Ontario Exteriors, Inc. (ALJ decision, January 9, 2019)

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).