Guam Top Builders, Inc.

Plain-English summary

Guam Top Builders repaired typhoon-damaged condominium roofs about 18 feet above the ground. Employees worked near the roof edge without conventional fall protection while the person identified as safety monitor operated a forklift across the street, outside the required visual and speaking range. Judge Nancy J. Spies applied the residential-construction fall standard, affirmed that serious item for $2,000, and also affirmed a $450 ladder item because the side rails did not extend three feet above the upper landing. She vacated a separate ladder-stability item because OSHA did not prove that nailed wood stops at the ladder feet were inadequate to prevent displacement.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(10); 29 C.F.R. § 1926.501(b)(13); 29 C.F.R. § 1926.1053(b)(1); 29 C.F.R. § 1926.1053(b)(6).
• Outcome: Residential roof fall-protection and ladder-extension items affirmed for $2,450 total; ladder-stability item vacated.
• Key point: A safety monitor must remain on the same work surface, within sight and speaking distance, and free of other duties that divert attention from workers near a roof edge.

Full text (OSHRC public release)

                                                                

Secretary of Labor,
Complainant,

              v.                                   OSHRC Docket No. 98-0973

Guam Top Builders, Inc.,
Respondent.


Appearances:

      Matthew Vadnal, Esquire                      Jae Park, President
             U. S. Department of Labor                      Guam Top Builders
             Office of the Solicitor                        Agaña, Guam
             Seattle, Washington                                     For Respondent
                      For Complainant

Before: Administrative Law Judge Nancy J. Spies

                                   DECISION AND ORDER

      Guam Top Builders, Inc. (GTB), contests a three-item citation issued by the Secretary on

April 27, 1998. Item 1 of the citation alleges a serious violation of § 1926.501(b)(10) for failing
to provide fall protection to employees engaged in roofing work on low-slope roofs. In the
alternative, item 1 alleges a serious violation of § 1926.501(b)(13) for failing to provide fall
protection for employees engaged in residential construction. Item 2 alleges a serious violation
of § 1926.1053(b)(1) for failing to ensure that the ladder rails of a portable ladder extended at
least 3 feet above the upper landing surface. Item 3 alleges a serious violation of
§ 1926.1053(b)(6) for failing to secure a ladder on a surface that was not level.
GTB’s president, Jae Park, represented the company pro se at the March 23, 1999,
hearing. GTB does not dispute jurisdiction. The Secretary established that GTB was a covered
employer within the meaning of the Occupational Safety and Health Act of 1970 (Tr. 59-60).
GTB argues that the Secretary failed to establish that its employees were exposed to a fall hazard
(item 1) and that the ladder on the roof was not secured (item 3). GTB does not appear to dispute
that the tops of the ladder rails were less than 3 feet above the upper level (item 2). The parties
presented closing arguments and no post-hearing briefs were filed.

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For the reasons set out below, items 1 and 2 are affirmed, and item 3 is vacated.
Background
On January 26, 1998, Johnny Cruz conducted an inspection on behalf of the Occupational
Safety and Health Administration (OSHA) of GTB’s worksite at the Flora Gardens
Condominiums in Chalan Pago, Guam (Tr. 10).1 Cruz conducted the inspection based on a
referral by his supervisor, Leonard Limtiaco, who had observed GTB’s construction activity at
the site he drove along a public roadway (Tr. 16-17).
As Cruz approached GTB’s worksite, he noted that there were approximately 20 two-
story condominiums in the area, each approximately 18 feet high. Many of the roofs had been
damaged by Typhoon Paka, which had struck in December 1997. GTB was repairing the roofs,
whose ceramic shingles had become loosened in the storm (Tr. 22-23).
While Cruz was still in his car, he observed an employee carry a 2 foot by 6 foot piece of
foam along the roof (Tr. 19):
[W]hen the wind was blowing, he was, you know, going with the
direction of the wind, but he had, he was smart enough to let it go,
and he was able to catch his balance, and he was right at the edge.
Had he not let that foam go, he would have fallen to the ground.
And then I observed other employees up at the, on the rooftop.

     Cruz noticed a portable ladder set up on the lower sloped roof of one of the buildings.

He observed several employees using the ladder to gain access to the upper roof (Exh. C-3;
Tr. 45-46). Cruz asked to speak to the supervisor, and an employee directed him to Mr. Chung,2
whom he earlier observed operating a forklift moving materials on the other side of the road
(Tr. 22). Chung notified Park that Cruz was at the site. After approximately 30 minutes, Park
showed up and Cruz held opening and closing conferences with him (Tr. 41, 82).
The Citation

1
Cruz is employed by the government of Guam. He is permitted to make inspections on behalf of OSHA as part of
OSHA’s 7(c)(1) enforcement program (Tr. 10).
2
Cruz identified the supervisor as Mr. Sung. Park was insistent that his supervisor’s name was Mr. Chung
(Tr. 68-69). Cruz stated that the supervisor told Cruz his name was Sung and that he spelled it for him (Tr. 71).
Nevertheless, because of language differences and because of Mr. Park’s personal knowledge, this decision will
refer to the supervisor as "Chung."

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The Secretary has the burden of proving her case by a preponderance of the evidence.
In order to establish a violation of an occupational safety or health
standard, the Secretary has the burden of proving: (a) the
applicability of the cited standard, (b) the employer’s
noncompliance with the standard’s terms, (c) employee access to
the violative conditions, and (d) the employer’s actual or
constructive knowledge of the violation (i.e., the employer either
knew or, with the exercise of reasonable diligence could have
known, of the violative conditions).

Atlantic Battery Co., 16 BNA OSHA 2131, 2138 (No. 90-1747, 1994).

   In order to establish that a violation is “serious” under § 17(k) of the Act, the Secretary

must establish that there is a substantial probability of death or serious physical harm that could
result from the cited condition. In determining substantial probability, the Secretary must show
that an accident is possible and the result of the accident would likely be death or serious
physical harm. The likelihood of the accident is not an issue. Spancrete Northeast, Inc.,
15 BNA OSHA 1020, 1024 (No. 86-521, 1991).
Item 1: Alleged Serious Violation of § 1926.501(b)(10),
or in the Alternative, of § 1926.501(b)(13)

   The Secretary alleges a serious violation of § 1926.501(b)(10), which alleges:
           Roofing work on low-slope roofs. Except as otherwise provided in
           paragraph (b) of this section, each employee engaged in roofing
           activities on low-slope roofs, with unprotected sides and edges 6
           feet (1.8 m) or more above lower levels shall be protected from
           falling by guardrail systems, safety net systems, personal fall arrest
           systems, or a combination of [protective systems] . . . . Or, on
           roofs 50-feet (15.25 m) or less in width (see Appendix A to subpart
           M of this part), the use of a safety monitoring system alone [i.e.
           without the warning line system] is permitted.

   GTB claimed in the pre-hearing pleadings that § 1926.501(b)(10) did not apply to the

work its employees were doing at Flora Gardens Condominiums because that work was done on
residential buildings. Prior to the hearing, the Secretary moved to amend item 1 to allege in the
alternative that GTB committed a serious violation of § 1926.501(b)(13), which provides:

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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.

   The undersigned allowed the amendment (Tr. 9). OSHA Directive STD 3.1 (“Interim

Fall Protection Compliance Guidelines for Residential Construction”) relates to
§ 1926.501(b)(13) and states (Exh. C-5):
Subpart M does not define “residential construction.” For the
purposes of interim compliance guidance under this directive, the
term “residential construction” applies to structures where the
working environment, and the construction materials, methods, and
procedures employed are essentially the same as those used for
typical house (single-family dwelling) and townhouse construction.

   The record establishes that GTB was engaged in roofing work on townhouses at the Flora

Gardens Condominiums. Thus, the alternative standard, § 1926.501(b)(13) is more specific to
the cited conditions. The original standard cited in item 1, § 1926.501(b)(10), will not be
considered.
Section 1926.501(b)(13) applies to GTB’s work at the site. It is undisputed that GTB’s
employees were working 6 feet or more above the lower levels. The employees were working
18 feet above the ground (Exhs. C-1 and C-2; Tr. 33-34). GTB was not using a guardrail system,
a safety net system, or a personal fall arrest system (Tr. 25). GTB did not attempt to demonstrate
that the use of such fall protection systems were infeasible or created a greater hazard, and the

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company does not argue that it developed a fall protection plan that met the requirements of § 1926.502(k).
GTB argues that it had a safety monitoring system in place which complied with
§ 1926.502(h)(1). That standard provides:
Safety monitoring systems. Safety monitoring systems [See
1926.501(b)(10) and 1926.502(k)] and their use shall comply with
the following provisions:
(1) The employer shall designate a competent person to
monitor the safety of other employees and the employer
shall ensure that the safety monitor complies with the
following requirements:
(i) The safety monitor shall be competent to recognize
fall hazards;
(ii) The safety monitor shall warn the employee when it
appears that the employee is unaware of a fall
hazard or is acting in an unsafe manner;
(iii) The safety monitor shall be on the same
walking/working surface and within visual sighting
distance of the employee being monitored;
(iv) The safety monitor shall be close enough to
communicate orally with the employee; and
(v) The safety monitor shall not have other
responsibilities which could take the monitor's
attention from the monitoring function.

   GTB states that it designated supervisor Chung as the competent person to monitor the

safety of the employees. Section 1926.502(h)(1)(iii) and (iv) required the safety monitor to be on
the same walking/working surface and within visual sighting and hearing distance of the
employees being monitored. When Cruz arrived on the site, he observed seven GTB employees
on the roofs of the complex. Supervisor Chung was across the street from the employees
operating a forklift (Tr. 22). Section 1926.502(h)(1)(v) requires that the monitor not have other
responsibilities that could divert his attention from the monitoring function. Chung’s location
and activity during the time the GTB employees were on the roof clearly violate the requirements
for safety monitors mandated in § 1926.502(h)(1).
GTB argues, through Park, that the employees were working in the center of the roof at
the time of Cruz’s inspection and were not exposed to a fall hazard because they were away from
the edge (Tr. 117-118). This argument is rejected. Park was not at the site at the time of Cruz’s

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inspection, so he cannot testify to the location of the employees. Furthermore, the purpose of
having a safety monitor is to warn employees when they are unaware of fall hazards and are
acting in an unsafe manner. It is not adequate for a safety monitor to instruct employees to stay
away from the edge of the roof and then to leave them to perform other duties.
GTB claims that the Secretary failed to establish employee exposure. Cruz testified that
as he approached the worksite, he observed an employee carrying foam “right at the edge” of the
roof (Tr. 19). Park testified that he instructed employees to drop the foam insulation over the
edge of the roof, and that employees were required to come “about four feet from the edge” in
order to do that (Tr. 119). By Park’s own admission, his employees were required to come at
least within 4 feet of the roof’s edge. The Secretary has established that GTB’s employees were
exposed to a fall hazard and that GTB was aware of this exposure, which took place in plain
sight. Both Cruz and his supervisor observed the employees’ exposure from a public roadway.
The Secretary has established that GTB violated § 1926.501(b)(13). The employees were
exposed to the hazard of falling, which could result in death or broken bones (Tr. 35). The
violation is serious.
Item 2: Alleged Serious Violation of § 1926.1053(b)(1)
The Secretary alleges that GTB committed a serious violation of § 1926.1053(b)(1),
which provides:
Use. The following requirements apply to the use of all ladders,
including job-made ladders, except as otherwise indicated: When
portable ladders are used for access to an upper landing surface, the
ladder side rails shall extend at least 3 feet (.9 m) above the upper
landing surface to which the ladder is used to gain access; or, when
such an extension is not possible because of the ladder’s length,
then the ladder shall be secured at its top to a rigid support that will
not deflect, and a grasping device, such as a grabrail, shall be
provided to assist employees in mounting and dismounting the
ladder. In no case shall the extension be such that ladder deflection
under a load would, by itself, cause the ladder to slip off its
support.

                                               6

Exhibit C-3 is a copy of a photograph that shows a portable ladder placed with its feet on
a sloped roof, and its upper part resting against the edge of the upper roof. The top of the ladder
is not secured to anything.
Cruz did not measure the ladder, but he testified that it is standard for the rungs of a
ladder to be 1 foot apart (Tr. 45). Exhibit C-3 shows that the left hand rail of the ladder extends
approximately 2½ feet above the upper roof’s edge, and the right hand rail extends approximately
2 feet above the edge.
Cruz observed three or four employees using the ladder to come down from the upper
roof (Tr. 46-47). The ladder was in plain view of a public roadway and GTB’s supervisor was on
the site (Tr. 48). GTB did not present any real defense with regard to this item (Tr. 126).
The Secretary has established a violation of § 1926.1053(b)(1). The hazard created by
this violation was that the employee, having a short handhold as he exits onto the roof, could trip
or fall, causing bruises and broken bones (Tr. 50). The violation is serious.
Item 3: Alleged Serious Violation of § 1926.1053(b)(6)
The Secretary alleges that GTB committed a serious violation of § 1926.1053(b)(6),
which provides:
Ladders shall be used only on stable and level surfaces unless
secured to prevent accidental displacement.

   Item 3 concerns the same ladder that is the subject of item 2 and that is depicted in

Exhibit C-3.
The roof on which the ladder rested was not level. It was sloped at 2 to 12 inches
(Tr. 53). Cruz stated that the ladder was resting on the lower roof, and that the feet of the ladder
were “secured” by 1 by 2 inch pieces of wood nailed to the concrete of the roof with 1½-inch
nails. Cruz believed the weight of an employee using the ladder could cause the wood to “give
way” (Tr. 51-52). Cruz observed three or four employees use the ladder (Tr. 54-54). Cruz noted
that the ladder shook as employees climbed down (Tr. 55). The ladder was in plain view (Tr.
48).
Cruz testified that the best way to secure the ladder was to put 2 by 4-inch boards in front
of the legs of the ladders and to tie the top of the ladder to the edge against which the ladder was

                                              7

leaning (Tr. 58). The Secretary argues only that GTB’s means of compliance was inadequate.
GTB argues that the 1 by 2 boards nailed in front of the ladder legs was sufficient to secure the
ladder (Tr. 98).
It is determined that the Secretary has failed to show by a preponderance of the evidence
that the 1 by 2-inch wood nailed to the roof in front of the ladder was insufficient to secure it.
Cruz testified that this was inadequate and Park testified that is was. No other evidence was
presented to establish whether GTB’s method of securing the ladder would prevent accidental
displacement. Cruz’s opinion is not supported by any other information that would make it
markedly more credible than Park’s.
The Secretary has failed to establish a violation of § 1926.1053(b)(6).
Penalty Determination
The Commission is the final arbiter of penalties in all contested cases. Under § 17(j) of
the Act, in determining the appropriate penalty, the Commission is required to find and give “due
consideration” to (1) the size of the employer’s business, (2) the gravity of the violation, (3) the
good faith of the employer, and (4) the history of previous violations. The gravity of the
violation is the principal factor to be considered.
GTB employed 35 employees at the time of the inspection and is considered to be a small
employer (Tr. 139). The Secretary had previously cited GTB for serious violations (Tr. 51).
GTB is not entitled to any credit for good faith. GTB was unaware of its employee’s experience
(Tr. 124). Its implementation of the safety monitoring system was abysmal. The gravity of the
violation for item 1 was high. Employees were working on a windy day, were required to go the
edge of the roof, and were exposed to falls from a height of 18 feet. A penalty of $2,000.00 is
assessed for item 1. The gravity of the violation for item 2 is moderate. The ladder had some
extension above the roof level, but not enough. Employees falling from the ladder would most
likely fall to the lower roof, suffering “probably bruises” (Tr. 50). A penalty of $450.00 is
assessed.

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FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Federal Rule of Civil Procedure 52(a).
ORDER
Based upon the foregoing decision, it is hereby ORDERED:
1. Item 1 of the citation, alleging in the alternative, a serious violation of
§ 1926.501(b)(13) is affirmed, and a penalty of $2,000.00 is assessed;
2. Item 2 of the citation, alleging a serious violation of § 1926.1053(b)(1) is
affirmed, and a penalty of $450.00 is assessed; and
3. Item 3 of the citation, alleging a serious violation of § 1926.1053(b), is vacated,
and no penalty is assessed.

                                                  NANCY J. SPIES
                                                  Judge

Date: August 16, 1999

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