Ontario Exteriors, Inc.

Read the official release (oshrc.gov)

Plain-English summary

Ontario Exteriors directed employees to cross a steep second-story roof without fall protection when moving between the eave and peak at the start and end of each workday. The judge held that the residential construction fall-protection rule applied during those brief movements and that the company had actual knowledge of its practice. Ontario’s infeasibility defense failed because employees could connect to stored ropes from the eave or ladder, and other personal fall arrest equipment was available. The serious citation was affirmed. The proposed $3,622 penalty was reduced to $1,811 based on the short exposure, active use of fall protection during the rest of the work, employee training, cooperation, and the company’s generally strong safety culture.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(13)
• Outcome: Serious residential roofing fall-protection violation affirmed; penalty reduced from $3,622 to $1,811.
• Key point: Workers must use fall protection while crossing a steep residential roof to reach or leave their work area, even when the trip lasts only about one minute.

Full text (OSHRC public release)



Ontario Exteriors, Inc., Docket No. 17-1299

Some personal identifiers have been redacted for privacy purposes.

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW
C OMMISSION

1120 20 th
Street, N.W., Ninth Floor

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v.

OSHRC
D ocket No s .
17-1299

ONTARIO EXTERIORS, INC.,

Simplified Proceedings

Respondent.

APPEARANCES:                                 

Rosemary Almonte, Law Clerk

Andrew Karonis, Esquire

U.S. Department of Labor,
New York City, New York

For the Secretary

Christopher Davis, pro se

Fairport, New York

For the Respondent

BEFORE:    Dennis L. Phillips

Administrative Law Judge

DECISION AND ORDER

This proceeding is before the Occupational Safety and Health Review Commission (the Commission or OSHRC) pursuant to § 10(c) of the
Occupational Safety and Health Act of 1970, 29 U.S.C. § 659(c) (the Act). Ontario Exteriors, Inc. (Respondent or
Ontario) was
replacing the shingle roof
of
a two-story residence
at 6712 Song Hill Lane,
Victor, New York
14564
(worksite)
on May 3, 2017,
when
an employee
fell
from the roof
and was injured.

OSHA Compliance Officer
(CO) Scott
Schrilla investigated the worksite that same day.

This case arises from an Ontario policy that directed its employees to traverse a steep second-story roof without fall protection at the beginning and end of each work day. On June 21, 2017, OSHA issued
a Citation and Notification of Penalty (Citation)
for
one serious violation of OSHA’s fall protection standard, 29 C.F.R. § 1926.501(b)(13),
with
a proposed penalty of $3,622. (Ex. 3). Specifically, the Citation alleged that, on or about May 3, 2017, employees were accessing and egressing the peak of a steep roof without utilizing fall protection at the worksite. Respondent timely filed a
notice of contest, bringing this
matter before the Commission.

This matter was designated for Simplified Proceedings in accordance with Subpart M of the Commission Rules
on August 8, 2017. 29 C.F.R.
§§ 2200.200,
et seq .

A
one-day hearing was held in
Rochester, New York on November 28, 2017.

Two witnesses
testified
at the hearing: Christopher Davis, Ontario’s President and Chief Executive Officer (CEO), and
CO
Schrilla. 1 The Secretary filed
his
post-hearing brief
on February 5, 2018. Respondent
did
not file a post-hearing brief.

The facts are largely undisputed. The parties agreed
that employees
had not used
fall protection when they traversed
the
roof
between
eave
and
peak
at the beginning and end of each workday. Ontario asserts that its
employees were not required to use fall protection
while moving
between the
roof’s
eave
and
peak
at the beginning and end of each workday. The Secretary asserts employees
were required to use fall protection on the roof at all times.

For the
following
reasons,
the
serious citation item is affirmed
and a penalty of $1,811
is
assessed.

Jurisdiction

Based
upon the record, the Court
finds
Ontario, at all relevant times, was engaged in a business affecting commerce and was an employer within the meaning of §§ 3(3) and 3(5) of the Act, 29 U.S.C. §§ 652(3) and (5). (SF 1-5). The Court
finds
the Commission has jurisdiction over the parties and subject matter in this case.

Stipula ted
Facts
and Principles of Law

The Secretary and Respondent
stipulated
in their Joint Pre-Hearing
Statement
that
the
following
facts
and principles of law
were agreed
upon and required
no proof at the hearing: 2

1. Jurisdiction of this action is conferred upon the Occupational Safety and Health Review Commission by Section 10(c) of the OSH Act (“the Act”).

2. Respondent is organized under the State of New York and doing business in the State of New York.

3. Respondent’s business affects commerce within the meaning of the Act.

4. Respondent is an employer within the meaning of the Act.

5. Some of the materials and supplies used by Respondent during the relevant times originated and/or were shipped from outside New York State.

6. Respondent performed work at 6712 Song Hill Lane, Victor, New York, 14564 (“the Worksite”).

7. The Worksite is a structure built as a residential home.

8. The Worksite was constructed using traditional wood frame construction materials and methods.

9. Kellin Zuhlk[e]
   worked as a foreman for Respondent at the Worksite on May 3, 2017.

10. Stan Jenks worked as a roofer for Respondent at the Worksite on May 3,
    2017.

11. Stan Jenks worked as a backup foreman for Respondent prior to May 3, 2017 when Kellin Zuhlk[e]
    was away.

12. Nick Griffin worked as a roofer for Respondent at the Worksite on May 3, 2017.

13. Tim Smith worked as a roofer for Respondent at the Worksite on May 3, 2017.

14. Luke Wisecup worked as a roofer for Respondent at the Worksite on May 3, 2017.

15. [redacted]
    worked as a roofer for Respondent at the Worksite on May
    3, 2017.

16. The roof at issue and referenced in the Citation, located at the Worksite (“the Roof”), has a slope of 9 in 12 (vertical to horizontal).

17. The Roof was more than 6 feet in height above the lower level.

18. The Roof had unprotected sides.

19. The Roof did not have guardrails.

20. There was no safety net at or below the Roof.

21. Employees used a personal fall arrest system while working on the Roof.

22. Prior to employees working on the Roof, they ascended from the top of the ladder to the peak of the Roof without engaging the personal fall arrest system.

23. When employees ended their work on the Roof, they descended from the peak of the Roof to the top of the ladder without engaging the personal fall arrest system on a staircase of planks and brackets.

24. When employees ended their work on the Roof of the Worksite, they stored the ropes attached to the fall arrest system at the peak of the Roof before descending from the peak.

25. Respondent was aware of the facts numbered 22-24.

(Ex. 4).

Findings of Fact

Christopher Davis has been the president and CEO of Ontario, a roofing contractor, since it was founded in 1995. (Tr. 20,
29,
141). Mr. Davis
routinely visited the company’s worksites ; however, he genera lly
did not act as
foreman at a worksite. (Tr. 142).

On May 3, 2017, six Ontario employees were
engaged in
replacing the roof shingles on
a
two-story
residential
home at
6 712 Song Hill Lane, Victor, New York. (Tr.
20- 21 ; SF 6-7 ). The six employees were
Messrs.
Zuhlke , Jenks, Griffin, Smith,
Wisecup , and
[redacted] . ( Tr. 21;
Ex. 3;
S F
9- 15 ). Mr.
Zuhlke
was
the foreman
at this worksite . ( S F
9 ). CO Schrilla inspected the worksite on May 3 , 3
after OSHA received a phone call
from the Ontario County Sheriff that an employ ee had fallen off a
roof at the worksite , suffered serious injuries
and had been transported to
a local trauma center . (Tr. 40, 49).

Ontario
began
roofing
the home
four
days before
the
May 3
a ccident . (Tr. 26). The eav e of the roof was a bout 18
feet from the ground and the pitch of the roof was 9 in 12
(vertical to horizontal) .

(Tr. 22, 41 -43, 51 ;
S F 16 ; Ex s . 1
at “B” , 3 ). Ontario had attached a
series of D-rings
to
the roof’s peak to serve as anchorage 4
points for the
employees’
personal fall arrest system s . 5 (Tr.
22-23,
29). A
rope that served as a
fall arrest
lifeline 6
hooked onto a
D-ring
anchorage point at one end and hooked onto an employee’s personal fall arrest harness at the o t her end. (Tr. 24,
44-47). At the end of every work day, the employees stored their fall arrest rope system, consisting of the rope itself with a 6-foot shock cord and the clasp that hooks onto a roofer ’ s personal fall harness,
at the roof’s peak . (Tr.
24,
29 ;
S F 24 ).

E mployees , including
Mr.
[redacted] ,
were stripping
shingles
near the roof’s peak
on May 3 . (Tr. 48). Mr.
[redacted]
had
been an
Ontario
employee
for about two weeks. (Tr.
94). While
working
on the roof,
Mr.
[redacted]
moved his rope from one D-ring anchorage point to another. (Tr. 47 -48 ; Ex. 2 at “F”). Apparently, he had not
adequately
attached to the
next
ancho rage point because as he
worked,
he slipped and
began to fall . (Tr. 93-94 , 98 ). He
slid
down
the roof and
then
fell
approximately 18 feet
to the ground
where he blacked out . (Tr. 49, 94) .

There was no roof bracket or ladder below where he was working
when he fell . (Tr. 48). Mr.
[redacted]
was transported to the local trauma center. (Tr. 40). Mr.
[redacted]
incurred
compression fractures of the thoracic s pine 7
and was unable to return to work as a roofer for Ontario. (Tr. 49 , 94 ).

CO Schrilla arrived at Ontario’s worksite early in the afternoon
(about 12:50 pm) on May 3
and conducted a 3-hour onsite inspection . (Tr. 40, 10 2-0 3). Mr. Davis was at t he worksite twice on May 3— first
when
Mr.
[redacted]
was placed in to
the
ambulance and then again when CO Schrilla was onsite. (Tr. 140). The CO interviewed the employees , including foreman Zuhlke 8
and Mr. Davis ,
that day . (Tr. 103-08).

CO Schrilla had been an OSHA
CO
since 1991.

He has a Bachelor of Science in Construction Engineering.

(Tr. 37 -38 ). He had performed over 1,250 inspections, most of which included fall hazards. (Tr. 39). Over f orty
of those
inspections had been at residential construction sites. (Tr. 38). He served as the fall protection coordinator for OSHA’s Syracuse area office, which meant
CO Schrilla
maintained the office’s fall protection equipment, ensured the compliance officers were trained in use of fall protection equipment, and stayed up-to-date on OSHA fall protection standards and enforcement. (Tr. 38).

CO Schrilla testified that a t
most
sites
employee s
had
their
fall arrest harness ,
lanyard , 9
and the rope grab 10
attached to the end of the lanyard ,
on and
ready before cli mbing
a
ladder
from the ground
to the roof ’s eave . (Tr. 6 3 -65).
When the employee reached the top of the ladder
at
these
sites ,
the worker
attache d
his
rope ,
that should be attached to an adequate anchorage point , to his body harness
as soon as he
step ped
off
from the ladder onto the roof. (Tr. 46, 64-65). CO Sch rilla
stated that
at most worksites
the
fall protection
ropes
were left at the roof’s “eave or hanging over the eave”
at the end of the day.

(Tr. 46). He said there w as
n either employee
exposure to a greater hazard
nor additional costs
when
ropes were
stor ed
at the eave, as is done
at most sites. (Tr. 46).

Ontario ’s employees
did not follow th e
general practice
described by CO Sch r illa
at
Ontario’s
worksite . Ontario ’s management
directed
its employees to use a different method.

Instead,
as described more fully below,
Ontario ’s employees
stored the ir
ropes at the roof’s peak
at the end of each day . 11
They then took a minute to walk from the roof’s peak to its eave without using any fall protection. (Tr.
24 -27 ,
42 -43 ,
47 , 51 , 105-06 ;
S F
22- 2 5 ; Ex s .
1, “A” –“ B” , 3 ).
Mr. Davis admitted that management ;
including himself, the safety manager,
and/ or the site supervisor, directed Ontario’s employees to store their ropes
this way. (Tr. 25-26; SF
24) .
He further
admitted the ropes
on the roof
at the worksite were
25 footers,
long enough to have been coiled at the eave of the roof fo r storage . (Tr. 27,
30,
34 , 43, 51 ; Ex. 1 at “B” ). Because Ontario stored its
ropes at the roof’s peak , its employees could not connect their fall arrest systems
when they were at
the top of the ladder
at the beginning of each work day . 12 (Tr.
24,
47;
Ex. 3;
S F
24).

From the top of the ladder, CO Schrilla
visually inspected the anchorage points at the roof’s peak and
saw the
nails (used to secure the anchorage points)
were in place and not protruding
up ward .

(Tr. 69). The CO
testified
that
Ontario’s
employees
used
personal fall arrest
systems most , but not all,
of the time while on the roof .
(Tr.
22,
42,
58-59).
The
personal fall arrest equipment
used at Ontario’s
site w as
similar to
the systems that
CO Schiller
had seen
a t
many wor ksites .

(Tr. 45). N o other fall protection system s , such as guardrails,
were used
at
Ontario’s
worksite. (Tr.
22,
41-42;
S F
19-20).

Employees
used their personal fall arrest systems
during
most of the ir
work shift ; however, employees did not use fall protection
when they crossed the roof
a t the beginning or
end of each
day. ( Ex. 3;
S F
21 -23 ).

To access the roof
at the beginning of
e ach
work day, employees clim bed the ladder to
t he
roof’s
eave . From the eave, employees
w alk ed
directly to
the roof’s peak ; an effort that took a minute . 13 (Tr. 2 4 -27 , 43, 51 ; Ex. 1, “A” –“ B” ). Employees did not use any fall protection
equipment between the
roof’s eave
and
its
peak . (Tr. 24;
Ex. 3;
S F
22).
Upon reaching the roof’s peak, each
employee attached
a
rope to
the D-ring on the back of
his fall arrest harness . (Tr. 23-2 9 , 44-45 ). At the end of the work shift, the employees
reversed the process —they
detached the rope
from their
fall arrest harness
and
“ coiled
up or zigzagged across the roof at the ridge”
the ropes for storage at
the peak of the roof . They then crossed
the roof
from the peak to the ladder at the roof’s eave . (Tr.
25 , 30 ;
SF
23 - 24 , 43, 51 ; Ex. 1, “A” –“ B” ). Both
Messrs. Davis
and
Jenks
told
the CO
on May 3
that it was standard practice to not tie-off until they reached the roof’s peak. (Tr. 104).
This was Ontario’s standard
method for the use of fall protection equipment
on a roof .

(Tr.
25-26, 32 , 42, 107 ).

Mr. Davis instructed his employees to leave the ropes stored at the roof’s peak at the end of each work day. And he instructed employees to not use fall protection when moving between the eave and peak at the start and end of each work day. (Tr.
25-26, 32 , 43, 51 ; Ex. 1, “A” –“ B” ). Mr. Davis testified
that
it was company policy to move
directly
from the ladder
up and across the roof
and then attach to
a
fall protection anchorage point at the roof’s peak. (Tr. 25-26, 32). Mr. Davis
specifically
instructed employees
t o climb the ladder to the eave, step off the ladder onto the roof,
walk
to
the roof’s peak , straddle the roof ridge , find their appropriate safety line
and then hook the rope into the safety harness. (Tr.
32,
43, 51,
126-27 , 131 ; Ex. 1, “A” –“ B” ). Employees were instructed to not do any roofing work when moving
from eave to peak. (Tr. 33, 127 ). Mr. Davis
expected each employee to inspect the anchorage point and the rope at the time the rope was hooked into the safety harness at the roof’s peak. (Tr. 127).

He
believed the
anchorage point and its attached rope could not be inspected from the top of the ladder. (Tr.
157-58 ). Four to six employees were generally on the roof a t the end of the work day .

These
employees
“ were
instructed to straddle the roof and take off their fall arrest system.” After
unhook ing, they
store d
the ir four to six
rope s
at the peak before
they descended , probably one at a time at the foreman’s discretion,
from the roof’s peak to its eave
using
a
“staircase of planks and brackets.” 14
(Tr. 24-25 , 28 -30 , 57 -58 ;
S F 23 - 24 ). Ontario did not have a policy requiring it s
roofers to descend from the peak
using the “staircase” in single - file ,
one at a time. (Tr. 28).

Mr. Davis believed
that Ontario’s
method was safer than using fall protection while crossing the roof
at the beginning and end of each workday . He believed it was easier to get on and off the roof
when an
employee was not hooked into the fall arrest system. (Tr. 126 -27 , 143 -45 ). Mr. Davis believed it was
difficult to hook
the rope to the harness’s D-ring
with just one hand
while standing on a ladder . He testified that o nly
one hand
was available
because
the
employee’s
other hand was holding onto the ladder . (Tr. 128-29). Mr. Davis
also
found it was too difficult to hook onto the
fall arrest
equipment
before climbing the ladder to the roof . (Tr. 129-30, 134).

CO Schrilla understood, from
employee
interviews ,
t he
ropes
were
s tored at the
peak,
so
that
they would not be “unsightly” to the client or damage the
home’s
siding. (Tr. 47 ; Ex. 3 at 3 ). The
CO stated he had not seen synthetic ropes , such as those used at this
worksite,
damage
a home’s
siding. (Tr. 47).

CO Schrilla stated that when he
use d
a personal fall arrest system ,
he attached the rope to his harness while
at the top of
the ladder.

He said that this
took
a matter of seconds. (Tr. 65 , 100 ). Alternatively ,
if he
hooked onto the
fall arrest
system
before he started to climb up the ladder, he just move d
the rope grab up with his left hand as he
climbed
the ladder. (Tr. 80).

CO Schrilla stated that he had not seen
another employer
use Ontario’s
policy
of waiting to reach the roof’s peak to attach to fall protection . (Tr. 10 8).

Further, the
CO stated that
if employees had difficulty hooking
o nto the system from the ladder, other
configurations of harness and rope systems,
that were easier to use ,
were available
for purchase .

(Tr.
86, 99, 134-36 ).

CO Schrilla also testified that “[i]t’s very easy” to keep three points of contact while repeatedly sliding the rope grab up providing fall protection while climbing a ladder. (Tr. 79-80, 153). He said doing this was less of an accident hazard than going straight up a ladder, stepping onto a roof, walking to a roof’s ridge, straddling the ridge and then hooking into a harness, as Ontario requires. (Tr. 80-81).

CO Schrilla
further
testified that
the
fall protection system used at
Ontario’s
worksite did not fall under an y
exemption
to the cited standard
that may be available
where
work on a roof ha s
been completed, all fall
protection
equipment
has been removed , and an employee
wa s unable to tie off because there
the
fall protection
anchorage points have been removed .

Here, he said such an exemption would not be available to Ontario ’s
May 3
work
because “they’re actively performing the roofing work and there’s fall protection available and functional.” He said Ontario’s employees we r e engaged in construction
activity when moving from the roof’s eave to its peak. (Tr. 53-54 , 60-61 , 66-67 ).

Secretary’s Burden
of
Proof

To establish a violation of an OSHA standard, the Secretary must prove that:

(1) the cited standard applies; (2) the terms of the standard were violated; (3) one or more 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. Astra Pharm. Prod s ., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981),
aff’d,
681 F.2d 69 (1st
Cir. 1982).

ANALYSIS

Citation 1, Item 1

Citation 1, Item 1, alleged
a
serious violation of 29 C.F.R. § 1926.501(b)(13), which states:

(b)(13)
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 system, 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.

The Secretary asserts
that
fall protection
was not used
at all times
when
an employee was
on
the roof
at the beginning and end of each workday. Respondent asserts
that while moving
from the roof’s eave
to the roof’s peak,
the
“inspection”
exception to the requirement for fall protection
at 29 C.F.R.
§
1926.500(a)(1)
applied and employees were not required to use fall
protection. 15 Respondent also asserts
the affirmative defenses of infeasibility and greater hazard. (Ex. 4 at 4).

Applicability
&
Employee Exposure

Employees
were
working on the
roof
of
a residential structure
that was
more than
6 feet above the next lower level. (SF
7, 17). The cited standard applies.   

With respect to exposure,
Respondent argues
that its employees were not
engaged in any
roofing
activity
while
they
moved
from the eave to the peak of the roof—they engaged in roofing work after tying off
to
the fall protection system
at the peak. (Tr. 127, 131). Respondent also seems to
suggest
that
its employees were not at work when they
moved
from the ladder to the roof’s peak
and
not subject to
OSHA’s fall protection
requirements. 16

(Tr. 157-58). The Court rejects
Respondent’s argument.

Employee exposure is established where
an employee
was or
could be exposed to the hazard “while in
the course of assigned working duties, personal comfort activities while on the job or their normal means of ingress-egress to their assigned workplaces.” Calpine Corp. ,

27
BNA
OSHC 1014, 1016-17 ( No. 11-1734, 2018) (citations omitted). Here, it is undisputed that six of Respondent’s employees were working on the roof
on May 3. 17 (Ex. 3;
SF 9-15).

Ontario’s employees were subject to fall protection requirements at all locations on the worksite where they
were exposed to a fall over 6 feet. Exposure is not limited to the time an employee was engaged in
a specific
roofing
activity. The assigned workplace for these employees was
the
entire roof.

The roof’s peak was simply the starting point
for the roofing work. 18 Exposure does not
hinge
on whether an employee was engaged in a
specific
roofing activity while crossing the roof. Respondent’s argument that employees were not yet at work prior to hooking into the fall arrest system at the roof’s peak is rejected. While
employees
crossed the roof,
they
were
engaged in
their assigned work duties,
were
exposed to a fall from a height over 6 feet,
and
thus,
required to use fall protection.

Exposure is not neutralized when employees are in
the ingress-egress area. In
Stevers Roof Side Remodel, Ltd. , 24 BNA OSHC 1962,
1966
(No. 13-0039, 2013) (ALJ)
,
the court found

roofers were exposed to fall hazards in violation of the standard at 29 C.F.R. § 1926.501(b)(13),
where
the roofers
walked to a ladder without using fall protection,
which was their normal means
roof
egress.

Because
“[i]t is not the activity being performed but the workers’ exposure to the fall hazard that requires fall protection,”
here the
six
Ontario
employees were
exposed to falls during
their normal routes of ingress and egress
each day.

See
Stevers Roof Side Remodel, Ltd. , 24 BNA OSHC
at
1966. Furthermore, “even if . . . employees are exposed to a hazardous condition only briefly, brief duration does not negate the violation or its seriousness.”

Flint Eng’g & Constr. Co. , 15 BNA OSHC 2052, 2056 (No. 90-2873, 1992).

It took
Ontario’s
employees approximately one minute to climb up
from the eave
to the peak and approximately one minute to climb down from the peak
to the eave
each
workday.

That it takes only a second for an employee to lose his footing and fall pointedly illustrates the rationale behind the Commission’s refusal to
negate a violation
because of the
brevity
of employee exposure.

Id.

The Court finds all six employees were exposed to the cited hazard
on May 3.

(Ex. 3 at 2-3).

Knowledge

The Secretary must prove the employer either knew, or with the exercise of reasonable diligence could have known, of the violative condition. Revoli Constr. Co. , 19 BNA OSHC 1682, 1684 (No. 00-0315, 2001). The employer’s knowledge is directed to
the physical condition that constitutes a violation. Phoenix Roofing, Inc. , 17 BNA OSHC 1076, 1079-1080 (No. 90-2148, 1995)
aff’d , 79 F.3d 1146 (5th
Cir. 1996). It is not necessary to show
the employer knew or understood the condition was hazardous. Id.
Knowledge is imputed through an employer’s management and supervisory employees. See Calpine
Corp. ,
27
BNA
OSHC at 10 18 .

Mr. Davis instructed his employees to walk to and from the roof peak at the start and end of the day without the use of fall protection. (Tr. 32, 126-27). He
knew employees
left
the ropes for attachment coiled at the roof peak at the end of
each
day. (Tr.
29 ). Foreman Zuhlke also knew Ontario’s employees were going from the top of the ladder to the peak without being hooked up to anything at the start of each morning’s work. Foreman Zuhlke, himself, engaged in the practice. (Tr. 102-06; Ex. 3). Further ,
both parties stipulated that Ontario had knowledge
its
employees were not
connected to a
fall arrest
system
when ascending
and
desc ending the roof at
the
beginning
and end
of
the work shift. ( S F
22-25).

Knowledge is established through
CEO
Davis ’s
and Foreman Zuhlke’s
actual knowledge
that
employees did not use
any
fall protection while
crossing the roof to
begin and end
the work shift. 19

Violation of the Cited Standard

The standard requires the use of fall protection when an employee is six feet above the next lower level. There was no guardrail or safety net system in use at this
worksite. (SF
19-20). Here,
Ontario’s
selected fall protection method was
a
personal fall arrest system
for
each employee. (SF
21). However, at least twice a day Ontario’s employees did not use their personal fall arrest systems.

Both parties agreed
that when
moving from eave to peak at the start and end of the work shift, employees
had not used
their fall arrest systems. (SF
22-24). The Court finds that
Respondent was not in compliance with the standard’s requirement to use fall protection on the roof and
thus
violated the cited standard.

Even so, Respondent asserts it
was not required to comply with the standard’s
fall protection
requirements. First, Respondent asserts it qualified
for 29 C.F.R. § 1926.500(a)(1)’s
exemption from
fall protection
use. Secondly, Respondent asserts
it qualified for the exception provided within the cited standard
of 29 C.F.R. § 1926.501(b)(13). Finally, Respondent asserts
the affirmative defenses of greater hazard and infeasibility.

29 C.F.R. § 1926.500(a)(1) ’s
fall protection exemption for
inspection, investigation or assessment

29 C.F.R. § 1926.500(a)(1)
states:

(a) (1)  This subpart sets forth requirements and criteria for fall protection in construction workplaces covered under 29 CFR part 1926. Exception: The provisions of this subpart do not apply when employees are
making an inspection , investigation, or assessment of workplace conditions prior to the actual start of construction work or after all construction work has been completed.

Respondent
argue s
it qualified
for this e xception because its employees we re engaged in an “inspection”
activity that
occur r ed
prior to
the beginning
and after
the completion of
construction work. For the reasons set forth below, the Court rejects this a rgument .

As the party seeking the benefit of
an exception to a standard, Ontario has
the burden to show the exception
applies . 
Kaspar Wire Works, Inc. , 18 BNA OSHC 2178, 2194 (No. 90-2775, 2000),  aff'd , 268 F.3d 1123 (D.C. Cir. 2001). Further,
Commission precedent requires that “exceptions are to be narrowly construed.” Brooks Well Servicing Inc. , 20 BNA OSHC 12 86, 1288-89 (No. 99-0849, 2003)
(citations omitted). The Court finds that Ontario f ailed  to
show the exception
at
29 C.F.R. § 1926.500(a)(1)
applies at its worksite .

OSHA ’s
construction fall protection standard s
were updated through
rulemaking
that
became effective
February 6, 1995 .
Safety Standards for Fall Protection in the Construction Industry,
Final Rule Preamble,
59 FR 40672
(Aug. 9, 1994) ( Preamble ).

“[T]he preamble to a standard is the most authoritative evidence of the meaning of the standard.” 
Superior Rigging & Erecting Co ., 18 BNA OSHC 2089, 2091
(No. 96-0126, 2000 ) .

The preamble
stated the purpose of t he
exception at 19 26.500(a)(1)
as follows .

Paragraph (a)(1) . . .
states that the provisions of subpart M do not apply when the employer establishes that employees are
only
inspecting, investigating, or assessing workplace conditions prior to the actual start of the work or after work has been completed . OSHA has set this exception because employees engaged in inspecting, investigating and assessing workplace conditions before the actual work begins or after work has been completed are exposed to fall hazards for very short durations, if at all, since they most likely would be able to accomplish their work without going near the danger zone. Also, the Agency's experience is that such individuals who are not continually or routinely exposed to fall hazards tend to be very focused on their footing, ever alert and aware of the hazards associated
with
falling. These practical considerations would make it unreasonable, the Agency believes, to require the installation of fall prote ction systems either prior to the start of construction work or after such work has been completed. Such requirements would impose an unreasonable burden on employers without
demonstrable benefits.

( e mphasis added). Preamble,
59 FR
at 40675.

T he preamble
emphasize d
the
exemption
wa s limited , in that it
only applied
for
a
particular activity
(inspectin g, investigating, or assessing)
performed at a particular time
(before the actual work begins or after work has been completed) .

In response to
public
comments, OSHA
also
explained —

OSHA has decided
. . .
to make it clear
that
the exclusion
only
applies
when the employer establishes that employees are inspecting, investigating, or assessing workplace conditions prior to the actual start of work or after the work has been completed.
It was OSHA's intent when it proposed this provision that the exclusion would
only apply at the two times stated above , not during the period when construction work is being performed. As explained in the preamble to the proposed rule, the exception would apply where an employee goes onto a roof in need of repair to inspect the roof and to estimate what work is needed. During such an inspection, guardrails, body belts, body harnesses, safety nets, or other safety systems would not be required. However,
if inspections are made while construction operations are underway ,
all employees
who are exposed to fall hazards while performing these inspections must be protected
as required by subpart M .

The intent of the provision is also to recognize that after all work has been completed, and workers have left the area, there may be a need for building inspectors, owners, etc. to inspect the work. OSHA recognizes that in these situations, all fall protection
equipment, such as perimeter guardrail systems, may have been removed. OSHA is not requiring the installation of the systems for a second time for
inspectors, because the Agency recognizes it would be unreasonably burdensome to require the reinstallation of fall protection equipment after all the work has been completed.

( e mphasis added). Preamble,
59 FR
at 40675.

This preamble
excerpt
demonstrates
that
OSHA intend ed
the exemption
to
be narrowly applied . The premise for
the
“inspection”
exemption
is the practical issue of
whether
a fall protection system would be in place prior to the beginning of construction
work
or after the construction
work
had been completed.

During the construction project, fall protection systems
are
in place. Th erefore , t he exemption
does not apply during
the construction project itself;
it applies at
two discrete
times — just
before and after the construction pro cess.

Here,
Respondent asserts that when
employees entered and exited the roof
during
each
day’s
work shift ,
it qualified
for this
exemption .
T h e
pl ain language of
the standard and
the preamble explanation
do not support Respondent’s assertion. Both
state
the ex emption
is limited to two
discrete
times
outside
the
construction project and
does not apply
on a
daily
basis
during
the
construction project.
T he preamble
cl arified
that “while construction operations are underway, all employees who are exposed to fall hazards . . . must be protected.” Id.

Here, t he construction project was
the re- roofing
of
a residential home. Ontario
had
neither started nor completed the construction project on May 3 .
Ontario employees had been engaged in roo fing work for at least four days . Employee
exposure on May 3 occurred while construction operations were underway .

Thus, the timing of the employees’ exposure does not fall within the confines of the ex em ption.

Respondent
also asserts employees were engaged in
the type of
activity that qualified
for the ex emption
when they inspected
the anchorage points
each morning
as they hook ed
o nto the
fall arrest
system. I nspecting fall protection equipment at the beginning
or end
of each work shift
is not the type of
activity included within the
fall protection exemption . The preamble ma kes
clear the ex emption
wa s premised on the fact that fall protection equipment
was not in place either because it had
not yet been instal led or had
already
been removed
after
the construction
was
completed . Here,
the fall arrest system, including the necessary anchorage points, was already in place when employees started work on May 3. (Tr. 118). Thus, inspection of the fall protection anchorage points installed on the roof a few days before wou ld not be an activity included in the
ex em ption.

Additionally,
Mr. Davis acknowledged
employees were not primarily on the roof to inspect
anchorage points . H e stated that
“ the sole reason that they are getting on the roof is to tie off.” (Tr. 158) . By his own words, Mr. Davis indicated employees were not engaged in assessing, investigating, or inspectin g work during the time they
crossed
the roof from the eave to peak. Being unprotected for the sole purpose of crossing t he roof to the anchorage point
is
not an activity included within the ex em ption.

Respondent’s employees were not engaged in
an activity that fell
within the confines of
the standard’s exception. Nor did the activity fall within the
two
di screte times
that would qualify for
the exception.

According to both
the preamble and text of the standard, the exception at 29 C.F.R. § 1926.500(a)(1)
does not apply here .

Respondent
also
asserts
that
two OSHA
interpretation
letters,
Exhibits A-B,
support its
assertion
the exception at
29 C.F.R. §
1926.500(a)(1)
applied. (Exs.
A-B). The Court
finds neither letter
supports
Respondent’s assertion.

In a
March 2, 2010
letter
at
Exhibit
A,
OSHA
set
forth an interpretation
of
29 C.F.R. § 1926.500(a)(1) based on
a
hypothetical
work
scenario. In the scenario, prior to the start of construction,
an
engineer
would be
inspecting
a roof for
a three-hour period during which
the engineer would be
near,
and leaning over,
the edge of a
roof
that was 40 feet above
the next lower level. (Ex. A).    OSHA
stated that
the inspection exemption
at 29 C.F.R. §
1926.500(a)(1)
presumed
that an inspector would
not
be
working so
close to
the
unprotected side or edge
of a roof.

(Ex. A).

OSHA concluded that in this work scenario, the exception would not apply because the
intent behind the standard’s exception for inspection work
was not consistent with an inspector
working
near the roof’s edge
for
three
hours.

Id.

OSHA stated that in situations
that kept “employees in close proximity to a fall hazard” the exemption
would
not apply. Id.

The
OSHA
letter
at Exhibit A
demonstrates that even
in
a scenario where the
activity is
limited to
a
pre-construction inspection,
the
fall protection exemption will
not
always
apply. Depending on the circumstances, fall protection may still be required
for an
employee, even when it is an inspection only activity.

Id.

Exhibit A
is not
comparable
to the facts at issue here. At Ontario’s worksite, the
employees were not engineers, were not engaged in roof
inspections, and
the work
was not prior to the start of construction. Instead,
Ontario’s
employees
were
engaged in roofing work
during
an
ongoing
construction project. The scenario
in Exhibit A
is not informative to Ontario’s worksite.

OSHA’s
March 12, 2004
letter
at
Exhibit B also provided
an
interpretation of
the exception at
29 C.F.R. § 1926.500(a)(1). In this
hypothetical work
scenario,
employees
were
inspecting
a roof
to determine
whether repairs were needed.
(Ex. B). If
a needed repair took
less time than
the installation of
fall protection,
the employees would make
the repair
during the inspection process.

Id.

OSHA stated
that
pre-work inspection
of the roof
generally
qualified
for the
fall protection exemption. Id. However,
if repairs
were made while the employees were inspecting the roof, the exemption
no longer applied
and fall protection
equipment
was
required. Id.

OSHA
cited
to
preamble
text that
stated “[I]f inspections are made while construction operations are underway, all employees who are exposed to fall hazards while performing inspections must be protected as required by Subpart M.” Id.

Thus, when the scope of the work
went
beyond inspection and included
repair work (construction)
the exemption no longer applied.

The letter at Exhibit B demonstrates that
even where the primary
activity
is inspection, any construction activity
negates the
exemption.

Id. Making repairs to the roof changes the nature of the work and fall protection must be used. Id.

At Ontario’s worksite here, the primary activity was roofing work.

Any inspection of equipment was secondary to the construction work. Further, as
Ontario’s employees
traversed the
roof,
they
were not engaged in
inspection
work. Exhibit B does not support Respondent’s assertion that it qualified
for the exception at
29 C.F.R. § 1926.500(a)(1). Rather, Exhibit B
reiterates
that
the work at Respondent’s worksite on May 3
required the use of fall protection and did not qualify for an exemption.

As both Exhibits
A and B demonstrate,
the exception within
29 C.F.R. § 1926.500(a)(1)
was promulgated for a
narrow
exemption from
Subpart M’s
requirement for fall protection
in construction. Exhibit A provided
an
example
of a work scenario
where
inspection-only activity
would
not qualify for
the exemption. Exhibit B provided
an example
where
even when inspection was the primary activity,
small
roofing
repairs
nullified
the exemption.

OSHA’s interpretations at Exhibits A and B
do not support Respondent’s position that it qualified
for the fall protection
exemption. Based on
these two letters,
the preamble, and
the
plain text of the cited standard,
the Court concludes the Respondent does not qualify for the exception at 29 C.F.R. § 1926.500(a)(1).

Exception
for an alternate fall protection plan that complies
with
§
1926.502(k)

The cited standard,
29 C.F.R. § 1926.501(b)(13),
allows
an employer
to
implement an alternate
fall protection
plan
if the employer can demonstrate it
was either infeasible 20
or a
greater hazard to implement one
of the
conventional fall protection systems (guardrails, safety net, or personal fall arrest) required by the standard.

29 C.F.R § 1926.501(b)(13).

The
alternate
plan
must satisfy
ten requirements set forth at  29 C.F.R. § 1926.502 (k) . 21

Id.

Ontario ’s only evidence of a possible
alternate fall protection plan was a desc ription of the
work procedure
provided
by Mr. Davis.

When they step off the
ladder, they are instructed by company policy to go
straight to the ridge, straddle the ridge, and hook
into their safety harness system. There is no work
commencing
. . .
.
[t] hey are
not pounding a nail. They are not pulling a shingle.
They are performing no trade whatsoever pertaining to
roofing until they are all clipped in safely per our
company policy .

(Tr. 131).
Ontario’s work procedure
does not satisfy the requirements for a n alternate fall protection plan
set forth at
29 C.F.R.
§ 1926.502(k) .

Because Ontario
did not have a n alternate
plan that m e et s
the requirements of 29 C.F.R. § 1926.502(k), it
does
not qualify for the exception at
29 C.F.R. §
1926.501(b )( 13) .

Affirmative Defenses – Greater Hazard and Infeasibility

Respondent also
sets forth
arguments that implicate the affirmative defenses of greater hazard and infeasibility. Respondent bears the burden of proof for these defenses . See
Briones Util. Co. , 26 BNA
OSHC 1218, 1220
(No.
10-1372,
2016) .

With respect to greater
hazard, Respondent asserts
an employee needs
two hands
t o attach the rope to the
D-ring on the back of an employee’s
personal fall arrest harness. (Tr. 156-57). When an employee is on a ladder, the employee must keep at least one hand on the ladder to maintain safety. Ontario argues
that
i f an employee is on the ladder and using
both hands to connect
to the D-ring ,
he is more likely to fall. Respondent asserts this hazard is greater than moving across the
roof
without fall protection
twice a day . (Tr. 156-57).

To prove the affirmative defense of greater hazard,
the Commission requires a
Respondent
to
show : (1) the hazards created by complying with the standard are greater than those of noncompliance; (2) other methods of protecting its employees from the hazards are not available; and (3) a variance is not available or is inappropriate.
Walker Towing Corp. , 14 BNA OSHC 2072, 2078 (No. 87-1359 , 1991).

Respondent must prove e ach element of this
three-part test
to establish the
defense. 
See  Dole v. Williams Enters., Inc. , 876 F.2d 186,
188
(D.C. Cir. 1989)
(citations omitted) .

W hen an employer does not explain why it did not apply for a variance, the greater hazard defense fails and there is no need to address the other two elements of the test.
  Altor, Inc. , 23 BNA OSHC 1458, 1470 (No. 99-0958 , 2011) (citations
o mitted) 

aff'd ,  498 F. App ’ x .
145 (3d Cir. 2012)
(unpublished) .

Here, Respondent
presented
no evidence of whether it had
applied for a variance .

Because there is no proof for this element, t he
Court finds the
affirmative defense
of greater hazard fails.

To prove  the affirmative defense of
infeasibility, an employer must show that :

( 1) literal compliance with the terms of the cited standard was infeasible; and (2) an alternative protective measure wa s used or there was no
alternative measure
available . 
Otis Elevator Co. , 24 BNA OSHC 1081, 1087 (No. 09-1278, 2013),  aff'd , 762 F.3d 116 (D.C. Cir. 2014).
Infeasibility can be eithe r economic or technological.

See
V.I.P. Structures, Inc. , 16 BNA OSHC 1873, 1874 (No. 91-1167, 1994).

With respect to
the first element , Respondent has not proved that
literal
compliance with the cited standard was infeasible. Respondent asserts that it is difficult to climb a ladder
with fall protection connected because it is difficult to adjust the rope grab and
maintain the necessary three points of co ntact on the ladder . However, as pointed out by the CO, employees are no t required to use fall protection
while climbing a ladder
unless traversing more than 23 feet . 22

(Tr. 97 , 151 ).

Thus, Respondent’s argument is moot.

Respondent also asserts
it
is infeasible to
hook
the rope to the D-ring o n the fall arrest harness and maintain three points of contact on the ladder . (Tr.
69-70,
156-57 ). At the hearing,
Mr. Davis used
a single
component of a personal fall arrest
lanyard
system — the rope,
one end of which
would
attach to an
anchorage point
on the roof
and the other end
which
would
attach to the
D-ring on the
back of a
fall arrest harness —as a demonstrative exhibit . A photograph of the
demonstrative exhibit was taken at the trial by Mr. Davis and submitted by Respondent into the record after the trial. Exhibit C is admitted is admitted as a photograph of the demonstrative exhibit without objection. ( Tr. 72- 82 , 146-47 ;
Ex. C). Using only the rope,
Mr. Davis attempted to show that it
was very difficult to attach a
rope to the
D- ring on the back of the
harness. (Tr. 126-30). Mr. Davis
did not wear
a
fall arrest harness
during th e
demonstration. Further, the rope was not attached to anything. T he Court finds that
Mr. Davis did not demonstrate
at trial
the
difficult y of using
only one hand to hook
a
rope to the D-ring on the back of a fall arrest harness. The Court finds Mr. Davis’ s
courtroom
demonstration
unpersuasive .

Respondent ’s
claim of
infeasibility
is
also
undercut by the fact that
it
had
implement ed
a fall arrest system at the
w orksite.

(Tr. 42;
Ex. 4;
SF
22-24).

The ropes used by Ontario for its fall arrest system were approximately 25 feet in length.

Each
rope
started at an anchorage point at the peak of the roof and reached past the eave of the roof.

(Tr. 27, 30, 34; Ex. 2
at “C”-“D”). Employees could engage their fall protection systems while either on a ladder or at the eave.

(Tr.
98, 112 - 13).
Respondent’s claim that it was infeasible to have employees engage their personal fall protection system at the eave is also
undermined by
CO Schrilla observ ing
an
employee , during his inspection,
walk down to the eave to disengage
his
fall protection system and le ave
every component of the fall arrest system ,
except his personal harness ,
at the eave in order to engage it once he returned
back up
to the
roof .

(Tr. 105-06).

C ompliance
to the cited standard
is
not infeasible
where
a change in operations as simple as storing ropes at the eave and requiring employees to engage their fall arrest systems there ,
or on a ladder ,
would have protected employees at all times .

CO Schrilla
also
credibly testified that
if
employees found
the
particular
fall
arrest system
configuration
used by Respondent
to be
difficult
to
hook
onto
using one hand, there were other
styles of personal fall arrest systems available for
purchase and
use.

(Tr.
85-86).

The Court finds
Respondent did not show
it was technologically infeasible to comply with the standard.

T o
show
economic
infeasibility
an employer must present s pecific evidence to show that an “employer's existence as a company would have been adversely affected” by the cost of compliance.
  Gregory & Cook, Inc ., 17 BNA OSHC 1189, 1191 (No. 92-1891 , 1995)
(citations omitted) . Respondent did not provide evidence that it would be adversely affected by purchasing a style of personal fall arrest equipment that would be easier for an employee to use. Moreover, the fall arrest system provided by Respondent
was capable of providing fall protection to its employees at all times , including during ingress and egress at the worksite
at the beginning and end of each workday . (Tr. 27, 30, 34, 79-80, 83, 86, 105-06, 112-13; Sec’y Br. at 7). The Court fi nds that Respondent did not prove
that it was infeasible to attach to a fall arrest system while standing at the top of the ladder prior to entering the roof.

Respondent
a lso asserts it cannot inspect
the fall arrest equipment anchor age points
that are installed at the roof’s
peak
from the ground or from the
ladder . (Tr.
68- 69 , 157-58 ) .
However, the CO st ated that an
anchorage point could
be
visually
inspected each day
while standing at the top of the ladder at the roof’s eave. (Tr.
68- 69). A t Respondent’s
worksite,
the CO
did a visual inspection of the anchorage points from the l adder. He was able to see
the anchorage points were
there
and
that
the nails securing the anchorage points were in place . (Tr.
68- 69). Respondent did not
adequately
explain why
a
visual inspection
from the ladder
w as
in sufficient
or not feasible .

Respondent has not proved that com pliance with
the cited
standard
was
technologically or economically
infeasible . Further,
with respect to the second element,
Respondent did not
present
evidence that
an al ternative protective measure had been
used or that
no
alternative
protective measure
was available . The Court finds the
affirmative defense of  infeasibility  fails.

The Secretary
proved the elements of applicability, knowledge, and employee exposure. Further, the Secretary proved Respondent did not comply with the requirements of the standard.

Citation 1, Item 1 is affirmed.

Characterization

Citation 1 , Item 1
wa s
classified as
a serious violation .

(Tr. 55; Ex. 3). U nder section 17(k) of the Act
a violation is serious
if “there is substantial probability that death or serious physical harm could result.” Commission precedent requires a finding that “a serious injury is the likely result should an accident occur.” Pete Miller Inc.,
19 BNA OSHC
1257,
1258
(No. 99-0947, 2000).

The
hazard in this case was
a fall from a roof. Roofing has been recognized as an inherently dangerous activity which can cause serious physical harm.

Chris Welch , 26 BNA OSHC 1846,
1850
(No. 16-0687, 2017)
(ALJ) (citing

Daniel Crowe Roof Repair , 23 BNA OSHC 2001, 2017
(No. 10-2090, 2011)
(ALJ)).

As demonstrated by Mr.
[redacted] ’s fall,
serious injury
can result from a fall
of 18 feet . The Court finds the violation was serious in nature.

Penalty

Section 17(j) of the Act requires the Commission to give due consideration to four criteria in assessing penalties:

the size of the employer’s business, the gravity of the violation, the employer’s good faith, and its prior history of violations. Compass Envtl., Inc. ,
23 BNA OSHC
1132,
1137
(No. 06-1036, 2010)
aff’d,
664 F.3d 1164 (10 th
Cir. 2011). The gravity of the
violation is generally accorded greater weight. See
J. A. Jones
Constr. Co. , 15 BNA OSHC
2201,
2213-14
(No. 87-2059, 1993).

The maximum statutory penalty for
a
serious
citation
is $12,675. 23

82 FR 5373 (Jan. 13, 2017). OSHA determined the
hazard
was of
h igh severity due to
the
serious nature of injury and low probability due to the short
duration of the exposure
resulting in
a
gravity-based
penalty of $9,054. (Tr.
55-56; Ex. 3). Then, because Respondent had twenty
employees, a
sixty percent reduction
was applied resulting in the proposed penalty of $3,622. 24 (Tr.
55-56; Ex. 3).

The Commission
and its judges conduct de novo penalty determinations.
See
Dana Container, Inc. , 25
BNA OSHC
1776 , 1791
( No. 09-1184 , 2015)
(citations omitted)
aff’d , 847 F.3d 495 (7 th
Cir. 2017).
“The Act places limits for penalty amounts but places no restrictions on the Commission's authority to raise or lower penalties within those limits.”
Valdak Corp. , 17 BNA OSHC
1135, 1138 (No. 93-0239, 1995) ,  aff'd , 73 F.3d 1466 (8th Cir. 1996).

Based on the
record as a whole, t he
Court finds an additional reduction to the
proposed
penalty
is merited. Here, the Respondent provided
fall protection equipment to
its
employees and required
its
employees to
use it, except when traversing between the eave and the peak at the beginning and end of each workday. Employees
actively
used
fall arrest equipment
at this worksite; except for these two
one-minute unprotected movements.

(Tr. 58-59, 105-06). Ontario’s employees were adequately trained, and its fall protection equipment was in good working order. (Tr. 67, 134). The CO also testified that he found Ontario’s safety culture was generally strong. He said Ontario made a good effort to comply with OSHA standards. (Tr.
88-89). Ontario also cooperated and was “up front” with OSHA’s investigation. (Tr. 60, 66). Based
on Mr. Davis’s comments, the Court believes
Ontario
will
no longer allow
its
employees to
traverse between the eave and the peak without
adequate
all protection
at the beginning and end of each workday
and will purchase
any necessary
equipment
for compliance. 25 (Tr.
135-37). Accordingly,
the Court
reduces
the penalty
an additional fifty percent
to $1,811.

Findings of Fact and Conclusions of Law

All findings of fact and conclusions of law relevant and necessary to a determination of the contested issues have been made above. See
Fed. R. Civ. P. 52(a). All proposed findings of fact and conclusions of law inconsistent with this decision are denied.

ORDER

Citation 1, Item 1, alleging a serious violation of 29 C.F.R. § 1926.501(b)(13)
is
AFFIRMED, and a penalty of
$1,811
is assessed.

_________

The Honorable Dennis L. Phillips

U.S. OSHRC
Judge

Dated:

Washington, D.C.

"

1
On January 3, 2018, Respondent was ordered to file its declaration listing its parents, subsidiaries, and affiliates, or state that it has none by January 31, 2018. 29 C.F.R. § 2200.35(a). Respondent failed to comply with this court order.

2
Exhibits within this decision will be referenced
by numbers
for
the Secretary’s exhibits and letters for
Respondent’s exhibits. The stipulated facts will be referenced as
Stipulated Fact (SF)
___.

3
All references to May 3 mean May 3, 2017.

4
“ Anchorage
means a secure point of attachment for lifelines, lanyards or decelerations devices.” 29 C.F.R § 1926.500(b). The anchor points were located at about 8-10 points across the roof’s ridge. The D-rings are installed using plates that go to either side of the roof’s ridge that are fastened into the plywood sheathing or the rafters. (Tr. 22-23, 31).

5
“ Personal fall arrest system
means a system used to arrest an employee in a fall from a working level. It consists of an anchorage, connectors, a body belt or body harness and may include a lanyard, deceleration device, lifeline, or suitable combinations of these. As of January 1, 1998, the use of a body belt for fall arrest is prohibited.” 29 C.F.R § 1926.500(b).

6
“ Lifeline
means a component consisting of a flexible line for connection to an anchorage at one end to hang vertically (vertical lifeline), or for connection to anchorages at both ends to stretch horizontally (horizontal lifeline), and which serves as a means for connecting other components of a personal fall arrest system to the anch orage.” 29 C.F.R § 1926.500(b).

7
The
C itation issued to Respondent was related to general fall protection practices used at the worksite and not Mr.
[redacted] ’s
use of
fall protection in particular. (Tr. 94 , 111 ).

8
Foreman Zuhlke
and Mr. Jenks
told CO Schrilla that Ontario’s employees were going from the top of the ladder to the peak
without being hooked up to anything at the start of each morning’s work. (Tr. 102-06). Mr.
[redacted]
also told the CO that he had moved from the top of the ladder to the roof’s peak without being properly tied off. (Tr. 110-11).
The CO later verified that this was Ontario’s standard practice with Mr. Davis. (Tr. 106-08). CO Schrilla testified that all six employees, including
Messrs. Zuhlke , Jenks, Griffin, Smith,
Wisecup, and
[redacted] , were exposed to the same hazard. (Tr. 114).

9
“ Lanyard
means a flexible line of rope, wire rope, or strap which generally has a connector at each end for connecting the body belt or body harness to a deceleration device, lifeline, or anchorage.” 29 C.F.R § 1926.500(b).

10
“ Rope grab
means a deceleration device which travels on a lifeline and automatically, by friction, engages the lifeline and locks so as to arrest the fall of an employee. A rope grab usually employs the principle of inertial locking, cam/level locking, or both.” 29 C.F.R § 1926.500(b). A rope grab at the worksite is shown
from a distance
at Exhibit 2, at “E”. (Tr. 45; Ex. 2 at “E”).
The Court notes that there are
no
letters marked “A” or “B”
shown on
Exhibit 2. A
close up of a
rope grab is also shown at Exhibit C at “3”. (Tr. 76 -78 ; Ex. C at “3”).

11
Foreman Zuhlke told CO Schrilla on May 3 that Ontario’s employees left their ropes at the peak of the roof at the end of the day. (Tr. 104).

12
CO Schrilla
testified
that while climbing the ladder an employee was not required by Ontario to use fall protection. (Tr. 97).

13
CO Schrilla testified that an employee could lose his footing in “[m]ere seconds. Less than a second.” (Tr. 49). Mr. Davis admitted that an employee could lose his or her footing in a second or so on a roof, fall, and get seriously injured. (Tr. 27).

14
A roof bracket “is a structure that is placed on the roof to assist the roofers with performing their work.” A roof bracket is shown at Exhibit 2 at “G”. (Tr. 48-49). CO Schrilla testified that a “slide guard” was shown at Exhibit
1, at “D”. There were
also two
horizontal
roof
brackets
in-place along the slope of the upper roof between
the peak
and
the
eave
at the time of the OSHA inspection. (Tr. 49-52;
Ex. 1 at C-E).
CO Schrilla testified that the
one slide guard and
two
roof brackets shown in the photograph at Exhibit 1
at “C”–“E” did not constitute fall protection. He said
that since about 2012
roof brackets
did not comply with the fall protection standard,
were never allowed on a roof pitch over 8 and 12,
did not arrest a fall, and did “not prevent the employees from coming off of the roof.” (Tr. 51-52; Sec’y Br. at 21-23).

15
The scope and application provision of Subpart M, Fall Protection, states:

(1)  This subpart sets forth requirements and criteria for fall protection in construction workplaces covered under 29 CFR part 1926. Exception: The provisions of this subpart do not apply when employees are making an inspection, investigation, or assessment of workplace conditions prior to the actual start of construction work or after all construction work has been completed. 29 C.F.R. § 1926.500(a)(1).

Subpart M is found at 29 C.F.R. §§ 1926.500-503.

16
Respondent asserts that,
at
SF
22, the Secretary has agreed that employees were not at work when moving across the roof prior to being tied off. (Tr. 159). However, Respondent misconstrues the nature of
SF 22 which simply sets forth the agreed-to fact that while moving from eave to peak employees did not wear fall protection and they did not engage in roofing activities prior to being tied off at the peak. The stipulation is not a legal conclusion as to whether employees were required to wear fall protection while crossing to
and from
the roof’s peak
at the beginning and end of each workday.

17
The employees were
Messrs.
Zuhlke,
Jenks, Griffin, Smith,
Wisecup, and
[redacted]. (Ex. 3 at 2-3).

18
Even if the assigned workplace was limited to the roof’s peak, the path to the peak
was the ingress-egress area to the roof’s peak
where employees were
also
exposed to the hazard.

19
See Elite Builders, Inc. , 26 BNA OSHC 2038 (No. 15-1645, 2017) ( c onsolidated) (ALJ), where, as here,

“Bratetic [owner] told [the CO] that he was fully aware of the fact that his employees were working on the roof without fall protection and provided reasons as to why”, an d an
Administrative Law Judge concluded that the Respondent, “through its principal, had actual knowledge of the violative conditions.” Id.
at 2045. A foreman’s actual knowledge can also be imputed to the employer.

Wayne J. Griffin Elec., Inc. , 26 BNA OSHC 1786, 1796 (No. 15-0858, 2017)
(ALJ) (citing

N & N Contractors, Inc. , 18 BNA OSHC 2121, 2123 (No. 96-0606, 2000) ,
aff’d ,
255 F.3d 122 (4th Cir. 2001) ).

20
“Infeasible means that it is impossible to perform the construction work using a conventional fall protection system (i.e., guardrail system, safety net system, or personal fall arrest system) or that it is technologically impossible to use any one of these systems to provide fall protection.” 29 C.F.R. § 1926.500(b).

21
The standard states:

(k) Fall protection plan. This option is available only to employees engaged in leading edge work, precast concrete erection work, or residential construction work (See § 1926.501(b)(2), (b)(12), and (b)(13)) who can demonstrate that it is infeasible or it creates a greater hazard to use conventional fall protection equipment. The fall protection plan must conform to the following provisions.

(1) The fall protection plan shall be prepared by a qualified person and developed specifically for the site where the leading edge work, precast concrete work, or residential construction work is being performed and the plan must be maintained up to date.

(2) Any changes to the fall protection plan shall be approved by a qualified person.

(3) A copy of the fall protection plan with all approved changes shall be maintained at the job site.

(4) The implementation of the fall protection plan shall be under the supervision of a competent person.

(5) The fall protection plan shall document the reasons why the use of conventional fall protection systems (guardrail systems, personal fall arrest systems, or safety nets systems) are infeasible or why their use would create a greater hazard.

(6) The fall protection plan shall include a written discussion of other measures that will be taken to reduce or eliminate the fall hazard for workers who cannot be provided with protection from the conventional fall protection systems. For example, the employer shall discuss the extent to which scaffolds, ladders, or vehicle mounted work platforms can be used to provide a safer working surface and thereby reduce the hazard of falling.

(7) The fall protection plan shall identify each location where conventional fall protection methods cannot be used. These locations shall then be classified as controlled access zones and the employer must comply with the criteria in paragraph (g) of this section.

(8) Where no other alternative measure has been implemented, the employer shall implement a safety monitoring system in conformance with § 1926.502(h).

(9) The fall protection plan must include a statement which provides the name or other method of identification for each employee who is designated to work in controlled access zones. No other employees may enter controlled access zones.

(10) In the event an employee falls, or some other related, serious incident occurs, (e.g., a near miss) the employer shall investigate the circumstances of the fall or other incident to determine if the fall protection plan needs to be changed (e.g. new practices, procedures, or training) and shall implement those changes to prevent similar types of falls or incidents. 29 C.F.R. § 1926.502(k).

22
Respondent asserted it was too difficult to be tied off while climbing the ladder; however, CO Schrilla
explained OSHA does not require fall protection while climbing the ladder to reach the roof. Further, the Secretary did not allege that employees are required to use fall protection on the ladder. Thus, Respondent’s assertions related to fall protection while climbing the ladder from the ground to the roof are moot.

23
OSHA’s statutory maximum penalties were increased pursuant to the Inflation Adjustment Act of 2015, Pub. Law 114-74 § 701, 129 Stat. 559-602 (2015). The violation in the instant case was assessed on June 21, 2017, thus a statutory maximum of $12,675 applies. 82 F R
5373 , 5382
(Jan. 1 8 , 2017).

24
No penalty reduction was given for history, good faith, or quick fix. (Tr. 56-57, 87; Ex. 3 at 1).

25
During the redirect examination of Mr. Davis, he testified: “I have actually talked with Mr. Schrilla at the break and he said that there are systems that would be better suited and the same cost. And I said to him after this court appearance we can talk and look at that because I, by all means, am interested in what an OSHA compliance officer has to say as far as an opinion for a successful system.” (Tr. 135-36).