Kirtley Sheetmetal, Inc.

Plain-English summary

Kirtley Sheetmetal employees used an eight-foot stepladder to reach a roof even though the ladder did not extend above the landing, was not secured, and was not designed for that use. Employees also worked on a low-slope roof 19 to 28 feet above the ground without being tied off while lifelines were installed or changed. The judge imputed the foreman's knowledge because he left the site without ensuring that someone supervised fall-protection compliance. He affirmed the grouped ladder items as serious and the roof item as repeat based on a prior final citation involving a substantially similar fall hazard. Kirtley's equipment purchases, prompt corrections, and other good-faith efforts supported reduced penalties totaling $2,500.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.1053(b)(1); 29 C.F.R. § 1926.1053(b)(4); 29 C.F.R. § 1926.501(b)(10)
• Outcome: Grouped ladder violation affirmed with a $700 penalty and repeat roof-fall violation affirmed with a $1,800 penalty.
• Key point: Providing fall-protection equipment is insufficient when site supervision does not ensure employees use it before working at height.

Full text (OSHRC public release)

                                       United States of America
          OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                         1924 Building - Room 2R90, 100 Alabama Street, SW
                                     Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant,
v. OSHRC Docket No. 09-1691
Kirtley Sheetmetal, Inc.,
Respondent.

Appearances:
Lindsay A. W offord, Esqu ire, Dallas, Texas
For Complainant

   John Currier, Houston, Texas
   For Respondent

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

                                   DECISION AND ORDER

   Kirtley Sheetmetal, Inc., is engaged in construction contracting. On August 15, 2009, the

Occupational Safety and Health Administration (OSHA) conducted an inspection at the
Respondent’s jobsite in Houston, Texas. As a result of this inspection, OSHA issued a citation to
respondent on September 22, 2009. Respondent timely filed a notice contesting the citation and
proposed penalties. A hearing was held, pursuant to conventional proceedings in Houston, Texas,
on April 13, 2010.
At the close of the hearing, the parties made oral arguments in lieu of filing post-hearing
briefs. With the parties consent, a bench decision was entered following the hearing. For the
reasons that follow the alleged violations of 29 C.F.R §§ 1926.1053(b)(1) and 1926.1053(b)(4) are
affirmed as one serious violation and a penalty of $700.00 is assessed. The alleged violation of 29
C.F.R. § 1926.501(b)(10) is affirmed as a repeat violation and penalty of $1,800.00 is assessed.
Excerpts of relevant transcript pages and paragraphs, including the bench decision entered
at the hearing, findings of fact and conclusions of law (Tr. 207-220) are included in this decision as
follows:

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BENCH DECISION

    Back on the record. All right. You've had the opportunity for a complete hearing on this

matter. We’re in Houston, Texas, in the matter of Secretary of Labor versus Kirtley Sheet Metal, 09­
1691.
This is a conventional case. However, the matter was argued by the attorneys on both sides
by consent in lieu of filing post-hearing briefs, and also by consent that I'm going to issue an Order
on the record rather than issuing an Order after the hearing.
This will be included, however, in a written decision which will be issued. The time of
appeal, rights of appeal will run to the time that the written decision was received by the parties as
in any other normal case.
All right. This case arose as a result of an inspection by the Occupational Safety and Health
Administration on August the 15th, 2009. The inspection was conducted of Kirtley Sheet Metal,
Incorporated, on the Jobsite 9002 -- it looks like Kings Point Road, Houston, Texas.
The Compliance Officer, Mr. Singh, made the inspections as part of the Regional Emphasis
Program, driving by the Respondent's jobsite, where he observed employees of the Respondent and
another company working on the roof of a building. He observed these individuals working for
approximately 15 to 20 minutes. He left the jobsite and returned later and saw employees and
observed them again for about 15 or 20 minutes on that roof before he entered the jobsite.
He saw no employees tied off while working on this roof. However, he did notice they were
wearing harnesses and used tools throughout the area of the roof.
The roof varied in height from 19 feet above the ground level at the lowest point to 28 above
the ground level at the highest point. It was approximately 53 feet long and 150 feet wide.
As a result of this inspection, three violations were issued to Respondent. Two were grouped
into one serious violation, and one was issued as a repeat violation.
The charges are as follows: In Citation 1, Item 1A, it reads, "That because of the portable
ladder's length, the ladder side rails did not extend at least three feet above the upper landing surface
to which the ladder was used to gain access, and the ladder was not secured at its top to a rigid
support, and a grasping device such as a grabrail was not provided to assist employees in mounting
and dismounting the ladder. "It goes on to say that,"On August 15th of 2009, at the northwest corner

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of the building, employees used an eight-foot stepladder to access the upper landing of the roof,
exposing employees to a fall hazard.”
Linked with that is Item 1B, alleged violation of 29 C.F.R. Section 1926.1053(b)(4). 1A was
the alleged violation of 29 C.F.R. 1926.1053(b)(1). In Item 1B, the allegations are that ladders were
used for purposes other than the purposes for which were designed. It goes on to say that, "On
August 15, 2009, at the northwest corner of the building, employees used an eight-foot stepladder
to access the roof of the building, exposing employees to a fall hazard. A combined proposed
penalty of $1,000 was proposed for Item 1A and 1B. The violations were considered by OSHA to
be serious and alleged to be serious.
Another violation was proposed as a repeat violation of 29 C.F.R. Section 1926.501(b)(10).
In that allegation, the Secretary alleges that the employer did not provide each employee engaged
in roofing activities on low-sloped roofs with unprotected sides and edges six feet or more above
lower levels with a guardrail system, safety net system, personal fall arrest system or combination
of warning line systems and guardrail system, warning line system and safety net system, or a
warning line system and personal fall arrest system, or a warning line system and safety monitoring
system.
The Secretary goes on to allege that on or about August 15, 2009, at the northwest corner
of the building, employees were at an approximate height of 28 feet unprotected. The pitch was 2
to 12 and approximately 153 feet long by 53 feet wide, exposing the employees to fall hazards. It
also goes on as part of the repeat allegation: "Kirtley Sheet Metal, Incorporated was previously cited
for a violation of this Occupational Safety and Health standard or its equivalent standard,
1926.501(b)(10), which was contained in OSHA Inspection No. 312646078, Citation No. 1, Item
No. 001, issued on November 20, 2008, with respect to workplace located at 8536 Highway 6 North
Houston, Texas. This file became a final order on July 18th, 2009. The alleged proposed penalty
for this alleged violation is $4,000.
In order to prove a violation of the standards, the Secretary is required to prove that the
standards are applicable, that the terms of the standards were violated, that the Respondent's
employees were exposed to the hazards, and the Respondent had requisite knowledge. That is, he
knew or could have known with the exercise of reasonable diligence of the violations and the
knowledge of the conditions.

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I'm going to address the three violations together governing these four elements, and then
I'll address each one individually. Regarding applicability of the standards, all are construction
standards. All apply to Respondent's construction site here, so I find that the standards are
applicable to the work being performed.
Employees were working on the roof or they were on the roof during the time of the
inspection, and they used the stepladder to gain access to the roof.
This also leads us into the terms of the standards, whether the terms of the standards were
violated or not. With regard to Item 1A, it is clear that the stepladder was not used as required by
that standard. There was a stepladder standing next to the rail. It did not extend at least three feet
above the upper landing. It was not secured at the top to a rigid support and did not have a grasping
device such as a grabrail for mounting and dismounting the ladder.
The stepladder also was used for a purpose other than the purposes for which it was
designed. The testimony was elicited and agreed to by the Respondent that the stepladder is used
for standing on and not accessing a higher level, and that an extension ladder should have been used
to access that level. So the terms of the standards were violated on those two.
In regard to the fall hazard, it's alleged that the employees were on this roof, exposed to falls
in excess of six feet. With regard to the level of the roof that was six feet above the next platform
below, I don't believe the Secretary has proven sufficiently that there was more than six feet above
that platform.
However, employees that were on that roof were exposed to three other sides, and they were
on sides ranging from 19 feet to 28 feet above the ground level and were exposed to that fall. So
I think the terms of the standard were violated there. The employees were at an approximate height
of 28 feet, and there was no protection by guardrails, safety systems, personal fall arrest systems or
a combination of warning line systems and guardrail systems and the other combination of factors.
With regard to employee exposures, the Compliance Officer testified, Mr. Singh, that he saw
no employees tied off, but they were wearing harnesses and were using tools throughout the roof,
but the harnesses were not tied off to anchors.
There was an employee with a red shirt believed by Mr. Kirtley to be his employee, with a
bucket next to him performing, appears to be performing work, from the photographs. And he was
seen in several photographs, C-1, C-2 and C-5 exhibits.

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Another employee was moving plastic that was identified as Respondent's employee. Once
again, no brackets were used by the employees.
Mr. Kirtley testified that the employees should be off the roof while the lifeline was being
installed, and that Respondent is responsible for his own employees' safety while they're working
on these roofs. One man with a drill was changing the lifeline in C-4, and it appears to be the
individual who was in the red shirt. Once again, Mr. Kirtley testified that the employees should be
off the roof while the line was being changed. Here, Respondent's employees were on the roof.
I find that all four employees of Respondent were unprotected, were on this roof, work was
being performed, that all of the employees were exposed, and that the Respondent's foreman
admitted to the violative conditions. This one goes to whether the standards were violated, the terms
of the standards were violated and whether the employees were exposed. I haven't gotten to the
knowledge aspect yet.
Here I find that these employees were actually working on that roof before they were
effectively tied off.
Looking to the knowledge aspect. Mr. Singh testified that Jose Flores, the foreman for the
Respondent, admitted that it was his fault that no fall protection was there. He did not install the
lifelines, and he said that he made a mistake. Mr. Flores left the site for a short time to get ice, and
then he returned to the site after Mr. Singh was on the site for a time.
Mr. Flores stated to Mr. Singh that he did not install the lines, and it was the Respondent's
responsibility to install those lines. And he also told Mr. Singh that he was gone for only a short
period of time.
So having reviewed all of the evidence that has been submitted in this matter, I find that there
was knowledge on the part of the employer. While it may not have had actual knowledge of exactly
what was going on at all times, he [respondent’s foreman Flores] had constructive knowledge. He
should have known, with the exercise of reasonable diligence, that his people were on that roof not
being tied off while the lifelines were being installed. He left during that time.
There's no evidence he left anyone else in charge to supervise the operation and make sure
his employees were not on that roof during the installation of the lifelines or while performing other
work without being properly secured.
The Respondent did provide a good ladder for his employees, but it wasn't used. He allowed
his employees to use the stepladder to access the higher level. There was, I believe, an effort to

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comply with the tie-off requirements by providing this kit, by providing the harnesses, the lifelines
and securing apparatus.
The problem here, I believe, was in execution; it was just not followed through. There was
not an appreciation by possibly the foreman and the other employees on the site that they need to
actually use these things. It was a good-faith effort to provide these items. It just fell apart in the
execution.
There's also going in favor of the Respondent, all the violations were corrected during the
inspection. Oftentimes, we see those violations are not. Here they were. That goes to the good faith
of the employer in this matter. It appears that the failure occurred at the jobsite in following through
with good-faith intentions of upper management.
One element that I think I need to address, also, which has not been addressed at this point,
and that is the nature of the violations. And I believe that all violations as alleged are serious
violations. If an accident occurred, death or serious physical harm could result in falling from a
ladder and also falling from the roof, the exposed sides of the roof.
The repeat violation is based on a previous inspection where the same standard was cited and
substantially similar working conditions were cited, in that they were falls from a height that work
was being performed on an overhang of a wall. A ledge, I guess it was. So that there was a
substantially similar situation, and the standard was the same. And so, therefore, the repeat
characterization is correct.
And I would find that the first two violations were grouped properly as serious violations,
and the second item -- I think it's listed as Item 2-2 but I think it's supposed to be 2-1; is that correct?
MS. WOFFORD: Yes, sir.
JUDGE SIMKO: Or Item 1 of Citation No. 2? Okay. Then that will be affirmed as a repeat
violation.
Looking now to the reasonableness of the penalty, given all the factors we've talked about,
the seriousness of the conditions and the serious result if someone did fall, and take into
consideration the attempts at good-faith efforts to comply, and the correction of the violations at the
time of the inspection, while I'm finding violations as alleged, I am finding that the total penalty for
the Items 1A and B combined should be $700, and for Item 1 of Citation No. 2, the repeat violation,
the penalty should be $1,800, so a total penalty of $2,500 is assessed at this time.

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Now, I will incorporate this into a written decision subsequent to the trial as soon as I get the
transcript, and you'll be given that. If anyone wishes to appeal that decision, all those rights will be
preserved and you'll have the time frame to do that as you normally would.

               FINDINGS OF FACTS 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, Items 1a and 1(b) alleging serious violations of 29 C.F.R. §§
            1926.1053(b)(1) and 1926.1053(b)(4) are affirmed as one serious violation and
            penalty of $700.00 is assessed.


    2.      Citation No. 2, Item 1, alleging a repeat violation of 29 C.F.R. § 1926.501(b)(10) is
            affirmed as a repeat violation and a penalty of $1,800.00 is assessed.




                                                     /s/
                                                    Judge Stephen J. Simko, Jr.

Date: May 24, 2010

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