James Eddy, d/b/a Eddy Roofing, Inc.

Plain-English summary

OSHA inspected Eddy Roofing after a fatal fall from a roofing worksite about 40 feet above the ground. The company withdrew its contest to violations involving its safety program, fall-hazard training, roof edges, skylights, guardrails, warning lines, access, and hazard communication. Judge Benjamin R. Loye found the serious violations high gravity because multiple employees were exposed throughout the roofing job and the company made no effort to confirm that required precautions were in place. He nevertheless reduced the proposed penalties because Eddy Roofing was a small employer and the original amount exceeded its annual net income. The serious items were affirmed with $15,000 in total penalties, and two other-than-serious hazard communication items were affirmed without penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.20(b)(1), 1926.59(e)(1), 1926.59(g)(1), 1926.501(b)(1), 1926.501(b)(4)(i), 1926.502(b)(3), 1926.502(f)(1)(ii), 1926.502(f)(1)(iii), 1926.503(a)(1), and 1926.1051(a).
• Outcome: All citation items affirmed, with $15,000 in total penalties.
• Key point: High-gravity violations remained fully affirmed, but employer size justified reducing penalties to avoid a destructive assessment.

Full text (OSHRC public release)

                           United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1244 North Speed Boulevard, Room 250
Denver, Colorado 80204-3582

Phone: (303) 844-3409 Fax: (303) 844-3759

SECRETARY OF LABOR,
Complainant,

                            v.                                OSHRC DOCKET NO. 98-0125

JAMES EDDY, d/b/a EDDY ROOFING, INC.,
Respondent.

APPEARANCES:

      For the Complainant:
               Leonard Borden, Esq., U.S. Department of Labor, Office of the Solicitor, Chicago, Illinois

      For the Respondent:
               Daniel J. Rice, Esq., Oak Park, Illinois

Before: Administrative Law Judge: Benjamin R. Loye

                                          DECISION AND ORDER

      This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C.

Section 651 et seq.; hereafter called the “Act”).
Respondent, James Eddy, d/b/a Eddy Roofing, Inc. (Eddy), at all times relevant to this action
maintained a place of business at 2531 Oakton Street, Arlington Heights, Illinois where it was engaged
in roofing. Respondent admits it is an employer engaged in a business affecting commerce and is
subject to the requirements of the Act.
On June 27, 1997 following a reported fatality, the Occupational Safety and Health
Administration (OSHA) conducted an inspection of Eddy’s Arlington Heights work site. As a result of
that inspection, Eddy was issued citations alleging violations of the Act together with proposed
penalties. By filing a timely notice of contest Eddy brought this proceeding before the Occupational
Safety and Health Review Commission (Commission).

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On November 19, 1998, a hearing was held in Chicago, Illinois. At that time Eddy withdrew its
notice of contest to the cited violations; the appropriateness of the proposed penalties remains at issue.
No briefs are to be submitted, and this matter is ready for disposition.
Serious Violations
Citation 1, item a alleges a violation of:
29 CFR 1926.20(b)(1): Programs(s) were not initiated and/or maintained to comply with applicable
safety and health provisions:

   a) James Eddy dba Eddy Roofing, Inc., did not maintain a safety and health program to control
   or minimize the hazards associated with their work and provide compliance with the Act.

   Citation 1 Item 1b alleges a violation of:

29 CFR 1926.503(a)(1): The employer did not provide a training program for each employee who
might be exposed to fall hazards, to enable each employee to recognize fall hazards and the procedures
to be followed in order to minimize these hazards:

   a) James Eddy dba Eddy Roofing, Inc., did not provide training to enable each employee to
   recognize the hazards of falling and the procedures to be followed to eliminate or control such
   hazards at the worksite located at 2531 Oakton Street, Arlington Heights, Illinois.

   Citation 1, Item 2 alleges violation of:

29 CFR 1926.501(b)(1): Each employee on a walking/working surface with an unprotected side or edge
which is 6 feet or more above a lower level were not protected from falling by the use of guardrail
systems, safety net systems, or personal fall arrest systems:

   a) 2531 Oakton Street, Arlington Heights, Illinois - Employees were not protected from the
   hazard of falling approximately 40 feet where fall protection was not provided for use at the
   modified bitumen pipe.

   Citation 1, Item 3 alleges violation of:

29 CFR 1926.501(b)(4)(i): Each employee on walking/working surfaces was not protected from falling
through holes (including skylights) more than 6 feet above lower levels by personal fall arrest systems,
covers, or guardrail systems erected around such holes:

   a) 2531 Oakton Street, Arlington Heights, Illinois - Employees were exposed to the hazard of
   falling approximately 40 feet through skylights while engaged in built-up-roofing operations.




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Citation 1, Item 4 alleges violation of:

29 CFR 1926.502(b)(3): Guardrail systems were not capable of withstanding, without failure a force of
at least 200 pounds (890 N) applied within two inches (5.1 cm) of the top edge, in any outward or
downward direction, at any point along the top edge:

   a) 2531 Oakton Street, Arlington Heights, Illinois - A guardrail system installed around the
   manually operated hoist/beam was not adequately anchored to prevent deflection and provide
   support for at least 200 pounds.

   b) 2531 Oakton Street, Arlington Heights, Illinois - A guardrail system installed around the trash
   shoot was not adequately anchored to prevent deflection and provide support for at least 200
   pounds.

   c) 2531 Oakton Street, Arlington Heights, Illinois - A guardrail system installed around a
   personnel hatch was not adequately anchored to prevent deflection and provide support for at
   least 200 pounds.

   Citation 1, Item 5a alleges violation of:

29 CFR 1926.502(f)(1)(ii): When mechanical equipment is being used, the warning line for fall
protection was not erected less than six (6) feet from the roof edge parallel to the direction of
mechanical equipment operation; and not less than ten (10) feet from the roof edge perpendicular to the
direction of mechanical equipment operation.

   a) 2531 Oakton Street, Arlington Heights, Illinois - Employees were not protected from the
   hazard of falling approximately 40 feet while engaged in built-up-roofing operations where
   warning lines were not adequately established.

   Citation 1, Item 5b alleges violation of:

29 CFR 1926.502(f)(1)(iii): Points of access, materials handling areas, storage areas, and hoisting areas
were not connected to the work area by an access path formed by two warning lines:

   a) 2531 Oakton Street, Arlington Heights, Illinois - Warning lines were not used to create a
   clear access path connecting the material handling areas and personnel access zones to the work
   area.

   Citation 1, Item 6 alleges violation of:

29 CFR 1926.1051(a): Stairways or ladders were not provided at all personnel points of access where
there was a break in elevation of 19 inches (48 cm) or more, and no ramp, runway, sloped embankment,
or personnel hoist was provided:

   a) 2531 Oakton Street, Arlington Heights, Illinois - Employees were required to climb onto roof
   joists and a personnel hatch to ascend and descend the roof deck without the use of a ladder or
   stairway.


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Facts
As noted above, Respondent does not contest the existence of the cited violations (Tr. 4).
A penalty of $4,500.00 was proposed for each of the six citation items. OSHA Compliance
Officer (CO) Gary Weil testified that the severity of the cited violations was rated as high, because the
roof cited was 40 feet above the ground and the absence of fall protection could and did result in
serious physical harm, up to and including death (Tr. 13-16). Weil stated that the probability of an
accident was high because Eddy had no safety and health program and provided no training in fall
protection (Tr. 13). Five employees were exposed to the fall hazards cited at items 1 through 5
throughout the work shift as they worked near the edge of the 200 x 80 foot roof, the material hoist and
trash chute, or any of the skylights (Tr. 16-18). Weil believed that the hazard was exacerbated by the
presence of skylight covers which appeared to provide fall protection, but were not, in fact, weight
bearing, and by the presence of guardrails on the roof edge which were not adequately secured so as to
provide fall protection (Tr. 24-26, 32). The same employees were exposed to the fall hazard posed by
Eddy’s failure to provide ladder access to the roof; Weil stated that employees had to climb a crane, and
pull themselves up through the roof bar joists (Tr. 20). CO Weil stated that the employees worked in
the hot sun, which might lead to missteps (Tr. 17). The accident which led to the above captioned
citations involved an inexperienced employee with less than a week on the job (Tr. 14).
The proposed gravity based penalty for each item was $5,000.00. A 10% credit was provided
for history; Eddy had not received any OSHA citations within the past three years (Tr. 13).
In mitigation, Eddy argues that most of its roofers were experienced (Tr. 39, 54-55), and were
hired to complete the roofing job on a piecework basis (Tr. 56). The decedent was hired on the
recommendation of one of the experienced roofers (Tr. 57). Because the roofers were experienced,
Eddy believed it was sufficient to instruct the roofers to put up some area barriers, warning flags and
any other guardrails that they needed (Tr. 68). Eddy admits that it made no effort to determine whether
OSHA required precautions were taken (Tr. 69) Eddy argues that the proposed $27,000.00 penalty
will put it out of business (Tr. 79). James Eddy testified that his net profit this year will only amount to
around $15,000 to 20,000.

Discussion
In determining the penalty the Commission is required to give due consideration to the size of
the employer, the gravity of the violation and the employer's good faith and history of previous
violations. The gravity of the offense is the principle factor to be considered. Nacirema Operating Co.,

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1 BNA OSHC 1001, 1972 CCH OSHD ¶15,032 (No. 4, 1972). The factors to be considered in
determining the gravity of a violation include: (1) the number of employees exposed to the risk of injury;
(2) the duration of exposure; (3) the precautions taken against injury, if any; and (4) the degree of
probability of occurrence of injury. Kus-Tum Builders, Inc. 10 BNA OSHC 1049, 1981 CCH OSHD
¶25,738 (No. 76-2644, 1981).
The OSHA CO properly assessed the cited violations as high gravity. All of Eddy’s employees
were exposed to the cited hazard for the duration of the roofing job. It is unquestioned that the fall
hazard could and did result in a fatality. The record shows that Eddy made no effort to ensure its
employees’safety on the job. Eddy introduced no evidence mitigating any of the pertinent risk factors.
Nonetheless, this judge finds that the proposed penalties are excessive. The OSHA Field
Inspection Reference Manual, Section 8, Chapter IV.C.2.i.(1) provides for a 60% reduction in penalty
for employers with 25 employees or less, with the caveat that the CO may recommend that only a
partial reduction in penalty be permitted where an employer has one or more serious violation of high
gravity. In this case the CO did not recommend any reduction for size. The unrebutted testimony of
James Eddy establishes that the proposed penalties will exceed Eddy Roofing’s net income for 1998,
and put him out of business.
The Commission has held that the purposes of the Act are not served by the assessment of
destructive penalties. Colonial Craft Reproductions, 1 BNA OSHC 1063 (No. 881, 1972). Though its
guidelines allow the Secretary to adjust its penalty structure where an employee demonstrates a lack of
concern for employee health and safety, this judge believes that a complete denial of any reduction for
size is unwarranted here, where the desired deterrent effect may be obtained with a smaller penalty.
Taking Eddy’s small size into account, I find that a 40% reduction for size is appropriate and will be
taken in addition to the 10% reduction for history recommended by the CO.
Other than Serious Violations
Citation 2, Item a alleges violation of:
29 CFR 1926.59(e)(1): The employer did not maintain at the workplace a written hazard
communication which describes how the criteria specified in 29 CFR 1926.59(f),(g) and (h) will be met.

   a) The employer did not maintain a written hazard communication program at the work site
   where hazardous chemicals such as, but not limited to: modified bitumen, propane, and gasoline
   were in use.




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Citation 2, Item 1b alleges violation of:

29 CFR 1926.59(g)(1): The employer did not have a material safety data sheet for each hazardous
chemical which they used:

     a) The employer did not have material safety sheets available at the work site where hazardous
     chemicals such as, but not limited to: modified bitumen, propane, and gasoline were in use.

                                             ORDER

1. Citations 1, items a and 1b, alleging violations of §1926.20(b)(1) and §1926.503(a)(1) are
   AFFIRMED, and a penalty of $2,500.00 will be assessed.

2. Citation 1, item 2, alleging violation of §1926.501(b)(1) is AFFIRMED, and a penalty of
   $2,500.00 will be assessed.

3. Citation 1, item 3, alleging violation of §1926.501(b)(4)(i) is AFFIRMED, and a penalty of
   $2,500.00 will be assessed.

4. Citation 1, item 4, alleging violation of §1926.502(b)(3) is AFFIRMED, and a penalty of
   $2,500.00 will be assessed.

5. Citation 1, items 5a and 5b, alleging violation of §1926.502(f)(1)(ii) and §1926.502(f)(1)(iii) are
   AFFIRMED, and a penalty of $2,500.00 will be assessed.

6. Citation 1, item 6, alleging violation of §1926.1051(a) is AFFIRMED, and a penalty of
   $2,500.00 will be assessed.

7. Citation 2, items 1a and 1b, alleging violation of §§1926.59(e)(1) and 1926.59(g)(1) are
   AFFIRMED without penalty.

                                                    Benjamin R. Loye
                                                    Judge, OSHRC
   

Dated:

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