Hartford Roofing Co., Inc.

Plain-English summary

Hartford Roofing was performing built-up roofing work on a low-pitched roof that was about 69 feet wide and 19 feet above the ground. Two employees moving sheetrock worked about eight feet from the roof edge. Hartford used only a safety monitor, but the judge found that the roof-width rule required a warning line because the roof exceeded 50 feet in width. He rejected Hartford's arguments that the employees lacked access to the danger zone and that the violation was de minimis. The serious violation was affirmed, and the proposed $1,750 penalty was reduced to $1,500.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.500(g)(3)(i).
• Outcome: The serious warning-line violation was affirmed, with a $1,500 penalty.
• Key point: On a low-pitched roof wider than 50 feet, a safety monitor alone does not replace the required warning-line system for employees working away from the roof edge.

Full text (OSHRC public release)

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. — 9th Floor
Washington, DC 20036-3419

FAX:
COM (202) 606-5050
FTS (202) 606-5050

SECRETARY OF LABOR

Complainant,
v. OSHRC DOCKET
NO. 92-1162
HARTFORD ROOFING CO., INC.
Respondent.

NOTICE OF DOCKETING

OF ADMINISTRATIVE LAW JUDGE’S DECISION

The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on October 27, 1993. The decision of the Judge
will become a final order of the Commission on November 26, 1993 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received by the Executive Secretary on or before
November 16, 1993 in order to permit sufficient time for its review. See
Commission Rule 91, 29 C.F.R. § 2200.91.

All further pleadings or communications regarding this case shall be
addressed to:

Executive Secretary
Occupational Safety and Health
Review Commission

1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419

Petitioning parties shall also mail a copy to:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004

200 Constitution Avenue, N.W.
Washington, D.C. 20210

If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
having questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.

FOR THE COMMISSION

Date: October 27, 1993
/s/ Ray H. Darling, Jr.
Ray H. Darling, Jr.
Executive Secretary

DOCKET NO. 92-1162
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.

Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004

200 Constitution Ave., N.W.
Washington, D.C. 20210

Albert H. Ross, Esq.

Regional Solicitor

Office of the Solicitor, U.S. DOL
One Congress Street, 11th Floor
P.O. Box 8396

Boston, MA 02114

Jill Hartley,

Cohn & Birnbaum, P.C.
100 Pearl Street
Hartford, CT 06103

Richard DeBenedetto
Administrative Law Judge
Occupational Safety and Health
Review Commission
McCormack Post Office and
Courthouse, Room 420
Boston, MA 02109-4501

00113206213:01

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
JOHN W. McCORMACK POST OFFICE AND COURTHOUSE
ROOM 420
BOSTON, MASSACHUSETTS 02109-4501

PHONE: FAX:
COM (617) 223-9746 COM (617) 223-4004
FTS 223-9746 FTS 223-4004

SECRETARY OF LABOR,
Complainant

v. OSHRC Docket No. 92-1162

HARTFORD ROOFING CO., INC.
Respondent.

Appearances:

Christine Eskilson, Esq. Jill Hartley, Esq.
Office of the Solicitor Cohn & Birnbaum, P.C.
U.S. Department of Labor Hartford, CT
For Complainant For Respondent

Before: Administrative Law Judge Richard DeBenedetto

DECISION AND ORDER

On March 6, 1992, Hartford Roofing Co., Inc. (“Hartford”) was cited for an alleged
serious violation of 29 C.F.R. § 1926.500(g)(3)(i) which requires warning lines to be erected
around all sides of the area on a low-pitched roof in which employees are performing built-
up roofing work. A penalty of $1750 is proposed. The citation was issued as the result of
an inspection conducted on December 12, 1991 at Norwalk Hospital in Norwalk,
Connecticut, where Hartford was constructing a roof on one of the hospital’s storage
facilities (Tr. 31, 85, 90; Exhibits C-2, C-3 & C-6).

Hartford’s employees were performing built-up roofing work on a roof which was
approximately 69 feet wide, 19 feet from the ground, and low-pitched (Tr. 11-12, 91-92;
Exhibits C-2, C-3, C-6 & C-7). In preparation for this project, two Hartford employees,

James Bartholomew and Winston Gordon, were assigned to move several slabs of sheetrock

piled about six feet from the roof’s edge to another area of the roof (Tr. 10, 92-95, 100, 105-
06; Exhibits C-2 through C-6). It is undisputed that performing this task placed these
employees approximately eight feet from the edge of the roof (Tr. 9-10, 15-16, 106-08;
Exhibits C-4 & C-5).1

The Secretary contends that Hartford failed to guard the roof perimeter in
accordance with the requirements of the roofing standard. Where, as here, the roof exceeds
fifty feet in width, the general provisions of § 1926.500(g)(1) provide two methods by which
employees performing low-pitched roofing work can be protected from falling off an
unguarded roof edge: by the use of a motion-stopping safety system (MSS system) or by the
use of a warning line system erected not less than six feet from the roof edge and
supplemented for employees working between the warning line and the roof edge by the use
of either an MSS system or a safety monitoring system.

There was neither a MSS system nor a warning line system in place at the worksite
in question. The only method of protection used by Hartford was a safety monitoring system
whereby one employee, assigned as a monitor, monitored the safety of the other employees
in the roofing crew (Tr. 11-12, 95-97, 111, 116; Exhibits C-4, C-5 & C-6). Section
1926.500(g)(1)(iii) expressly limits the exclusive use of a monitor to roofs which are 50 feet
or less in width. Since it is undisputed that the roof on which the Hartford employees were
working was about 69 feet wide, a safety monitoring system was not an appropriate method
of protection to employ at this site. Although, as Hartford points out, the actual area in
which the employees were performing work was only about 50 feet wide, it is clear that the
50-foot restriction limiting the use of this option is based upon the width of the entire roof,
not the width of the work area. Phoenix Roofing, Inc. v. Dole, 874 F.2d 1027, 1031 (5th Cir.
1989) (“Phoenix Roofing”). See also § 1926.502(p)(6). Therefore, the use of a safety

monitor in this situation runs counter to the plain meaning of the regulations.

1 According to Ross Tyler Adams, Hartford’s foreman at the Norwalk site, Mark Canino, a third employee
alleged to have been working near the roof’s edge at the time of the inspection, was installing a vapor barrier
at the roof’s perimeter with another employee; both were apparently tied off with safety belts (Tr. 85, 98-101,
103, 108, 112-13; Exhibit C-6). The Secretary has limited his case to the alleged exposure of Bartholomew and
Gordon.

Hartford contends that the Secretary has failed to prove the employees had “access
to a zone of danger” while working eight feet from the roof’s edge and that access cannot
be presumed by the mere presence of the employees on a low-pitched roof with an
unguarded perimeter. Hartford strenuously maintains that in order to prove access to a
hazard, the Secretary must show that “it is reasonably predictable that employees will be,
are, or have been in a zone of danger.” Clement Food Co., 11 BNA OSHC 2120, 2123, 1985
CCH OSHD ¶ 26,972 (No. 80-607, 1984).2

The roofing standard was promulgated in recognition of the fact that employees who
perform built-up roofing work on a low-pitched roof are exposed to a serious fall hazard;
the standard specifies the methods of protection to be utilized under certain conditions (Tr.
32-34, 41). See 45 Fed. Reg. 75,619(1980) (“Based on the information in the record, OSHA
concludes that employees working on roofs are confronted with a significant risk of serious
injury of death.”). See also Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864,
(10th Cir. 1975) (“The standard [section 1910.22(c)] presupposes the obvious, namely, that
an open unguarded pit necessarily presents the hazard that someone may fall into it”).
Hartford maintains that Bartholomew and Gordon did not need to be protected by the use
of a warning line because they were being monitored by Adams and were not working within
six feet of the roof’s edge (Tr. 8-12, 97-98, 108-10, 112-14). However, the preamble to the
roofing standard rejects the notion of distance qualification, such as Hartford urges:

Some comments suggested that the standard not apply to work
activity that is to take place exclusively at the roof edge...or

exclusively away from the edge.... While the... benefits of the
[warning] line may not be as critical at these points, other

2 To bolster this argument, Hartford cites two administrative law judge (“ALJ”) decisions, neither of which
govern the resolution of this dispute since they are unreviewed opinions and therefore, not binding precedent.
Leone Constr. Co., 3 BNA OSHC 1979, 1981, 1975-76 CCH OSHD ¶ 20,387 (No. 4090, 1976). Moreover, the
factual circumstances and legal issues presented in each case are different from the one at hand. See Skyline
Roofing & Sheet Metal, Inc., 13 BNA OSHC 1297, 1298, 1987 CCH OSHD ¶ 27,922 (Nos. 85-518 & 85-339,
1987) (alleged violation of § 1926.500(g)(1) vacated where ALJ concluded that compliance officer’s testimony
placing employees six or seven feet form roof’s edge was unreliable); A. Wachsberger Roofing & Sheet Metal
Works, Inc., 12 BNA OSHC 1517, 1518, 1985 CCH OSHD ¶ 27,391 (No. 84-810, 1985) (alleged violation of
§ 1926.500(g)(1) vacated where ALJ credited supervisor’s testimony establishing that employees were working
40 feet from the perimeter and had installed a warning line system over compliance officer’s testimony).

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features [of the line] still contribute to the safety of the employees
both inside and outside the warning line.

45 Fed. Reg. 75,622 (1980)(emphasis added).

To place a distance limitation upon the protection requirements of the roofing
standard would thwart the safeguards which the standard was designed to achieve.
Employees preoccupied with their tasks can easily lose track of exactly where on a roof they
are in proximity to its edge; Adams conceded as much at the hearing (Tr. 114-16). A
warning line placed six feet from the roof’s edge alleviates this problem by alerting an
employee working on the roof that he is nearing the perimeter; as long as a warning line is
up, the employee can work freely within this area without having to utilize any other form
of fall protection (Tr. 33-34, 36-37). See 45 Fed. Reg. 75,622 (1980). Even Adams
acknowledged that the safety of Bartholomew and Gordon would have been enhanced had
a warning line been utilized (Tr. 116-17, 125-25).

Relying on Phoenix Roofing, supra, Hartford argues that the violation should be
classified as de minimis. A violation may be considered de minimis “where the level of
protection that the employer afforded employees [is] not significantly different from that
required by technical compliance with the standard.” Erie Coke Corp., 15 BNA OSHC 1561,
1570, 1992 CCH OSHD ¶ 29,653 (No. 88-611, 1992), aff'd on other grounds, 16 BNA OSHC
1241 (3rd Cir. 1993). In Phoenix Roofing, the Fifth Circuit Court of Appeals concluded that
the use of a safety monitor under the circumstances of that case provided protection for
exposed employees that was at least equal to the protection a warning line would have
provided had one been erected, despite the fact that roof was over 50 feet wide and the use
of a safety monitor constituted a technical violation of the roofing standard. The Court held
that under the facts presented the § 1926.500(g)(3) violation was de minimis. Phoenix
Roofing at 1032.

Phoenix Roofing, however, does not sustain Hartford’s contention. That case rested
upon the facts that the exposed employees were working four feet from the roof’s edge and,
instead of a warning line, a monitoring system was being used whereby two employees had
as their sole responsibility the duty to watch those working on the roof and warn them if

they approached the edge. The Court noted that because the workers were already outside

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the 6 foot line, they would have received no benefit from a warning line located 6 feet from
the edge; and that the workers, being near the edge of the roof, were protected by monitors,
one of the two options required by the standard.3

There is an important distinction between working at or near the edge of the roof
and working away from the edge where a warning line delineates the more hazardous area
at the roof edge. That distinction is nearly lost sight of by Hartford's “access-to-zone-of-
danger” argument, but was clearly recognized by Judge Garwood in his dissenting opinion
in the Phoenix Roofing case, where he noted that “closeness to the edge, as such, can
produce a violation only when there is neither a motion-stopping safety system nor a safety
monitoring system, and here the citation does not allege the absence of a proper safety
monitoring system...” Id. at 1035 n.3. Judge Garwood stated:

The compliance officer’s testimony is consistent with the
commonsense observation that a warning line has the potential
advantage over monitors in that the monitors may from time to
time be distracted or inattentive. I readily concede that the
warning line would not enhance safety for those employees
working outside of it...But it seems obvious that the employees
worked not only along the edge of the roof, but also on the
portions of the roof which would have been protected by a
proper warning line.

The employer complied with the portion of paragraph (ii)
calling for monitors for employees working between the warning
line and the roof edge, but did not comply with the basic
requirement of paragraph (ii) that there be a warning line
system at least six feet from the roof edge. See 29 C.F.R. §
1926.500(g)(3). There is no showing that all the employees
working on the roof on this occasion worked only within six feet
of the roof edge. That is a matter on which the employer
should have the burden to the extent that it relies on such a
state of facts as a basis for claiming that the violation was no
more than de minimis because compliance with the regulations
would not have enhanced safety beyond that provided by the

3 The Court also noted that while the OSHA standard requires only one monitor every 50 feet (29 C.F.R. §
1926.500(g)(1)(iii), Phoenix was using 2 monitors within a 32-foot area, which calculated to 3 times as many
monitors as the standard mandated. Phoenix Roofing at 1031 n.6.

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employer. We should thus make the wholly logical assumption
that the employees were working both outside of and within the
area where protection would have been afforded by the warning
line.

Id. at 1035.

The evidentiary record does not provide a basis for concluding that Hartford’s safety
monitor was equal to the protection provided by the mandated warning line system. The
potential consequence of failing to comply with the cited standard was serious,4 and a
penalty of $1,500 is warranted under the penalty criteria of 29 U.S.C. § 666(j).

Based upon the foregoing findings and conclusions, it is
ORDERED that the citation is affirmed and a penalty of $1,500 is assessed.

/s/ Richard DeBenedetto
RICHARD DeBENEDETTO
Judge, OSHRC

Dated: October 22, 1993
Boston, Massachusetts

4 A violation may be deemed serious “where, although the accident itself is merely possible (i.e., in statutory
terms ‘could result from a condition’), there is a substantial probability of serious injury if it does occur.”
Shaw Const., Inc. v. OSHRC, 534 F.2d 1183, 1185 (5th Cir. 1976).

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