means of compliance prescribed by the applicable standard would have been
infeasible, in that, (a) its implementation would have been technologically or economically
infeasible, i.e., there is no way to use the precaution required for its intended purpose without
unreasonably disrupting the work to be performed, see, Seibel Modern Mfg & Welding Corp., 15
BNA OSHC 1218, 1991-93 CCH OSHD ¶29,442 (No. 88-821, 1991), or, (b) necessary work
operations would have been technologically or economically infeasible after its implementation,
and (2) there would have been no feasible alternative means of protection. V.I.P. Structures,
Inc., 16 BNA OSHC 1873, 1994 CCH OSHD ¶30,485 (No. 91-1167, 1994).
Staz-On failed to show that it was infeasible, or even impractical, for its employees to
perform their assigned tasks on this location while using a standard fall arrest system. Laborer
Torres testified that he could and did hand off rolls of felt to foreman Copley, who could have
been, but was not tied off when he received them. Torres testified that it was neither awkward
nor dangerous to do so. Had an additonal anchor point, closer to the stored felt, been provided
for Torres, supplies could have been relayed to the area where work was taking place, without
any employees being exposed to a fall hazard. The hazard to which Torres would have been

create a greater hazard.
(6) The fall pro tection plan shall include a written discussion of other m easures that will be taken to
reduce or eliminate the fall hazard for workers who ca nnot b e pro vided with pro tection from the con ventional fall
protection systems. F or examp le, the em ployer shall disc uss the extent to w hich sca ffolds, lad ders, o r vehicle
mounted work platforms can be used to provide a safer working surface and thereby reduce the hazard of falling.
(7) The fall protection plan shall identify each location where conventional fall protection methods
cannot be used. These loc ations shall then be classified as controlled access zones and the employer must comp ly
with the criteria in paragraph (g) of this section.
(8) W here no other alternative measure has b een implem ented , the employer shall imp lement a safety
monitoring system in conformance with Sec. 1926.502(h).
(9) The fall protection plan must include a statement which provides the name or other method of
identification for each employee who is designated to work in controlled access zones. No other employees may
enter controlled access zo nes.
(10) In the event an employee falls, or some other related, serious incident occurs, (e.g., a near miss) the
employer shall investigate the circumstances of the fall or other incident to determine if the fall protection plan needs
to be changed (e.g. new practices, procedures, or training) and shall implement those changes to prevent similar
types of falls or incidents.
exposed under those circumstances, i.e., that of momentarily unhooking to tie off to the second
anchor point, clearly poses less danger than having him walk, unprotected, 20-25 feet across the
narrow roof ridge, while carrying a heavy roll of felt.
In addition, the record does not support Staz-On’s contention that its employees only
unhooked for the limited purpose of retrieving felt. In Complainant’s exhibits C-2 and C-3, Staz-
On’s foreman is clearly depicted walking around on the roof without fall protection. He is not
carrying a roll of felt; he is not heading towards the area where the felt was stored. He is in no
way engaged in the activity for which Staz-On claims to have needed an exemption from the fall
protection standards on this “unusual” site. Moreover, the record shows that both Copley and
Torres were disciplined for working without fall protection. If, as Staz-On claims, their behavior
was sanctioned because of the infeasibility of using traditional means of fall protection, it would
have been inappropriate to punish that behavior. The inconsistencies between the observed facts
and the “fall protection program” described by Staz-On’s witnesses supports the conclusion that
Staz-On’s alleged “fall protection program” was concocted only after its receipt of the OSHA
citation. The record establishes that Staz-On allowed its employees to dispense with fall
protection in this case because it was more convenient to do so. Staz-On failed to establish the
affirmative defense of infeasibility. Accordingly, the violation is affirmed.
Employee misconduct. In order to establish an unpreventable employee misconduct
defense, the employer must establish that it had: (a) established work rules designed to prevent
the violation; (b) adequately communicated those work rules to its employees (including
supervisors); (c) taken reasonable steps to discover violations of those work rules; (d) and
effectively enforced those work rules when they were violated. New York State Electric & Gas
Corporation, 17 BNA OSHC 1129, 1995 CCH OSHD ¶30,745 (91-2897, 1995).
Facts
Staz-On maintains that its employees are trained to use fall protection (Tr. 105). They
receive a copy of the employee manual when they are hired and they are required to attend a 10-
hour OSHA training course (Tr. 106, 109; Exh. R-2, R-3). Employees attend weekly safety
meetings on site (Tr. 106; Exh. R-4 through R-9). Paul Graham testified that employees are
trained to put their harnesses on before they go up on the roof (Tr. 129; see also, testimony of
Omar Torres, Tr. 178). Copley told CO Rodriguez that he knew better than to be up on the roof
without fall protection (Tr. 27). Graham testified that Copely was reprimanded for failing to put
his harness on before going onto the roof on November 14 (Tr. 129). The reprimand for
November 14, however, clearly states that its was Copley’s second violation and he had been
observed on the roof without fall protection on the previous day (Exh. R-11).
Discussion
Despite Staz-On’s evidence of safety training, it cannot be found that it had an adequately
communicated safety rule prohibiting the violative conduct. Employees, one of them a
supervisor, were seen working on the roof without fall protection on three different days. See,
e.g. Consolidated Freightways Corp. 15 BNA OSHC 1317, 1991-93 CCH OSHD ¶29,500 (No.
86-351, 1991); Gem Industrial, Inc. 17 BNA OSHC 1861, 1865, 1996 CCH OSHD ¶31,197 (No.
93-1122, 1996). Staz-On claims to have condoned working without fall protection in limited
circumstances, however, it is clear from the evidence that employees worked without fall
protection whenever it was more convenient to do so and would not have been disciplined for
failing to use fall protection had there been no OSHA inspection. Respondent has failed to make
out the affirmative defense of employee misconduct.
Penalty
CO Rodriguez testified that the gravity of the violation was high, in that the employees
walking on the ridge of the cited roof were 42 feet above the ground (Tr. 28). The conditions
were windy, with gusts of up to 25 miles per hour, and the employees were weighted down with
heavy rolls of felt (Tr. 28). Rodriguez and Staz-On’s own safety director agreed that a fall would
certainly result in serious injury, up to and including death (Tr. 29, 93-94). The gravity based
proposed penalty in this case was determined to be $5,000.00. OSHA recommends that the
penalty be reduced to $1,500.00 based on Staz-On’s small size and the absence of prior serious
citations (Tr. 29-31).
For purpose of assessing a penalty for violations, section 17(j) of the act requires that due
consideration must be given four criteria: (a) the size of the employers’ business, (b) the gravity
of the violation (c) good faith of the employer and (d) prior history of violations. In Secretary v.
J.A. Jones Construction Company, 15 BNA OSHA 2201 (1993) the Commission stated:
These factors are not necessarily accorded equal weight; generally speaking, the
gravity of a violation is the primary element in the penalty assessment. Trinity
Indus., Inc., 15 BNA OSHC 1481, 1483, 1992 CCH OSHD ¶29,582, p. 40,033
 (No. 88-2681, 1992); Astra Pharmaceutical Prods., Inc., 10 BNA OSHC 2070
(No. 78-6247, 1982). The gravity of a particular violation, moreover, depends
upon such matters as the number of employees exposed, the duration of the
exposure, the precautions taken against injury, and the likelihood that any injury
would result. Kus-Tum Builders, Inc., 10 BNA OSHC 1128, 1132, 1981 CCH
OSHD ¶25,738 p. 32, 107 (No. 76-2644, 1981).

Although the gravity of the cited violation is high (Tr. 29, 30) greater weight must be given to the
good faith or, in this case, the lack of good faith exhibited by Respondent’s management
representatives at the hearing as reflected by the testimony and demeanor of Respondent’s
president and safety director. Both individuals insisted that employees of this firm may be
required to work on residential roofs without fall protection in violation of the cited standard
when, based upon their experience, it is deemed appropriate. Both witnesses testified that certain
conditions may exist during the work activities which require their employees be exposed to fall
hazards for short periods of time; however, neither individual defined what a “short period of
time” is except that it could be as long as 20-30 minutes per day (Tr. 123). This decision making
process was delegated to the employees at the job site without any training or guidance related to
the specific job site instructing them how to avoid fall hazards by safety measures other than
personal fall protection. It was apparent at the hearing that Respondent’s president had never
read the fall protection standards applicable to his firm (Tr. 136). The totality of the testimony of
the Respondent’s president and safety director leads to the conclusion that neither individual
appreciates the hazards that Respondent’s employees are exposed to when working on residential
roofs without appropriate fall protection. Moreover, the training provided by the safety director
will, if unchanged, require employees to be exposed to fall hazards on the future.
Thus, the good faith factor is of primary importance in ensuring that the violations
committed in this case will not be repeated in the future. The only tool available to the
Commission to ensure that Respondent appreciates the importance of complying with fall
protection standards is by assessing a penalty which will, to the extent possible, encourage future
compliance. Accordingly, a penalty in the amount of $5,000.00 is assessed for the violation.

                                     Findings of Fact
   Findings of fact relevant and necessary to a determination of all issues have been made

above, Fed.R.Civ.P 52(a). All proposed findings of fact inconsistent with this decision are
hereby denied.

                                  Conclusions of Law

1. Respondent, Staz-on Roofing, Inc., is engaged in a business affecting commerce and has
   employees within the meaning of Section 3(5) of the Act.
2. Respondent Staz-on Roofing, Inc. at all times material to this proceeding, was subject to
   requirements of the Act and the standards promulgated thereunder. The Commission has
   jurisdiction of Respondent and the subject matter of this proceeding as it relates to said
   Respondent.

3. At the time and place alleged, Respondent was in violation of the standard set forth at 29
   CFR § 1926.501 (b)(13) and said violation was serious within the meaning of the Act.

                                        ORDER
   

4. Citation 1, item 1, alleging violation of 29 CFR §1926.501(b)(13) is AFFIRMED, and a
   penalty of $5,000.00 is ASSESSED.

                                                /s/
                                                Robert A. Yetman
                                                Judge, OSHRC
   

Dated: July 30, 2003