__________________________________ : SECRETARY OF LABOR, : : Complainant, : : v. : OSHRC Docket No. 1655 : EZ M & M Roofing, Inc., : : Respondent. : __________________________________: Appearances: Patrick L. Depace, Esquire Mr. Michael Stewart Office of the Solicitor M & M Roofing U. S. Department of Labor Hamilton, Ohio Cleveland, Ohio For Respondent Pro Se For Complainant Before: Administrative Law Judge Stephen J. Simko, Jr. *DECISION AND ORDER* M & M Roofing is engaged in the business of roofing construction. On August 3, 2000, respondent was engaged in construction work at a jobsite in Mason, Ohio. The Occupational Safety and Health Administration (OSHA) conducted an inspection of respondent's jobsite on August 3, 2000. As a result of this inspection, respondent was issued two citations. Respondent filed a timely notice contesting the citations and proposed penalties. Citation No. 1, item 1, alleges a serious violation of 29 C.F.R. § 1926.20(b)(2) as follows: The employer's accident prevention program did not provide for frequent and regular inspections of the job sites, materials, and equipment to be made by competent persons designated by the employer. (a) The employer's accident prevention program did not provide for frequent and regular inspections of the jobsite and equipment to be made by a competent person in that such a person would have addressed the need to utilize recognized safety procedures and practices while installing roofing material on a residential construction project with working heights greater than 29.7 feet from ground level surfaces. Citation No. 2, item 1, alleges a willful violation of 29 C.F.R. § 1926.501(b)(13) as follows: (a) In lieu of conventional fall protection, the employer did not utilize an alternative fall protection plan nor comply with Appendix E, Subpart M, Fall Protection while engaged in roofing operations for residential construction activities: (1) Each employee was not trained in the procedures detailed in Appendix E; (2) A Controlled Access Zone (CAZ) was not established; (3) Slide Guards were not in place along the eves of the roof; (4) Enforcement and use of full body harness, lanyard, and fall arrest was available but not utilized. A hearing was held pursuant to the EZ trial procedures in Cincinnati, Ohio, on March 14, 2001. At the conclusion of the hearing, a bench decision was entered affirming Citation No. 1, item 1, as a serious violation and assessing a penalty of $700 for that item. Citation No. 2, item 1, was reclassified to a serious violation, affirmed as serious, and a penalty of $1,000 was assessed for that item. Excerpts of relevant transcript pages and paragraphs, including findings of fact and conclusions of law, are attached hereto in accordance with 29 C.F.R. § 2200.209(f). 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 ORDERED: 1. Citation No. 1, item 1, is affirmed as a serious violation and a penalty of $700 is hereby assessed. 2. Citation No. 2, item 1, is affirmed as a serious violation and a penalty of $1,000 is hereby assessed. /s/ STEPHEN J. SIMKO, JR. Judge Date: March 30, 2001 ------------------------------------------------------------------------ 155 1 JUDGE SIMKO: Any other witnesses? 2 MR. STEWART: That's it. 3 JUDGE SIMKO: Did you want to testify? 4 MR. STEWART: No, I've pretty much told you 5 everything it is, Your Honor. I mean, you can find us 6 guilty or not guilty. That's the way it is. 7 JUDGE SIMKO: Are we at the end of the day on 8 this part? 9 MR. DEPACE: I believe so. 10 JUDGE SIMKO: Let's take 15 minutes, and if you 11 will come back in 15 minutes, I will give you a 12 decision. 13 (Whereupon, a short recess 14 was taken off the record) 15 JUDGE SIMKO: Is there anything either side 16 would like to say at this time before I issue a 17 decision? 18 MR. DEPACE: No, Your Honor. 19 MR. STEWART: No, Your Honor. 20 JUDGE SIMKO: Okay, a written decision will 21 follow. It will consist of a very short decision, a few 22 pages attached, the applicable transcript pages which I 23 relate would to during this decision. 24 The threshold issue that I have to decide here is 25 whether the employer is, in fact, or the Respondent is, CARLIN ASSOCIATES - (216) 226-8357 156 1 in fact, employer with employees. 2 Now, that term is a term which is broadly construed 3 under the Occupational Safety and Health Act, in light 4 of the remedial statutory purpose to provide safe work 5 places for all individuals and the economic realities of 6 the relationship between the Company and the individuals 7 working for that Company. So, it's a broadly construed 8 term. 9 Here, the Respondent sets the rates of pay for the 10 two individuals who were testifying here today and 11 controls the work of those individuals. He sends them 12 home if needed if they don~t perform the work properly 13 or don't comply with his instructions, and he tells the 14 employees when to start the various jobs. 15 So, in light of the applicable case law in this 16 matter, I am ruling that the Company is the employer, in 17 fact, of these two individuals who have testified here 18 today; therefore, is an employer with employees under 19 the Act. 20 To prove any violation of the Act, the Secretary 21 must prove four elements of a violation: One is the 22 applicability of the standard -- that is, the 23 construction standard -- whether they apply to your work 24 site or not; whether the Company failed to meet the 25 requirements of the standard; whether employees were CARLIN ASSOCIATES - (216) 226-8157 157 . 1 exposed to the hazard; and whether the Company had 2 knowledge of the violative conditions, not of the law 3 but of the actual conditions. 4 So, keeping that in mind, I'm going to talk about 5 each individual item separately. 6 The first alleged violation is an alleged violation 7 of 29 CFR Section 1926.20(b)(2), that's 20(b)(2). 8 Specifically, it is alleged the employer's accident 9 prevention program did not provide for frequent and 10 regular inspections of the job sites, materials and 11 equipment to be made by a competent person designated by 12 the employer. 13 Specifically, it's alleged that the employerts 14 accident prevention program did not provide for frequent 15 regular inspections of the work site and equipment to be 16 made by a competent person, and that such person would 17 have addressed the need to utilize, recognize safety 18 procedures and practices while installing roofing 19 material on residential construction projects with 20 working heights greater than 29.7 feet from the ground 21 level surfaces. . 22 Here, the Respondent admitted -- Mr. Stewart 23 admitted on the stand -- that they had no fall 24 protection program. There was some testimony by Mr. 25 Stewart that an inspection was made prior to the start CARLIN ASSOCIATES - (216) 226-8157 158 1 of the work on this day. However, he made a statement 2 to the compliance officer at the time of the inspection 3 that no such inspection was made. 4 Given this conflict in testimony, I have to 5 conclude that no complete inspection was made. While 6 there may have been a viewing of the roof area, there 7 was no inspection made on that day, and there were no 8 regular inspections made of that job site by a competent 9 person as designated by OSHA, in that such person might 10 have addressed the need to utilize various recognized 11 safety procedures and practices while installing the 12 roofing materials, specifically a fall protection 13 system. 14 The standard is clearly applicable to this job. It 15 is a roofing job; it is in construction. There was a 16 violation of the standard. The elements of the standard 17 were violated, and the employees were working on this 18 roof, at least one of the employees was working on the 19 roof without fall protection. That would be Mr. Swope. 20 The knowledge of the employer was admitted in an 21 admission to the compliance officer that no such 22 inspection was done, and the testimony here today that 23 there was no fall protection program in place. 24 With regard to Citation 2, Item Number 2, there was 25 testimony by Mr. Swope that he was on the roof beating CARLIN ASSOCIATES - (216) 226-8157 159 1 down boards and removing scrap materials and getting the 2 roof ready at the beginning of the day of the day of the 3 inspection and that he was not wearing safety equipment. 4 There were the boards that were up there, these slide 5 boards or guide boards, that were nailed up there; but 6 he was up there without a harness, and it was a 10/12 7 pitch roof. 8 Now, there was also testimony by Mr. Swope that Mr. 9 Stewart does tell him -- hollers at him from time to 10 time to get safety equipment on, but he makes up his own 11 mind. And, he also testified that he finds that the 12 harnesses and the ropes can be dangerous. 13 In the past he has used the boards and not the 14 harnesses and Mr. Stewart, the representative of M & M, 15 has seen this. Mr. Swope testified that he uses his own 16 judgment on what equipment to use, and his response also 17 was that, "Time is money. The most important thing is 18 getting the job done quickly. 19 Mr. Dryden testified that OSHA requirements are 20 known by all roofers; requirements for fall protection 21 system. Also, there was at least one employee on the 22 roof, Mr. Swope, without any fall protection. He was 23 observed getting off the ladder without a harness. This 24 was a 10/12 pitch roof. 25 The general contractor requires fall protection, CARLIN ASSOCIATES - (216) 226-8157 160 1 and the Respondent has told his employees to use fall 2 protection but says the employees don't listen. 3 Now, one employee, Mr. Dryden, assessing all the 4 testimony, I have to conclude that Mr. Dryden -- it was 5 not proven that Mr. Dryden did not have on adequate fall 6 protection. The reverse of that has not been proven 7 that he actually did; it's just the Government has not 8 proven that he did not. However, Mr. Swope did not have 9 on adequate fall protection for this job. 10 Here, the standard is clearly applicable. The 11 terms of the standard were violated by not having 12 sufficient guardrails or other fall protection system. 13 This was an alleged violation of 29 CFR Section 14 1926.501(b)(13) that says generally that each employee 15 engaged in residential construction activity at six or 16 more feet above the lower levels was not protected by 17 guardrail system, safety net system, or personal fall 18 arrest system, and it gives alternative means of 19 protection in the citation. 20 In lieu of the conventional fall protection, the 21 employer did not utilize an alternative fall protection 22 plan or comply with Appendix E, Subpart (m), fall 23 protection, while engaged in roofing operations for 24 residential construction activities: 25 (1) each employee was not trained in the procedures CARLIN ASSOCIATES - (216) 226-8157 161 1 detailed in Appendix (e). Mr. Swope testified that he 2 was not trained. A controlled access zone was not 3 established. Mr. Stewart testified that this was not a 4 controlled access zone job. Slide guards were not in 5 place along the eaves of the roof. 6 There was some testimony that at least part of the 7 time, there were slide guards in place along the eaves 8 of the roof. Enforcement of a full body harness and 9 lanyard and fall arrest system was available but not 10 utilized. And, the proof has gone that Mr. Swope did 11 not utilize that. 12 So, the terms of the standard were not met. At 13 least one employee was exposed to the hazard. And, 14 these individuals were working anywhere from 10 to 30 15 feet above the ground without said protection. 16 That brings us to the question of willfulness. 17 Now, while this employer did not comply with the terms 18 of the standard, he did take some steps in attempt to 19 protect his employees. There were harnesses on the job 20 site. There were some -- I don't remember the names of 21 these things -- slide guards in place, but this being a 22 10/12 pitch roof, a very steep roof, there was some 23 evidence that one employee might have had such a harness 24 on but the other one definitely did not. 25 So, this falls short of proving an intentional CARLIN ASSOCIATES - (216) 226-8157 162 1 disregard of the requirements of the OSHA standard or 2 plain indifference to the safety of employees. This 3 does not mean that the Company was without knowledge of 4 the violations. It just means it does not rise to the 5 level of willfulness for this case. 6 So, I'm going to affirm Citation 1, Item 1, as a 7 serious violation. I'm going to affirm Citation 2, Item 8 1, also as a serious violation. On Item 1 of Citation 9 1, I'm assessing a total penalty of $700.00. Item 1 of 10 Citation Number 2, I'm assessing a total penalty of 11 $1,000.00. So the total penalty is $1,700.00. 12 Anything further, gentlemen? Mr. Stewart? 13 MR. STEWART: No. 14 JUDGE SIMKO: Mr. Depace? 15 MR. DEPACE: No, Your Honor. 16 JUDGE SIMKO: All right, are we concluded today? 17 MR. DEPACE: Yes. 18 JUDGE SIMKO: All right, thank you. 19 ---o0o-- 20 (Whereupon, the proceeding 21 was concluded at 1:35 p.m.) 22 23 24 CARLIN ASSOCIATES - (216) 226-8157