OSHRC ALJ decision
Docket 93-0644
Decided October 21, 1994
Mixed result
Judge Richard DeBenedetto
New England Industrial Roofing Co.
Roof perimeter-guarding item affirmed serious $750, warning-line item vacated
Apply this to your situation
This order from 1994 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Final order, not Commission precedent
This decision by an OSHRC
Administrative Law Judge became a final order of the Commission
because no Commissioner directed review (29 U.S.C. § 661(j)). It
binds the parties but is not binding precedent in other cases. The
full text below is from the official OSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official OSHRC release. The full text is the Commission's own document.
Read the official release (oshrc.gov)
Plain-English summary
New England Industrial Roofing was removing an old built-up roof and installing a new one on a two-story building when an OSHA officer inspected in December 1992 and cited two serious fall-protection violations: no motion-stopping-safety (guardrail) system at the roof edge, and no warning lines forming a clear path to the access ladder. The crew said it had finished the roofing and was securing the site against an approaching hurricane, arguing the fall-protection standards did not apply to storm cleanup. Administrative Law Judge Richard DeBenedetto rejected that argument, holding that clearing and securing the roof is part of the roofing process and safety standards are not suspended for weather. He affirmed the guardrail item as serious because workers threw debris from the unguarded edge with a 25-foot fall exposure, and assessed the $750 penalty. He vacated the warning-line item, finding the path to the ladder was clear and that, because the guardrail standard already required full edge protection, the alternative warning-line requirement did not apply.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1926.500(g)(1); § 1926.500(g)(3)(iii)(a)
- Outcome: Perimeter-guarding item affirmed serious ($750); access warning-line item vacated.
- Key point: Fall-protection standards still apply while a crew secures a roof against an incoming storm. And where guardrails already provide full edge protection, a separate access warning-line citation does not lie.
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 200364419
PHONE
coM@02)6064100
Frs (202) 6oGmm
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 93-0644
NEW ENGLAND INDUSTRIAL ROOFING
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative I&w Judge’s Report in the above referenced case was
docketed with the Commission on September 22, 1994. The decision of the Judge.
will become a final order of the Commission on October 21,1994 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGES DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received b the Executive Secretary on or before
October 11 1994 in order to ermit s&i cient time for its review. See
Commission Rule 91, 29 C.F.k 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Rewew 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 LLitiation
Office of the Solicitor, U.S. DOH.
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
havrng questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION
Date: September 22, 1994
DOCKET NO. 93-0644
NOTICE IS GIVEN TO TIIE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOH.
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Albert H. Ross, Esq.
Re ‘onal Solicitor
O&e of the Solicitor U S DOL
One Congress Street, ilth ‘noor
P.O. Box 8396
Boston, MA 02114
Barrett Metzler
Northeast Safety Management, Inc.
PO Box 330733
West Hartford, CT 06133
Richard DeBenedetto
Administrative Law Jud e
Occupational Safety an d Health
Review Commission
McCormack Post Offic and
Courthouse, Room 420
Boston, MA 02109 4501
0010754242S:Ol
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(617)223-9746 flS(617)223-4004
SECRETARY OF LABOR, ..
Complainant .0 OSHRC
l
. DOCKET NO. 93-0644
.
.
NEW ENGLAND INDUSTRIAL ROOFING CO., ;
..
Respondent.
Appearances:
David L Baskin, Esq. Barrett Metzler
U.S. Department of Labor Northeast Safety Management, Inc.
Boston, MA West Hartford, CI’
For Complainant For Respondent
Before: Administrative Law Judge Richard DeBenedetto
DECISION AND ORDER .
New England Industrial Roofing Co. (New England) was cited on January 28,1993,
for serious violations of the roofing standards at: 29 C.F.R. 5 1926SOO(g)( 1) which prescribes
various methods to be used for safeguarding a roof perimeter depending upon the working
conditions, including a motion-stopping-safety (MSS) system, which is in dispute in the
instant case; and 29 C.F.R. 8 1926SOO(g)(3)( iii )( a ) whil
ch re q uires the employer to erect
warning lines to form a clear access path to and from the roof. A penalty of $750 is
proposed for each of the alleged violations.
The two-item citation was issued as a result of an inspection conducted on December
10, 1992. The worksite consisted of a two-story building 25 feet high, 375 feet long and
about 200 feet wide. New England was engaged to remove the old “built-up” roof and
replace it with a new one.’
When the OSHA compliance officer arrived at the site and approached the building,
he observed two persons standing near the edge of the roof looking down. He could not tell
whether they were engaged in any work activity (Tr. 13). When he ascended to the roof,
he saw two men throwing articles or materials of some sort from the roof to the adjacent
ground level (Tr. 16). There was one other person on the roof who was the job foreman.
He informed the compliance officer that he and the other two men had been working over
a period of some time replacing the old roof with a layer of rubber material applied with
adhesive. The job also entailed flashing procedures (Tr. M-20).
The compliance officer testified that he spent about 40 to 45 minutes on the roof
during which time he observed buckets of adhesive, rolls of rubber-like material, and a kettle
which was used to heat the adhesive material and which, according to the compliance officer,
emitted heat when he approached it (Tr. 19-20). A ladder was placed at one exterior end
of the building which was used by the workers for access to the roof. There were no
warning lines or perimeter guards erected on the roof, although there were several
stanchions dispersed at various places on the roof, which the compliance officer conceded
could have been used in connection with a warning line system (Tr. 43-45,103.04; E&s. C-l,
C-2). When the compliance officer questioned the foreman regarding the absence of
perimeter guarding and warning line system, the foreman replied that they had finished
doing the roof work and were “in the process of cleaning up” because of “an upcoming
storm” (Tr. 22).
These facts as recounted by the compliance officer are not disputed by New England
which contends it had been doing some flashing work on the roof in the morning prior to
the compliance officer’s arrival at the site, that the employees then proceeded to secure the
roof area in anticipation of “a predicted hurricane due to strike that evening”, and that
’ “Built-up-roofing” is defined by g 1926.502(p)(l) as a weatherproofing cover, applied over roof decks,
consisting of either a liquid-applied system, a single-ply system, or a multiple-ply system, comprising various
materials such as synthetic rubber, plastic, felt or bitumen.
2
consequently, all the protective equipment was removed and stored under tarpaulins located
at various positions on the roof (Exhs. C-l - C-4). New England’s brief at 1.
The Secretary maintains, in substance, that despite the fact that New England was
preparing the roof area as a precaution against a possible hurricane, it was engaged in built-
up-roofing work, as defined by 8 1926.502(p)(2)2, which required both the use of a MSS
system for those employees working at or near the edge of the roof, and warning lines on
the roof to form a pathway to the ladder set up for ascending and descending the roof.
The Secretary’s argument has merit as to the MSS system. New England’s own
witness, Roger Linkbonen, the job foreman at the worksite, admitted that the employees
went to the edge of the roof to dump debris from the roof (Tr. 98), and the compliance
officer testified that he observed two workers throwing articles from the edge of the roof
without the presence of a MSS system, thereby exposing those employees to a 25.foot fall
hazard.
New England contends that “throwing stuff off the roof does not meet the criteria of
performing built-up roofing work, unless it can be shown to be part of the removal of built-
up roofing.” New England’s brief at 3. The record indicates that the only activity taking
place on the roof was being done by New England pursuant to its contractual obligations for
installing a new roof, a task which also involved removing the old roof. New England had
no other business to conduct on that roof. It is perfectly reasonable to conclude that the
“stuff” being discarded by the workers standing near the roofs edge consisted of debris from
either the old roof or the new. Such activity would clearly fall within the ambit of built-up
roofing work.
It should further be observed that New England’s contention misconceives the
purpose of the OSH Act and the clear intent of the fall protection standard at issue. Section
2(b), 29 U.S.C. 5 651(b), sets forth 13 ways in which to achieve the Act’s purpose “to assure
so far as possible every working man and woman in the Nation safe and healthfi4 working
’ Section 1926.502(p)(2) reads as follows:
“[The hoisting, storage, application, and removal of built-up roofing materials and
equipment, including related insulation, sheet metal, and vapor barrier work, but not
including the construction of the roof deck”
3
conditions...” (emphasis added). It would be nothing short of absurd to interpret the fall
protection standard in a manner so restricted as to exclude any work activity that may be
categorized as having only an indirect relationship to built-up roofing, such as employing
one’s efforts to clear away and secure the roof area in anticipation of a hurricane. Surely
New England, as virtually all other construction trades, must constantly take into account the
exigencies presented by inclement weather, and must conduct its business in a manner
befitting the situation. That conduct is necessarily an important part of the roofing process.
In other words, the safety standards cannot be suspended during the time an employer
battens down its operation in coping with one of the exigencies of construction.
There are two independently fatal flaws in the Secretary’s case with respect to access
warning lines. Firstly, there is evidence to indicate that warning lines had been erected by
New England to demarcate a path to the ladder. At the time of the OSHA inspection, the
conditions on the roof were such that path warning lines would not have contributed to the
safety of the employees: the way to the ladder was wide open and clear (Exh. C-2), and
there was no risk that an employee’s attention would be distracted from the correct means
of egress, or that employees would inadvertently move from a safe pathway into a more
hazardous area before reaching the ladder.
Secondly, the evidence indicates that prior to the compliance officer’s arrival at the
site, a system of guardrails was used as a means of protecting the edges of the roof (Tr. 86).
Inasmuch as New England has been found to have violated the perimeter guarding standard
at 3 1926.500(g)(l) for failing to maintain those guardrails during the pre-hurricane cleanup
operation, the warning-line standard is inapplicable. That is to say, because the presence
of a MSS system in the form of guardrails would render the roof edge fully protected, the
alternative warning-line system would not be required under the provisions of the 500(g)(l)
standard.
The absence of the guardrails to protect the employees from the 25,foot fall hazard
could have produced serious consequences if an accident had occurred, therefore, the
violation is properly classified as serious, 29 U.S.C. 0 666(k), and the proposed penalty of
$750 is appropriate under 29 U.S.C. 8 666(j).
Based upon the foregoing findings of fact and conclusions of law, it is
4
ORDERED that the charge of serious violation of 29 C.F.R. 6 1926.5OO(g)(1) is affirmed and
a penalty of $750 is assessed.
It is further
ORDERED that the charge of violating 29 C.F.R. 5 1926.5W(g)(3)(iii)(a) is vacated.
Judge, OSHRC
September 14, 1994
Dated:
Boston, Massachusetts
Get today's answer for your situation
You just read what one judge decided for one employer in 1994, and it binds only those parties. Ezel checks the current OSHA standards and Commission precedent and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the authority it relies on.