Designs Unlimited Contractors

Plain-English summary

Designs Unlimited Contractors was finishing a residential reroofing job when OSHA observed three workers more than 25 feet above the ground without fall protection. The judge found that the company had not provided competent-person inspections, had removed its fall-protection system before finishing work ended, and had not adequately trained two employees to recognize and minimize fall hazards. The company's three-employee size did not exempt it because residential roofing was not a low-hazard industry, and the inspection followed the compliance officer's direct observation of unsafe conditions. All three violations were serious because a fall could cause serious injury or death. The judge assessed $500 for each item, totaling $1,500, after crediting the company's small size, short history, and some investment in safety equipment.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.20(b)(2), 1926.501(b)(13), and 1926.503(a)(1)
• Outcome: All three serious violations were affirmed with $1,500 in total penalties.
• Key point: A small roofing contractor remains covered by OSHA and must maintain fall protection, competent-person inspections, and hazard-recognition training through completion of the work.

Full text (OSHRC public release)

Secretary of Labor,
Complainant,
v. OSHRC Docket No. 03-0095
Designs Unlimited Contractors, EZ
Respondent.

Appearances:

Patrick L. D ePa ce, O ffice of the S olicitor, U. S. D epartment of Lab or, Cleveland, Ohio
For Com plainant

Mr. Bre t A. Anderso n, Ge neral M anager, Designs U nlimited Contracto rs, Greenfield , Ohio
For Respond ent

Before: Administrative Law Judge Ken S. Welsch

                                         DECISION AND ORDER
       Designs Unlimited Contractors (DUC), a small home improvement company, was

completing a re-roofing job on a private home in Wilmington, Ohio, on November 13, 2002, when
the Occupational Safety and Health Administration (OSHA) inspected the site under a local
emphasis fall protection program. As a result of OSHA’s inspection, DUC received a serious
citation on December 12, 2002. DUC timely contested the citation.
The serious citation alleges that DUC violated 29 C.F.R. § 1926.20(b)(2) (item 1) by failing
to have a competent person inspect the worksite to identify existing and predictable hazards; 29
C.F.R. § 1926.501(b)(13) (item 2) by failing to provide fall protection to employees engaged in
residential roofing activities; and 29 C.F.R. § 1926.503(a)(1) (item 3) by failing to train employees
to recognize fall hazards and the procedures to minimize the hazards. The serious citation proposes
a penalty of $1,500 for each alleged violation.
The case was designated for EZ trial proceedings pursuant to 29 C.F.R. § 2200.200, et seq.
The hearing was held in Dayton, Ohio, on April 25, 2003. DUC was represented pro se by its owner
and general manager Bret Anderson. The Secretary filed a post-hearing brief.
DUC was a covered employer at the time of the citation and the Commission has jurisdiction.
DUC was an employer engaged in a business affecting commerce by working with roofing shingles
manufactured in Missouri (Tr. 93). Also see Clarence M. Jones, d/b/a C. Jones Company, 11 BNA
OSHC 1529, 1531 (No. 77-3676, 1983) (construction work is within the class of activities Congress
intended to regulate and thus is an employer engaged in construction activities in a business affecting
commerce).
DUC denies the violations. DUC also asserts that the standards apply only if an employer
has 10 or more employees. It is undisputed that DUC had only 3 employees. With regard to the lack
of fall protection violation, DUC argues that it had nearly completed its re-roofing work on this
portion of the roof and had removed the fall protection. DUC also states that it is no longer in
business and is unable to pay any penalty.
For the reasons discussed, the violations are affirmed and total penalty of $1,500 is assessed.
. The Inspection
DUC was a small home improvement contractor in Greenfield, Ohio. Approximately 80
percent of its work involved residential roofing (Tr. 78). DUC also did room additions, windows,
and vinyl siding (Tr. 81). DUC was owned by Bret Anderson. Anderson had 14 years of
construction work experience and had worked 2 years as project coordinator for Midwest Energy,
Inc., a general contractor (Tr. 81-82, 93).
DUC started in business in August 2002 and went out of business in December 20021
(Tr. 78). While in business, DUC had two full time employees (David Mossbarger, Andrew Storer)
and one part-time employee (William Wariekis2) (Exh. C-3; Tr. 80). DUC’s work was limited to
two Ohio counties, Fayette and Clinton (Tr. 81).
In October 2002 Midwest Energy, Inc., as general contractor, contracted DUC to re-roof a
private residence at 81 Columbus Street, Wilmington, Ohio (Tr. 28, 55, 79, 86). DUC was hired to
remove the existing roof and install an architectural shingle roof system3 (Tr. 79). At the time of
OSHA’s inspection, DUC’s employees had worked approximately 3 weeks on the re-roofing project
(Tr. 80, 86). Anderson was supervising the work.

1
An emplo yer’s cessation o f business after the O SH A citatio n is issued does not entitle it to dismissal of the citation.
Joel Yandell, d/b/a Triple L Tower, 18 BN A OS HC 1 623 (N o. 94-3080, 19 99).

2
Comp liance officer Barbour mistakenly identified William Wariekis as William Walsh (Tr. 65).

3
An “architectural shingle roofing system” was described as more elaborate and more eye appealing than a typical
shingle roofing system and requires custom fabricated copper flashing. The manufacturer is Certainteed (Tr. 80).

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The roof where the employees were working at the time of OSHA’s inspection was 25 feet
high to the eaves and 31.7 feet high to the roof’s peak (Tr. 17, 63). The roof”s slope was 7 in 12
(Tr. 85). To assist the employees to access the roof, DUC erected an 8-foot long handrail on the roof
in the rear of the house where the ladder was placed (Exh. C-1; Tr. 18, 66). Also, DUC used a pump
jack scaffold system for employees to stand on while placing the flashing around the eaves and the
first 2 or 3 rows of shingles (Tr. 56-57, 87). While on the roof, the employees worked from a roof
slide guard system (Tr. 88).
On November 13, 2002, OSHA safety compliance officer (CO) Robert Barbour4 initiated an
inspection of the DUC’s re-roofing work under an OSHA local emphasis program which targeted
fall hazards in construction when he observed an employee sweeping on the roof of a house without
fall protection. The employee was working in excess of 25 feet above the ground (Exh. C-1; Tr. 9-
11). Barbour also observed 3 other employees, including Bret Anderson, installing copper flashing
around a brick belfry5 (Tr. 12, 64). Only 1 of the employees (William Wariekis) was wearing a
secured safety harness. Barbour interviewed Anderson and the 3 employees (Exhs. C-2, C-3). He
returned to the site on November 14 and met with the superintendent for Midwest Energy, Inc., who
provided him a copy of his inspection notes (Exh. C-4; Tr. 29). As a result of OSHA’s inspection,
a serious citation was issued to DUC.
Discussion
The Secretary has the burden of proving a violation.
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 OSHC 2131, 2138 (No. 90-1747, 1994).

4
Barbo ur has been employed by OS HA since January 2001 (Tr. 8).

5
CO B arbour mistakenly believed it was a brick chimney (Tr. 12).

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There is no dispute that where the employees were working at the time of the inspection was
in excess of 25 feet above the ground. DUC also does not dispute that the employee sweeping and
the 2 employees, including Anderson, installing the flashing at the belfry were not utilizing safety
harnesses or any fall protection.
The record establishes that DUC knew the conditions on site. Anderson as owner and
general manager of DUC was present at the time of OSHA’s inspection and directed the work of the
employees. He was on the roof with the employees. Anderson’s knowledge of the conditions is
imputed to DUC. Dover Elevator Co., 16 BNA OSHC 1281, 1286 (No. 91-862, 1993).
DUC’s argument that the citation must be dismissed because it had less than 10 employees
is rejected. Generally, any employer with 1 or more employees is covered under the Occupational
Safety and Health Act (Act). See 29 C.F.R. § 1975.4(a). Also see Poughkeepsie Yacht Club, 7 BNA
OSHC 1725, 1726 (No. 76-4026, 1979). However, since 1977 Congress, through appropriations
acts, has exempted from OSHA programmed safety inspections all employers of 10 or fewer
employees in low hazard industries with a low lost workday injury rate. This exemption applies to
places of employment, including farms and establishments identified in Office of Management and
Budget’s Standard Industrial Classification Manual (SIC). Appendix A to OSHA CPL 2-0.51J,
“Enforcement Exemptions and Limitations under the Appropriations Act,” identifies by SIC number
those low hazard industries exempt from safety programmed inspections because of size (BNA
OSHC “Reference File,” p. 21:9493. Also see CCH Employment Safety and Health Guide, ¶ 518,
p.786).
As an affirmative defense, DUC has the burden of proof to show that it is exempt from
OSHA’s application. Other than showing it only had 3 employees, DUC made no showing that it
was exempt from OSHA application. Armstrong Steel Erect., Inc., 17 BNA OSHC 1385, 1389
(No. 92-262, 1995)(the party claiming an exception has the burden to prove it comes within the
exception). Also, official notice is taken that DUC as a home improvement company which
specializes in residential roofing is not considered a low hazard industry and is not in an SIC
number6 identified by the Secretary as exempt application. Appendix A of CPL 2-0.51J. Also, it

6
The SIC number for roofing work is 1761 and for residential construction is 1521. Neither SIC numb er is listed in
Appendix A of CPL 2-0.51J.

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is noted that the inspection was the result of the CO’s personal observations of unsafe conditions on
site.
DUC’s additional arguments raised at hearing involving videotaping the site prior to the
opening conference, failing to give prior notice of the inspection, and failing to obtain an inspection
warrant are also rejected (Tr. 37, 39).
CO Barbour observed the DUC employees without fall protection on the roof while driving
by the house in Wilmington, Ohio. He immediately started to videotape his observations from his
automobile prior to initiating an opening conference (Tr. 9-10, 37). DUC’s employees were working
on the roof of a private residence adjacent to a public street. The employees were in plain view and
the videotaping was done from the street (Exh. C-1; Tr. 71). The Commission has determined that
there is no constitutional violation when an inspector makes observations from areas on premises
that are out of doors and not closed off to the public. Gem Industrial, Inc., 17 BNA OSHC 1184,
1186 (No. 93-1122, 1995).
With regard to unannounced inspections, § 8(a) of the Act authorizes the compliance officer
“to enter without delay and at reasonable times any” construction site. Section 17(f) of the Act
provides sanctions to “any person who gives advance notice of any inspection to be conducted under
this Act.” OSHA is prohibited from giving advance notice of its inspection of the DUC worksite.
Also, DUC’s claim that the CO failed to seek a warrant is rejected. The record indicates that
DUC permitted the OSHA inspection without objection. There is no showing that DUC at any time
refused the inspection. Kropp Forge Co. v. Secretary of Labor, 657 F.2d 119, 122 (7th Cir. 1981)
(where an employer grants OSHA permission to enter its premises to conduct an inspection and the
employer’s representative was present throughout the inspection and did not raise any objections,
any Fourth Amendment objection requiring a warrant is waived). Anderson did not object to the
inspection at the time and he participated in CO Barbour’s inspection throughout. Any right DUC
had to demand a search warrant was waived.
Alleged Violations
Item 1 - Alleged Serious Violation of § 1926.20(b)(2)

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The citation alleges that employees were exposed to hazards because DUC failed to conduct
an inspection of the worksite by a competent person to identify existing and predictable hazards.
Section 1926.20(b)(2) provides that an accident prevention program:
shall provide for frequent and regular inspections of the job sites,
materials, and equipment to be made by competent persons
designated by the employers.

   DUC does not dispute that inspections by a competent person of the worksite were not

conducted. Anderson told the CO that no inspection by a competent person was conducted (Exh. C-
2; Tr. 23-24, 31, 68). He did not refute the statement at hearing or offer any evidence of inspections
by a competent person. Also, neither Anderson nor any other person was not shown qualified to
perform the responsibilities of a competent person. A competent person is defined as:
one who is capable of identifying existing and predictable hazards in
the surroundings or working conditions which are unsanitary,
hazardous, or dangerous to employees, and who has authorization to
take prompt corrective measures to eliminate them.

   Although Anderson testified to 14 years of construction experience, he did not identify the

nature and extent of any safety training or safety-related experience. He stated that he had received
some training 6 years ago in ladders, tie offs, and installing decking (Exh. C-2). Also, the record
fails to show, based on the lack of fall protection for the employees sweeping or working at the
belfry, that the site was inspected to identify the predictable fall hazard. The fact that the OSHA
inspection occurred near the end of the job and DUC had already removed the fall protection is not
an excuse (Tr. 82). DUC was still performing work on the roof and the employees were exposed to
a fall hazard. DUC made no showing that an inspection had been conducted.
A violation of § 1926.20(b)(2) is established.
Item 2 - Alleged Serious Violation of § 1926.501(b)(13)
The citation alleges that DUC failed to provide fall protection for employees engaged in re-
roofing work and exposed to a fall in excess of 25 feet. Section 1926.501(b)(13) provides:
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

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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.

   There is no dispute that the employee sweeping (David Mossbarger) and the 2 employees

(Andrew Storer, Bret Anderson) installing flashing around the belfry were not utilizing any fall
protection. Only 1 employee (William Wariekis) was wearing a harness and attached lanyard.
According to Anderson, it was Wariekis’s personal choice to wear the harness, but it was not
required by DUC (Tr. 89-90, 95). Also, Anderson agreed that Mossbarger was “taking a little bit
of a risk” sweeping the roof without fall protection (Tr. 84). The employees were exposed to a fall
in excess of 25 feet, and the roof’s slope was 7 in 12.
DUC did not assert, and the record does not demonstrate, that fall protection was infeasible
or created a greater hazard. According to Anderson, this portion of the roof was almost finished and
DUC had already removed the fall protection when OSHA arrived. However, the employees still
had to do some odd jobs, such as sweeping and installing flashing at the belfry (Tr. 82-83). DUC
made no showing that fall protection could not have been used while the employees were performing
these finishing jobs. In fact, one employee at the belfry was adequately protected from falls by
wearing a safety harness and secured lanyard. Also, CO Barbour testified that conventional fall
protection was feasible (Tr. 43-46). Further, there is no showing that DUC was utilizing an alternate
fall protection plan which met the requirements of § 1926.502(k).
Anderson argues that the employee sweeping was 8 feet from the eaves and the 3 other
employees were behind the brick belfry wall, not exposed to a fall hazard (Exh. R-1; Tr. 83, 90-91).
These arguments are rejected.
Without fall protection, the employee sweeping was exposed to a fall hazard. He was
sweeping to remove loose granules which could cause an employee to slip (Tr. 83). Phoenix
Roofing, Inc., 17 BNA OSHC 1076, 1079 (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). Also, the roof in this case, with a 7 in 12 slope, is

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considered steep. See § 1926.500(b).7 The employees were not utilizing any fall protection system
(Tr. 100).
Anderson’s testimony that the 3 employees did not need fall protection because they were
behind the brick wall installing copper flashing, with no exposure to a fall hazard, is contrary to the
videotape taken during the OSHA inspection (Exh. R-1; Tr. 90-91, 95). The videotape clearly shows
the 3 employees on the side of the belfry were exposed to a fall hazard (Exh. C-1). Only 1 employee
(Wariekis) was using fall protection (Tr. 100).
Also, it is noted that Midwest Energy’s superintendent observed on November 6 (a week
before the OSHA inspection) 2 employees on the roof wearing safety harnesses, but the harnesses
were not connected to the lifeline. The employees abated the problem, and its appears that Anderson
was not on site at the time (Exh. C-4).
A violation of § 1926.501(b)(13) is established.
Item 3 - Alleged Serious Violation of § 1926.503(a)(1)
The citation alleges that employees exposed to a fall in excess of 25 feet were not trained to
recognize the hazards of falling and the procedures to minimize the hazards. Section 1926.503(a)(1)
provides:
The employer shall provide a training program for each employee
who might be exposed to fall hazards. The program shall enable each
employee to recognize the hazards of falling and shall train each
employee in the procedures to be followed in order to minimize these
hazards.

     An employer’s safety training must be “specific enough to advise employees of the hazards

associated with their work and the ways to avoid them.” El Paso Crane and Rigging Co., 16 BNA
OSHC 1419, 1425, nn. 6 & 7 (No. 90-1106, 1993). This requires more than “weak admonitions”
or “vague advice” for safety training and hazard recognition to be effective and give employees the
opportunity to protect themselves. Anderson Excavating and Wrecking Co., 17 BNA OSHC 1890,
1892 (No. 92-3684, 1997).

7
Section 1926.500(b) defines a steep roof as having a slope greater than 4 in 12 (vertical to horizontal). DUC agrees
that the roof in this case was 7 in 12 (Tr. 85).

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Although not in use at the time of OSHA’s inspection, Anderson testified, and the record
indicates, that DUC had utilized fall protection on this roof, including sliding guards and pump jack
scaffolding (Tr. 87, 89). Based on the Midwest Energy superintendent notes from an inspection on
November 6, the employees also used safety harnesses and lifelines (Exh. C-4). Anderson testified
that he had spent “several thousand dollars in fall protection equipment” and “I have not had any
injuries” (Tr. 82).
In terms of training, Anderson stated that he got on the roof with his employees and showed
“them how to properly install the safety equipment as far as setting up ladders, tying them off”
(Tr. 82). He provided the employees with on-the-job training, including how to use the fall
protection.
DUC’s fall protection training was deficient. Anderson’s training dealt with using fall
protection equipment. There is no showing that the training involved the recognition of a fall hazard
and the need for fall protection. The employees’ statements indicate that they had not received
training in fall hazards and fall protection (Exh. C-3). Sweeper David Mossbarger stated that he
received “no training on fall protection” and “no safety meetings” (Tr. 27-28). Employee Andrew
Storer also stated that he had received no training on fall protection and no safety meetings. Only
employee William Wariekis stated that he had received fall protection training, but it was 6 months
earlier at another worksite (Exh. C-3). In his statement to OSHA, even Anderson indicated that he
had received some safety training (ladder, tie off, installing decks) from another employer
approximately 6 years before the OSHA inspection (Exh. C-2). Also, the training standard at
§ 1926.503 requires that the training be performed by a competent person and that the employer
certify that the employees were trained, which was not shown in this case.
A violation of § 1926.503(a)(1) is established.
Serious Classification for Citation No. 1
OSHA classified the violations as serious. A violation is serious under § 17(k) of the Act,
if it creates a substantial probability of death or serious physical harm and the employer knew or
should have known of the violative condition. In determining whether a violation is serious, the
issue is not whether an accident is likely to occur; it is rather, whether the result would likely be

                                            -9-

death or serious harm if an accident should occur. Whiting-Turner Contracting Co., 13 BNA OSHC
2155, 2157 (No. 87-1238, 1989).
The violations involving the lack of competent person inspections, fall protection, and
training were properly classified as serious. Three employees, including owner Anderson, were
exposed to fall hazards in excess of 25 feet. A fall from that height clearly would cause a serious
injury or possibly death. Fall distances greater than 15 feet have been shown to present a significant
fall hazard. A. J. McNulty & Company, 2000 CCH OSHD ¶ 32,209, p. 48,822 (No. 99-1341, 2000).
Anderson was present on site at the time and his knowledge is imputed to DUC.
Penalty Consideration
The Commission is the final arbiter of penalties in all contested cases. In determining an
appropriate penalty, the Commission is required to consider the size of the employer’s business,
history of previous violations, the employer’s good faith, and the gravity of the violation. Gravity
is the principal factor to be considered.
DUC was a small employer with only 3 employees. In his closing statement, Anderson stated
that DUC is out of business; he has no money for penalties; and he has suffered several personal
problems. The Review Commission has on occasion considered the dollar volume of the business,
the total number of employees, and the employer’s financial condition. Specialists of the South, Inc.,
14 BNA OSHC 1910 (No. 89-2241, 1990). In this case, DUC offered no evidence to support its
claim of poor financial condition. However, the court is not unsympathetic to Anderson’s plight.
OSHA does not dispute that DUC is out of business. Although the penalty is reduced because of the
size of the employer and it is out of business, a penalty has to be assessed because of the serious
classification of the violations. An assessment of a monetary penalty for a serious violation is
mandatory under § 17(b) of Act. New Age, Inc., 18 BNA OSHC 1742 (No. 98-0415, 1999) (ALJ
erred in failing to assess penalty despite affirming serious citation).
In addition to a penalty adjustment for size, DUC is entitled to credit for history and good
faith. There is no evidence that DUC had received a citation in the preceding 3 years (Tr. 34). It was
in business for 4 months. Despite the lack of inspection by a competent person, fall protection and
training, the record shows that DUC did have fall protection on site and the fall protection was being

                                             -10-

used, including safety harnesses and lanyards. Anderson testified that he had spent several thousand
dollars on safety equipment.
A penalty of $500 is reasonable for violation of § 1926.20(b)(2) (item 1). At the time of
OSHA’s inspection, 3 employees were on the roof exposed to a fall hazard in excess of 25 feet
without fall protection. Although not shown to be a competent person, Anderson has 14 years of
construction experience, purchased and used fall protection on the site, and showed employees how
to install the fall protection. This was at the end of the job and the fall protection had been removed
when DUC employees had to do some odd jobs in finishing.
A penalty of $500 is reasonable for violation of § 1926.501(b)(13) (item 2). On the day of
OSHA’s inspection, 3 employees were not utilizing fall protection. One employee was sweeping
at the roof’s peak and remained approximately 8 feet from the roof’s edge. The other employees
were sitting down on the roof next to a brick wall and 1 employee was adequately tied off. The
record does not indicate that exposure was more than 3 hours (Tr. 54). DUC had essentially
completed this portion of the roof utilizing fall protection. The lack of fall protection occurred
during the finishing phase of the job after the fall protection system had been removed.
A penalty of $500 is reasonable for violation of § 1926.503(a)(1) (item 3). Two employees
were not trained in all aspects of fall protection. However, Anderson testified that he had shown the
employees how to install the fall protection (Tr. 82).
FINDINGS OF FACT AND
CONCLUSIONS OF LAW

   The foregoing decision constitutes the findings of fact and conclusions of law in accordance

with Rule 52(a) of the Federal Rules of Civil Procedure.
ORDER
Based upon the foregoing decision, it is ORDERED that:
1. Citation no. 1, item 1, serious violation of § 1926.20(b)(2), is affirmed and a penalty
of $500 is assessed.
2. Citation no. 1, item 2, serious violation of § 1926.501(b)(13), is affirmed and a
penalty of $500 is assessed.

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3. Citation no. 1, item 3, serious violation of § 1926.503(a)(1), is affirmed and a penalty
of $500 is assessed.

                                          /s/
                                          KEN S. WELSCH
                                          Judge

Date: May 21, 2003

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