S & J Haas Construction, Inc.

Plain-English summary

S & J Haas Construction, Inc. is a small family-owned residential contractor that was building a home in O'Fallon, Illinois. An OSHA compliance officer driving by saw three workers offloading shingles on the roof without fall protection and, staying on the public street, photographed the scene and later issued a repeat citation. The judge first upheld the inspection, since the officer only observed what any member of the public could see. On the merits, the judge found the workers were exposed to falls of about 25 feet without any fall protection, rejected the company's claim that harnesses posed a greater hazard (the evidence was subjective and contradictory), and confirmed the violation was properly classified as repeat because S&J had been cited under the same standard less than two years earlier. That item was affirmed with a $3,500 penalty. The second item, alleging inadequate fall-protection training, was vacated because employees credibly testified they were trained and the Secretary did not prove otherwise.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(13) (residential construction fall protection); 29 C.F.R. § 1926.503(a)(2)(iii) (fall-protection training by a competent person)
• Outcome: Item 1a affirmed as a repeat violation, $3,500 penalty assessed; Item 1b vacated. Split result.
• Key point: What a compliance officer can see from a public area is a valid warrantless inspection, and a repeat classification stands on proof that both violations are of the same standard unless the employer shows otherwise.

Full text (OSHRC public release)

                                                         :
SECRETARY OF LABOR,                                      :
     Complainant,                                        :
                                                         :
                  v.                                     :       OSHRC Docket No. 97-640
                                                         :
S & J HAAS CONSTRUCTION, INC.,                           :
       Respondent.                                       :               E-Z
                                                         :

Appearances:

          Helen J. Schuitmaker, Esquire                          James F. Haas
                   Office of the Solicitor                               S & J Haas Construction, Inc.
                   U. S. Department of Labor                             Trenton, Illinois
                   Chicago, Illinois                                             For Respondent
                            For Complainant

Before:           Administrative Law Judge Nancy J. Spies

                                       DECISION AND ORDER

          S & J Haas Construction, Inc., (S&J) contests Citation No. 1, items 1a and 1b, issued
by the Secretary on April 8, 1997, pursuant to the Occupational Safety and Health Act of
1970 (the Act). The Secretary classifies the citation as “repeated.” The citation resulted from
an abbreviated inspection of S&J conducted by Occupational Safety and Health
Administration (OSHA) compliance officer Cynthia Wagner on March 27, 1997. S&J is a
small residential construction contractor, which at the time of the inspection was building a
private residence in a subdivision in O’Fallon, Illinois.
          Specifically, the Secretary alleges in item 1a that S&J failed to comply with the fall
protection standard of § 1926.501(b)(13), and in item 1b that a competent person did not train
S&J’s employees, in violation of § 1926.503(a)(2)(iii). S&J asserts that the inspection was
improper. It denies that it violated either standard. It claims that compliance with the
requirements of item 1a would have created a greater hazard, and that its training was
sufficient for item 1b. For the reasons stated, the Secretary’s position is accepted for item 1a;
S&J’s is accepted for item 1b.
                                           Background
          S&J is a family owned and operated corporation. James Haas and his wife are partners
and owners of S&J. James Haas also owns another small construction company, Haas Homes
(Tr. 93). On occasion, Haas Homes’s employees were loaned to S&J, a situation which
occurred on the day of the inspection. Combined, the two companies (S&J and Haas Homes)
employed seven employees; two of these were non-family members (Tr. 106). On March
27,1997, S&J was building a large multi-level private home.
        This case was heard on July 31, 1997, pursuant to the “E-Z Trial Procedures,” 29
C.F.R. § 2200.200-211. Jurisdiction and coverage are admitted (Prehearing Order).
                                      The Inspection was Valid
        While driving from another jobsite, compliance Officer Wagner observed construction
activities on a house within a subdivision. Turning into the subdivision, she saw three
individuals walking on the roof of a multi-level home. The individuals were off-loading
shingles onto the roof from a boom truck (Exh. C-1; Tr. 11, 87). Wagner noted that none of
the three used a harness and lanyard for fall protection. Nor was there a catch platform,
guardrails around the roof, or slide guards (“toeboards”) on the roof, any of which could serve
as an alternate means of fall protection (Tr. 12, 52).
        Under OSHA’s local emphasis program for fall protection in construction, Wagner
approached the house to begin the inspection (Tr. 36). James Haas met her there. Wagner
identified herself and her purpose. James Haas confirmed that S&J was the employer.1 James
Haas told Wagner that he wanted to make a phone call and that, until he returned, she was not
allowed onto the property. Wagner knew there was a telephone 3 miles from the jobsite. She
responded that this would be fine and that she would wait for Haas to return. While standing
in the street, Wagner took photographs of the individuals on the roof working without
harnesses and lanyards. James Haas went back to the workers, talked to them briefly, and
then left the site. The workers came down from the roof, put on harnesses, and returned to
their work of stacking shingles. Haas had not come back to the jobsite by the time the
workers left, around noontime, one and a half hours later. Wagner believed that there was no
longer a reason to remain waiting for Haas, and she also left the worksite (Tr. 16, 45, 58-59).
After subsequent discussions with Haas at OSHA’s Area Office, but without Wagner’s return
to the worksite, the citation was issued.
        S&J contends that Wagner’s actions in documenting violations without Haas’s
approval were unlawful. S&J asserts that it could not give permission for the investigation
because it did not own the property. S&J is wrong on both counts. If S&J had authority to


1
 Both S&J and Haas Homes are under the direct control of James Haas (Tr. 94, 97, 106). James Haas has
obvious authority over each Haas Homes employee loaned to S&J. For purposes of this case, it is unnecessary
to distinguish whether Haas Homes or S&J was the nominal employer of a particular employee.
be on the worksite, it could permit an inspection. It was not required to do so, however.
Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978). Wagner did not go onto S&J’s site but
waited on the subdivision street, an area where a member of the public could properly be (Tr.
58). “What is observable by the public is observable without a warrant by the Government
inspector as well.” Marshall v. Barlow’s Inc., 436 U.S. at 315; L.R. Willson and Sons Inc.,
17 OSHC BNA 2059 (No. 9401546, 1997). Wagner did not seek to interview employees
while at the site. She limited the inspection to what she could observe from a public area. The
inspection complied with the requirements of the Fourth Amendment and with the Act. The
inspection was valid.
                                   Alleged Repeat Citation
                                 Item 1a: § 1926.501(b)(13)
       The Secretary asserts that S&J failed to protect employees engaged in residential
construction from fall hazards, in violation of § 1926.501(b)(13). Specifically, the Secretary
contends that employees were unloading roofing shingles without fall protection. Based on a
citation issued two years earlier, the Secretary asserts that the violation was repeated.
       S&J claims that it complied with the requirements of OSHA Instruction STD 3.1
(December 8, 1995) (even though it was unaware of the existence of the document until
OSHA provided James Haas with a summarized industry article during a subsequent meeting),
and, thus, it complied with the standard. Alternatively, S&J contends that if the standard
required employees to use fall protection while placing shingles on the roof, then use of
harnesses, lanyards, lifelines, and grab ropes presented a greater hazard to employees. Finally,
S&J contends that if violations occurred for item 1a, it was not “repeated,” because the
underlying facts of the first citation would not have constituted a violation under STD 3.1.
       Section 1926.501(b)(13) provides:

       (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.

        In its December 8, 1995 enforcement Instruction, STD 3.1, OSHA’s National Office
discusses fall protection measures for residential construction. STD 3.1 references measures
in Subpart M’s Appendix E. It details “alternate fall protection measures” for employers
engaged in residential construction which do not wish to use conventional fall protection.
        Pertinent to this case, alternate fall protection measures may apply to residential
roofing work “where the roof slope is 8 in 12 or less and the eave to lower level fall distance is
25 feet or less.” (STD 3.1 p.6). The parties agree that S&J’s roof was 8 in 12 (Tr. 7-8). The
parties disagree whether employees were exposed to an eave height greater than 25 feet. The
Secretary claims exposure was in excess of 25 feet, and S&J asserts the contrary. S&J is
correct. On the front elevation, the eave to lower level distance was 25 feet or less. On a
portion of the back elevation which accommodated the basement, the distance was greater
than 25 feet (Tr. 109). The Secretary did not prove that employees were at the basement
elevation during the time they unloaded shingles without fall protection.2 Employee were
exposed only on the part of a roof having an eave to lower level fall distance of 25 feet or less.
        The “alternate measures” of STD 3.1, thus, could have been utilized by S&J.
However, S&J did not utilize any of the approved alternate measures. S&J is incorrect in
interpreting STD 3.1 as allowing roofing work without fall protection for roofs up to 8 in 12
and 25 feet. S&J also implies that it was not at the stage of the roofing process where it could
install slide guards. The argument was not supported. There was no proof that S&J had a fall
protection plan or that slide guards were used as part of a plan. S&J utilized only
conventional fall protection. STD 3.1 is of no relevance to this case.
        Employees were without fall protection at heights greater than 6 feet above the lower
level. Unless S&J establishes a defense, it has violated the terms of the standard.
                            Use of Harnesses Was Not a Greater Hazard
        S&J contends that, on a case-by-case basis, its employees could decide whether
complying with safety requirements presented a greater hazard. According to employee Brian



2
  Although Exhibit C-1 appears to show an employee at the side of the roof peak, the employee may be on the
side of the elevation which did not extend down three stories (Tr. 14, 83-84, 109). Restrictions imposed in
Wagner’s inspection lessen the credibility of her observations. She stood approximately 100 feet away from
the house (Tr. 38). Further, it was S&J’s practice to unload and stack shingles only on one half of the roof,
which in this case would have been the front half of the roof (Tr. 114).
Dumstorff, S&J normally used harnesses and lanyards while applying roofing felt and
shingling a roof (Tr. 68):
        The only time we don’t is when we unload the shingles on to the roof. Then,
        as we usually get to a tie-off point, everybody takes their own little section of
        the roof and gets their harnesses on and they start shingling.

In Dumstorff’s opinion, while unloading shingles, lanyards may “get in the way” and “[get]
tangled in your feet . . . like walking on kid’s toys” (Tr. 79). This type of subjective opinion is
far from what is required to establish a greater hazard defense.
        To meet the defense, an employer must prove that:
        (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 that application
        for a variance is inappropriate.

Spancrete Northeast, Inc., 16 OSHC BNA 1616, 1618 (No. 90-1726, 1994), aff’d, 40 F.3d
1237 (2d Cir. 1994).
        Not only did S&J fail to present any evidence for elements (2) and (3), but its evidence
as to element (a) was contradictory. Contrary to Dumstorff’s practice, employee Dennis
Haas usually used harnesses and lanyards while unloading shingles on a roof (Tr. 97-98).
S&J’s defense is rejected. The violation is affirmed.
                                        Repeated Classification
        Under Potlatch Corp., 7 BNA OSHC 1061, 1063 (No. 16183, 1979), a violation is
repeated if “at the time of the alleged repeated violation, there was a Commission final order
against the same employer for a substantially similar violation.” For a specific standard, such
as § 1926.501(b)(13), the Secretary establishes a prima facie case of similarity by showing
that both violations are of the same standard. Here, an uncontested citation was issued to S&J
on October 2, 1995. Item 1b of the that citation was for a violation of § 1926.501(b)(13)
(Exh. C-3; Tr. 28). Because the citation was uncontested, it became final by operation of law
15 working days after issuance. The Secretary established a prima facie case for the repeat
classification.
        S&J defends against the repeat classification by generally asserting that the
circumstances of the earlier violation would not constitute a violation under STD 3.1. S&J
did not present the circumstances of the earlier violation. Even if S&J had shown that the
prior violation fit within STD 3.1, which it did not, the circumstances of both violations could
still be “substantially similar.” The violation is properly classified as repeat.
                                             Penalty
       The Commission is the final arbiter of penalties in all contested cases. It must give
“due consideration” to the size of the employer’s business, the gravity of the violation, the
good faith of the employer, and the history of previous violations in determining the
appropriate penalty. J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2213-14 (No. 87-2059,
1993). The gravity of the violation is the primary element in the penalty assessment. Trinity
Indus., 15 BNA OSHC 1481, 1483 (No. 88-691, 1992). Since the violation is “repeated,”
such facts as the proximity of the earlier violation to the present one and similarities between
the two violations are also considered. J.L. Foti Constr. v. OSHRC, 687 F.2d 853, 856 (6th
Cir. 1982).
       For approximately 15 minutes, three employees distributed individual 80 pound
bundles of shingles on a steep roof. They were exposed to falls of approximately 25 feet.
Falls from that distance could result in serious injury or death (Tr. 29). S&J violated the same
fall protection requirement less than two years earlier. The repeat nature of the violation bears
heavily on the penalty. For OSHA’s proposed penalty, it factored in a 60 percent reduction
for size (Tr. 30). S&J is a very small, family-owned company. Some further reduction for size
is considered appropriate for a company employing only the partners and an additional
employee, even if employees may be borrowed from its related company (Tr. 94, 106). A
penalty of $3,500 is assessed.
                                 Item 1b: § 1926.503(a)(2)(iii)
       The Secretary asserts that a competent person, qualified in use and operation of fall
protection, did not train each employee. She seeks to prove this violation through Wagner’s
observations that: (1) employees did not use fall protection while initially unloading shingles;
(2) they pulled or flipped their lanyards after putting on their harnesses; and (3) three
employees were tied to one tie-off-point (Tr. 20, 26).
       The standard provides:
       (a) Training Program. (2) The employer shall assure that each employee has
       been trained, as necessary, by a competent person qualified in the following
       areas:
               (iii) The use and operation of guardrail systems, personal fall
               arrest systems, safety net systems, warning line systems, safety
               monitoring systems, controlled access zones, and other
               protection to be used.
       The Secretary may not assume a lack of training solely because another standard has
been violated. Within Subpart M, different standards address various types of required
training. This standard governs training on the fall protection employees were expected to
use. S&J used conventional fall protection i.e., harnesses, lanyards, lifelines, and rope grabs.
James Haas testified that he trained employees on the procedures for the proper use of the
equipment. Employees verified that they were trained on the equipment (Tr. 80, 107).
Employees convincingly challenged Wagner’s observations regarding their use of the rope
grabs and lanyards. Other than Wagner’s conclusion, the Secretary did not explain how use of
one tie-off-point was inappropriate or inadequate in S&J’s circumstances and, thus, why this
illustrated a lack of training (Tr. 68, 85). The Secretary did not meet her burden of proof.
The violation is vacated.
               FINDINGS OF FACT AND CONCLUSIONS OF LAW
       The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Rule 52(a), Fed. R. Civ.P.
                                            ORDER
       Based on the foregoing decision, it is ORDERED that Citation No. 1, item 1a, is
affirmed as a repeat violation, for which a penalty of $3,500 is assessed; and that item 1b is
vacated.
       Dated this 15th day of September, 1997.



                                                      NANCY J. SPIES
                                                      Judge