Secretary of Labor,

	

 

Complainant,

	

 

v.

	

OSHRC DOCKET NO. 08-1636

Jose Luna Roofing,

	

 

Respondent.

	

 


Appearances:


              Josh Bernstein, Esq., Office of the Solicitor, U.S.
Department of Labor, Dallas, Texas

                            For Complainant


              Jose A. Luna, Jose Luna Roofing, Dallas, Texas

                            For Respondent


Before:  Administrative Law Judge Sidney J. Goldstein


DECISION AND ORDER

Procedural HistoryThis 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"). The Occupational Safety and Health Administration ("OSHA")
conducted an inspection of a Jose Luna Roofing ("Respondent") worksite
in Farmers Branch, Texas on September 8, 2008. As a result of that
inspection, OSHA issued one citation to Respondent alleging a serious
violation of 29 C.F.R. 1926.501(b)(10). A penalty of $1,500 was proposed
for the violation. Respondent timely contested the citation and an
administrative trial, pursuant to the Commission's Simplified
Proceedings rules, was conducted on April 6, 2009, in Dallas, Texas. The
Secretary appeared at the hearing ready to proceed. Respondent failed to
appear. (Tr. 4). After a forty-minute delay to allow for Respondent's
possible late arrival, the Secretary proceeded with the presentation of
her evidence.

Jurisdiction

            I find that jurisdiction of this action is conferred upon
the Occupational Safety and Health Review Commission pursuant to Section
10(c) of the Act and that Respondent is an employer engaged in a
business affecting interstate commerce within the meaning of Section
3(5) of the Act, 29 U.S.C. §652(5). Factual FindingsOn September 8,
2008, OSHA Compliance Safety and Health Officer Josh Flesher observed
and photographed employees performing roofing activities more than six
feet above the ground without using any form of fall protection. (Tr. 5;
Ex. C-1 through C-10). CSHO Flesher initiated an inspection of the
jobsite pursuant to OSHA's regional emphasis program on falls in the
construction industry. (Tr. 5). Jose Luna, the owner of the business,
was present during the inspection and confirmed to CSHO Flesher that he
employed the individuals working on the roof and knew they were up
there. (Tr. 6). CSHO Flesher also learned through conversations with the
General Contractor and a review of blueprints for the project, that the
roof was approximately 41 feet above the ground. (Tr. 7; Ex. C-1 through
C-10). As a result of his inspection, CSHO Flesher recommended the
citation at issue in this case.Discussion

            To establish a /prima facie /violation of the Act, the
Secretary must prove: (1) the standard applies to the cited condition;
(2) the terms of the standard were violated; (3) one or more of the
employer’s employees had access to the cited conditions; and (4) the
employer knew, or with the exercise of reasonable diligence could have
known, of the violative conditions. /Ormet Corporation/, 14 BNA OSHC
2134, 1991 CCH OSHD ¶29,254 (No. 85-0531, 1991).

 

 

 

 

Citation 1 Item 1

            29 C.F.R. 1926.501(b)(10) provides (in pertinent
part):/            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 warning line system and guardrail system,
warning line system and safety net system, warning line system and
personal fall arrest system, or warning line system and safety
monitoring system.            /

            The Secretary's undisputed evidence established a /prima
facie /violation of 29 C.F.R. 1926.501(b)(10). I find that a fall from
an elevation of forty-one feet would undoubtedly result in serious
injury or death. Therefore, Citation 1 Item 1 was properly characterized
as a serious violation.

            Section 17(j) of the Act requires the Commission to give
“due consideration” to four criteria when assessing penalties: (1) the
size of the employer's business, (2) the gravity of the violation, (3)
the good faith of the employer, and (4) the employer's prior history of
violations. /29 U.S.C. §666(j)/. Gravity is the primary consideration
and is determined by the number of employees exposed, the duration of
the exposure, the precautions taken against injury, and the likelihood
of an actual injury. /J.A. Jones Construction Co./, 15 BNA OSHC 2201,
1993 CCH OSHD ¶29,964 (No. 87-2059, 1993). Based on the Secretary's
undisputed evidence, I find that the proposed penalty of $1,500 is
appropriate.

            Alternatively, pursuant to Commission Rule 64, I find that
Respondent's failure to appear at the hearing justifies vacating
Respondent's Notice of Contest and affirming the proposed citation as
issued. /Philadelphia Construction Equipment, Inc./, 16 BNA OSHC 1128,
1993 CCH OSHD ¶30,051 (No. 92-0899, 1993).

 

 

ORDER

            Based upon the foregoing Findings of Fact and Conclusions of
Law, it is ORDERED that Citation 1 Item 1 is AFFIRMED as a serious
violation of 29 C.F.R. §1926.501(b)(10) and a penalty of one thousand
five hundred dollars ($1,500.00) is ASSESSED.

 

Date:   May 8,
2009                                                   /s/____________________________

Denver,
Colorado                                                       Sidney J.
Goldstein

                                                                                    Judge,
OSHRC