James Rutledge d/b/a Rutledge Roofing
Inadequate roof safety monitor draws $2,000 penalty
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This order from 2016 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
Rutledge Roofing used no guardrails, nets, or personal fall-arrest systems while two people installed metal roofing more than eight feet above hard surfaces. The owner claimed he served as a safety monitor, but he performed roofing work, moved between roof levels, and sometimes worked from the ground while the employee remained on the roof. The judge found those other duties prevented continuous monitoring. The serious violation was affirmed, and the proposed $2,400 penalty was reduced to $2,000.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1926.501(b)(10).
- Outcome: The serious low-slope-roof fall-protection item was affirmed with a $2,000 penalty.
- Key point: A safety monitor cannot perform duties or leave positions that prevent continuous observation and warning of the exposed worker.
Full text (OSHRC public release)
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant, OSHRC Docket No. 14-1665
v.
JAMES RUTLEDGE d/b/a RUTLEDGE
ROOFING,
Respondent.
Appearances:
Norman Garcia, Esq., U.S. Department of Labor, Office of the Solicitor, San Francisco,
California
For Complainant
James Rutledge, Owner, James Rutledge d/b/a Rutledge Roofing, Nampa, Idaho
For Respondent
Before: Administrative Law John H. Schumacher
DECISION AND ORDER
I. Procedural History
This proceeding is before the Occupational Safety and Health Review Commission (“the
Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 659(c) (“the Act”). In response to an anonymous complaint that workers were working
on a roof without fall protection, the Occupational Safety and Health Administration (“OSHA”)
conducted an inspection of Respondent’s worksite. The inspection took place on September 3,
2014, at Respondent’s worksite located at 140 Cleveland Boulevard, Nampa, Idaho. (Ex. C-1).
As a result of the inspection, on September 19, 2014, OSHA issued a Citation and Notification of
Penalty (“Citation”) to Respondent, alleging one serious violation with a total proposed penalty
of $2,400.00. The trial took place on Thursday, October 15, 2015 in Boise, Idaho. Both parties
timely submitted post-trial briefs.
II. Stipulations and Jurisdiction
On December 29, 2014, the parties submitted a “Joint Stipulation Statement” to the
Court. The Statement is identified in the record as Complainant’s Exhibit No. 1. (Ex. C-1). In
lieu of reproducing the entire set of stipulations, the Court shall refer to Exhibit No. C-1 as
necessary. As part of those stipulations, the parties agreed that “the Secretary has jurisdiction to
bring this action before the Occupational Safety and Health Review Commission pursuant to
Section 10(c) of the Occupational safety and Health Act (29 U.S.C. § 651 et seq.).” (Ex. C-1 at ¶
1). Presumably, the parties intended to relate that Respondent is an employer “engaged in a
business affecting commerce” within the meaning of section 3(5) of the Occupational Safety and
Health Act of 1970 and that the Occupational Safety and Health Review Commission has
jurisdiction over this matter. The Court so finds. Respondent did not contest jurisdiction and,
based on Commission precedent, is subject to the Act’s coverage because it is involved in
construction. See Clarence M. Jones d/b/a C. Jones Co., 11 BNA OSHC 1529 (No. 77-3676,
1983) (finding that interstate market for construction materials and services places employer’s
business within a “class of activity that as a whole affects commerce” (citing Usery v. Franklin
R. Lacy, 628 F.2d 1226 (9th Cir. 1980)).
III. Factual Background
Three witnesses testified at trial: (1) James Rutledge, owner of Respondent; (2) Jason
Kraft, Compliance Safety and Health Officer (“CSHO”); and (3) David Kearns, OSHA Area
Director for Boise, Idaho.
2
As indicated by the parties’ stipulations and the testimony provided, the facts of this case
are largely undisputed. (Ex. C-1). Complainant received an anonymous complaint indicating
that construction workers were working on a roof without any form of fall protection. (Tr. 37,
67). Complainant responded to the complaint by opening an inspection of Respondent’s
worksite, located at 140 Cleveland Boulevard, Nampa, Idaho. When CSHO Kraft arrived at the
worksite, he recorded video of Mr. Rutledge and Brandon Thompson working on the roof of an
unoccupied Pizza Hut building. (Tr. 19, 35–36; Ex. C-2, C-5). After recording from an adjacent
parking lot, CSHO Kraft approached the worksite and introduced himself to Mr. Rutledge. (Tr.
36).
The roof in question was two-tiered and required a ladder to climb to the first tier and yet
another ladder to climb to the second tier. (Tr. 22–23, 40–42; Ex. C-2, C-5). Neither Rutledge
nor Thompson was wearing personal fall arrest systems, nor was there any indication that fall
protection was being used. (Tr. 39; Ex. C-2, C-5). The eave of the roof measured approximately
8.5 feet above the ground and was surrounded on all sides by concrete, asphalt, and shrubs. (Tr.
43, 50–52; Ex. C-2, C-5). CSHO Kraft also measured the slope of the roof and found that it was
2/12 (also referred to as “2 in 12”), which means that it rises 2 feet vertically for every 12 feet of
length. (Tr. 38). Even though 2/12 is considered a “low-slope” roof, the roof was made of metal,
and CSHO Kraft observed materials slide down the roof during the course of his inspection. 1 (Tr.
45–46; Ex. C-2). The entire roof was less than 50 feet across. 2
During the course of the work observed by CSHO Kraft, Rutledge and Thompson often
worked in fairly close proximity to one another. (Tr. 64–66). However, there were times when
- The anonymous complainant reported that Thompson had repeatedly slipped on the roof. (Tr. 57). Respondent
stipulated that this, in fact, occurred. (Ex. C-1 at ¶ 8). - Although no one explicitly stated “this roof is less than 50 feet”, no one disputed the characterization proffered
by Mr. Rutledge, and CSHO Kraft conceded as much when he agreed that, in this instance, a safety monitoring
system would be sufficient assuming it was properly implemented. (Tr. 64).3Rutledge would have to get off of the roof to gather materials or take a break, during which time
Thompson was on the roof alone. (Tr. 27). Even when they were on the roof together, both
Rutledge and Thompson were engaged in separate (albeit related) work activities. (Tr. 40–42,
46–47; Ex. C-2, C-5). There were also times when Rutledge was working on a different tier of
the roof than Thompson. (Tr. 40, 89–90).
During the course of his testimony, Rutledge stated that he considered himself to be a
safety monitor for the purposes of satisfying the fall protection requirement. (Tr. 30). He based
this opinion on the fact that he had previously been inspected by OSHA in 2011. Rutledge
testified that, during the 2011 inspection, the CSHO (“Fred”) characterized him as a safety
monitor for the purposes of the fall protection standard. (Tr. 30). According to the colloquy
between Mr. Rutledge and counsel for Complainant, it appears that Respondent was cited in
2011 for not protecting exposed holes in a roof. (Tr. 118–19). In addition, Rutledge testified that
the CSHO requested that he construct a line around the perimeter of the roof to indicate that an
employee was 6 feet away from the edge of the roof. (Tr. 121). Ultimately, the 2011 citation was
settled informally as an other-than-serious violation of the Act, and no penalty was issued. (Tr.
119–120).
Based on his observations at Respondent’s worksite, CSHO Kraft recommended that a
single-item, serious citation be issued for Respondent’s failure to have a fall protection system in
place. The Citation was issued on September 19, 2014. Respondent filed a notice of contest and
the case was later designated for Simplified Proceedings on November 14, 2014.
IV. Discussion
As noted above, the basic facts of this case are largely undisputed—Respondent and his
employee were working on a roof that measured approximately 8.5 feet above the ground; the
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roof was metal but was considered “low-slope”; and Respondent did not implement personal fall
arrest systems, guardrail systems, safety net systems, or any combination thereof. The real
dispute in this case is the application of the cited standard to those facts; specifically, whether
Mr. Rutledge was serving as a safety monitor such that other fall protection systems were not
required. Based on the following discussion, the Court finds that Mr. Rutledge was not a safety
monitor, as that term is defined by the Act and relevant case law. Accordingly, the Court finds
that Respondent violated the cited standard.
a. Citation 1, Item 1
Complainant alleged a willful violation of the Act as follows:
29 CFR 1926.501(b)(10): Each employee engaged in roofing activities on low-
slope roofs, with unprotected sides and edges 6 feet (1.8 m) or more above lower
levels, was not protected from falling by guardrail systems, safety net systems,
personal fall arr [sic] 3
(a) On the roof: On September 3, 2014, employees installing a metal roof were
working on a 2/12 pitched roof at heights above 8.5 feet without fall
protection.
The cited standard provides:
Roofing work on Low-slope roofs. Except as otherwise provided in paragraph (b)
of this section, each employee engaged in roofing activities on low-slope roofs,
with unprotected sides and edges 6 feet (1.8 m) or more above lower levels shall
be protected from falling by guardrail systems, safety net systems, personal fall
arrest systems, or a combination of warning line system and guardrail systems,
warning line system and safety net system, or warning line system and personal
fall arrest system, or warning line system and safety monitoring system. Or, on
roofs 50-feet (15.25 m) or less in width (see appendix A to subpart M of this part),
the use of a safety monitoring system alone [i.e. without the warning line system]
is permitted.
29 C.F.R. § 1926.501(b)(10).
- It appears that the text of the standard has been cut and pasted onto the Citation, which resulted in a portion of the
standard’s language being cut off.5To establish a prima facie violation of section 5(a)(2) of the Act, Complainant must
prove: (1) the standard applies to the cited condition; (2) the terms of the standard were violated;
(3) one or more of the employees had access to the cited condition; and (4) the employer knew,
or with the exercise of reasonable diligence could have known, of the violative condition. Ormet
Corp., 14 BNA OSHC 2134 (No. 85-0531, 1991). Elements (1), (3), and (4) are easily satisfied
under this set of facts.
First, Respondent was cited pursuant to 29 C.F.R. 1926.501(b)(10), which requires fall
protection (of the type defined by the standard) when “employee[s] [are] engaged in roofing
activities on low-slope roofs, with unprotected sides and edges 6 feet (1.8 m) or more above
lower levels . . . .” A low-slope roof is defined as “a roof having a slope less than or equal to 4 in
12 (vertical to horizontal).” Id. § 1926.500. The roof in question measured approximately 8.5
feet above the ground and had a slope of 2/12. Thus, the standard applies.
Second, it was clear that Respondent and his employee were exposed to the cited
condition. Both Rutledge and Thompson were observed working on the roof at the time CSHO
Kraft arrived at the worksite, and neither were outfitted with personal fall protection nor were
any other fall protection systems in place. 4 In that respect, Respondent had direct knowledge of
the condition, as Rutledge was performing work on the roof alongside Thompson. (Tr. 65–66;
Ex. C-2, C-5).
Finally, with respect to element (2), Respondent offers two primary reasons as to why he
did not violate the standard: (a) the chimney stack on the roof would prevent Thompson from
falling off the roof, thereby serving as de facto fall protection; and (b) he (Rutledge) was serving
as safety monitor. The Court rejects these arguments.
- See infra for further discussion regarding the failure to institute fall protection.
6Although it is hypothetically possible that a fall could be prevented by the chimney stack,
that does not constitute “fall protection” as defined by the cited standard. The cited standard lists
the acceptable forms of fall protection on low-slope roofs, and § 1926.502 indicates what is
required for the implementation of a particular fall protection regime. Neither the cited standard
nor the standard that defines specific requirements for fall protection indicate that reliance on
existing structural implements, such as a chimney stack, are acceptable. See 29 C.F.R. §§
1926.501(h)(10), 1926.502. Further, the chimney stack only prevented falling to the ground in a
very limited area of the roof. (Tr. 72; Ex. C-4). To the extent that work was performed outside
of the “catch” radius of the chimney, it could not provide adequate protection against falls.
With respect to Respondent’s argument that § 1926.501(h)(10) merely requires a safety
monitor, the Court notes that § 1926.501 states that “[a]ll fall protection required by this section
shall conform to the criteria set forth in § 1926.502 of this subpart.” 29 C.F.R. § 1926.501(a).
Safety monitoring systems, as referenced in § 1926.501(b)(1)(10), require the employer to
appoint a competent person to serve as safety monitor, who, in turn, must meet the following
criteria:
(i) The safety monitor shall be competent to recognize fall hazards;
(ii) The safety monitor shall warn the employee when it appears that the
employee is unaware of a fall hazard or is acting in an unsafe manner;
(iii) The safety monitor shall be on the same walking/working surface and
within visual sighting distance of the employee being monitored;
(iv) The safety monitor shall be close enough to communicate orally with
the employee; and
(v) The safety monitor shall not have other responsibilities which could
take the monitor’s attention from the monitoring function.
29 C.F.R. § 1926.502(h)(1) (emphasis added).
In one respect, Respondent is correct. The roof in question is both low-sloped and less
than 50 feet in width. As such, “the use of a safety monitoring system alone [i.e. without the
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warning line system] is permitted.” Id. § 1926.501(h)(10). 5 In order for a safety monitoring
system to be sufficient, however, Respondent must comply with the requirements of 29 C.F.R. §
1926.502(h)(1). “The Commission has found that when the Secretary demonstrates a monitor
has his back to other roofers, leaves employees to perform other duties, or is focused on other
non-monitoring activities in lieu of monitoring activities, the monitor is unable to monitor
effectively and an employer violates the monitoring standard.” Latite Roofing & Sheet Metal
LLC, the Successor to Latite Roofing & Sheet Metal Co., Inc., 23 BNA OSHC 1368 (No. 09-
1074, 2010) (ALJ Phillips) (citing Holland Roofing of Columbus, Inc., 19 BNA OSHC at 2127
(finding a violation of the standard when the monitor had his back turned to other roofers for
several minutes); Upstate Roofing, Inc., 19 BNA OSHC 2084 (No. 01-0336, 2002) (finding that
a safety monitor who turned his back on employees and focused on retrieving roofing insulation
had responsibilities that took his attention away from monitoring)). It should be noted, however,
that safety monitors are permitted to have other job duties so long as they do not impede the
monitoring function. See Beta Constr. Co., 16 BNA OSHC 1435, 1444 (citing 45 Fed. Reg.
75,618, 75,621 (1980)).
By his own admission, Rutledge occasionally performed work on a different level from
Thompson, including times when he had to retrieve tools or materials from ground level, take a
break, or even guide work from the ground. (Tr. 20, 25–27). As shown in the video exhibits
presented to the Court, even when Thompson and Rutledge were on the same level, there were
multiple occasions during the inspection wherein Rutledge was “focused on doing roofing work,
cutting the pieces and maneuvering them into place” but not monitoring Thompson. (Tr. 44–48;
Exs. C-2). See Beta Constr. Co., 16 BNA OSHC 1435 (finding employer’s practice, under which
- This distinction might also explain why the CSHO in the 2011 inspection had Respondent install a warning line.
8one employee moves backwards toward the edge of the roof while his monitor is engaged in
smoothing out the roofing material, does not comply with the standard because it allows the
monitor to be distracted). In fact, according to CSHO Kraft, during those periods of time “Mr.
Rutledge was distracted, he [couldn’t] perceive that Mr. Thompson [was] in danger, and whether
or not there’s environmental issues that come up or if he needed to warn him.” (Tr. 46).
In Beta Construction, the Commission held that the facts of that case demonstrated “the
monitor’s ability to issue the required warning depends on a fortuity that he will be looking up at
the other employee at the requisite times.” Id. In other words, the monitor’s other job duties so
impeded his monitoring function that it was only by dint of luck that he would be looking in the
right direction at the right time. This is not an adequate method of fall protection. The Court
finds that is also the case in the matter at bar. The video evidence shows that there were times
that Rutledge was not capable of monitoring Thompson, because he was fully engaged in cutting
metal to be installed on the roof. (Ex. C-2). By his own admission, there was at least one time
when Rutledge worked from the ground while directing Thompson to adjust a piece of metal that
was being installed on the roof, which is also contrary to the requirements of a safety monitoring
system. (Tr. 20–21). See 29 C.F.R. § 1926.502(h)(1)(iii).
Supplementing the foregoing, the Court would also note that the conditions on the roof
were slippery. The video exhibits illustrate tools and material sliding down the metal roof, and
Respondent stipulated to the fact that Thompson had slipped “several times, but did not fall,
while performing roofing activities . . . .” (Ex. C-1 at ¶ 8). 6 Given those conditions, the facts
described above, and in consideration of the fact that it was windy that day, the Court finds that
- Respondent attempted to dispute the fact that Thompson was slipping on the roof based on the fact that there is
no video or photographic record of him slipping. However, Respondent stipulated to the fact that Thompson had
slipped at some point during the roofing project. Further, even if the Court were to assume that Respondent did not
fully appreciate or understand the stipulation, determining whether Thompson slipped while performing his roofing
duties is not necessary for determining whether a violation occurred in this case.9Respondent’s safety monitoring system was inadequate. Whether he was on the ground directing
work or on the roof but otherwise engaged in other duties, Rutledge did not fulfill his obligations
as a safety monitor. See 29 C.F.R. § 1926.502(h)(1)(iii) (monitor shall be on same working
surface as employee being monitored); id. § 1926.502(h)(1)(v) (monitor shall not have other
responsibilities which could take the monitor’s attention from the monitoring function).
Accordingly, the Court finds that Complainant has proved its prima facie case and that
Respondent violated the standard.
The Court also finds that the violation was serious. A violation is “serious” if there was a
substantial probability that death or serious physical harm could have resulted from the violative
condition. 29 U.S.C. § 666(k). Complainant need not show that there was a substantial
probability that an accident would occur; he need only show that if an accident occurred, serious
physical harm could result. Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237, 1240 (9th Cir.
1984). If the possible injury addressed by a regulation is death or serious physical harm, a
violation of the regulation is serious. Mosser Construction, 23 BNA OSHC 1044 (No. 08-0631,
2010); Dec-Tam Corp., 15 BNA OSHC 2072 (No. 88-0523, 1993).
Respondent requests that the violation be characterized as de minimis and that no penalty
be issued. According to the Commission, “[C]ertain violations of the Act are de minimis because
the hazards presented are too trifling to warrant the imposition of an abatement requirement or
the assessment of a penalty.” Southwestern Electric Power Co., 8 BNA OSHC 1974 (No. 77-
3391 et al.) (citations omitted); see also General Elec. Co., 3 BNA OSHC 1031 (No. 2739,
1975) (holding de minimis violation can be found “where there is a direct relationship to safety
and health, but that relationship is so remote as to be nearly negligible”). In this case, the hazard
presented is neither trifling nor is its relationship to safety and health negligible. Instead,
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Respondent’s employees were exposed to a fall of more than 8 feet onto concrete, asphalt, and
impalement hazards.
See Kulka Constr. Mgmt. Corp., 15 BNA OSHC 1970 (No. 88-1167, 1992) (finding that
the possibility of a fall of up to 8 feet onto concrete was sufficient to establish that the violation
was serious in nature). CSHO Kraft credibly testified that serious physical harm, including
broken bones, concussion, and possibly hospitalization could result from a fall from the Pizza
Hut roof. (Tr. 50–51). Based on the foregoing, the Court finds that the violation was serious.
Accordingly, Citation 1, Item 1 shall be AFFIRMED as a serious violation of the Act.
V. Penalty
In determining the appropriate penalty for affirmed violations, section 17(j) of the Act
requires the Commission to give due consideration to four criteria: (1) the size of the employer’s
business, (2) the gravity of the violation, (3) the good faith of the employer, and (4) the
employer’s prior history of violations. 29 U.S.C. § 666(j). Gravity is the primary consideration
and is determined by the number of employees exposed, the duration of the exposure, the
precautions taken against injury, and the likelihood of an actual injury. J.A. Jones Constr. Co.,
15 BNA OSHC 2201, 2214 (No. 87-2059, 1993). It is well established that the Commission and
its judges conduct de novo penalty determinations and have full discretion to assess penalties
based on the facts of each case and the applicable statutory criteria. E.g., Allied Structural Steel
Co., 2 BNA OSHC 1457, 1458 (No. 1681, 1975); Valdak Corp., 17 BNA OSHC 1135, 1138
(No. 93-0239, 1995), aff’d, 73 F.3d 1466 (8th Cir. 1995).
Complainant proposed a penalty of $2,400 for this violation. As noted above, Kraft
determined that there was a potential for broken bones and concussions, which led him to
characterize the violation as being moderately severe; however, due to the fact that Thompson
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was observed slipping on the roof, and due to the wind that day, Kraft determined that there was
a greater probability of an accident. (Tr. 54–55). Complainant reduced the initial penalty by 60%
due to the fact that Respondent was a small employer; however, he did not apply any additional
reductions for good faith or history.
The Court generally agrees with Complainant’s assessment of the violation—a fall from
this roof exposed Respondent’s employees to serious injuries. Further, given the condition of the
roof, the presence of wind that day, and the fact that Thompson had been observed slipping on
the roof, the Court also finds that the probability of an accident was significant. The Court is
confused, however, as to why Respondent was not given credit for its violation history. The
parties stipulated that Respondent received a citation in 2011 because his employees were not
protected from tripping or stepping into or through holes in the surface of a roof deck. (Ex. C-1
at ¶ 13). According to Rutledge’s testimony, that citation was eventually settled and
characterized as de minimis. (Tr. 104). Although there was some confusion regarding whether
the citation was characterized as de minimis or as other-than-serious, there was no evidence to
indicate that the violation was characterized as serious or otherwise had a penalty associated with
it. (Tr. 119–20). That being the case, Complainant appears to have disregarded its own Field
Operations Manual, which states, “A reduction of 10 percent shall be given to employees who
have been inspected by OSHA nationwide, or by any State Plan State and the employers were
found to be in compliance or were not issued serious violations in the previous five years.” Field
Operations Manual, Directive No. CPL 02-00-159 at 6-7 (October 1, 2015). The inspection in
this case occurred in 2014, or three years after the 2011 inspection, which is well within the five-
year timeframe provided in the FOM. As such, pursuant to its own directive, Complainant
should have applied a reduction for Respondent’s violation history.
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Based on the foregoing, the Court finds that a penalty of $2,000.00 is appropriate.
ORDER
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. Based upon the foregoing
Findings of Fact and Conclusions of Law, it is ORDERED that:
1. Citation 1, Item 1 is hereby AFFIRMED as a serious violation of the Act, and a
$2,000.00 penalty is ASSESSED.
SO ORDERED
/s/
John H. Schumacher
Judge, OSHRC
Date: May 27, 2016
Denver, Colorado
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