Bergelectric Corp.

Plain-English summary

Bergelectric employees installed photovoltaic panels on a hangar roof using warning lines and a safety monitor instead of guardrails, safety nets, or personal fall arrest systems. The judge found that installing solar panels was not roofing work under the standard, so Bergelectric could not use the warning-line and safety-monitor alternative available for specified low-slope roofing work. Employees working near the roof edge were therefore exposed to falls of 17 feet or more without an authorized form of protection. The serious fall-protection item was affirmed. Two sub-items addressing the warning line and safety monitor were vacated because those criteria did not apply to Bergelectric's work and duplicated the primary fall-protection obligation. The judge credited Bergelectric's good-faith attempt to comply and its prompt corrections, and assessed a $3,000 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(1); 29 C.F.R. § 1926.502(f)(2)(ii); 29 C.F.R. § 1926.502(h)(1)(v)
• Outcome: Serious fall-protection item affirmed with a $3,000 penalty; two warning-line and safety-monitor sub-items vacated.
• Key point: A contractor installing photovoltaic panels is not performing roofing work and cannot rely on the warning-line and safety-monitor exception for low-slope roofing activities.

Full text (OSHRC public release)


Document

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR ,

Complainan t,

v.

BERGELECTRIC CORP. ,

Respondent.

OSHRC Docket No .
16-0728

Appearances:

Nancy Steffan, Esq. & Luis A. Garcia , Department of Labor, Office of Solicitor,
Los Angeles, California

For Complainant

Robert Peterson, Esq., Robert D. Peterson Law Corporation, Rocklin, California

F or Respondent   

Be fore: Administrativ e Law Judge
Peggy S. Ball

DECISION AND ORDER

I. Procedural History

This proceeding is before the Occupational Safety and Health Review Commission (“the Commission”)
pursuant to
s ection 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §
659(c) (“the Act”).
Beginni n g on
February 24, 2016 ,
Compliance Safety and Health Officer
(“CSHO”)
Eric Christensen
conducted a two-day
inspection of the Hangar 5 renovation project, located at Marine Corps Air Station Miramar (“MCAS Miramar”) in San Diego, California .
(Tr.
25–26 ). Respondent
had been
hired to install photovoltaic
panels
on the roof of Hangar
5 . (Tr.
26–27 ; Ex.
C-15 ). Due to the scope of the project and the number
of
contractors involved , CSHO Christensen
did not open an inspection of Respondent until
his
second
day
at the worksite ,
February 25, 2016. (Tr.
27 ).

During his inspection of Respondent, CSHO Christensen observed
Respondent’s employees working on the hangar roof without safety nets, personal fall arrest systems (PFAS), or guardrails. Instead, Respondent informed CSHO Christensen that they were relying on the combination of a 6-foot warning line and a safety monitor in order to comply with its fall protection obligations. (Tr.
42–43 ; Ex.
C-8, C-14, C-15 ). Based on his observations and additional research, CSHO Christensen determined that Respondent had committed
multiple violations of the fall protection standards found in Subpart M of the Act. Based on
CSHO
Christensen’s
findings , Complainant issued
a
Citation and Notification of Pena lty
(“Citation”)
to Respond ent ,
alleging
three
serious
violation s
of the Act,
with
a
total
proposed penalty
of $ 4,500 .00 .
Respondent
timely conte sted the
Citation .

The
trial took place on
October 13, 2016 .
The
following witnesses testified: (1)
CSHO Eric Christensen; (2) Calvin King, Respondent’s Safety Manager; (3) John Hernandez,
Respondent’ s crew supervisor ; and (4) Minh (Mike) Phung, a
subordinate
employee of Respondent.
Both parties timely submitted post-trial briefs .

II. Stipulations

On October
5, 2016, the parties submitted an
Amended Joint Stipulation Statement , which included agreements on a number of basic jurisdictional and violation-related facts. In lieu of reproducing all twenty-one stipulations in their entirety, the Court shall refer to individual stipulations as necessary, and in the following form: (“Stip. No. __”).

III. Jurisdiction

T he parties ’
Amended Joint Stipulation Statement
acknowledges
Respondent is
an employer engaged in
a
business affecting
commerce within the meaning of S ection 3(5) of the
Act
and the
Occupational Safety and Health Review Commission has jurisdiction
of this proceeding
pursuant to
Section 10(c) of the Act .
( Stip. Nos. 1 & 2 ).

IV. Factual Background

The basic facts of this case are largely undisputed.
On the morning of February 25, 2016, Respondent’s employees were installing photovoltaic
panels
on the upper roof of Hangar 5. (Tr.
26–27 ; Ex.
C-15 ). In order to access the upper roof, Respondent’s employees climbed a fixed ladder to the lower roof, walked across a portion of the lower roof, and then climbed another fixed ladder to the upper roof. (Stip. No. 10). The lower roof was approximately 43 feet above the ground level, and the upper roof was an additional 17 feet above the lower roof. (Stip. Nos. 11 & 12).

CSHO Christensen began his inspection by conducting an opening conference with Brian Andreasen, Respondent’s site foreman. (Tr. 28). During the opening conference, CSHO Christensen had Andreasen fill out a worksheet with basic company information and the nature of the work occurring at the worksite. (Tr. 29). From there, CSHO Christensen and Andreasen traveled up the
first fixed ladder to access the lower roof. (Tr. 33). When they arrived on the first level, CHSO Christensen observed a warning line staged on the perimeter of the roof, which was attached to the cage of the lower roof fixed ladder. (Tr. 35; Ex. C-6, C-8). Just to the right of the ladder cage, the warning line was sagging just inches above the walking surface. (Tr. 33).
CSHO Christensen measured the distance from the warning line to the edge of the lower roof and found that it was 96 inches. (Tr. 37).

After he completed his measurements and inspection of the lower roof, CSHO Christensen proceeded to the upper roof, where he observed four employees installing photovoltaic
panels . (Tr. 41 ; Ex. C-15 ). The four employees were John Hernandez, Minh Phung, Zachary Ledbetter, and Rodolfo Chaparro. (Stip. No. 7). The employees were working in two sets of two, with Hernandez and Phung working towards the middle of the roof and Ledbetter and Chaparro working towards the far end , roughly 50 feet 1
away from Hernandez and Phung . (Tr. 42; Ex. C-15). Hernandez was serving in the role of supervisor and safety monitor. ( Stip. Nos. 8 & 9 ).

As with the lower roof, Respondent utilized a warning line system, wherein cables and stanchions were installed
around the perimeter of the upper roof
at a distance of roughly 6 to 7 feet from the edge. (Stip. Nos. 14 & 15). Hernandez was charged with observing the employees on the upper roof and notifying them if they strayed too close to the warning lines or edge. (Tr.
138 ). None of the employees were wearing PFAS, there were no guardrails, and there was no safety net. (Tr. 42; Stip. No. 13). CSHO Christensen
testified that , during the roughly 7–10 minutes that he was on the upper roof, Hernandez had his back to Ledbetter an d Chaparro the entire time . (Tr.
44–45, 49, 55 ; Ex. C- 21, C-22, C-38 ). According to Hernandez , he
was helping Phung install
panels
and quality-check the installation, but he was “constantly” looking over to check on Chaparro and Ledbetter. (Tr.
140 ).
Christensen testified that Chaparro and Ledbetter were approximately 8–9 feet from the edge of the upper roof. (Tr. 55–56; Ex. C-22).

After he completed his inspection of the upper roof, CSHO Christensen asked the employees to come down to ground level so that he could conduct interviews. (Tr. 63). Once the interviews were complete, CSHO Christensen held a brief closing conference with King and discussed his concerns regarding the distance of the warning lines from the roof’s edge and Hernandez’s job duties interfering with his responsibility as safety monitor. Based on his observations and research, CSHO Christensen recommended the following Citation items, which were issued by Complainant on
March 29, 2016 .

V. Discussion

The primary issue in this case is whether Respondent
must comply with the
principal
fall protection standard—29 C.F.R. § 1926.501(b)(1)—or whether it can
instead
fulfill its obligations through the use of a warning line-safety monitor combination, as provided in 29 C.F.R. § 1926.501(b)(10). As will be discussed in detail below, the alternatives to the
principal
fall protection standard, such as 1926.501(b)(10), do not apply to Respondent’s work. Thus, Respondent
wa s obligated to provide PFAS,
safety nets, or guardrails, which it did not do.
Accordingly, Respondent violated 1926.501(b)(1) as alleged in Citation 1, Item 1a.

With respect to the remaining Citation items, however, the Court finds Complainant failed to establish the cited standards apply to Respondent. Items 1b and 1c allege Respondent failed to comply with the criteria governing the use of safety monitors and warning lines . However, as noted above the Court finds
Respondent was obligated
to comply with 1926.501(b)(1) and
cannot avail itself of alternatives such as warning lines an d safety monitors
which are found in 1926.501(b)(10). As such, Respondent cannot be cited for failure to comply with criteria which are contingent upon the application of a standard that does not apply to the work performed by Respondent. Acco rdingly, Items 1b and 1c are
vacated.

A. Applicable Law

To establish a violation of an OSHA standard
pursuant to 5(a)(2) ,
Complainant
must
prove : (1) the standard applies to the facts; (2) the employer failed to comply with the terms of
the
standard; (3) employees
were exposed
to the hazard covered by the standard, and (4) the employer had actual or constructive knowledge of the violation (i.e. ,
the employer knew
or ,
with the exercise of reasonable diligence ,
could have known of the violative condition).

Atlantic Battery Co. ,
16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

Complainant has the burden of establishing
each element by a preponderance of the evidence.
See Hartford Roofing Co. , 17 BNA OSHC 1361 (No. 92-3855, 1995). “Preponderance of the evidence” has been defined as:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact
but by evidence that has the most convincing force ; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’ s Law Dictionary, “Preponderance of the Evidence” (10th ed. 2014)
(emphasis added) .

B. Citation 1, Item 1 a

Complainant alleged a serious violation of the Act in Citation 1, Item 1 a
as follows:

29 CFR
1926.501 (b)(1) : Each employee on a walking/working surface with an unprotected side or edge which was 6 feet (1.8 m) or more above a lower level was not protected from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems.

(a) On or about February 24, 2016, at the MCAS Miramar worksite, employees installing photo voltaic panels on the roof of Hangar 5 were exposed to falls 17 feet to the lower level.

See
Citation and Notification of Penalty
at 6 .

The cited standard provides:

Each employee on a walking/working surface (horizontal and vertical surface) with an unprotected side or edge which is 6 feet (1.8 m) or more above a lower level shall be protected for falling by the use of guardrail systems, safety net systems, or personal fall arrest systems.

29 C.F.R. § 19 26.501(b)(1) .

1. The Standard Applies

The cited standard has four prerequisites: (1) an employee on (2) a walking/working surface, which (3) has an unprotected edge and (4) is six feet above a lower level.
According to 29 C.F.R. § 1926.500, a “walking/working surface” is defined as “any surface, whether horizontal or vertical on which an employee walks or works, including, but not limited to, floors,
roofs , ramps, bridges . . . .” An “unprotected edge” is “any side or edge of a walking/working surface . . . where there is no wall or guardrail system at least 39 inches (1.0 m) high.” 29 C.F.R. § 1926.500. Respondent’s employees traversed and worked on
the lower and upper roofs , respectively. (Stip. No s .
7, 8, 10 ). By definition, those areas
are
walking/working surfaces; they were
both more than 6 feet above the level below, and neither of the roof levels was protected by a guardrail or wall. Thus, on the face of it, the standard applies.

Respondent contends, however, that 29 C.F.R. § 1926.501(b)(10) is the more applicable standard. That standard states:

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 system, warning line system and safety net system, or warning line system and personal fall arrest system, or warning line system and safety monitoring system.

29 C.F.R. § 1926.501(b)(10). On the face of it, Respondent’s argument carries some cachet: its employees were
performing work
on
a flat roof .
The problem for Respondent, as Complainant points out, is the standard is limited to “roofing work”. Roofing work is defined as “the hoisting, storage, application, and removal of roofing materials and equipment, including related insulation, sheet metal, and vapor barrier work, but not including the construction of the roof deck.”
Id.
§ 1926.500. While photovoltaic panels are typically installed
on roofs, they do not
fall under the rubric of “related insulation, sheet metal, and vapor barrier work”.
Id.

The reason for th e
low slope
roofing
standard’s limited applicability
is elucidated
in the regulatory history of the standard. Under the initial formulation of the standard, 2
OSHA “intends that this final standard cover only
built-up roofing work
performed on low pitch roofs.”
Guarding of Low-Pitched-Roof Perimeters During the Performance of Built-Up Roofing Work , 45 Fed. Reg. 75618, 75619 ( Nov. 14, 1980) (emphasis added). “Built-up roofing work”, according to OSHA involved the “application of water membranes (usually felt and tar) and related insulation and sheet metal work.”
Id. Based on comments and analysis, OSHA determined that the application of such materials involved “unique difficulties”
and that “the provisions of this standard are directed at these special circumstances.”
Id.
(discussing the problems associated with conventional guarding systems that will be avoided “by allowing the use of a warning line and/or safety monitoring system”). Clarifying the limited s cope of the standard, OSHA noted
“[t]he standard does not apply to other types of roofing work such as shingle application and removal.”
Id.
at 75620.

Along with the rest of Subpart M, the current version of the standard was revised in 1994.
See Safety Standards for Fall Protection in the Construction Industry , 59 Fed. Reg. 40672 (August 9, 1994).
According to the preamble of the revised Subpart M, the standard no longer refers to ‘ built-up roofing work ’, “ because the Agency has determined
. . .
that there is no need to provide for different fall protection requirements for low-slope roofs based on the type of work (e.g., built-up roofing) being performed. ”
Id.
at 40677. While this
deletion
would appear to provide an opening for Respondent’s more expansive interpretation, the
preamble
to
the revised
standard
and subsequent interpretations
indicate the scope of 1926.501(b)(10)
is still limited in its application.

OSHA originally proposed to redefine
the activity
‘built-up roofing’ to mean “ the hoisting, storage, application and removal of roofing materials and equipment, including related insulation, sheet metal, and vapor barrier work, but not including the construction of the roof deck. ”
Id.
at 40679;
see also
29 C.F.R. § 1926.500(a). However, in response to comments that
the foregoing
definition described roofing generally and did not mirror the industry’s use of the term, OSH A deleted ‘built-up roofing’ along with
its previous definition, 3
and supplanted it with the more general term, ‘roofing work’.
When discussing (b)(10) specifically, OSHA noted that the final rule was vastly different than the proposed rule due, in part, to the issues noted
in defining ‘ built-up roofing’. The earlier
proposed
rule effectively created a distinction between roofers applying hot tar on low-pitched roofs, who would be subject to the existing 1926.500(g), and every other roofer on low-pitched roofs, who would be subject to current paragraph (b)(1).
See
59 Fed. Reg. at 40689. To
avoid a meaningless distinction , OSHA used the general term ‘roofing work’ in the revised (b)(10), stating, “ OSHA also agrees with commenters who stated there is
no need to distinguish between the application of hot and cold materials
to determine the appropriate fall protection measures, hence the final provision will apply to all roofing operations on low-slope roofs and not just
‘ built- up ’
roofing activities. ”
Id.
at 40691 (emphasis added). Thus, while the scope of the low-pitched roof provisi on was arguably broadened, this
was done to resolve an otherwise
unnecessary
distinction
(insofar as fall protection was concerned)
between the types of work associated with different roofing materials,
e.g. , hot and cold . OSHA’s resolution of that distinction makes clear that, although the language of the standard seems to indicate an exception based solely on location,
i.e. , a flat roof, the
application of the standard is
also
contingent, in part, upon
the
type
of work performed

• roofing .

The final rule in 29 C.F.R. § 1926.501(b) makes this clear.

The structure and language of paragraph (b), as a whole, indicates that the default provision is (b)(1), which requires PFAS, safety nets, or guardrails. 29 C.F.R. § 1926.501(b)(1). Each subsequent provision describes a discr ete set of circumstances in response to which
particular forms of protection are required or
are
considered to be
alternatives to the primary set found in (b)(1) . .
See, e.g. ,
id.
§ 1926.501(b)(2) (allowing exceptions upon proof of infeasibility while constructing leading edges ) ;
id.
§ 1926.501(b)(3) (discussing the interplay of guardrails and PFAS when performing hoist work);
id.
§ 1926.501 (b)(9) (discussing requirements for bricklaying work). Paragraph (b)(10) is merely another set of discrete circumstances which OSHA has determined justifies a departure from the principal requirement found in (b)(1). There is no indication that installation of ancillary building systems, such as photovoltaic panels or HVAC systems, qualifies under any of the alternatives to (b)(1).

As such, the default standard
(b)(1)
applies .

Complainant’s interpretations of (b)(10)
have reiterated the same position for years: it is specifically applicable to the work of installing, removing, or repairing the roof of a building ; all other work not specifically mentioned in paragraph (b) (10)
is subject to the requirements of (b)(1) .
See
OSHA Letter of Interpretation, Russell B. Swanson, Director of Directorate of Construction to Mark Troxell, Re:
29 CFR 1926.501(b)(10) Roofing work and other trades working on low slope roofs
(August 1, 2000). 4 In the letter to Mr. Troxell, the Directorate of Construction stated that there are limited sets of circumstances warranting departure from (b)(1) and concluded that “other trades”, as indicated by Mr. Troxell, were nonetheless subject to the primary requirement found in (b)(1) .
Id.
In one such circumstance
OSHA created a
de minimis
exce ption to the guardrail standard
wherein an employer, such as the “other trades” mentioned by Mr. Troxell (or Res pondent in this case), substituted
warning lines
set
fifteen feet back from the unprotected edge.
Id.
Such exception created
a
de minimis
violation of (b)(1), insofar
as the warning line constitutes
a poorly substituted guardrail that would warn an employee he was too close to an unprotected edge long before he could tumble over it.
Id.
Strictly l imiting the (b)(10)
exception
to roofing activity
has been Complainant’s position since the revision of Subpart M, and the Court sees no reason to depart from it in this case.
See
Compl’t
Ex. No. 36, OSHA Letter of Interpretation, Russell
B. Swanson, Director of Directorate of Construction to
Anthony O’Dea, Re: Fall protection requirements for construction workers doing work while on a roof (December 15, 2003). 5

The Court rejects Respondent’ s argument
that (b)(10) is the applicable standard. The language, structure, regulatory history, and subsequent interpretations all support Complainant’s citation pursuant to 29 C.F.R. § 1926.501(b)(1). Accordingly, the Court finds the standard applies.

2. The Terms of the Standard Were Violated

Because the standard applies to Respondent’s work, it is easy to conclude that the terms of (b)(1) were violated. The only
acceptable
methods of compliance
were
PFAS, safety nets, or guardrails. The parties stipulated that no safety nets were present, and the evidence is clear that the employees were not
using
fall arrest systems.
(Ex.
42 ;
Ex. C-22;
Stip. No.
13 ). Though Complainant maintains a policy permitting
de minimis
violations of the guardrail standard
when warning lines are placed
at a distance of 15 feet (amongst the other criteria for warning lines
found at
29 C.F.R. § 1926.502 (f) ) , CSHO Christensen’s measurements show that Respondent’s warning line was no more than 96 inches from the edge at its farthest. (Tr.
37 ; Ex.
C-10 ). Thus, the terms of the standard were violated.

3. Respondent’s Employees Were Exposed to the Hazard

“ Exposure to a violative condition may be established either by showing actual exposure or that access to the hazard was reasonably predictable. ”
Phoenix Roofing, Inc. , 17 BNA OSHC 1076 (No. 90-2148, 1995).
Regarding access, “the ‘inquiry is not simply into whether exposure is theoretically possible,’ but whether 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.”
Nuprecon LP dba Nuprecon Acquisition LP , 23 BNA OSHC 1817 (No. 08-1037, 2012) (quoting
Fabricated Metal Products, Inc. , 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997) ) .
The Commission has found exposure and/or access to a fall hazard in a number of different situations.

See Dic-Underhill , 8 BNA OSHC 2223 (No. 10798, 1980) (finding access to fall hazard where employees grinding ceiling seams more than 25 feet away from unguarded edge had to move closer to edge to sand seems extending to side of building);
N&N Contractors, Inc. , 18 BNA OSHC 2121 (No. 96-0606, 2000) (stumbling near unprotected edge resulted in employee falling to his death);
Lancaster Enters. , 19 BNA OSHC 1033 (No. 97-0771, 2000) (finding exposure where employees used a hatchway and ladder “closely adjacent” to a fall hazard);
Phoenix Roofing , 17 BNA OSHC at 1079 (finding exposure where employees were “about 12 feet” from unguarded skylights).

The photographs and testimony illustrate that, at the very least, Ledbetter and Chaparro were exposed to a fall hazard. At the time of the inspection, both Chaparro and Ledbetter were working within 8 or 9 feet of an unprotected edge. (Tr.
56–57 ; Ex.
C-22, C-23 ). According to CSHO Christensen, it would only have taken a matter of seconds for either Ledbetter or Chaparro to approach the unprotected edge, which was 17 feet above the lower roof level. (Tr. 57).
In terms of distance, Ledbetter and Chaparro were closer to the unprotected edge than the employees in the cases mentioned above
and well within the 15-foot buffer zone, which Complainant has
repeatedly
determined represents the distance at which a warning line would prove effective at preventing a fall .
See
OSHA Letters of Interpretation,
supra
Section
V.B.1 . Further, though not specifically testified to by CSHO Christensen, the
photographs of the
upper roof surface
show
raised seams running the entire length of the roof . (Ex. C-15, C-17). In addition,
the pictures show
conduit and a
wire cable
run ning
adjacent to the warning line. (Ex. C-15, C-17, C-18, C-19). Thus, in addition to mere proximity, the structure of the roof presented the potential for inadvertent tripping, stumbling, or falling over the unprotected edge.
See N&N Contractors ,
supra .

Accordingly, the Court finds Complainant established
that
Respondent’s employees were exposed to a fall hazard.
See
Nuprecon LP , 23 BNA OSHC 1817 ,
supra .

4. Respondent Had Knowledge of the Conditions

“To establish knowledge, the Secretary must prove that the employer knew or, with the exercise of reasonable diligence, should have known of the conditions constituting the violation.”
Central Florida Equip. Rentals, Inc. , 25 BNA OSHC 2147 (No. 08-1656, 2016). To satisfy this burden, Complainant must show “knowledge of the
conditions
that form the basis of the alleged violation; not whether the employer had knowledge that the conditions constituted a hazard.”
Id.
“ When a corporate employer entrusts to a supervisory employee its duty to assure employee compliance with safety standards, it is reasonable to charge t he employer with the supervisor’ s knowledge actual or constructive of noncomplying conduct of a subordinate. ”
Mountain States Tel. & Tel. Co. v. Occupational Safety & Health Review Comm'n , 623 F.2d 155, 158 (10th Cir. 1980 ) ;
see also Hamilton Fixture , 1 6
BNA OSHC 1073 (No. 88-1720, 1993) ( holding that where a supervisor is in close proximity to an apparent safety violation, the supervisor may be charged with constructive knowledge of the violation).

M ultiple members of Respondent’s management team were aware of the non-complying conditions on the roof of Hangar 5. Hernandez was the supervisor for the crew on the roof, and was specifically designated to be the safety monitor, whose job
it
was to monitor the employees and the conditions on the roof. (Tr.
137–38 ).
King ,
Respondent’s
safety manager,
established the site-specific fall protection plan based on his determination that warning lines six feet from the edge were compliant
with the standard . (Tr. 132 –34 ; Ex. C- 3, C-37).
Through its supervisors, Respondent was
aware of
both
the non-complying conditions and the site-specific plan calling for their implementation.

5. The Violation Was Serious

A v iolation is “serious” if there wa s a substantial probability that death or serious physical harm could
have
result ed
from the violative condition. 29 U.S.C. §
666(k). Compla inant need not show that there wa s a substantial p robability that an accident would
actually occur;
he need only show that if an accident o ccurred, serious physical harm c ould result. Phelps Dodge Corp. v. OSHRC , 725 F.2d 1237, 1240 (9 th
Cir. 1984) . If the possible
injury addressed by a
regulation is death or serious physical harm, a violation of the regulation is serious.

M osser Construction , 23 BNA OSHC 1044 (No. 08-0631, 2010);
Dec-Tam Corp ., 15 BNA OSHC 2072
(No. 88-0523, 1993).

The upper roof, where the work took place, was located 17 feet above the lower roof. According to CSHO Christensen, falls from that height could result in contusions, lacerations, head/neck/back injuries, and possibly death. (Tr. 76). Respondent did not
counter this conclusion.
Complainant’s characterization of this citation comports with Commission precedent.
See , e.g. ,
Kulka Constr. Mgmt. Corp. , 15 BNA OSHC 1870 (No. 88-1167, 1992) (finding falls of 10 to 20 feet present possibility of serious injury);
Whiting-Turner Contracting Co. , 13 BNA OSHC 2155 ( 87-1238, 1989) (“Here, there was testimony that the second floor of each building was twelve feet above the ground. A fall from even that modest height could result in a serious injury . . . .”). Citation 1, Item 1a shall be affirmed as serious.

C. The Cited Standards in Citation 1, Item 1b & Item 1c Do Not Apply

Subpart M has four primary sections.
See
29 C.F.R. §§ 1926.500–.503. The first section lays out the applicable definitions for fall protection in the construction industry.
Id.
§ 1926.500. The second section establishes the principal duty to have fall protection and, as discussed above, establishes the required and/or
alternative
forms of fall protection based on the work being performed.
Id.
§ 1926.501.
The third section establishes the minimum criteria and standard practices for the fall protection systems discussed in 1926.501.
Id.
§ 1926.502. Finally, the brief
fourth section discuses training requirements.
Id.
§ 1926.503.

Citation 1, Item 1a was issued pursuant to 1926.501(b)(1), which requires the use of PFAS, safety nets, or guardrails. Thus, full compliance requires the chosen form of fall protection to comport with the criteria laid out in 1926.502.
See id.
§ 1926.502(b) (guardrail requirements);
id.
§ 1926.502(c) (safety net systems);
id.
§ 1926.502(d) (personal fall arrest systems).
Similarly, a warning line-safety monitor fall protection system implemented pursuant to 1926.501(b)(10) requires compliance with 1926.502(f) and 1926.502(h).
Id . § 1926.502(f) (criteria for warning line systems);
id.
§ 1926.502(h) (criteria for safety monitors).
Complainant successfully argued
for the application of 1926.501(b)(1) to Respondent and further established
that 1926.501(b)(10), which allows for the use of safety monitors and warning lines, was inapplicable to Respondent.

Citing Respondent pursuant to
1926.501(b)(1) ,
1926.502(f)(2)(ii) , and
1926.502(h)(1)(v) , as Complainant has done here, is duplicative.
See J.A. Jones Constr. Co. , 15 BNA OSHC 2201, 2207 (No. 87-2059, 1993) (holding violations may be found duplicative where they require the same abatement measures);
Capform, Inc. , 13 BNA OSHC 2219, 2224 (No. 84-556, 1989) (finding violation duplicative where abatement of one citation item will necessarily result in abatement of the other item as well) .
Because (b)(10) is not applicable to Respondent’s work activities, Respondent cannot be required to comply with the criteria for its implementation.
The standard, preamble, and subsequent letters of interpretation make it clear that non-roofing contractors are required to comply with 1926.501(b)(1) and cannot rely on the provisions of (b)(10), even if the roof could be characterized as “low-slope”. See
Section
V.B.1 ,
supra .

Again, as noted above, 1926.501(b)(1) is the primary obligation to provide fall protection; whereas the remaining subsections of 1926.501(b) describe particular situations wherein departure from the primary obligation is warranted or allowed. No such situation was present here, as established by Complainant.
T hus, the only applicable fall protection criteria are those related to PFAS, safety nets, or guardrails.
See
29 C.F.R. § 1926.502(b)–(d).

Abatement of the hazard through application of 1926.501(b)(1) would necessarily abate the other items related to safety monitors and warning lines ,
because they would not be necessary if Respondent used guardrails, PFAS, or safety nets. Accordingly, sub-items 1b and 1c are duplicative.

The foregoing is true even taking into consideration the
de minimis
exception described in the aforementioned letters of interpretation. According to each of those letters, Complainant
stated
he would “consider the use of cert ain physical barriers that fail
to meet the criteria
for a guardrail a de minimis violation
of the guardrail criteria
in § 1926.502(b)” insofar as the warning line is 15 feet from the edge and meets or exceeds the requirements of 1926.502(f)(2), there is no work occurring in between the warning line and the unprotected edge, and a work rule is in place to prevent employees from going outside the warning line.
See
OSHA Letter of Interpretation, Russell B. Swanson, Director of Directorate of Construction to Mark Troxell, Re: 29 CFR 1926.501(b)(10) Roofing work and other trades working on low slope roofs (August 1, 2000)
(emphasis added). In other words, under the terms of the “exception” laid out in the various letters of interpretation, the warning line is considered a non-complying guardrail. Insofar as the
noncompliant
“guardrail” meets the requirements laid out in the letters of interpretation, it will be considered a
de minimis
violation of the
guardrail standard,
1926.502(b).
There is no additional requirement for a safety monitor under this “exception” as in 1926.501(b). Further, though the
de minimis
policy enunciated in the letters of interpretation reference 1926.502(f) as part of the criteria for determining whether a violation of the guardrail standard occurred, it is merely a condition precedent for compliance with 1926.502(b).
Thus, under the terms of this
de minimis
exception, the failure to ensure the warning line’s compliance with 1926.502(f) is still a violation of 1926.502(b).

Respondent’s failure in this case was singular—it failed to provide PFAS, guardrails, or safety nets as required by 1926.501(b)(1). Its noncompliance with the guidelines for warning lines and safety monitors is irrelevant because Respondent could not
have
use d
those implements to comply with its primary obligation.
Accordingly, Citation 1, Items 1b and 1c shall be vacated.

VI. Penalty

In calculating appropriate penalties for affirmed violations, Section 17(j) of the Act requires the Commission 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. 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 Construction Co. , 15 BNA OSHC 2201 (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. Valdak Corp ., 17 BNA OSHC 1135 (No. 93-0239, 1995);
Allied Structural Steel , 2 BNA OSHC 1457 (No. 1681, 1975).

Complainant determined that
Citation 1, Item 1
should be classified as high severity and low probability. (Tr. 78). At least two of Respondent’s employees were exposed to falls of up to 17 feet or more,
which could be deadly,
but its attempts to comply with the standard, coupled with training and education, mitigated the likelihood that an accident would occur. (Tr. 78). Further, Respondent has over 2000 employees, which means
Complainant did not provide
a discount based upon its size; however, because previous OSHA inspections did not result in a citation,
Complainant proposed
a 10 percent penalty reduction. Complainant did not, however, assess any credit for good faith due to the deficiencies noted during the inspection.

With the exception of good faith, the Court generally agrees with Complainant’s assessments. CSHO Christensen determined that Respondent was not eligible for a good faith discount because of the deficiencies
noted during the inspection ; however, he also noted that Respondent “did make some attempts to comply with the standard, provide training and education to their employees. They had attempted to be in compliance, so there were some factors that helped keep those employees safe.” (Tr. 78–79). For the most part, Respondent attempted to develop a fall protection plan based on a good faith, albeit mistaken, interpretation of the fall protection standard. The moment that its deficiencies were pointed out, Respondent quickly implemented changes both at the site and within the site-specific fall plan. (Tr.
67 ; Ex.
C-25 to C-30 ). Accordingly, the Court finds that a penalty of $3,000.00 is appropriate for this violation.

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 Conclus ions of Law, it is ORDERED that:

1. Citation 1, Item
   1
   is
   AFFIRMED as serious, and a penalty of
   $ 3,000.00
   is ASSESSED .

2. Citation 1, Item 1b
   is
   VACATED .

3. Citation 1, Item
   1c
   is
   VACATED .

SO ORDERED

/s/          Peggy S. Ball          Judge, OSHRC

Date: July 17, 2017

Denver, Colorado            

"

1 . CSHO Christensen testified that he had been told the “runs”, or grouping of panels, were roughly
55
feet long. Based on his observation, Ledbetter and Chaparro were roughly one “run” away from Phung and Hernandez. (Tr.
53; Ex.
C-22).

2 . The Court references the “initial formulation”, because the version of the standard discussed above was previously found at 29 C.F.R. § 1926.500(g)(1) and applied to heights over 16 feet.
See
45 Fed. Reg. at 75620. The standard was renumbered and changed in
1994.
See
Safety Standards for Fall Protection in the Construction Industry , 59 Fed. Reg. 40672 (August 9, 1994).

3 . See
59 Fed. Reg.
at 40676–77.

4 .

See
https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=23873.

5 . See
https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24682.