Heff's Tuckpointing

Plain-English summary

Heff's employee worked on a steep residential roof about eleven feet above the ground while removing bricks from a chimney without conventional fall protection. The judge found that the nearby scaffold did not reliably prevent a fall and that Heff's had not shown anchors, guardrails, or other compliant systems were infeasible or created a greater hazard. The fall-protection item was affirmed as serious. Heff's also lacked a written hazard-communication program and chemical inventory; those violations were affirmed but reclassified as other-than-serious because the employee had been trained and the company maintained safety data sheets. Total penalties were $900, and a hard-hat item was withdrawn.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.1200(e)(1); 29 C.F.R. § 1910.1200(e)(1)(i); 29 C.F.R. § 1926.100(a); 29 C.F.R. § 1926.501(b)(13)
• Outcome: Three items were affirmed with $900 in penalties, including a serious fall-protection violation; the hard-hat item was withdrawn.
• Key point: Residential roof work above six feet requires conventional fall protection unless the employer proves infeasibility or greater hazard.

Full text (OSHRC public release)

                              UNITED STATES OF AMERICA
   OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Secretary of Labor,
Complainant
v. OSHRC Docket No. 10-1793
Heff’s Tuckpointing,
Respondent.

Appearances:

      Evert Van Wijk, Esquire, Office of the Solicitor, U.S. Department of Labor, Kansas City, Missouri
              For Complainant

      Gary J. Hefferman, Owner, pro se, Heff’s Tuckpointing, St. Louis, Missouri
               For Respondent

Before: Administrative Law Judge Ken S. Welsch

                                     DECISION AND ORDER

Heff’s Tuckpointing (Heff’s) is engaged in repairing and tuckpointing brick chimneys and walls

at private residences in the St. Louis, Missouri area. On April 15, 2010, while an employee, the
owner’s nephew, was removing bricks from a chimney from a single-family home, the jobsite was
inspected by a safety compliance officer with the Occupational Safety and Health Administration
(OSHA). As a result of OSHA’s inspection, Heff’s received a serious citation on July 19, 2010,
Heff’s timely contested the citation.
The serious citation alleges Heff’s violated 29 C. F. R. § 1910.1200(e)(1) (item 1a) by failing
to develop and implement a written Hazard Communication Program; 29 C. F. R. §
1910.1200(e)(1)(i) (item 1b) by failing to have an inventory list of the chemicals/products used at the
jobsite; 29 C. F. R. § 1926.100(a) (item 2) by failing to provide head protection for the employee
engaged in tuckpointing; and, 29 C. F. R. § 1926.501(b)(13) (item 3) by failing to provide a personal
fall arrest system for the employee engaged in brick removal work on a steep roof. The citation

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proposes a total penalty of $3,600 for the alleged violations.
The hearing, designated for simplified proceedings pursuant to 29 C. F. R. § 2200.200 et. Seq.,
was held on December 10, 2010, in St. Louis, Missouri. Heff’s is represented pro se by its owner
Gary Heffernan. The parties stipulated jurisdiction and coverage (Tr. 10). The Secretary withdrew
item 2, alleged violation of § 1926.100(a) (Tr. 5-6). At the conclusion of the hearing, Mr. Heffernan
made a closing statement. He also filed a written position statement on December 30, 2010. On
January 7, 2011, OSHA’s counsel filed a post hearing brief.
Heff’s argues the employee was not exposed to a hazard. As a small employer, Heff’s claims
OSHA’s proposed penalties were excessive (Tr. 11). Heff’s does not dispute that it failed to comply
with the terms of the cited OSHA standards. It also does not assert an affirmative defense.
For the reasons discussed, the violations alleged are affirmed and total penalties of $900.00 are
assessed. The violations of 29 C. F. R. § 1910.1200(e)(1) (item 1a) and § 1910.1200(e)(1)(i) (item
1b) are reclassified as other than serious.
BACKGROUND
Heff’s is engaged in repairing and tuckpointing brick chimneys and walls at private residences
throughout the St. Louis, Missouri area.1 In business for approximately twenty years, Heff’s, a sole
proprietorship, is owned by Gary Heffernan. Mr. Heffernan personally performs most of the repair
and tuckpointing work. He has performed such work for thirty-five years. Heff’s has never had more
than one employee. Currently, its only employee is Mr. Heffernan’s nephew who works as a helper
involved in mixing mortar, hauling bricks and other assigned activities (Tr. 11, 100-101, 117-118).
On April 12, 2010, Heff’s began repair work on a brick chimney at a single family home. The
work required Heff’s to tear down a portion of the chimney and replace the bricks. Heff’s work was
completed on April 15, 2010, after the OSHA inspection (Tr. 102, 105-106).2
The brick chimney, located in front of the house, was 45 inches wide and stood higher than the
roof’s peak. The slope of the roof was approximately 10 in 12 (vertical to horizontal). To access
the chimney, Heff’s erected a two tier tubular scaffold in front of the chimney. Each section of

    1
       Tuckpointing is defined as “to finish (the mortar joint between bricks or stones) with a narrow ridge of

putty or fine line mortar.”
2
During the inspection, OSHA was told the job would take a couple more days (Tr. 29).

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scaffold was approximately 7 feet long and 6 feet high. Planking was placed on the first and second
levels of the scaffold. The scaffold extended beyond the right side of the chimney, approximately 24
inches. A plank was placed from the top level of the scaffold to the roof along the right side of the
chimney (Exhs. C-1 - C-5; Tr. 21-22, 36, 110).
On April 15, 2010, OSHA safety compliance officer (CO) Marilyn Alston, after receiving a
referral from the OSHA Assistant Area Director, arrived at the jobsite at approximately 11:30 a.m.3
Upon arrival, CO Alston observed the employee/nephew getting on and off the roof and sitting on
the roof, removing and replacing bricks from the right of the chimney. He was 11 feet above the
ground and not utilizing any designated fall protection systems including personal fall arrest,
guardrails or safety nets (Exhs. C-6, C-7; Tr. 14-15, 18, 63, 105, 108-109).4
Upon entering the property, CO Alston asked the employee who was in charge. Mr. Heffernan
was notified and arrived at the jobsite by approximately 12 noon. Mr. Heffernan, who had been
working on the job since it started, had left mid-morning to bid on another project. Before leaving
the job, he had instructed his nephew to remove the damaged bricks on the right side of the chimney
(Tr. 28, 32, 102, 105).
Mr. Heffernan told CO Alston that he did not believe his nephew was exposed to a hazard. Also,
although cement, sand and other products were on the jobsite for the chimney repair work, Mr.
Heffernan acknowledged that Heff’s did not have a written hazard communication program and a
written inventory list of the products. He identified the products to the CO Alston and immediately
sent her copies of their material safety data sheets (MSDS) from his office (Exhs. C-10 - C-13, Tr.
53-55).
Based upon the inspection by CO Alston, the serious citation, alleging the violations at issued,
was issued to Heff’s on July 19, 2010.
DISCUSSION
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,

      3
    The referral by the Assistant Area Director complained the scaffold was unsafe and not plumb (Tr. 14).

OSHA’s inspection found no problems with the scaffold (Tr. 33, 67).
4
Mr. Heffernan measured the height (Tr. 72).

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(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).
Heff’s does not dispute the application of the cited standards to its jobsite, its non compliance
with the standards, and Mr. Heffernan’s knowledge of the employee’s work on the chimney. Mr.
Heffernan testified to knowing the conditions at the jobsite and the work of his nephew on the roof
without fall protection (Tr. 111). He had assigned the work to his nephew before leaving the jobsite
(Tr. 105). Mr. Heffernan does not dispute that Heff’s did not have a written hazard communication
program and a written list of the products used on the job (Tr. 57).
Heff’s disputes whether the employee/ nephew was exposed to a hazard and claims the proposed
penalties are excessive.
Serious Citation No. 1
Item 1a: Alleged Violation of § 1910.1200(e)(1)
The citation alleges, in part, that at the jobsite, “the employer had not developed/implemented
a Hazard Communication Program for employee(s) engaged in tuckpointing operations using such
products as, but not limited to, Portlant Cement, Sand, Solomon Colors Concentrated Mortar, and
Miracle Morta-LOK Type “S” Masons Lime.”
Section 1910.1200(e)(1) provides:
Employers shall develop, implement, and maintain at each workplace,
a written hazard communication program which at least describes how
the criteria specified in paragraphs (f), (g), and (h) of this section for
labels and other forms of warning, material safety data sheets, and
employee information and training will be met, and which also
includes the following:

The purpose of a hazard communication program is to require “all employers to provide

information to their employees about the hazardous chemicals to which they are exposed, by means
of a hazard communication program, labels and other forms of warning, material safety data sheets,
and information and training.” 29 C. F. R. § 1910.1200(b)(1). A list of hazardous chemicals present
at the jobsite is required as part of a written hazard communication program. 29 C. F. R. §

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1910.1200(e)(1)(i) and (ii). The requirement to have a written hazard communication program
applies to employers such as Heff’s engaged in construction activities pursuant to 29 C. F. R. §
1926.59.
There is no dispute that Portland Cement, Sand, Solomon Colors Concentrated Mortar and
Miracle Morta-LOK were present at Heff’s jobsite at the time of OSHA’s inspection (Tr. 106). Mr.
Heffernan acknowledged using the products and sent copies of their MSDSs to OSHA (Tr. 53-54).
A review of the MSDS for each product shows that such products contain chemicals which are
considered a “hazardous chemical” within the standard. A “hazardous chemical” is defined as “any
chemical which is a physical hazard or a health hazard.” 29 C. F. R. § 1910.1200(c). Mr. Heffernan
agreed the products were hazardous (Tr. 115-116).
According to the MSDSs, sand can cause a particle irritation, cement presents a chemical hazard,
Solomon Colors can cause chemical reactions, and Miracle Morta presents chemical problems (Exhs.
C-10 - C-13). CO Alston described the potential chemical hazards as causing skin irritation,
dermatitis, eye irritation and skin burns (Tr. 58). Portland cement can cause severe skin irritation
and caustic burns. It also has an allergic effect (Tr. 88). Sand can cause silicosis. It is also labeled
as a Class 1 carcinogenic (Tr. 89). These products were frequently handled by the employee (Tr. 59).
Mr. Heffernan testified that he stressed the safe handling of the products and trained his nephew
on the products. However, his program, even if considered adequate, was not written. A written
hazard communication program is required under 29 C. F. R. § 1910.1200(e)(1).
A violation is established.
Item 1b: Alleged Violation of § 1910.1200(e)(1)(i)
The citation, in part, alleges that at the jobsite, “the employer did not have an inventory list that
accurately reflected the chemicals/products that was being used in the various operations throughout
the facility.”
Section 1910.1200(e)(1)(i) provides:
A list of the hazardous chemicals known to be present using an
identity that is referenced on the appropriate material safety data sheet
(the list may be complied for the workplace as a whole or for
individual work areas);

 There is no dispute that Heff’s did not have an inventory list for the products considered


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hazardous chemicals used at the jobsite (Tr. 57, 129). Mr. Heffernan identified the products on the
jobsite as Portland Cement, Solomon Colors Concentrated Mortar, and Miracle Morta-LOK Type
“S” Masons Lime. He verbally identified the products to CO Alston and sent copies of their MSDS
(Tr. 53-54). There was no written list of the hazardous chemicals as required by 29 C. F. R. §
1910.1200(e)(1)(i).
A violation is established.
Item 3: Alleged Violation of § 1926.501(b)(13)
The citation alleges, in part, that at the jobsite, “employee(s) engaged in tuckpointing operations
form a roof over 13' from the ground, was not provided a personal fall arrest system, exposing him
to fall hazards.”
Section 1926.501(b)(13) provides:
Residential construction. Each employee engaged in residential
construction activities 6 feet (1.8m) or more above lower levels shall
be protected by guardrail systems, safety net systems, 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.

                    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.

 There is no dispute that Heff’s jobsite involved a single family home. Heff’s chimney repair work

was residential construction. Mr. Heffernan acknowledges his employee/nephew was on the roof,
11 feet above the ground level. The roof’s slope was approximately 10 in 12 (vertical to horizontal)
which is considered a “steep roof.” See 29 C. F. R. § 1926.500(b) (Definitions).
The requirements of § 1926.501(b)(13) were not complied with in that there is no dispute the
employee was not utilizing a personal fall arrest system and was not protected while sitting on the
roof from a fall hazard by a guardrail system or safety net system (Exh. C-1; Tr. 35).

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Heff’s does not assert and the record fails to show that utilizing fall protective systems, such as
a personal arrest system or guardrail system, were infeasible or presented a greater hazard. The
standard presumes that conventional fall protection is feasible and not a greater hazard. CO Alston
testified to observing the use of anchors on similar projects to tie off a personal arrest system (Tr. 37­
38). The manufacturers represent their inexpensive anchors can be used on any slopped roof (Exhs.
C-8, C-9). CO Alston also testified to the use of guardrails (Tr. 43).
Heff’s has never used anchors or other fall protection on roofs at similar heights in the past. His
objections to the feasibility of such protective systems lack foundation (Tr. 122-123). There is no
showing that the homeowner on January Avenue was asked or would object to the use of anchors.
Heff’s argument that the chimney was higher than the roof’s peak does not establish that the use of
anchors presents a greater hazard. The employee’s work on the side of the chimney was below the
roof’s peak.
Heff’s claim that the nephew was not exposed to a hazard is rejected. A “hazard” is defined in
terms of conditions deemed unsafe over which an employer can reasonably be expected to exercise
control. Morrisson-Knudson Co./Yonkers Contacting Co., A Joint Venture, 16 BNA OSHC 1105,
1121-1122 (No. 88-572, 1993). “There is no requirement that there be a ‘significant risk’ of the
hazard coming to fruition, only that if the hazardous event occurs, it would create a ‘significant risk’
to employees.” Waldon Healthcare Center, 16 BNA OSHC 1052, 1060 (No. 89-2804, 1993).
In this case, the employee was sitting on a steep roof, 11 feet above the ground. The standard
presumes a hazard to employees on a steep roof above 6 feet, performing residential construction
work such as removing bricks without utilizing fall protection. The employee was exposed to a fall
hazard if he slipped off the roof. Kokosing Construction Co., 17 BNA OSHC 1869, 1870 (No. 92­
2596, 1996) (the test for determining whether an employee is exposed to a hazard is whether it is
“reasonably predictable” the employee would be in the zone of danger created by a noncomplying
condition).
Although the scaffold extended beyond the right side of the chimney, there is showing the
scaffold would have prevented the employee’s fall from the roof. OSHA’s photographs shows the
employee’s body beyond edge of the scaffold. The employee’s right foot (the inside leg in relation
to the right side of the chimney) is placed on the scaffold’s leg which would have placed his body

                                                7

outside the scaffold’s edge. There also appears to be a gap between the roof and the scaffold and the
inside cross-braces on the scaffold had been removed (Exhs. C-6, C-7).
A violation of 29 C. F. R. § 1926.501(b)(13) is established.
Serious Classification
In order to establish that a violation is “serious,” OSHA 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. Section 17(k) of the Occupational Safety and Health Act of 1970 (Act), 29 U.S.C.
§666(k). “Substantial probability” is established if an accident is possible and the result of the
accident would likely be death or serious physical harm. The likelihood of the accident is not an
issue. Spancrete Northeast, Inc., 15 BNA OSHC 1020, 1024 (No. 86-521, 1991).
The violations of § 1910.1200(e) and § 1910.1200(e)(1) (items 1a and 1b) are not properly
classified as serious. Although Heff’s lacked a written hazard communication program and an
inventory list of the products considered hazardous chemicals, there is no showing the
employee/nephew did not receive training or was exposed to hazardous chemicals at the jobsite. Mr.
Heffernan testified that he performed all the brick work on the jobsite (Tr. 101). His
employee/nephew performed the helper work (Tr. 117). Mr. Heffernan told OSHA that his nephew
was aware of the hazards associated with the products used on site. He knew not to get the cement
on his skin because of the potential for burns (Tr. 55). The employee/nephew was not shown to lack
understanding of the hazards or failed to practice safe handling when mixing the products (Tr. 113­
114). Mr. Heffernan testified that he trained his nephew on the hazardous chemicals and the proper
precautions to avoid exposure. Also, the record shows Heff’s kept copies of all the appropriate
MSDSs at its office in St. Louis, Missouri. Mr. Heffernan knew the products at the jobsite.
Heff’s failure was not having a hazardous communication program in writing and a product
inventory list at the jobsite. The violations of § 1910.1200(e) and § 1910.1200(e)(1) (items 1a and
1b) are reclassified as other than serious.
The violation of § 1926.501(b)(13) (item 3) is properly classified as serious. The employee was
exposed to a fall hazard of 11 feet. He was not protected from the fall hazard by any of the
designated fall protection systems. CO Alston testified to a previous investigation where an employee

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died from falling from a similar height without utilizing fall protection (Tr. 44). The OSHA Area
Director also testified to similar fatality investigations (Tr. 86-88). Also, as discussed, there is no
showing the scaffold would have prevented the employee from falling to the ground if he slipped.
The cross braces against the chimney had been removed to gain access to the chimney (Tr. 66, 107­
108). The testimony indicated the scaffold was not fully braced or planked (Tr. 90). The nephew
was on a steep roof. If he had fallen to the ground, he would likely have been seriously injured or
possibly died.
Penalty Determination
The Commission is the final arbiter of penalties in all contested cases. In determining an
appropriate penalty, the Review Commission is required to consider 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.
Heff’s is entitled to credit for size with only one employee. As owner of a sole proprietorship,
Mr. Heffernan is not considered an employee (Tr. 95). Heff’s is also entitled to credit for history.
According to OHSA, Heff’s has not previously been inspected (Tr. 46, 51, 75). Heff’s is given credit
for good faith based on its basic safety program, although not written. Mr. Heffernan testified the
company has never had an serious injury (Tr. 72, 127). Heff’s only employee is family, the owner’s
nephew.
A grouped penalty of $100.00 is reasonable for other than serious violations of §
1910.1200(e)(1) and § 1910.1200(e)(1)(i) (items 1a and 1b). Although Heff’s failed to have a written
hazard communication program and an inventory list of the hazardous chemicals used on the jobsite,
there is no showing the employee was not trained in the safe handling of the products and did not
understand the hazards associated with the products (Tr. 55). According to Mr. Heffernan, the
employee/nephew was instructed to use a mask when mixing products and not use his hands (Tr. 72).
The employee wore gloves (Tr. 73). Heff’s also has a respirator and glasses to use when mixing
cement (Tr. 114). Mr. Heffernan was readily able to identify the chemicals present on the jobsite and
provide OSHA copies of all relevant MSDSs.
A penalty of $800.00 is reasonable for violation of § 1926.501(b)(13). One employee, the
owner’s nephew, was not utilizing a personal fall arrest system. He was exposed to a fall of 11 feet

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to the ground. A scaffold was installed in the front of the chimney to perform most of the repair
work. The employee’s exposure was estimated to be few minutes (Tr. 22).5 While sitting on the
roof, the employee placed his right foot against the scaffold’s leg for support (Tr. 109). Although
not preventing a fall, the scaffold leg or back rail could stop a fall if the employee was able to grab
it (Tr. 109).
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:
1. Items 1a and Ib of Citation no. 1, alleging serious violations of 29 C.F.R. §
1910.1200(e)(1) and § 1910.1200(e)(1), are affirmed and a grouped penalty of $100.00 is
assessed.
2. Item 2 of Citation no. 1, alleging a serious violation of 29 C.F.R. § 1926.100(a),
was withdrawn by the Secretary.
3. Item 3 of Citation no. 1, alleging a serious violation of § 1926.501(b)(13), is
affirmed and a penalty of $800.00 is assessed.

                                                                    /s/_____________
                                                                   KEN S. WELSCH

Date: January 24, 2011 Judge

      5
      Although the employees’ exposure may have been comparatively brief, it is sufficient to support the

finding of a violation. Walker Towing Corp., 14 BNA OSHC 2072 (No. 87-1359, 1991).

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