New England Roofing and Sheet Metal Co.

Plain-English summary

New England Roofing and Sheet Metal Co. was doing built-up roofing on a five-story building in New Haven, Connecticut. An OSHA compliance officer driving by looked up, saw workers at the edge of the roughly 60-foot-high roof, and went up to inspect. He found employees working near the unprotected roof edge with no motion-stopping system and no warning line, only a safety monitor that started up during the inspection and who was seen smoking, working, and turning his back on the crew. Because the roof measured wider than 50 feet, the standards did not allow a safety monitor to be the only protection, and mechanical equipment such as a hot tar lugger was in use without a warning line or motion-stopping system. Administrative Law Judge Barbara L. Hassenfeld-Rutberg held that the employer could not unilaterally decide its own method was safe instead of following the roofing standards or seeking a variance. All items were affirmed, with two $1,250 penalties totaling $2,500.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.500(g)(1), § 1926.500(g)(3)(i), § 1926.500(g)(4), § 1926.500(g)(5)
• Outcome: All items affirmed; penalties of $1,250 on the grouped item 1 and $1,250 on item 2, $2,500 total.
• Key point: A safety monitor alone is not enough fall protection on a low-pitched roof wider than 50 feet or where mechanical equipment is used; the roof's full width, not just the work area, controls.

Full text (OSHRC public release)

OCCUPATIONAL SAF~N~~~E~Oc~EVIEW COMMISSION
One Lafayette Centr8
1120 20th Street, N.\N. - 9th Floor
Washington, DC 20038-3419

SECRETARY OF LABOR
Complainan&
v. OSEiRc DOCKET
NO. 93-1833
NEW ENGLAND ROOFING 82 SHEETMETAL CO.
Respondent.

                  NOTICE OF DOCKETING
           OF ~~SIWUTVE      LAW JUDGE’S DECISION
 The Administrative Law Judge’s Report in the above referencedJIB WIMB

docketed with the Commission on June 22,1994. The decisionof the Judge
will become a W order of the Commission on July 22,1994 unless a
Commission member directs review of the decision on or before that dtt& ANY:
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY ‘IXiE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secre on or behe
July 12, 1894 in order to ermit sufficient time for its review.T ee
Commission Rule 91,29 E .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 Liti ation
Office of the Solicitor, U.S. DOc
Room S4004
200 Coktitution 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 nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION

Date: June 22, 1994
 DOCKET NO. 934833
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. MicJ&Esq.
Counsel for RC l o d Trial Liti ation
Officeof the &citor, U.S. Deft
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210     .



Albert H. Ross, Esq.
Re ‘onal Solicitor
O&e of the Soliciior US DOL
One Congress Street, ilth ‘noor
P.O. Box 8396
Boston, MA 02114

. Barrett Metzler, CSP
Northeast safety Management, Inc.
PO Box 330733
West Hartford, CF 06133

Barbara Hassenfeld-Rutberg
Administrative Law Jud e
Occupational Safety an d Health
Review Commission
McCormack Post Office and
 Courthouse, Room 420
Boston, MA 02109 4501




00113216824:Ol

u?WED STATESOF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
-w---w
JOHN W. McCORMACK POST OFFICE AND COURTHOUSE
ROOM 420
BOSTON, MASSACHUSEITS 02109-45o1

PtioNE                                                                                        F&C:
C0M(61?)2s@7~                                                                                 COM(617)223-4001
Rs(617)223-9746                                                                               FTS(617)22-

,
SECRETARY OF LABOR

   Complainant                                           OSHRC Docket No. 934833

   v.

   NEW ENGLAND ROOFING AND
   SHEET METAL CO.

   Respondent




   Kathryn
         Diaz,Esq.                                  BarrettAIkktzl~
   mce of the solicitor                             NortheastsafetyManagement,Inc.
   U.S. Department of Labor                         west Hartford, CT.
   For Complabant                                    For Respondent                  .


   Before: Administrative Law Judge Barbara L. Hasser&eld-Rutberg


                                *DECISION                                                     J?i


              This is a proceeding under section 10(c) of the Occupational Safety andHealth
   Act of 1970,29 U.S.C. 651 et seq., (the Act).        6

             On June 9,1993, Respondent, New England Roofing and Sheet Metal Co. (” NE
   Roofing”) was cited for serious violations totaling $2500.00 in proposed penalties. The
   citation was issued as the result of an inspection conducted on June 3, 1993 at 59 Elm
    Street, New Haven, CT where the respondent was performing work on a low-pitched roof
   a roof David Patalq, a compliance officer (CO) of the Occupational Safety and Health
   Administration (OSHA) was driving by the site when he looked up to the roof and noticed
   the alleged violations.

Administration (OSHA) was driving by the site when he looked up to the roof and noticed
*. the alleged vi~htti~n~.

       A h&g       was held in this case on February 25,1994 and March 21,1994 in

Boston, Massachusetts, presided over by Judge Barbara L. Hassenfeld-Rutberg. .

         me standard alleged in item la at 29 CFR 1926.500(g)(l) provides: During the

perforrnancx of built-up roofing work on low-pitched roofs with a ground to eaqe height
greater than 16 feet (4.9 meters), employees engaged in such work shall be protected f?om
falling from all unprotected sides and edges of the roof as follows:
(i) By the use of a motion-stopping-system (MSS system);
OI-
(ii) By the use of a warning line system erected and
maintained as provided in paragraph (gg3) of this scctio~~
and supplemented for employees working between tl~
warning line and the roof edge by the use of either an MSS
system or, where mechanical equipment is not being used or
stored, by the use of a safety monitoring system; or
(iii) By the use of a safety monitoring system on roofs fifty
feet (15.25 meters) or less in width (see Appendix A),whe
mechanical equipment is not being used or stored.

                                                                                                 1.
        The standard alleged in item lb at 29 CFR 1926.500(g)(3)(i) provides:
                               Warning lines shall be erected around all sides of the work
                               Wea.

        When CO Pataky was passing by the site, he noticed Tom the street level that

three of the Respondent’s employees were working at the roof edge of a five story
building (Tr.63) having the height of approximately 60 feet. He parked his car and took
his camera and proceeded to the roof of the building. When he arrived on the roof, one of
the employees was still at the edge. Exhibit Cl shows one of the Respondent’s employees
at the edge of the roof at one of the unprotected sides of the roof Built-up roofing work
was being performed at the site (Tr. 33,43, Ex.C 20). Measurements taken of the roof
top by the CO indicated that it was wider than 50 feet when measured in accordance with

                                             2

the regulations and examples provided in Appendix A, which indicates the correct method
of measuring (EX. C21-23).

   The Complainantcontends that NE Roofing failed to guard the roof perimeter in

accordance with the requirements of the roofing standard set out herein above. There
\;yasn&her an MSS nor a warning line system erected not less than six feet from the roof
&ge and supplemented for employees between the warning line and the roof edge by the
use of either an MSS system or a safetymonitoring system. A safety monitor alone does
not meet the requirements of the standard in this case as the proper measurement of the
width of the roof was more than 50 feet . Here there was neither an MSS system nor a
warning line in use when the CO arrived and employees were working within 6 feet of the
roof edge; indeed, not even a safety monitor was being used (Tr. 54, Exs. C
6,8,9,10,13,14). It was& until after the foreman, Charles Smith contacted the
Respondent’s representative, Mr. Met&r, by mobile phone that a safii monitor system
was started (Tr.45-46,54). An employee in a yellow shirt began to act as the so-caU& ,
safety monitor (Exs. C 11,12,15,17). However, that employee was sometimesbuq .
smoking, working, standing at the roof edge, or had his back to the empIoyeeshdA
supposed to be monitoring (Exs. C 3,16). Section 1926.5OO(g)(I)(iii) expressly iiki&.
the exclusive use of a safety monitor to roofs that are 50 feet or less in width and where
no mechanical equipment is used or stored. Mr. Pataky testified that even ifthe roof had
been less than 50 feet wide, which he contends it wa not, the Respondent’smoof’b
behavior would not have met the requirements of the regulations. The ComplaiaaasA
correctly states that the 50 foot restriction limitingthe use of only a safety monitor is
based on the width of the entire NICP~,
not the width of the work area as the Respondent is
alleging. Phoenix Roofing, Inc. v. Dole, 874 F.2d 1027, 103 1 (5th Cir. 1989). The ++
diagram in Ex. C2.shows that at the time of the inspection, the north and west walls were
unprotected In Exs. C I 1,12,20 where there is mechanical equipment (Tr. 47) ,
employees are walking fkom the south side to the north side. The above-cited roofing
standards were promulgated in recognition of the fact that employees who perfiorm built-
up roofing work on a low-pitched roof are exposed to a serious’ fd hazard. This judge

1. A serious violation shall be deemed to exist in a place of employment if there is a substantial
   probability that death or serious harm could result from a condition which exists, or fkom one or more .
   practices, means, methods, operations, or processes which have been adopted or are in use, in such place
   of employment unless the employer did not, and could not with the exercise of reasonable diligence, know
   of the presence of the violation. Section 17(k) of the OS’ Act, 29 USC. section 666(R).

                                        3
   

   finds that the roof when properly measured ( Exs. C2 l-23) is 55 feet by 100 feet (Tr.
   52,59), which exceeds 50 feet in width; therefore, the use ofjust a safety monitor by the
   Responder&in this case runs counter to the plain meaning of the regulations; cf. Secretary
   of LabOr V.Hi@id Roofing CO., Inc., OSHRC Docket NO. 92-l 162 (DeBenedetto, J.)

   The standard alleged in item lc at 29 CFR 1926.500 (g)(4) provides:
                         Mechanical equipment may be used or stored only in areas
                         where employees are being protected by either a warning
                          line or an MSS system. Mechanical equipment may not be
                         used or stored between the warning line and the roof
                          edge unless the employees are being protected by an MSS
                          system. Mechanical equipment may not be used or stored
                         where the only protection provided is by a safety
                         monitoring system.
   

   Here, the CO witnessed a hot tar lugger, material cart and other mechanical
   equipment stored or used on the roof ( Tr. 35,36,39,40, Exs. C 4,5,6,7,11,19,20), but
   there was no warning line or MSS system for the employees working on that roof The
   circumstances under which the employees were working required a warning line or an
   MSS system and the use solely of a safety monitor was in violation of the regulations.

   Item 2 of the citation alleges a violation of 29 CFR 1926.500 (g)(5) which
   

   provides:
   Employees working in a roof edge materials handling or materials
   storage area located on a low-pitched roof with a ground to eave
   height greater than 16 feet (4.9 meters) shall be protected fkom
   falling by the use of an MSS system along all the sides and edges of’
   the area. .

   Mr. Patalq testified that he observed employees working in a roof edge materials
   handling or materials storage area on a low-pitched roof with a ground to eave height
   more than 16 feet without the protection of an MSS as required by the above standard
   (Tr. 61-64, Exs. C 4,5,7, 11, 19,20). There was a bitumen pipe outlet as well as a
   material hoist area ( Exs. C 7,-9, 12, 18-20) that met the definition of materials handling
   or materials storage area as described the above cited regulation. A safety monitor system
   can not be used in such a situation as was present at the inspection site (Tr. 48, Ex. C 20).
   An employer can not unilaterally change the rules and decide that a particular situation is
   safe for its employees when the method used runs counter to the regulations. Ifit wishes

                                         4
   

   to seek a variance, it must do so before commencing work and in accordance with the
   methods provided for in the OSHA Act, 29 USC., section 655 (d), Part 1905. The
   Respondenthere neithercomplied with the regulations nor sought a variance. The .
   etidentiary record in this case does not allow a conclusion that NE Roofing’s use of a
   safety monitor alone met the standards cited in Serious citation, items la, lb, lc and 2.
   NE Roofing must be found to have violated the law and all the items of the citation must
   be afiirmed.

   All findings of fact relevant and necessary to a determination of the contested
   issues have been found specially and appear herein. See Rule 52(a) of the Federal Rules
   of Civil Procedure. Proposed findings of fact or conclusions of law inconsistent with this
   decision are denied.

   Serious citation 1, items la, 1b, and lc alleging violations of 29 CFR
   19~~~fwgX), (i3x3)o) and w9 are AFFIRMED and a penalty of $1250.00 is
   assessed.

   Serious citation 1, item 2 alleging a violation of 29 CFR 1926.500(g)(5) is
   AFFIRMED and a penalty of $1250.00 is assessed.

                                 BARBARA L. HASSENFE
                                 Judge, OSHRC
   

Date: June 14, 1994
Boston, Massachusetts