CEI West Roofing Co., Inc.

Plain-English summary

CEI West Roofing Co., Inc. was cited at a Colorado roofing project where employees unloaded materials near traffic and worked on an unguarded roof. Administrative Law Judge James H. Barkley affirmed the hard-hat item because employee statements and the crew's conduct showed a practice that CEI's supervisors should have discovered. He also affirmed the traffic-sign item because employees worked in a public traffic lane partially blocked by company trucks. The judge vacated the fall-protection item after finding that CEI had adequately communicated and enforced its rule and that the foreman's conduct was unforeseeable employee misconduct. Penalties of $1,225 and $875 were assessed for the two affirmed items, totaling $2,100.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.100(a), 1926.200(g)(1), and 1926.500(g)(5).
• Outcome: Mixed. The hard-hat and traffic-sign items were affirmed with $2,100 in total penalties, and the fall-protection item was vacated.
• Key point: The employee-misconduct defense succeeded where the employer showed an effectively implemented fall-protection rule, but failed where the evidence showed a broader practice of not wearing hard hats.

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

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 94-1726
CEI WEST ROOFING COMPANY, 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 April 6, 1995. The decision of the Judge
will become a final order of the Commission on May 8, 1995 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
April 26, 1995 in order to ermit 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 Liti ation
Office of the Solicitor, U.S. DOgL
Room S4004
200 Constitution Avenue, N.W.
Washington, DC. 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) 6063400.

Date: April 6, 1995 Ray H. arling, Jr .
Executi Pe Secret .ary
DOCKET NO. 94-1726
NOTICE IS GIVEN TO THE FOLLOWING:

Tedrick Ho&, Esq.
Re ‘onal Solicitor
O&e of the Solicitor U.S. DOL
1210 City Center Squ&e
1100 Main Street
Kansas City, MO 64105

Ka -Dawn G. Allen, Esquire
15r 0 West 13th Avenue
Denver, CO 80204

James H. Barkley
Administrative Law Jud e
Occupational Safety an cf Health
Review Commission
Room 250
1244 North S eer Boulevard
Denver, CO t!0204 3582

00109543348 : 08
UNITED STATES OF AMERlCA
OCCUPATIONAL SAFEIY AND HEALTH REVIEW COMMISSION
1244 N. Spew Boulevard
Room 250
Denver, Colorado 002044582

SECRETARY OF LABOR,
Complainant,

  v.                                                I      OSHRC DOCKET
                                                    I      NO. 94-1726

CEI WEST ROOFING COMPANY, I
INC., I
Respondent. I

APPEARANCES:

            Evert H. Van Wijk, Esq., Office of the Solicitor, U.S. Departmentof Labor,
             Kansascity, Missouli

            Kay-Dam G. Allen,Esq., Denver, Colorado

Before: Administrative Law Judge James H. Barkley

                                DECISION AND ORDER
                                                                        .
  This proceeding arises under the Occupational Safety and Health Act of 1970 (29’

U.S.C. Section 651@ seq.; hereafter called the “Act”).
Respondent, CEI West Roofing Company, Inc. (CEI), at all times. relevant to this
action maintained a worksite at 7935 East Prentice Avenue, Englewood, Colorado, where
it was engaged in roofing construction. Respondent admits it is an employer engaged in
a business affecting commerce and is subject to the requirements of the Act.
On May 12, 1994, pursuant to an investigation of CEI’s Englewood worksite, the
Occupational Safety and Health Administration (OSHA) issued a citation, together with
proposed penalties, alleging violations of the Act. By filing a timely notice of contest
Respondent brought this proceeding before the Occupational Safety and Health Review
Commission (Commission).
On September 20, l!B4 a hearing was held in Denver, CoIorado. The parties
have submitted briefs on the issues and this matter is ready for disposition.

   Serious citation 1, item 1 alleges:

29 CFR 1926.100(a): Employees were not protected by protective helmets while working
in areas where there was a possible danger of head injury Tom impact, or from falling or
flying objects, or from electrical shock and burns:

   a) At 7935 E. Prentice Avenue, Englewood, CO: Employees were exposed to
   overhead hazards while landing materials brought by crane without using hardhats.

   Serious citation 1, item 2 alleges:

29 (2% 1926.200(g)(l): Construction areas were not posted with legiiile traffic signs at
points of hazards:

   a) At 7935 E. Prentice Avenue, Englewood, CO: Employees were exposed to
   traffic hazards while delivering and loading supplies in a traffic lane.

   Serious citation 1, item 3 alleges:

29 CFR 1926.500(g)(S): Employees working in a roof edge materials handling or a
material storage area on lowpitched roof with a ground to eave height greater than 16
feet were not protected from falling by the use of a motion stopping safety system (MSS
system) along all unprotected roof sides and edges:

   a) At 7935 E. Prentice Avenue, Englewood, CO: Employees were exposed to fall
   hazards while landing materials brought by crane to the roof

                                         Issues
   CEI admits it was in violation of the standards cited at citation 1, items 1 and 3 on

the date of the inspection, but raises the affirmative defense of isolated employee mis-
conduct. CEI maintains that the standard cited at citation 1, item 2 was inapplicable to
its Englewood worksite.
Emalovee Misconduct
On the morning of January 5, 1994, CEI employees were preparing to perform
roofing repair work at the Englewood site. The employees at the worksite were Vaughn
Benally, CEI’s foreman; Gerritt Verschuur, a CEI employee; and Chris Nolan, an
employee of Stand-By Personnel (Tr. 20-21). None of the employees were wearing hard
hats (Tr. 21). There were not enough hard hats on site for the three employees (Tr. 30).
Nolan told Compliance Oflicer (Co) Michael Kelly that he was told he did not need a
hard hat (Tr. 31). Verschuur told Kelly they did not usually wear hard hats when they
were just unloading ‘real quicldy” (Tr. 32). Benally told Kelly they didn’t usually wear
hard hats because there were no overhead hazards when working on a roof pr. 33).
When Kelly arrived at the worksite, Benally and Nolan were on the unguarded
roof, standing near the edge, signalling the crane (Tr. 38-39). Two stanchions were on
the roof, and a rope for use as a motion stopping device were on site. The equipment
was not, however, being used for its intended purpose (Tr. 41-42).
Leonard Drotar, GEI’s risk manager (Tr. 67), test&d that all permanent GE1
employees are required to go through an hour and one half orientation pfo&tam upofl

hiring (Tr. 120). They are required to view videos on personal protective equipment and
fall hazards (Tr. 67, 79-80; Exh. R-3, R-4), and to sign off indicating that they have
received, read, and understood the company safety policy (Tr. 68). In. January 1993 CEI
policy required the use of hard hats whenever there was an overhead danger from over-
head cranes (Tr. 88-W, &ho R-l). CEI policy requires employees to be tied off
whenever working near an unguarded roof edge (Tr. 92-93; Exh. R-l, p. 17, 19-21; Exh.
R-2, p. 3-5). Foreman Benally sat in ,on the orientation program and viewed both videos
when he was hired in August 1990 (Tr. 80-81, 85). He received an additional copy of
CEWs safety manual on April 10, 1992 (Tr. 86). Drotar stated that he personally dis-
cussed the need for hard hats with Benally at least 20 times (Tr. 88), and was aware of at
least five meetings concerning roof guarding at which Benally was present (Tr. 141).
Dated sign up sheets establish that Benally was present at the March 26, and May 21,
1993 monthly safety meetings during which CEI’s policy on, and means of appropriate
f&llprotection, were discussed (Tr. 78-79).

                                          3
  Verschuur participated in CEI’s orientation and training when he was rehired in

1992 after being released for unsafe driving practices (Tr. 122, 142).
Temporary employees do not receive formal training, the foreman on site is
instructed to provide training relevant to the specific hazards the empfoyee might be
expected to encounter on that particular project (Tr. 70-71). Foremen are required to
implement the safety program on their job sites (Tr. 95; IS&. R-11). Benally was present
at a 1993 foreman’s meeting where the foreman’s respons~ility for implementing safety
procedures and training temporary workers was discussed vr. 72,97,169-70).
CEI’s management personnel, including Drotar, conduct periodic inspections of
CEI jobsites; jobsite safety checklists are filled out indicating the foreman’s and his super-
visor’s ability to maintain job safety (Tr. 69, 100, 102, 130). Verbal and written warnings,
suspension and dismissal may all ,be used to discipline infractions (Tr. 103). CEI intro-
duced evidence that two other foremen, Djuan Luckett and Mike Robinson, were disci-
plined for safety infractions before January 1994 (Tr. 108-10). Prior to January 1994,
Drotar had inspected several of Benally’s jobs; he was unaware that Benally was not
following work rules, and considered Benally adequate in his adherence to company
safety practices (Tr. 83, 101).
On January 4, 1994, Benally and his supervisor, Tom Anderson, met at the
Englewood jobsite to review the safety procedures for this job prior to its commencement
(Tr. 155). They discussed the warning line requirements, the equipment necessary, and
the proper location for the employees to tie off, as well as the need for hard hats (Tr.
155-56). Anderson was not on site at the time of the OSHA inspection (‘I’r. 156).
Following the OSHA inspection which is the subject of this action, Benally was
suspended for two weeks, and a letter of reprimand entered in his file ur. 107).
Discussion
The Commission has stated that, “[i]n order to establish an unpreventable
employee misconduct defense, the employer must establish that the violative conduct on
the part of an employee was a departure from a un%ormly and effectively communicated
and enforced work rule.” Moser ConstructionCo. 15 BNA OSHC 1408, 1414, 1991 CCH
OSHD 829,546, p. 39,905 (No. 894027, 1991). ‘When the alleged misconduct is that of

                                          4

a supervisory employee, the employer must also establish that it took all feasible steps to
prevent the accident, including adequate instruction and supervision of its employee.”
Archer-Wmtem Contractors, L&, 15 BNA OSHC 1013, 1017, 1991 CCH OSHD 1129,317
p. 39,378 (No. 87-1067, 1991).
.
Hard Hats
The evidence establishes that CEI’s safety program included a work rules specifi-
cally intended to address the cited safety hazard, ie. requiring the use of hard hats where
overhead cranes were in use. However, neither of the permanent CEI employees at the
worksite recognized an overhead hazard from the crane; both told the inspecting CO that
it wasn*t their general practice to wear hard hats. The undersigned notes that Cl3 has
since changed its workrule to eliminate its discretionary language. Currently, CEI requires
that hard hats be worn at all times (Tr. 89).
The contemporaneous comments of CEI’s employees and the failure of any of
the employees to wear hard hats, indicates a pattern of practice which should have been
discovered by CEI supervisory personnel. This judge cannot fki, therefore, that CEI’s
workrule was adequately communicated and enforced so as to eliminate the cited hazard.
Citation 1, item 1 will be affirmed.
Penaltv
A penalty of $1,225.00 was proposed. CEI is a medium sized employer, with 70
employees (Tr. 30). CEI has a good safety record, it has received no other OSHA cita-
tions in the past three years (Tr. 31); moreover, CEI has demonstrated its good faith by
modifjfing its already significant safety program. The gravity of the violation is
moderately high; serious head injurywould be the result of an employee being struck by
material (gravel, patching, lugs of tar), falling from the bucket as it was hoisted to the
roof (Tr. 30).
I find the proposed penalty appropriate; $1,225.00 will be assessed.
Fall Protection
CEI’s workrules also specifically address the provision of fall protection when
working on an unguarded roof.

                                            5
    Benally, the foreman on site, had been instructed in CEI’s safety rules and in his

duty to impart the rules, including the rules on fall protection, to employees under his
supervision and to enforce them where appropriate.
Complainant does not maintain that CEI’s practice of providing on the job
instruction, including safety instructions, is in itself inadequate. Rather Complainant
maintains that CEI made no efforts to ensure that its foremen provided the necessary
training to day laborers. The evidence, however, establishes that CEI regularly audited
its foremen and disciplined them for safety infractions,and that CE31had audited Benally
prior to the incident which led to the current citation, but found no reason to monitor
Benally more closely. Benally was, in fact, supervised by his superintendent, with whom
he discussed the provision and use of safety equipment on this job. No safety audit had
been performed at this jobsite prior to the OSHA inspection, because the job had just
commenced that morning. An audit was performed that afternoon (Tr. 128). When
Benally’s failure to adhere to the rules came to CEI’s attention, he was suspended for
two weeks.
It has long been recognized that the Act does not require the employer become
an absolute guarantor of its employees’ safety. Standard Glass Co., 1 BNA OSHC 1045,
1971-73 CCH OSHD ll15,146 (No. 259, 1972). Although this judge hesitates to lay the
respons~%ility for the cited conduct at the door of a current employee who was not called
by the employer to testify, the testimony of CEI’s Drotar regarding the efficacy of its fall
protection program was uncontradicted. Unlike the hard hat item, Complainant here
called no employees and introduced no evidence of a pattern of noncompliance with
CEI’s fall protection ‘work rule. Benally’s single failure to erect a motion stopping sys-
tem does not in itself demonstrate that CEI’s communication and/or enforcement of its
fall protection rule was lax or ineffective. The mere fact that the violation occurred is
insufficient to rebut CEI’s showing that it had an effectively implemented work rule; the
employee misconduct defense would be meaningless if the mere fact that a work rule was
disregarded was enough to establish that the rule was not effectively communicated and
enforced.

                                             6
   I find that CEI took the steps a reasonable employer would have taken to ensure

its safety rules were followed, and that the cited violations were the’ result of the
unforeseeable misconduct of its foreman.
Citation 1, item 3 is vacated.
Point of Hazard
A dump truck with gravel was parked in the traff5c lane in front of the building
being reroofed when the CO arrived at the worksite; another truck loaded with roofing
materials drove up and parked in the center of the lane during the inspection (Tr. 34,37;
Exh. C-4). Cars accessing the parking lot came up an inclined blind ramp to the right of
the worksite (Tr. 35). While he was on the site CO Kelly flagged down a vehicle coming
around the comer, and asked the driver to slow down. Kelly noted a number of other
vehicles traveling the traffic lane partially blocked by CEI’s truck (Tr. 35). Kelly also
noted two CE51employees standing in the traftic lane (‘I’r.36).
Drotar testified that he did not perceive a traffic hazard on the scene because the
trucks were clearly visrble as soon as you came up the ramp, the cars in the blocked
traffic lane were moving at reduced speeds, and alternate routes were available (Tr. 91-

921 Drotar admitted that an employee struck by a car, even at dramatically reduced
l

speeds, could sustain serious injury (Tr. 135).
Discussion
The cited standard requires that u[c]onstruction areas shall be posted with legible
traffic signs at points of hazard.”
Because vehicles move freely through the public traffic lane in which CEI
employees worked, I find that area constituted a point of hazard, and that the cited
standard was applicable. There being no other issue in dispute, citation 1, item 2 will be ,
affirmed.
\
Penalty
Respondent admits that an employee struck by a moving vehicle would likely
sustain serious injury. The violation is, therefore, correctly classified as %erious.”
A penalty of $875.00 was proposed. The gravity of the cited standard is moder-
ately low. Based on the gravity of the violation, and the statutory criteria discussed
above, the proposed penalty is deemed appropriate and will be assessed.
Findings of Fact and Conclusions of Law
Au findings of fact and conclusions of law relevant and necessary to a determjna-
tion of the contested issues have been found specially and appear in the decision above.
See Rule 52(a) of the Federal Rules of Civil Procedure.

                                      ORDER

10 Serious citation 1, item 1, alleging violation of §1926.1OO(a)is AFFIRMED, and a
penalty of $1,225.00 is ASSEBSED.
20 Serious citation 1, item 2, alleging violation of ~1926.2OO(g)(l) is AFFIRMED and
a penalty of $875.00 is ASSESSED.

3. ‘Serious citation 1, item 3, alleging violation of §1926.5OO(g)(5)is VACATED.

Dated: March 24, 1995