Midwest Roofing & Custom Metals

Plain-English summary

Two Midwest Roofing employees stood on a narrow parapet wall while installing metal capping about 23 feet above the ground. Midwest argued that the roof and an exterior scaffold were less than six feet below the workers. The judge found that the scaffold was at least six feet below and, because it contained large gaps, was not a reliable lower surface to which an employee could fall. A scaffold platform also was not one of the fall-protection systems listed by the cited standard. The serious violation was affirmed with a $1,000 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(1)
• Outcome: The serious fall-protection citation was affirmed with a $1,000 penalty.
• Key point: An incomplete scaffold below parapet workers did not replace the guardrails, safety nets, or personal fall arrest systems required by the standard.

Full text (OSHRC public release)

               UNITED STATES OF AMERICA
   OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Secretary of Labor,
Complainant
v. OSHRC Docket No. 06-0617
Midwest Roofing & Custom Metals,
Respondent.

Appearances:

      Brian A. Duncan, Esquire, Office of the Solicitor, U.S. Department of Labor, Dallas, Texas
               For Com plainant

      Jason La Forest, Owner, Midwest Roofing & Custom Metals, Broken Arrow, Oklahoma
              For Respond ent

Before: Administrative Law Judge Ken S. Welsch

                                      DECISION AND ORDER

      Midwest Roofing & Custom Metals (Midwest), a sole proprietorship, installs commercial

and industrial roofing in Broken Arrow, Oklahoma. On February 28, 2006, Occupational Safety and
Health Administration (OSHA) compliance officer Jerry Jackson was driving by the construction
of a new International House of Pancakes (IHOP) and observed two employees of Midwest standing
on a parapet wall above the roof level without fall protection. As a result of the OSHA inspection,
Midwest received a serious citation for violation of 29 C.F.R. § 1926.501(b)(1) for failing to require
fall protection for employees on a working/walking surface on top of a parapet wall approximately
23 feet above ground level. The citation proposed a penalty of $1,500.00. Midwest timely contested
the citation.
The case was designated for Simplified Procedures under 29 C.F.R. § 2200.200. The hearing
was held on June 19, 2006, in Tulsa, Oklahoma. Midwest is represented by its owner Jason
La Forest. The parties stipulated jurisdiction and coverage (Tr. 7). The parties filed post-hearing
statements of position.
 Midwest denies the violation and argues it was in compliance with § 1926.501(b)(1) because
the inside wall of the building was less than 6 feet above the roof and the outside wall of the parapet
was protected by scaffolding less than 6 feet below the parapet. Midwest does not assert any
affirmative defenses (Tr. 12).
As discussed more fully, a violation of § 1926.501(b)(1) is affirmed and a penalty of
$1,000.00 is assessed.
The Accident
Midwest is engaged in the business of installing industrial and commercial roofs in Broken
Arrow, Oklahoma. It has been in business for six years. Midwest is owned by Jason La Forest and
employs approximately 12 employees (Tr. 6, 36, 37, 85).
In February 2006, Midwest contracted to install a flat metal roof on a newly constructed
IHOP building in Broken Arrow, Oklahoma (Exh. C-1; Tr. 41, 42). The general contractor was
South Fork Construction (Tr. 53). The roof was approximately 70 feet by 80 feet (Tr. 39). The roof
level was approximately 17 feet above the ground (Tr. 20, 70). Around the roofs’ edge, there was
a parapet wall,1 which according to Midwest’s executive supervisor Adam Blevins, was 4 feet, 6
inches to 5 feet, 9 inches above the roof level (Tr. 19). Blevins’ statement to OSHA described the
height of the parapet wall as 6 feet (Exh. C-6). The width of the parapet wall was 12 - 13 inches,
except in column areas where it was 3 feet, 6 inches wide (Exh. C-2; Tr. 22, 23). The distance from
the top of the parapet wall to the ground was approximately 23 feet (Tr. 19). In addition to installing
the metal roof, Midwest contracted to install a metal cap on top of the parapet wall (Tr. 41, 42).
Midwest did not construct the parapet wall (Tr. 41).
On February 28, 2006, Midwest’s crew began installing the metal cap on top of the parapet
wall at approximately 1:00 p.m. (Tr. 38). The crew intended to install 400 feet of parapet capping
(Tr. 40). Midwest’s crew consisted of seven roofers including foreman Michael Gaskin (Tr. 15, 38).
Because of his prior experience with metal roofing, Midwest’s executive supervisor Adam Blevins
was on site directing the work (Tr. 14-15, 39).

1
A “parapet wall” is a vertical wall that is around the edge of the roof and perpendicular to the roof level (Tr. 17,
18).

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After the metal cap was placed on the parapet wall, Blevins and another employee secured
the cap to the parapet wall with rivets (Exhs. C-2, C-3; Tr. 24, 43, 44). In most areas, Blevins and
the other employee were able to secure the metal cap while standing on the roof. In the column
areas, however, they stood on top of the parapet wall (Tr. 45, 46). Blevins testified it was easier and
faster to secure the metal cap by standing on the wall (Tr. 40). The crew had been installing the
parapet caping for 2-3 hours prior to the OSHA inspection (Tr. 40). When the employees, including
Blevins, stood on top of the parapet wall, the employees did not utilize any fall protection
(Exh. C-3). They wore no harnesses and used no tie-off lines. There were no guardrails on the
parapet wall or netting below the wall (Tr. 26-27). However, the plastering contractor had installed
scaffolding around the outside wall (Exh. C-4; Tr. 57-58). According to Blevins, the scaffolding
platform was approximately 5 feet, 8 inches below the top of the parapet wall (Tr. 47).
At approximately 3:00 p.m., OSHA compliance officer Jerry Jackson who had completed a
programed inspection was driving by the IHOP project when he observed two employees standing
on top of the parapet without fall protection (Exhs. C-2, Tr. 38, 52). Jackson parked his automobile
and initiated an OSHA inspection pursuant to a special emphasis program (Tr. 52). Mr. Jackson did
not go onto the roof or take any measurements of the wall (Tr. 69, 71, 74). From the ground, he
observed two employees standing on the parapet wall without fall protection for 20 - 30 minutes
(Tr. 25, 54, 55, 63).
Jackson described the scaffolding on the outside wall below the parapet wall as inadequately
erected and failing to comply with OSHA’s scaffolding standards at Subpart L, 29 C.F.R.
§ 1926.450 et seq. The scaffolding was erected and used by the plastering contractor (Tr. 28).
Midwest employees did not build or use the scaffold (Tr. 27). Jackson described the scaffold as “just
a shamble” (Tr. 60). The scaffold’s wooden platform was not fully planked with more than 12-inch
gaps (openings) on the outside and inside of the platform (Exhs. C-4, C-5; Tr. 63, 72, 75, 76).
Jackson opined the gaps in the planking were wide enough to allow an employee to fall through the
gaps to the ground (Tr. 61). The scaffolding was also missing cross-bracing and a ladder (Tr. 60).
It was not level and square (Tr. 65). The inadequacy of the scaffold was noted by the general
contractor (Exh. C-7).

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As a result of Jackson’s inspection on March 20, 2006, Midwest received a serious citation
for a violation of § 1926.501(b)(1) because of the two employees’ failure to utilize fall protection
while working on top of the parapet wall. The plastering contractor also received a citation for the
scaffolding not being fully planked, missing cross-bracing, lacking a means of access, and its
inadequate stability (Tr. 73).
Discussion
The Secretary has the burden of proving a violation of the standard.
In order to establish a violation of an occupational safety or health
standard, the Secretary has the burden of proving: (a) the applicability of
the cited standard, (b) the employer’s noncompliance with the standard’s
terms, (c) employee access to the violative conditions, and (d) the
employer’s actual or constructive knowledge of the violation (i.e., the
employer either knew or, with the exercise of reasonable diligence could
have known, of the violative conditions).

Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
Alleged Violation of § 1926.501(b)(1)
The citation alleges the employees, working/walking on top of the parapet wall, were exposed
to a fall hazard and were not utilizing a fall protection system. Section 1926.501(b)(1) provides:
Unprotected sides and edges. Each employee on a walking/working
surface (horizontal and vertical surface) with an unprotected side or edge
which is 6 feet (1.8m) or more above a lower level shall be protected
from falling by the use of guardrail systems, safety net systems, or
personal fall arrest systems.

   Midwest does not dispute the application of § 1926.501(b)(1) to its roof installation work on

the IHOP project (Tr. 41). Midwest also does not dispute its two employees, including executive
supervisor Blevins, were working on top of the parapet wall at approximately 23 feet above the
ground without guardrails, safety nets, or personal fall arrest systems (Exh. C-3; Tr. 21, 24, 28). In
addition to employees’ exposure, the record establishes Midwest knew of the violative condition.
Blevins, one of the employees on top of the parapet wall, is the executive supervisor for Midwest.
As executive supervisor, he “supervised the supervisors” on site and had the authority to direct and
correct employees’ work (Tr. 14-15). Blevins’ knowledge of the conditions is imputed to Midwest.
Dover Elevator Co. 16 BNA OSHC 1281, 1286 (No. 91-862, 1993).

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Midwest asserts the parapet wall was less than 6 feet above the roof level or the scaffold
platform along the outside wall. Midwest, therefore, argues it was in compliance with
§ 1926.501(b)(1) because the employees did not need fall protection since it was less than 6 feet
above a lower level. Midwest notes its executive supervisor, who was on top of the parapet wall,
did not believe there was a fall hazard (Tr. 48, 84).
The sole issue in this case is whether the terms of §1926.501(b)(1) were violated. There is
no dispute the top of the parapet wall is considered a “walking/working surface.”2 The two Midwest
employees were installing the metal capping while standing on top of the parapet. Although Blevins
told OSHA the top of the parapet wall was 6 feet above the roof level, at the hearing he testified his
statement was an approximate height and the actual height was 4 feet, 6 inches in some locations and
5 feet, 8 inches in other locations (Exh. C-6; Tr. 19, 24). Because Jackson did not measure the
height of the parapet wall or go on the roof, the Court accepts Blevins’ testimony that the height of
the parapet wall was less than 6 feet above the roof level (Tr. 24, 71). Therefore, § 1926.501(b)(1)
does not require fall protection for an exposure to the roof level.
However, on the outside wall of the building, it was 23 feet from the top of the parapet wall
to the ground (Tr. 19). This raises two questions; (1) whether the scaffold platform was less than
6 feet from the top of the parapet, and (2) whether the scaffold platform constitutes a “lower level”
as contemplated by the standard.
The record in this case establishes the scaffold platform was 6 feet or more below the top of
the parapet wall. Although Roberts and Blevins made no measurements of the height, Roberts’
calculation of 6 feet or more to the scaffold platform was based on the dimensions of the scaffold
which he said was 5 feet or 5 feet, 6 inches, if including the screw jacks and the mud seals (Tr. 69,
70). Midwest asserts the scaffold was 6 feet high (Midwest’s position statement). Accepting either
dimensions, the scaffold platform was 17 feet or less above the ground. This is supported by
Blevins’ testimony when he described the top level of the scaffold as lower than the roof level, which
he stated as 17 feet (Tr. 22, 49, 70). Therefore, with the top of the parapet wall 23 above the ground,

2
“Walking/working surface means any surface, whether horizontal or vertical on which an employee walks or
works, including, but not limited to, floors, roofs, ramps, bridges, runways, formwork and concrete reinforcing steel
but not including ladders, vehicles, or tailers, on which employees must be located in order to perform their job
duties.” 29 C.F.R. § 1926.500 (b) (Definitions).

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even if the scaffold platform is considered the “lower level” within the standard, the employees
standing on top of the parapet wall would require fall protection because it was 6 feet or more to the
scaffold platform.
However, even if the scaffold platform was less than 6 feet below the top of the parapet, the
record fails to establish it as a “lower level” because of the lack of full planking. The standard
defines “lower levels” at 29 C.F.R. § 1926.500(b) (Definitions), to mean
those areas or surfaces to which an employee can fall. Such areas or
surfaces include, but are not limited to, ground levels, floors,
platforms, ramps, runways, excavations, pits, tanks, material, water,
equipment, structures, or portions thereof. (emphasis added).

    Jackson testified the missing planks created gaps in the platform’s walking surface of varying

widths ranging from 12 inches to 2 feet (Tr. 75). With at least 12-inch openings throughout the
platform due to the missing planks, an employee could fall a distance of 23 feet through the platform
to the ground level (Exhs. C-4, C-5). Both Blevins and Jackson agreed the missing scaffold planks
created openings on the scaffold’s walking surfaces that were wide enough for a person to fall
through (Tr. 30, 61). The scaffold was designed to protect the employees working on the scaffold;
not an employee standing above the scaffold platform on a 13-inch wide parapet wall (Tr. 68).
Therefore, the scaffold platform cannot be considered a surface “to which an employee can fall” as
required by the definition of “lower levels.”
Since it has been established that on at least one side of the parapet wall, the employees were
exposed to a fall hazard of 6 feet or more, §1926.501(b)(1) requires the employees to use fall
protection. The standard specifically identifies the type of fall protection required as “guardrail
systems, safety net systems, or personal fall arrest systems.” There is no dispute the two employees
standing on the parapet wall were not protected by such fall protection systems.
Midwest’s argument that the scaffold platform provided fall protection is rejected. In Ranch
Masonry, Inc., 19 BNA OSHC 1931, 1934 (No. 01-0742, 2002), Judge Spies rejected a scaffold
platform as fall protection and stated, “the plain language of the standard (§ 1926.501(b)(1)) makes
clear that the employer must choose one of the listed forms of fall protection. Ranch failed to use
any form of fall protection.” As in this case, a scaffold platform is not one of the listed forms of fall

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protection identified by the standard. This is particularly so here because the scaffold platform had
numerous gaps through which an employee can fall.
A violation of § 1926.501(b)(1) is established.
Serious Classification
In order to establish a violation is “serious” under § 17(k) of the Occupational Safety and
Health Act (Act), the Secretary must show there is a substantial probability of death or serious
physical harm that could result from the cited condition and the employer knew or should have
known with the exercise reasonable diligence of the presence of the violation.
As discussed previously, Midwest had actual knowledge of the employees’ failure to use fall
protection while standing on top of the parapet wall. Blevins’ knowledge as executive supervisor
and his participation in the fall hazard without fall protection is imputed to Midwest. It is clear a fall
to an improperly constructed scaffold or the ground level 23 feet below could cause death or serious
bodily harm (Tr. 65). “In determining whether a violation is serious, the issue is not whether an
accident is likely to occur; it is rather, whether the result would likely be death or serious harm if an
accident should occur.” Whiting-Turner Contracting Co., 13 BNA OSHC 2155, 2157 (No. 87-1238,
1989). Blevins’ belief that he was safe is immaterial and his judgment cannot be substituted for the
requirement of the standard.
Penalty Determination
The Review Commission is the final arbiter of penalties in all contested cases. In
determining an appropriate penalty, the Act requires consideration of the size of the employer’s
business, history of previous violations, the employer’s good faith, and the gravity of the violation.
Gravity is the principal factor to be considered.
Midwest is a small employer with approximately 12 employees. Midwest is also given credit
for history because it has not received an OSHA citation in the preceding three years (Tr. 37,
66-67, 84). Midwest is not given credit for good faith because its safety attitude seems to rely more
on the discretion of its employees as oppose to requiring safety measures for hazards as set forth by
the OSHA standards. Executive supervisor Blevins testified he would have used fall protection “if
I feel that I need it at that point in time, if we’re in a high area where we’re possibly going to fall,
yes, I would use it” (Tr. 84). Blevins decided not to use fall protection because it was more

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convenient, easier, and faster to install the metal caps by standing on top of the parapet wall (Tr. 40).
Such attitude by a supervisor, show a lack of safety training and understanding of a hazardous
condition. Also, it is noted there was no fall protection equipment at the IHOP project prior to the
OSHA inspection (Tr. 86). When asked about safety training, Blevins only identified some training
provided by the general contractor (Tr. 85). No fall protection training was described.
A penalty of $1,000.00 is reasonable for Midwest’s violation of § 1926.501(b)(1). Two
Midwest employees including its executive supervisor were exposed to a fall hazard of 23 feet
without fall protection. The employees were exposed for at least 20 minutes. The fact that the
exposure of the two employees was less than 30 minutes is immaterial. Walker Towing Corp.,
14 BNA OSHC 2072 (No. 87-1359, 1991) (a comparatively brief exposure is sufficient to support
the finding of a violation). Midwest’s executive supervisor did not use fall protection and he did not
recognize a hazard.

                FINDINGS OF FACT AND CONCLUSIONS OF LAW

    The foregoing decision constitutes the findings of fact and conclusions of law in accordance

with Rule 52(a) of the Federal Rules of Civil Procedure.
ORDER
Based upon the foregoing decision, it is ORDERED that:
Serious Citation 1, Item 1, alleged serious violation of §1926.501(b)(1) is affirmed and a
penalty of $1,000.00 is assessed.

                                                            S/ Ken S. Welsch
                                                            KEN S. WELSCH
                                                            Judge

Date: August 3, 2006

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