Stevers Roof Side Remodel, LTD

Plain-English summary

Stevers Roof Side Remodel used temporary workers to reroof a two-story Ohio home with a steep roof and an 11-foot eave height. OSHA observed three workers on the roof without attaching the available personal fall arrest systems. The company argued that the workers were on break, but the judge held that breaks and normal roof egress are personal-comfort activities within the fall-hazard zone and still require protection. The workers were Roof Side employees because the company hired and paid them, supplied the equipment, controlled the worksite, and had authority over their work. A 2008 final citation for the same residential fall-protection standard made the violation repeat. The judge affirmed the citation and assessed a $2,000 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(13)
• Outcome: The repeat residential fall-protection citation was affirmed with a $2,000 penalty.
• Key point: Workers who remain exposed on a roof must use fall protection during breaks and while moving to the normal exit route.

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. 13-0039
Stevers Roof Side Remodel, LTD,

    Respondent.

Appearances: Wayne P. Marta, Esq., U. S. Department of Labor, Office of the Solicitor, Cleveland, Ohio
For Complainant

            Thomas O. Stevers, Owner, Pro Se, Mobile, Alabama
            For Respondent

Before: Administrative Law Judge Ken S. Welsch

                                   DECISION AND ORDER
    Stevers Roof Side Remodel, LTD (Roof Side) is a small residential and light commercial

roofing company in northwestern Ohio. On November 14, 2012, pursuant to a complaint, a
compliance officer (CO) with the Occupational Safety and Health Administration (OSHA)
conducted an inspection of Roof Side’s re-roofing work on a single family home in Northwood,
Ohio. As a result of the OSHA inspection, Roof Side received a repeat citation on December 4,
2012. Roof Side timely contested the citation.
The repeat citation alleges that Roof Side violated 29 C.F.R. § 1926.501(b)(13) because
three workers on the roof were exposed to a fall hazard of approximately 11 feet without using
the available personal fall arrest systems. The citation was classified as a repeat violation based
on a serious citation received by Roof Side on May 5, 2008, alleging, among other violations, a
violation of 29 C.F.R. § 1926.501(b)(13) (item 2). The 2008 citation was resolved by an
informal settlement agreement with OSHA on July 15, 2008, which became a final order of the
Commission. A penalty of $3,520.00 is proposed for the repeat citation.
The hearing in this case was held on July 9, 2012, in Toledo, Ohio. Roof Side was
represented pro se by its owner, Mr. Thomas Stevers. The Secretary filed a post-hearing brief on
August 23, 2013. Roof Side’s post-hearing statement of position was received on September 4,
2013. 1
Roof Side disputes that it is an employer engaged in a business affecting commerce.
Roof Side argues that its temporary workers were on break and not engaged in roofing activities
at the time of the OSHA inspection. It also claims that the OSHA inspection was unreasonable
because it was the result of a competitor’s complaint against small roofing companies (Tr. 6,
13-16).
For the reasons discussed, Roof Side’s arguments are rejected. Roof Side’s repeat
violation of § 1926.501(b)(13) is affirmed and a penalty of $2,000.00 is assessed
The Inspection
Roof Side is a small residential and light commercial roofing company. In business since
1994, Roof Side’s office is in Maumee, Ohio. Mr. Stevers is Roof Side’s owner and only full-
time employee. Roof Side hires temporary workers to perform the roofing work after projects
are acquired (Tr. 137-138).
In November 2012, Roof Side was verbally contracted by another roofing company to re-
roof a single family home in Northwood, Ohio. The roofing job required removing three layers
of old roofing shingles and replacing them with new shingles and flashing. The home was
described as a two-story farmhouse with converging roofs (Tr. 94, 138-139, 143, 166). The
slope or pitch of the roof was 10 in 12 (Tr. 92). The roof’s eave was approximately 11 feet
above the ground (Exh. C-3; Tr. 28-29). To perform the roofing work, Roof Side hired two
journeymen roofers and a grounds man who had worked for Roof Side on various projects
during the preceding five years. Mr. Stevers was present during the roofing work and assisted
the roofers with tools and materials. The roofing project took three to five days to complete
(Tr. 117, 139).
On November 14, 2012, after the OSHA office received a complaint regarding the lack of
fall protection at a roofing job in Northwood, Ohio, a CO was assigned to conduct the inspection
pursuant to an OSHA local emphasis program on fall hazards (Tr. 20). When the CO arrived at
the project at approximately 2:20 p.m., he observed three workers sitting on the roof at the peak
(Exh. C-1; Tr. 25, 86). The workers were not observed removing or installing roofing shingles

1
Although filed late, the court considered Roof Side’s statement of position of two pages in this Decision. The
company representative is not an attorney and is probably not aware of the strict adherence to a filing deadline.
Also, the arguments raised were the same as he raised during the hearing.
and appeared to be on a break (Tr. 93, 100). The worker sitting next to the chimney appeared to
be removing grit from between the bricks (Tr. 78, 110). The three workers were not attached to
personal fall arrest systems or otherwise protected from a fall hazard. Ropes suitable for
personal fall arrest systems were seen on the roof in another location but, at the time of the
inspection, were not attached to the workers (Exh. C-6; Tr. 80). The CO also observed two
ladders with a pick board across them and slide guards on the roof (Tr. 91-92). The CO never
observed the workers using the fall protection equipment even when exiting the roof (Tr. 34, 97).
When the CO entered the property, he asked to speak to the “foreman.” The worker, who
worked as the grounds man, identified himself as the foreman, exited the roof, and explained that
Mr. Stevers had just left the project to purchase supplies (Tr. 30, 134, 141). The worker then
telephoned Mr. Stevers. After immediately returning to the project, Mr. Stevers was very upset
because of another OSHA inspection and refused to answer the CO’s questions. He also
prevented the CO from speaking with the workers or taking measurements (Tr. 29, 40, 41-42,
177-178). The CO terminated the inspection and left the project. The OSHA inspection lasted
approximately 15 minutes (Tr. 86).
Based on the photographs and the CO’s observation made during the inspection, the
repeat citation was issued to Roof Side on December 4, 2012.
Discussion
Roof Side was unable to stipulate that it is a covered employer under § 3(5) of the
Occupational Safety and Health Act, 29 U. S.C § 652(5) (Act).
Roof Side was an Employer Engaged in Commerce
Section 3(5) of the Act defines a covered employer as a person engaged in a business
affecting commerce who has employees. The Act defines a “person” to include individuals,
partnerships, associations, corporations and other entities. “Commerce” is defined as trade,
traffic, commerce, transportation, or communications among the several States or between a
State and any place outside thereof. 29 U.S.C. § 652(3) and (4).
Roof Side is a corporation with limited liability and, as a residential roofing contractor, is
an employer engaged in business affecting commerce. Residential roofing activities are the type
of work that was intended to be covered by the Act. Clarence M. Jones d/b/a C. Jones Co., 11
BNA OSHC 1529 (No. 77-3676, 1983) (construction work is within the class of activities
Congress intended to regulate and thus an employer engaged in construction activities is in a
business affecting commerce).
The record shows that at the time of the OSHA inspection, Roof Side owned a 2004 Ford
F-150 truck to transport the workers and materials to the Northwood project (Exh. C-2; Tr. 27,
121, 159). The truck with Roof Side’s name and telephone number printed on the doors was
parked at the site next to piles of old roofing shingles and flashing. According to the internet, the
F-150 trucks are assembled in plants in Michigan and Missouri and sold through local
dealerships.
Also, Roof Side’s business uses roofing shingles and roofing nails. The shingles on the
Northwood project were manufactured by Owens Corning Corporation, outside the State of Ohio
(Tr. 162). In its advertising, Roof Side identifies itself as a preferred contractor for Owens
Corning Corporation (Exh. C-14). Mr. Stevers agrees that Owens Corning shingles were likely
manufactured outside the State of Ohio and shipped through interstate commerce to building
supply houses in the Toledo area where Roof Side purchases them (Tr. 162-163).
In a letter to OSHA, Mr. Stevers claims that “We are members of the Better Business
Bureau and carry an A-plus rating” (Exh. C-12; 160). Roof Side pays $300 a year for the Better
Business Bureau listing (Exh. C-13; Tr. 161).
Based on the nature of its business, its use of materials and products which are produced
outside the State of Ohio and its advertising through the internet, the record establishes that Roof
Side is in a business affecting commerce within the Act.
Roof Side’s Temporary Workers were Employees
Section 3(6) of the Act defines an employee as “an employee of an employer who is
employed in a business of his employer which affects commerce.” 29 U.S.C. § 652(6). Mr.
Stevers is Roof Side’s only full-time employee.
After obtaining roofing projects, Roof Side hires temporary workers to perform the
roofing work. Although temporary, the workers hired for the projects are nevertheless
considered employees of Roof Side within the meaning of the Act.
For the Northwood project, Mr. Stevers hired and supervised four temporary workers.
The workers had worked on previous projects for Roof Side for several years (Tr. 141-142). The
workers were paid by the hour. While Mr. Stevers did not micromanage their work by telling
them how to perform the specific roofing tasks, he did direct the location of where they were to
work, the time to work, and the overall objectives to be accomplished. Mr. Stevers supervised
the workers in that he obtained the work and was generally present on the project to ensure the
work was performed in accordance with the owner’s requirements (Tr. 115, 117, 169). Mr.
Stevers monitored the workers’ daily progress to assure it was done safely and on schedule
(Tr. 167-170). Mr. Stevers’ control over the Northwood project even went so far as to prevent
the CO from speaking to the workers (Tr. 177). The truck and equipment located on the project
were the property of Roof Side and had been furnished to the workers for their use. The property
provided by Roof Side included personal arrest systems, ladders, pick boards, and slide guards
(Exhs. C-3, C-6). He paid the workers an hourly rate and provided them the appropriate safety
equipment and materials (Tr. 131, 143-144, 156).
The workers were not independent contractors. They did not have a contract with Roof
Side and there is no evidence that the workers operated their own roofing businesses (Tr. 118).
One worker had worked for Roof Side off and on for seven years (Tr. 119). The other workers
had worked off and on four or five years for Roof Side (Tr. 142). Because the workers were
experienced roofers, Mr. Stevers did not direct their method of performing the roofing work
(Tr. 141). However, he had the authority to hire and fire the workers, set their hours of work,
and direct their work on the project. Roof Side, through Mr. Stevers, controlled the work site.
Vergona Crane Co., 15 BNA OSHC 1782 (No. 88-1745, 1992). During the OSHA inspection,
Mr. Stevers never claimed that the workers were independent contractors or assert that they were
not employees of Roof Side (Tr. 42). Mr. Stevers hired the workers for the project and previous
jobs, set the duration of their relationship with Roof Side, and how they were paid.
The worker who identified himself as the foreman when the CO arrived, referred to Mr.
Stevers as his “boss” and had worked for Roof Side on and off for about seven years (Tr. 115,
119). In 2012, he had worked on six projects for Roof Side (Tr. 119). Other than some private
work, the worker only performed roof work for Roof Side (Tr. 120).
Roof Side’s temporary workers on site were employees within the meaning of the Act.
The workers were performing a residential roofing work which is the business engaged in by
Roof Side since 1994.
 REPEAT CITATION
The Secretary has the burden of proof.
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)(13)
The citation alleges that “[O]n or about November 14, 2012, at the location of 4630
Curtis Rd. in Northwood, OH: the employer did not assure employees were protected from fall
hazards while performing work on a residential roof. The employees were exposed to
approximately an 11 foot fall to the ground below.”
Section 1926.501(b)(13) provides:
Residential construction. 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 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.

   Roof Side has not claimed, nor does the record show, that the use of personal fall arrest

systems on the Northwood project were infeasible or a greater hazard. On the contrary, Roof
Side made available to the workers the use of ropes and harnesses suitable for personal fall arrest
systems. The ropes and harnesses were on the roof and according to Mr. Stevers used when the
workers were engaged in roofing activities (Tr. 153).
 1. Application of § 1926.501(b)(13).
There is no dispute that the fall protection standard for residential construction at
§ 1926.501(b)(13) was applicable to the Roof Side’s Northwood project. The project involved
re-roofing work on a two-story single family home. The roof’s eave was 11 feet above the
ground. Roof Side used personal fall arrest systems to protect workers from the fall hazards
(Tr. 29, 41, 79, 102, 122). Section 1926.501(b)(13) is deemed applicable to Roof Side’s roofing
work.
2. Roof Side Did Not Comply with the Terms of § 1926.501(b)(13).
The workers were engaged in residential roofing activities. They were responsible for
removing three levels of old shingles and replacing them with new shingles. At the time of the
OSHA inspection, the three workers were on the roof without attaching the personal fall arrest
systems. The workers were seated and then stood and exited the roof without using the personal
fall arrest systems. The ropes for the system were located in another area on the roof. Also, it is
undisputed that there were no guardrails, safety nets, or other fall protection systems in place on
the roof. The terms of § 1926.501(b)(13) were not complied with by Roof Side.
3. The Workers were Exposed to Fall Hazards.
Mr. Stevers argues that the workers needed fall protection only while working on the roof
but not during rest periods (Tr. 153). A worker testified that fall protection was worn while they
were shingling the roof but were taken off during breaks (Tr. 100, 125-126). Roof Side’s
argument that fall protection was not required because the workers were on break is rejected.
In order to establish employee exposure to a hazard, the Secretary must show that “it is
reasonably predictable either by operational necessity or otherwise (including inadvertence), that
employees have been, are, or will be in the zone of danger.” Fabricated Metal Products, Inc.,
18 BNA OSHC 1072, 1074 (No. 93-1853, 1997). Employees are considered in the “zone of
danger” either during their assigned working duties, their personal comfort activities while on the
jobsite, or their movement along normal routes of ingress to or egress from their assigned
workplaces. Kaspar Electroplating Corp., 16 BNA OSHC 1517 (No. 90-2866, 1993). Even a
brief exposure to a hazardous condition such as break of 10 minutes does not negate the violation
or its seriousness. Flint Engineering & Construction Co., 15 BNA OSHC 2052, 2056
(No. 90-2873, 1992).
 In this case, the Secretary has established employees’ exposure. First, the CO observed a
worker sitting next to the chimney working on the chimney (Tr. 37). Another worker testified
that the worker was removing grit from the bricks (Tr. 110). Second, the other two workers on
break are also considered exposed employees. They were in the same zone of danger and
exposed to the same fall hazards as if engaged in roofing work (Tr. 38). It is not the activity
being performed but the workers’ exposure to the fall hazard that requires fall protection. An
employer must require employees to use fall protection even if on a break or having lunch if the
employees are exposed to a fall hazard. Taking a break on the roof is a personal comfort activity
that kept the workers within the zone of danger posed by the roof’s steep pitch (10 in 12) and
elevation (11 feet) above the ground. Also, the workers stood and walked to the ladder without
using fall protection which was their normal means of egress from the roof. The workers
remained exposed to fall hazard of at least 11 feet.
During their break period and egress from the roof, the workers were exposed to fall
hazards. Roof Side remained responsible to ensure fall protection was used by the workers.
4. Roof Side Knew of the Unsafe Condition.
In order to show employer knowledge of a violative condition, the Secretary must show
that the employer knew, or with the exercise of reasonable diligence could have known, of the
hazardous condition. Dun Par Engd Form Co., 12 BNA OSHC 1962, 1965-66 (No. 82-928,
1986). An employer who lacks actual knowledge can nevertheless have constructive knowledge
of the condition if the employer fails to exercise reasonable diligence to anticipate and detect the
particular hazards to which its employees may be exposed during the course of their scheduled
work. Pride Oil Well Serv., 15 BNA OSHC 1809, 1814 (No. 87-692, 1992).
Mr. Stevers testified that he knew the workers were performing roofing work and needed
fall protection. He testified that Roof Side required workers to use fall protection on the roof
only while removing or installing the roofing shingles. It did not require them to use fall
protection during breaks or other non-working periods even if the workers remained on the roof
(Tr. 153). Based on this policy, it was reasonably predictable that the workers during breaks
would remain in the zone of danger without fall protection. Roof Side knew, or should have
known, that the workers were exposed to fall hazards without using the personal fall arrests
systems or other means of fall protection. Roof Side, through Mr. Stevers, had constructive
knowledge of the workers’ lack of fall protection during breaks. The record establishes Roof
Side’s knowledge of the unsafe condition.
Roof Side’s violation of § 1926.501(b)(13) is established.
Repeat Classification
A violation is repeated under § 17(a) of the Act if, at the time of the alleged repeated
violation, there was a Commission final order against the same employer for a substantially
similar violation. Potlatch Corp., 7 BNA OSHC 1061, 1063 (No. 16183, 1979).
OSHA classified Roof Side’s violation of § 1926.501(b)(13) as a repeat violation. The
record shows that Roof Side was cited for a similar violation of § 1926.501(b)(13) while working
at a church on April 8, 2008, in Toledo, Ohio. As a result of the inspection, a serious citation
was issued to Roof Side on May 5, 2008, which included an alleged violation of
§ 1926.501(b)(13) (item 2) for failing to ensure “employees were protected from falls while
performing roofing activities” (Exh. C-7; Tr. 44, 173). Roof Side resolved the serious citation by
entering into an informal settlement agreement with OSHA on July 19, 2008. The settlement
agreement affirmed the cited violations including item 2 and only reduced the proposed
penalties. The penalty for item 2 was reduced from $2,100.00 to $850.00 (Exh. C-8). As part of
the settlement agreement, Roof Side agreed not to contest the serious citation. The 2008 citation
became a final order pursuant to § 10 of the Act.
Based on the 2008 citation for a similar violation of § 1926.501(b)(13), Roof Side’s
citation on December 4, 2012, in this case was properly classified as repeat.
Penalty Consideration
The Commission is the final arbiter of penalties in contested cases. In determining an
appropriate penalty for Roof Side’s repeat violation of § 1926.501(b)(13), the Commission is
required under the Act 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.
Roof Side is a small employer with one full-time employee and is entitled to credit for
size. There were three temporary workers on site during the OSHA inspection (Tr. 88). Roof
Side is not entitled to credit for history because of the 2008 citation for the same violation. Roof
Side is entitled to credit for good faith. Since the 2008 citation, Roof Side has purchased
appropriate fall protection equipment for workers’ use and requires their use when engaged in
roofing activities. It has spent “thousands of dollars on safety equipment” such as harnesses,
ropes and ladders (Tr. 102). Roof Side has also attempted to institute a safety program including
some worker safety training and safety meetings (Exh. R-1; Tr. 101-102, 146). Mr. Stevers
testified that Roof Side has not had a worker injury since 2004 when a worker using a grinder to
clean around a chimney received six stitches (Tr. 148).
A penalty of $2,000.00 is reasonable for Roof Side’s repeat violation of
§ 1926.501(b)(13). Three workers were exposed to a fall hazard of 11 feet for less than 15
minutes while they were on break on the roof. It was a steep roof with a slope of 10 in 12. Roof
Side provided horizontal toeboards (slide guards), ladders and pick scaffold, and personal fall
arrest equipment for use by the workers. The CO does not believe Roof Side disregarded OSHA
compliance (Tr. 84). However, it is noted that Roof Side has not paid the agreed reduced
penalties from the 2008 informal settlement agreement (Exhs. C-9, C-10; Tr. 52).
While the court is sympathetic to Roof Side’s concern about competitor complaints, the
fact is an unsafe condition which needed to be abated was observed by the CO on the Northwood
project (Exh. C-12; Tr. 150). The complaint received by OSHA was verified. There is no
evidence of an unreasonable inspection or harassment by OSHA. The CO testified that when he
received the assignment from his supervisor, he did not know who made the complaint (Tr. 71).
He was assigned the inspection along with another inspection. The OSHA inspection was
conducted pursuant to a local emphasis program on fall hazards which the Toledo OSHA office
was required to follow. The emphasis program recognizes that construction jobs such as the
Northwood project are transient and of limited duration. See OSHA Directive Number CPL
04-00, Fall Hazards in Construction (October 1, 2012).
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
Citation No. 1, item 1, an alleged repeat violation of § 1926.501(b)(13), is affirmed and a
penalty of $2,000.00 is assessed.
SO ORDERED.

                                                      /s/ Ken S. Welsch
                                                KEN S. WELSCH
                                                Judge

Dated: September 20, 2013
Atlanta, Georgia