Pete Miller, Inc.

Plain-English summary

Pete Miller was a roofing subcontractor on a hospital addition in Marysville, Ohio. An employee on a small lower roof handled metal curbs weighing about 150 pounds and pushed them over an unguarded edge to the ground 15 feet below. The company used a foreman on an upper roof as the employee's safety monitor instead of guardrails or personal fall protection. The Commission found it reasonably predictable that the employee could stagger or stumble into the fall-hazard area while handling the long, heavy curbs. It also held that the standard unambiguously requires the safety monitor to be on the same walking or working surface, which the upper-roof foreman was not. The serious violation and $1,000 penalty were affirmed; two other citation items vacated by the ALJ were not reinstated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.403(i)(2)(i), 29 C.F.R. § 1926.501(b)(3), 29 C.F.R. § 1926.502(h)(1)(iii)
• Outcome: Mixed. The Commission affirmed the serious safety-monitor violation and $1,000 penalty; the ALJ's vacation of the electrical-panel and hoist-area items remained in place.
• Key point: A designated safety monitor must be on the same walking or working surface as the employee being monitored, even if the employer believes another level offers a good view.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Complainant,
v.
PETE MILLER, INC.,

              Respondent.                      OSHRC Docket No. 99-947




                            DECISION

Before: ROGERS, Chairman, and WEISBERG, Commissioner.
BY THE COMMISSION:
Pete Miller, Inc. (“Pete Miller”) was the roofing subcontractor at a construction site
in Marysville, Ohio when a compliance officer (“CO”) of the Occupational Safety and
Health Administration (“OSHA”) inspected the worksite. As a result of that inspection,
OSHA issued Pete Miller a citation alleging serious violations of three standards
promulgated under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678
(“the Act”). Pete Miller contested that citation, and a hearing was held before
Administrative Law Judge Ann Z. Cook. The judge vacated items 1 and 2 of the citation
but affirmed item 3. The judge’s decision as to item 3 of the citation has been directed for
review pursuant to section 12(j) of the Act, 29 U.S.C. § 661(j). For the reasons that follow,
we find that the judge did not err in finding that Pete Miller was in violation of the cited
standard.
Pete Miller was performing the roofing for an addition to a hospital. This work
involved demolishing roof curbs or rails on an existing flat roof and removing them from
the roof. To remove the curbs, which weighed approximately 150 pounds and were eight
 2

to ten feet long, two Pete Miller employees handed the curbs down to a third employee,
Kenneth Humbert, who was standing on a flat “canopy” roof approximately six feet below.
Humbert, in turn, pushed them to the edge of the roof, checked with the Pete Miller
employee on the ground to be sure that there was nobody below, and pushed the curbs over
the edge of the roof so that they fell to the ground approximately 15 feet below. At the
hearing, Humbert testified that once the end of the curb was over the edge of the roof, he
would give the curb a push and never come closer than eight feet of the edge of the roof.
The CO, however, estimated that he had observed the employee within six feet of the edge.
There was no railing or other guard around the edge of the lower roof from which the
employee was pushing the curbs, and the employee was not wearing a safety belt and lanyard
or using any other protective equipment to prevent him from falling off the roof. Instead of
using protective equipment to prevent a fall, Pete Miller had designated its foreman, who
was on the higher roof, to act as the safety monitor to watch employees and warn them if
they approached too close to the edge of the roof. The use of a safety monitor is one method
of fall protection permitted under 29 C. F. R. § 1926.501(b)(10). Because the foreman was
on a different level from the employee he was monitoring, OSHA issued a citation alleging
that Pete Miller had violated the safety standard at 29 C.F.R. § 1926.502(h)(1)(iii).1

1
That standard provides:

     § 1926.502 Fall protection systems criteria and practices.
     ....
     (h) 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:
     ....
     (iii) The safety monitor shall be on the same walking/working surface and
     within visual sighting distance of the employee being monitored . . . .

3

   The judge affirmed this item of the citation, finding that “the narrowness of the roof

and the work [the employee] was doing subjected him to a fall hazard” and concluding that
he “could have lost his bearings, gotten too near the edge, and fallen.” On review, the
Commission requested the parties to address the following issues:
1) With respect to the alleged violation of 29 C.F.R. § 1926.502(h)(1)(iii),
whether the judge erred in finding that the Secretary established employee
exposure.
2) Assuming the judge did not err in finding employee exposure, whether
the judge erred in finding that the Respondent’s designated safety monitor
failed to satisfy the requirements of 29 C.F.R. § 1926.502(h)(1)(iii).

                                     Discussion
   Employee exposure to the violative condition is one of the elements of a violation

which the Secretary must prove.
[I]n order for the Secretary to establish employee exposure to a hazard she
must show that it is reasonably predictable either by operational necessity or
otherwise (including inadvertence), that employees have been, are, or will be
in the zone of danger. We emphasize that . . . the inquiry is not simply into
whether exposure is theoretically possible. Rather, the question is whether
employee entry into the danger zone is reasonably predictable.
Fabricated Metal Prods., Inc., 18 BNA OSHC 1072, 1074, 1999 CCH OSHD ¶ 31,463,
pp. 44,506-07 (No. 93-1853, 1997). Here, we find that it was reasonably predictable that
Humbert would enter the zone of danger. He was receiving 150-lb. metal curbs or rails from
two employees who were standing six feet above him. These articles were 8 - 10 feet long.
The roof on which he was standing was 10 feet by 12 feet. The CO estimated that he had
observed Humbert within six feet of the edge. Humbert testified that he never came closer
than eight feet from the edge. Nevertheless, we agree with Judge Cook’s finding that, even
assuming that Humbert never came closer than eight feet from the edge, given the size and
weight of the objects he was holding and the nature of his work, it was reasonably
foreseeable that he could stagger under the weight of the curb or could stumble, placing him
well within the danger zone. We therefore agree that the judge correctly found that the
employee was exposed to the hazard of falling off the roof to the ground fifteen feet below.
 4

See, e.g., Phoenix Roofing, Inc., 17 BNA OSHC 1076, 1079, 1993-95 CCH OSHD ¶30,699,
pp. 42,605-06 (No. 90-2148, 1995) (access to fall hazard reasonably predictable where
employees delivered materials to location within 12 feet of unguarded skylights and where
employees might reasonably believe they were permitted in unguarded area), aff’d without
published opinion, 79 F.3d 1146 (5th Cir. 1996).
We also agree with the judge in finding that Pete Miller had violated the standard.
By its terms, the standard clearly and unambiguously requires that the safety monitor be on
the same surface as the employee or employees being monitored. That was not the case
here; the monitor was on the upper roof six feet above Humbert. Although Pete Miller
suggests that the safety monitor was actually in a better position to see Humbert than he
would have been if they had both been on the same level, the company does not deny that
it failed to comply with the precise terms of the standard. Further, the foreman who acted
as safety monitor admitted that there were periods when he could not see Humbert, and there
was testimony that Humbert could not always see the foreman. This evidence negates the
company’s position.
Pete Miller also argues that there were other individuals, including the general
contractor’s project superintendent, on the upper roof who could observe Humbert and warn
him if he was too close to the edge. These individuals had not been designated as safety
monitors under the standard, and there is no indication in the record that they were in any
way aware that they had any responsibility for acting as a monitor. See Armstrong Steel
Erectors, Inc., 18 BNA OSHC 1630, 1635, 1998 CCH OSHD ¶ 31,476, p. 44,571-72 (No.
97-250, 1999). We therefore find that the judge did not err in finding Pete Miller in
violation.
 5

                          Characterization and penalty
   The Secretary alleged that the violation was serious. A violation is serious under

section 17(k) of the Act, 29 U.S.C. § 666(k), “if there is a substantial probability that death
or serious physical harm could result.” That provision does not mean that the occurrence
of an accident must be a substantially probable result of the violative condition but, rather,
that a serious injury is the likely result should an accident occur. Miniature Nut & Screw
Corp., 17 BNA OSHC 1557, 1558, 1995-97 CCH OSHD ¶ 30,986, p. 43,176 (No. 93-2535,
1996). If the employee had fallen off the roof, he would have fallen fifteen feet to the
ground below, and we find that the likely result of such a fall would have been a serious
injury, especially if he had fallen on one of the objects he had pushed over the side or had
fallen with one and had it land on him. We therefore find that the violation was serious.
The Secretary proposed a penalty of $2,500 for this item, which the judge reduced
to $1,000 based on good faith and lower gravity. On review, neither party disputed the
amount of the penalty assessed by the judge. We therefore see no reason to disturb the
judge’s assessment.
Conclusion
Accordingly, we affirm the administrative law judge’s finding that Pete Miller was
in serious violation of the standard at 29 C.F.R. § 1926.502(h)(1)(iii), and we assess a
penalty of $1,000 for that violation.

                                               /s/
                                               Thomasina V. Rogers
                                               Chairman


                                               /s/
                                               Stuart E. Weisberg

Dated: December 8, 2000 Commissioner

                                                                    2000 OSHRC No. 45

United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-3419

SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET No. 99-0947
PETER MILLER, INC.,
Respondent.

APPEARANCES:

      For the Complainant:
              Michelle DeBaltzo, Esquire, U.S. Department of Labor, Office of the Solicitor,
              Cleveland, Ohio

      For the Respondent:
              Douglas Suter, Esquire, Isaac, Brant, Ledman & Teetor, Columbus, Ohio

Before: Administrative Law Judge Ann Z. Cook

                                  DECISION AND ORDER

      This proceeding is before the Occupational Safety and Health Review Commission (“the

Commission”) pursuant to section 10 ( c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 651 et seq. (“the Act”). Respondent, Peter Miller, Inc. (“Miller”), was the roofing
subcontractor on the construction of an addition to the Marysville Hospital in Marysville, Ohio. On
April 8, 1998, the Occupational Safety and Health Administration (“OSHA”) conducted an
inspection at that work site, and, as a result, Miller received a three-item serious citation. Miller filed
a timely notice of contest, and a hearing was held in Columbus, Ohio on February 10, 2000.
Respondent is an employer engaged in a business affecting interstate commerce and is an
employer within the meaning of section 3 of the Act. Accordingly, the Commission has jurisdiction
over the parties and the subject matter. (JX-1).
 THE BURDEN OF PROOF
To establish a violation of a standard, the Secretary has the burden of proving, by a
preponderance of the evidence:
(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 OSHC 2131, 2138 (No. 90-1747, 1994).
ALLEGED SERIOUS VIOLATION OF 29 C.F.R. 1926.403(I)(2)(I)
Citation 1, Item 1 alleges that Miller violated 29 C.F.R. 1926.403(I)(2)(I) by exposing
employees to two unguarded 120/208-volt electrical panels located near the stairway on the southeast
corner of the second floor. The standard requires that live parts of electrical equipment operating at
50 volts or more must be guarded against accidental contact by cabinets, other forms of enclosure
or by one of the means listed in subparagraphs (A) through (D) of the standard.
The relevant facts are generally agreed upon. The two electrical panels near the stairwell were
live, operating at 120/208 volts, and were uncovered at the time of the inspection. A person reaching
the second floor by the stairs would come within 2 to 3 feet of the unguarded panels. Miller’s
foreman on the job, Justin Powers, acknowledged using the stairs twice on April 8, 1999, the day of
the inspection. Miller had no authority over Knox, the electrical subcontractor that had installed the
panels, and had no authority to cover or otherwise protect the panels. (Tr. 20-23, 53, 78, 92, 100,
103-04; CX-2.) Although Miller neither created nor controlled the hazard, the evidence shows that
a Miller employee came close enough to the panel to accidentally trip or fall and come into contact
with the live, unguarded panel. That employee was a foreman who was aware of the hazard. The
Secretary has thereby established a prima facie showing of a violation.
Miller asserts the multi-employer work site defense. That defense recognizes that it is unfair
to hold an employer liable for its employees’ exposure to a hazard that it did not create or control,
as long as the employer has taken reasonable and realistic measures to protect its employees from
the hazard. Anning-Johnson Co., 4 BNA OSHC 1193 (Nos. 3694 & 4409, 1976); Grossman Steel
& Aluminum Corp., 4 BNA OSHC 1185 (No. 12775, 1975). Having established that it did not create
the hazard and had no authority to abate the hazard, the employer must additionally establish that
it exercised reasonable care and diligence to protect its employees. What constitutes reasonable and
realistic protective measures must be determined in light of the circumstances at the work site. J.H.
MacKay Elec. Co., 6 BNA OSHC 1947, 1950 (No. 16110, 1978); Hayden Elec. Serv., Inc., 4 BNA
OSHC 1494, 1495 (Nos. 4034 & 4147, 1976).
Miller’s safety director, Dennis Haycock, testified that he first noted the uncovered electrical
panels in September. He informed the general contractor’s superintendent and at once instructed
Miller’s employees to avoid the hazard by using the rear stairs whenever possible. Employees were
required to sign off to verify that they were aware of the unguarded panels, and they normally used
the rear stairs when they needed to get to the second floor. In December, both Haycock and an
outside safety consultant that Miller employed found the panels uncovered during another inspection.
This time, Miller asked the general contractor in writing to abate the hazard. Powers, the foreman,
testified that employees used the rear stairs but occasionally had to walk through the area of the
panels.2 (Tr. 77-80, 84-85, 98-105; RX-2, RX-3.)
I find that these corrective measures were adequate and reasonable under the
circumstances because they significantly limited both the number of employees exposed and
the duration of their exposure. The Secretary argues that Miller could have done more, such
as complaining more frequently to the general contractor and telling employees they would
be disciplined if they went near the panels unnecessarily. However, the appropriate standard
is whether Miller acted as a reasonable employer would have under the circumstances, not
whether Miller could have done more. Elec. Smith, Inc. v. Secretary of Labor, 666 F.2d
1267, 1273-74 (9th Cir. 1982). I find that Miller has established its affirmative defense and
accordingly vacate Item 1 of Citation 1.
ALLEGED SERIOUS VIOLATION OF 29 C.F.R. 1926.501(b)(3)
Citation 1, Item 2 alleges Miller violated 29 C.F.R. 1926.501(b)(3) when employees
lowered curbs from a hoist area on an upper roof to a lower roof without using fall
protection, which exposed the employees to a 6-foot fall hazard. The cited standard
provides:

2
Powers testified he used the stairs by the electrical panels on the day of the inspection as he
was in a hurry to join the walk-around. I do not consider this an indication of his normal
practice.
 Hoist areas. Each employee in a hoist area shall be protected from falling 6
feet (1.8m) or more to lower levels by guardrail systems or personal fall arrest
systems. If guardrail systems ... are removed to facilitate the hoisting operation
(e.g., during landing of materials), and an employee must lean through the
access opening or out over the edge of the access opening (to receive or guide
equipment and materials, for example), that employee shall be protected from
fall hazards by a personal fall arrest system.
The Secretary alleges the violation occurred when a Miller employee on the main roof
leaned out over its edge when he passed a demolished curb down to another employee on
the lower roof, who in turn pushed it off the lower roof to the ground below. The difference
between the main and the lower roofs was 6 feet or less, and no guardrails or personal fall
arrest systems were in use. The OSHA compliance officer (“CO”) testified that before he
presented his credentials, he observed and videotaped workers on the roof and saw one of
them lean over the edge of the upper roof. He further testified that Exhibit CX-5, a photo
made from the video, shows the employee leaning out over the roof edge. (Tr. 26-33, 49;
CX-4, CX-5.) The CO’s testimony was directly contradicted by Powers, who at the time of
the photo was about 2 feet from the employee. Powers testified that the pictured employee
did not lean out over the edge of the upper roof. (Tr. 96 .)
Miller disputes both that the area where the curb was lowered was a “hoisting area”
and that any one leaned over the edge of the upper roof. The term “hoisting area” is not
defined in the standard. The CO described it as an area where materials are handed from one
level to another. Miller’s safety director, on the other hand, described hoisting as the on-
loading or off-loading of materials using some sort of equipment or mechanical device. He
also testified that removal of scrap was part of ordinary roofing work. Kenneth Humbert, the
Miller employee who was working on the lower roof that day, testified that he did not
consider what they were doing as hoisting and that no roofing materials had been hoisted
up to the roof that day. (Tr. 29, 70, 81, 88-89.)
I find the CO’s definition of the term “hoisting area” too broad. The Random House
Dictionary of the English Language, Unabridged Edition, 1971, defines the verb “hoist” as
“to raise or lift, especially by some mechanical appliance.” The standard’s use of the words
“during landing of materials” and “to receive or guide equipment or materials” also indicates
that hoisting is more than handing something down from one level to another. I conclude
the Secretary has not shown that the area where the curbs were lowered from the upper roof
to the lower roof was a hoist area and that she has not established that the standard applies.
I further conclude that the Secretary has not shown that an employee leaned over the edge
when lowering a curb to the lower level. The video and photo are equivocal and do not
clearly show a reaching beyond the edge. The CO was at some distance when he saw the
activity on the roof, and Powers, the closest observer, testified that no reaching out occurred.
The Secretary has not established Miller’s noncompliance with the standard. Item 2 of
Citation 1 is vacated.
ALLEGED SERIOUS VIOLATION OF 29 C.F.R. 1926.502(h)(1)(iii)
Citation 1, Item 3 alleges that the safety monitor was not on the same
walking/working surface and within visual sighting distance of the employee being
monitored, exposing the employee to a 15-foot, 3-inch fall hazard in violation of 29 C.F.R.
1926.502(h)(1)(iii).3 The lower roof was low-sloped and approximately 10 feet by 12 feet,
and, therefore, the use of a safety monitor alone was sufficient. See 29 C.F.R.
1926.501(b)(10). Powers, the designated safety monitor, was on the upper roof watching the
other employees on that roof and Humbert on the lower roof. He was able to see Humbert
most of the time, but he could not always watch Humbert and the other employees at the
same time. As he received the curbs from the upper roof and pushed them off the lower roof,
Humbert came within 6 to 8 feet of the edge. The general contractor’s superintendent was
also on the upper roof watching the curbs being lowered. (Tr. 36-40, 58, 62-64, 68, 97-98,
101, 105; JX-1.)

3
The citation alleges “On the top roof ... the safety monitor was not on the same walking
working surface [as the employee].” At trial, and in their pre-hearing and post-hearing
submissions, the parties assumed that any violation resulted from the employee being on the
lower roof and not within visual sighting distance of the monitor on the upper roof.
 The cited standard applies and requires the safety monitor and the monitored
employee to be on the same walking/working surface, which Powers and Humbert clearly
were not. Because Powers, the foreman, was the safety monitor, his knowledge of the
violative condition is attributable to his employer. Miller maintains Humbert was not
exposed to a fall hazard as he was never more than 8 feet from the edge. Even assuming that
to be true, the narrowness of the roof and the work Humbert was doing subjected him to a
fall hazard. The curbs were 8 to 10 feet long and weighed 150 pounds, and Humbert could
have lost his bearings, gotten too near the edge, and fallen. The lower roof was 15 feet above
the ground and a fall from that height would have resulted in serious injury. (Tr. 62-63; JX-
1.) I find the Secretary has established the alleged violation and that the violation was
serious.
The proposed penalty for this item is $2,500.00. Section 17(j) of the Act, 29 U.S.C.
§ 666(j), states that penalty assessment requires due consideration to be given to the
employer’s size, history and good faith, and to the gravity of the violation. Gravity, usually
the most significant factor, is judged by the number of employees exposed, the duration of
the exposure, precautions taken against injury, and the likelihood that any injury would
result. J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993). The
Secretary assessed the severity of any injury as high and the probability of injury as greater
and then made adjustments for size and history but not for good faith. I assess the probability
as much lower. One employee was exposed to the hazard, the exposure was not long, he was
at all times 6 to 8 feet back from the roof edge, and he was watched closely by Powers and
at least casually by the general contractor’s superintendent. I also believe credit should be
given for Miller’s safety program. I conclude that a penalty of $1,000.00 is appropriate.
FINDINGS OF FACT
The foregoing constitutes my findings of fact in accordance with Federal Rule of
Civil Procedure 52(a). Any proposed findings of fact inconsistent with this decision are
hereby denied.
 CONCLUSIONS OF LAW
1. The Commission has jurisdiction of this matter pursuant to section 10(c) of the Act.
2. Respondent was not in violation of 29 C.F.R. §§ 1926.403(I)(2)(I) and
1926.501(b)(3).
3. Respondent was in serious violation of 29 C.F.R. 1926.502(h)(iii), and a penalty
of $1,000.00 is appropriate.
ORDER
On the basis of the foregoing Findings of Fact and Conclusions of Law, it is ordered
that:
1. Items 1 and 2 of Citation 1 are vacated.
2. Item 3 of Citation 1 is affirmed, and a penalty of $1,000.00 is assessed

                                               Ann Z. Cook
                                        Judge, OSHRC

Dated: 20 APR 2000
Washington, D.C