________________________________
                                :
SECRETARY OF LABOR,             :
                                :
          Complainant,          :
                                :
          v.                    :   OSHRC Docket No. 01-2117
                                :
EVELYN D. KOMES d/b/a ECONOMY   :
ROOFING AND SHEET METAL, and its:
successors,                     :
                                :
          Respondent.           :
________________________________:


APPEARANCES:

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


Before:  Administrative Law Judge James H. Barkley

*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, Evelyn D. Komes d/b/a Economy Roofing and Sheet Metal, and
its successors (Economy), at all times relevant to this action
maintained a place of business at Higgins and Landmeier Streets, Elk
Grove Village, Illinois, where it was engaged in construction. The
Commission has held that construction is in a class of activity which as
a whole affects interstate commerce. /Clarence M. Jones d/b/a C. Jones
Company,/ 11 BNA OSHC 1529, 1983 CCH OSHD ¶26,516 (No. 77-3676, 1983).
Because Respondent is an employer engaged in a business affecting
commerce, it is subject to the requirements of the Act.

On May 25, 2001 the Occupational Safety and Health Administration (OSHA)
conducted an inspection of Economy's Elk Grove Village work site. As a
result of that inspection, Economy was issued citations alleging
violations of the Act together with proposed penalties. By filing a
timely notice of contest Economy brought this proceeding before the
Occupational Safety and Health Review Commission (Commission).

On June 5, 2002, a hearing was held in Milwaukee, Wisconsin. Prior to
the hearing, Complainant withdrew items 1, 3a and 3b of citation No. 1;
item 2 remains at issue. Only Complainant appeared at the hearing. This
judge's decision was rendered at the close of Complainant's presentation
of a prima facie case, as set forth below.

*Alleged Violations*

Citation 1, item 2 alleges:

29 CFR 1926.501(b)(10): Each employee engaged in roofing activities on
low-sloped roofs, with unprotected sides and edges 6 feet or more above
lower levels were not protected from falling by the use of guardrail
systems, safety net systems, personal fall arrest systems, or a
combination of warning line systems and safety monitoring system:



(a) Higgins & Landmeier Rd., Elk Grove Village, Il.: Employees were
working on a flat roof that was 160 feet x 130 feet. The employees were
working without any fall protection and were exposed to a fall hazard of
30 feet.



/Facts/

Anthony Smith, the OSHA Compliance Officer (CO) who conducted the May
25, 2001 inspection, testified that upon his arrival on the Elk Grove
work site he noted Economy employees Charles Sullivan, Howard Ferguson,
Chad Naranjo and Dan Pascally moving about the 130' x 160' roof (Tr. 6,
9-11). Smith observed one man working very near the edge of the 30' high
building without the benefit of fall protection (Tr. 6-7, 9). Smith
called up and identified himself to Economy's foreman, Charles Sullivan;
Sullivan accompanied Smith as he inspected the roof (Tr. 8). According
to Smith, Economy's employees were laying a tarp on top of the roof and
covering it with gravel to prevent it from blowing away (Tr. 10). Smith
testified that one employee was kneeling within three feet of the edge
of the roof (Tr. 9). No warning lines had been installed, no monitor had
been designated, no safety harnesses were available for the employee's
use (Tr. 11-12).

According to Smith an employer may lose track of his position while
working and slip or back over an unguarded edge (Tr. 16). Smith
testified that the gravity of the violation is high, as a 30' fall could
result in fractures and/or death (Tr. 13, 18). Smith stated he computed
a gravity based penalty of $5,000.00 (Tr. 13). Because Economy is a
small company, and because Smith was unaware that Economy had received
prior OSHA citations concerning fall protection violations, he proposed
a reduced penalty of $1,500.00 (Tr. 14). At the hearing, Complainant
produced evidence that Economy had, in fact, been cited in July 1998 and
again in October 1999 for violations of OSHA fall protection
regulations. Both cases were settled informally and substantially
reduced penalties were assessed (Tr. 19-20; Exh. C-4, C-5).

/Discussion/

As noted in the record, Complainant has established her prima facie case
(Tr. 22). I find that the gravity based penalty originally proposed by
Complainant is appropriate. I further find that Respondent is not
entitled to any reduction in that penalty based on its failure to
provide any kind of fall protection for its employees and based on two
prior citations disposed of with informal settlement agreements wherein
Economy agreed to comply with applicable OSHA regulations. A penalty of
$5,000.00 is assessed.

*ORDER*

1. Citation 1, item 1, alleging violation of §1926.501(b)(10) is
AFFIRMED, and a penalty of $5,000.00 is ASSESSED.





/s/

James H. Barkley

Judge, OSHRC



Dated: July 15, 2002