Franciscus Roofing & Siding, Inc.

Plain-English summary

An OSHA inspector observed a Franciscus worker about 20 feet above the ground on a steep residential roof without conventional fall protection. The judge found that the worker was an employee under the OSH Act even though the company called him a subcontractor. Franciscus did not produce the safety program or training records it claimed to have, and the worker said he had not received fall-protection training. The access ladder also extended only about one and a half to two feet above the landing instead of the required three feet. The judge affirmed all four serious items and assessed $2,400 in total penalties.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.20(b)(1), 1926.501(b)(13), 1926.503(a)(1), 1926.1053(b)(1)
• Outcome: All four serious items were affirmed with total penalties of $2,400.
• Key point: Calling a worker a subcontractor did not change employee status where the roofing company controlled his assignment and work.

Full text (OSHRC public release)

                                             United States of America
             OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                             1924 Building - Room 2R90, 100 Alabama Street, SW
                                         Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant,
v. OSHRC Docket No. 06-1551
Franciscus Roofing & Siding, Inc.,
Respondent.

Appearances:
Linda Hastings, Esq., U. S. Dep artment of Labor, Office o f the Solicitor, Cleveland, Ohio
For Com plainant

      Mr. Lee F rancisc us, Pro Se, No rth Rid geville, O hio
      For Respond ent

Before: Administrative Law Judge Nancy J. Spies

                                        DECISION AND ORDER

      Franciscus Roofing & Siding, Inc. (FRS) is a residential roofing and siding contractor with

offices in Ohio and Florida. On August 7, 2006, Occupational Safety and Health Administration
(OSHA) compliance officer Joseph Schwarz was driving past a subdivision of single-family houses
under construction in Sheffield Lake, Ohio. He observed a worker on the roof of one of the houses.
Schwarz stopped and conducted an inspection of the site. As a result of Schwarz’s inspection, the
Secretary issued a citation to FRS on August 17, 2006. The citation charges FRS with serious
violations of four construction standards of the Occupational Safety and Health Act fo 1970 (Act).
Item 1 alleges a violation of § 1926.20(b)(1) for failing to implement an effective safety and
health program at the worksite. Item 2a alleges a violation of § 1926.501(b)(13) for failing to
provide fall protection to an employee working 6 feet or more above the lower level. Item 2b alleges
a violation of § 1926.503(a)(1) for failing to provide a training program for an employee exposed
to fall hazards. Item 3 alleges a violation of § 1926.1053(b)(1) for failing to ensure the side rails of
a portable ladder extended at least 3 feet above the surface being accessed.
 FRS contested all items and proposed penalties of the citation. The Commission assigned
this case to the simplified proceedings process. It went to hearing on January 19, 2007, in Cleveland,
Ohio. FRS CEO Lee Franciscus represented the company pro se. FRS contends it did not violate
the terms of the cited standards. It also argues the single worker Schwarz observed at its site was
not an employee of FRS. The Secretary has filed a post-hearing brief. FRS presented its evidence
on the record.
For the reasons discussed below, items 1, 2a, 2b, and 3 are affirmed.
Facts
FRS has been a roofing and siding contractor for six years, almost exclusively in residential
construction. It performs residential work almost exclusively. Over the last three years, FRS worked
on over 2,500 houses for developer Ryan Homes (Tr. 60).
Ryan Homes subcontracted FRS to perform roofing work on new houses on Schueller
Boulevard in Sheffield Lake, Ohio. Shortly before noon on August 7, 2006, compliance officer
Schwarz was driving on Schueller Boulevard, where the new development was under construction.
As part of the Local Emphasis Program (LEP) for fall protection, Schwarz stopped to conduct an
inspection (Tr. 11-12).
Schwarz took several photographs after stopping. He then approached Kevin Andrews, who
was working on the roof of one of the first houses. The roof was approximately 20 feet above the
ground (Tr. 19). Schwarz identified himself as an OSHA compliance officer and asked Andrews to
stop work and come down (Tr. 13). Schwarz then went up and down the street and identified
himself to workers of other contractors working at different houses in the subdivision. He asked
them to remove themselves from perceived hazards until he could come around and talk to them
(Tr. 53).
Schwarz returned to FRS’s site and conducted the inspection that gave rise to the instant case
(Tr. 55). Andrews was the only FRS worker present at the site. Schwarz held an opening conference
with Andrews, conducted a walk-around inspection, then held a closing conference with Andrews.
Andrews called FRS’s head salesman Tom Schlund and Schwarz spoke with him over the phone
(Tr. 14, 89).

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The Citation
The Secretary has the burden of proving each violation by a preponderance of the evidence.
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., 19 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
It is undisputed the cited standards apply to the cited conditions.
Was Andrews an Employee of FRS?
At the hearing, FRS asserted that Kevin Andrews was not an employee of FRS at the time
of the inspection. FRS CEO Lee Franciscus testified, “Kevin Andrews works for us as a
subcontractor. He’s not an employee. His duties are to do various inspections when we need them
done” (Tr. 68). Franciscus stated Andrews worked for them as a crew member some nine years ago
and was a “subcontractor” the last two years (Tr. 86). Andrews was at the site to inspect the roofing
work “and install the brick flashing if it wasn’t completed by the brick guys” (Tr. 73). Schwarz
stated he always asks employees he interviews what their job titles are (Tr. 38). Andrews told him
he was a foreman for Franciscus, which Schwarz noted on the OSHA Form 1B, filled out shortly
after the inspection (Tr. 41). Andrews told Schwarz he was there to repair the front roof of the house
(Tr. 57). He did not say he was inspecting the roof work (Tr. 40). Franciscus acknowledged at the
hearing that in the photograph Andrews is working on the roof wearing a shirt with the word
“Franciscus” on it (Exh. C-4; Tr. 81). FRS’s expeditor sent Andrews to the site to install brick
flashing (Tr. 81, 86). FRS pays Andrews per foot to install the brick flashing and per square to
install the shingles (Tr. 88). Andrews did not testify at the hearing, although Franciscus indicated
at the pre-hearing conference he intended to present Andrews’s testimony.
The terminology an employer chooses to attach to a working relationship is not a controlling
factor. For example, workers might be considered employees for certain purposes and
subcontractors for others. As Franciscus explained (Tr. 87):

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A: Our Cleveland office has eight employees, five of which are sales, an expediter, and
two girls in the office.
Q: Any employees as a crew?
A: No.
Q: Just subcontractors?
A. Correct. Now, in Florida, which is also part of our Company, it’s the exact opposite.
They have all employees. There are no subcontractors.
Q: Is there a particular reason why that is?
A: The licensing in Florida is different than Ohio.
Andrews status as an employee under the OSH Act is not dependent upon local distinctions.
The record establishes Andrews was an employee for FRS at the time of the inspection. FRS
controlled where Andrews worked and what duties he was to perform. FRS paid Andrews as it paid
all its other crewmembers. Andrews worked wearing a shirt identifying himself as an FRS
employee, and he identified himself to Schwarz as an FRS foreman.
Item 1: Alleged Serious Violation of § 1926.20(b)(1)
The Secretary alleges FRS committed a serious violation of § 1926.20(b)(1), which provides:
It shall be the responsibility of the employer to initiate and maintain such programs
as may be necessary to comply with this part.

    Andrews told Schwarz that FRS did not have a safety and health program (Tr. 21). Schwarz

asked for any documents relating to safety and health programs and fall protection training. Andrews
told Schwarz he had never seen a safety and health program while at FRS (Tr. 15).
At the pre-hearing conference, Franciscus stated he had a safetyprogram and would introduce
it at the hearing. The parties were directed to exchange all exhibits. The Secretary never received
any documents pertaining to a safety and health program from FRS. At the hearing, Franciscus
insisted FRS did have a written safety and health program and that he had “faxed almost ten binders
worth of documentation from our safety program” to the Secretary (Tr. 5). Franciscus stated he did
not bring FRS’s safety program to the hearing because he was “not going to carry ten binders up the
stairs here or up to the elevator” (Tr. 5).

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Counsel for the Secretary averred on the record that on December 18, 2006, approximately
one month before this case went to hearing, Franciscus called her and told her he would fax his
company’s safety and health program to her that day. She did not receive any documents. On
January 8, 2007, she called Franciscus and left a voice message asking for the documents. FRS did
not respond to this message. On January 11, counsel for the Secretary called FRS again and this time
left her request for the documents with a woman who works in FRS’s office (Tr. 7).
The day of the hearing the undersigned afforded Franciscus the opportunity to fax the
documents to the court where the hearing was being held (Tr.8). No safety or training documents
were faxed that day. In the month since the hearing, no documents have been received.
It has been approximately six months since the Secretary issued the citation to FRS. Despite
repeated opportunities to produce a copy of its purported safety and health program, FRS has failed
to do so. FRS has not provided receipts for the purported attempted faxing of the documents to the
Secretary.
The only document produced by FRS is a “Certificate of Recognition” issued to FRS “[i]n
recognition of active participation in the Safety Sam network of safety-minded contractors”
(Exh. R-1). Franciscus explained that Safety Sam (whose offices are located in Arizona) keeps track
of any changes in OSHA’s regulations and faxes information regarding the changes to companies
that subscribe to its service (TR. 65-66). The certificate is evidence of membership in a subscription
service and in no way demonstrates that FRS had an effective safety and health program at the time
of the inspection.
Andrews’s admission to Schwarz that he had never seen a safety and health program for FRS,
and the complete absence of any documentation by FRS, despite numerous opportunities to produce
it, lead the undersigned to the conclude that FRS failed to comply with the terms of § 1926.20(b)(1).
FRS did not implement a safety and health program.
As FRS’s sole employee on the site at the time of the inspection, Andrews was exposed to
any hazards not identified by an effective safety and health program. If, in fact, FRS had such a
program, Andrews and Franciscus knew it was not being implemented at the site. If FRS did not
have a safety and health program at all, Andrews and Franciscus knew the company had never

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initiated one. Regardless, FRS failed to comply with the terms of the standard. The Secretary has
established FRS violated § 1926.20(b)(1).
If FRS’s failure to identify hazards present on the site in its safety and health program had
caused Andrews to fall from a height of 20 feet, he could have sustained broken bones, “possibly
death, depending on how [he] fell” (Tr. 21). The violation was serious.
Item 2a: Alleged Serous Violation of § 1926.501(b)(13)
The Secretary alleges RFS committed a serious violation of § 1926.501(b)(13), which
provides:
Residential construction. 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 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.

    The citation alleges:

    At the front of the house, an employee was observed working on the roof with a
    10:12 pitch without utilizing proper fall protection. The employee was in the process
    of installing brick flashing and shingles onto the roof approximately 19-20 feet high.

    Schwarz observed Andrews working on the front reverse gable of the house at a height of

approximately 20 feet. When Schwarz asked Andrews if he was using fall protection, Andrews told
him he was not, although he was aware he should be (Tr. 25-26). Andrews was using slide guards
(roof jacks) on the roof (Tr. 36). FRS argues slide guards are a form of fall protection.
In 1995, “OSHA published an interim fall protection compliance policy for fall protection
for certain residential construction activities, pending further rulemaking on Subpart M.” OSHA
Instruction STD 3-0.1A, Plain Language Revision of OSHA Instruction STD 3.1, Interim Fall
Protection Compliance Guidelines for Residential Construction, VII.
The Instruction allows an employer to use alternative procedures to conventional methods
of fall protection if it is engaged in residential construction and is doing one of the listed activities.
The listed activities are divided into four groups. Group 4 is roofing work, which the Instruction

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defines as “removal, repair, or installation of weatherproofing roofing materials such as shingles, tile
and tar paper.” Id. at VIII.B.4.
The Instruction allows for specific alternatives to conventional methods of fall protection
with a caveat (Id. at XII):
Restriction on Application for Roofing Work. The alternative procedures in this
Instruction may only be used for this work where: (a) the roof slope is 8 in 12 or less
and (b) the fall distance, measured from the eave to the ground level, is 25 feet or
less.

     The fall distance was less than 25 feet, satisfying the second element of the application. The

Secretary contends, however, that the slope of the roof was 10:12. Paragraph XII.B.4 states “Over
8 in 12: Alternatives to the requirements of the standard are not available.”1
Franciscus testified that the slope of the roof was 8:12 on the reverse gable on which
Andrews was working (Tr. 61). Schwarz testified he learned the slope of the reverse gable from
Andrews, and that a representative of Ryan Homes confirmed the slope in a telephone conversation
(Tr. 45). In his OSHA Form 1B, Schwarz wrote that the slope was10:12 (Tr. 49). The citation
includes the reference to the 10:12 pitch.
Again, FRS provided no documentation or evidence (other than the self-serving testimony
of Franciscus) in support of its position. Franciscus testified the information that the slope is 8:12
is “based on prints for the house,” (Tr. 62) yet he did not provide a copy of the prints. The testimony
of Schwarz is deemed more credible than that of Franciscus regarding the slope of the roof where
Andrews was working. The STD Instruction is not applicable to Andrews’s work.
FRS failed to comply with the terms of the standard. Andrews was exposed to a fall of 20
feet. Andrews admitted he knew he should have been using fall protection. As foreman, his
knowledge is imputed to FRS. Even were it not, the failure of this roofing company effectively to
train on and enforce a fall protection program establishes constructive knowledge of the violation.
The Secretary has established a serious violation of § 1926.501(b)(13).

1
The Sec retary also argues that, even if FRS could use slide guard s as fall pro tection, Andrews ha d failed to pro perly
install them (Secretary’s brief, p.5)

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Item 2b: Alleged Serious Violation of § 1926.503(a)(1)
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.

    Andrews told Schwarz he never received fall protection training from FRS (Tr. 28). FRS

failed to provide any evidence of a general training program or specific documentation showing that
Andrews had been trained. The Secretary has established that FRS failed to comply with the terms
of the standard.
Andrews was exposed to a fall of 20 feet. As CEO, Franciscus knew FRS did not provide
the required fall protection training. As foreman, Andrews knew he had not received fall protection
training. The Secretary has established a serious violation of § 1926.503(a)(1).
Item 3: Alleged Serious Violation of § 1926.1053(b)(1)
The Secretary alleges FRS violated § 1926.1053(b)(1), which provides:
When portable ladders are used for access to an upper landing surface, the ladder side
rails shall extend at least 3 feet (.9 m) above the upper landing surface to which the
ladder is used to gain access; or, when such an extension is not possible because of
the ladder’s length, then the ladder shall be secured at its top to a rigid support that
will not deflect, and a grasping device, such as a grabrail, shall be provided to assist
employees in mounting and dismounting the ladder. In no case shall the extension be
such that ladder deflection under a load would, by itself, cause the ladder to slip off
its support.

    Schwarz observed that the ladder used by Andrews leaned up against the brick face of the

building (Exh. C-1 (orange ladder in the middle); Tr. 77). Schwarz testified that on standard ladders,
the space between the rungs measures 1 foot. Using this as his guide, Schwarz calculated that the
sides of the ladder did not extend the required 3 feet. The sides of the ladder extended 1½ to 2 feet
beyond the work area accessed (Exh. C-3; Tr. 77). While that particular ladder may have been
extended to its full height, taller ladders are readily available.
Andrews was exposed to a fall of 20 feet, potentially causing life threatening injuries. As
foreman, he knew that the ladder was not extended 3 feet above the work surface. His knowledge

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is imputed to FRS. Having failed to provide related safety training to Andrews, FRS is also shown
to have constructive knowledge of the violation.
The Secretary has established a serious violation of § 1926.1053(b)(1).
PENALTY DETERMINATION
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.
FRS employed approximately 258 employees at the time of the inspection and is a small- to-
medium size company (Tr. 89). The Secretary had no final order citations against FRS in the
previous three years and was given credit for that favorable past history (Tr. 22). There was no
showing of bad faith by FRS. However, it did not have a functioning safety program.
All of the violations exposed Andrews to the same hazard: a fall of 20 feet. Andrews worked
alone, climbing up and down the too-short ladder and moving along the narrow gable of a steep roof
to instal brick flashing. The gravity of each of the violations is high. It is determined that the
penalties of $600.00 for item 1; $1,200.00 for items 2a and 2b; and $600.00 for item 3 are
appropriate.
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. Item 1 of the citation, alleging a violation of § 1926.20(b)(1), is affirmed and a
penalty of $600.00 is assessed;
2. Items 2a and 2b of the citation, alleging violations of §§ 1926.501(b)(13) and
503.(a)(1) respectively, are affirmed and a total penalty of $1,200.00 is assessed; and
3. Item 3of the citation, alleging a violation of § 1926.1053(b)(1), is affirmed and a
penalty of $600.00 is assessed.

                                                   /s/
                                                   NANCY J. SPIES
                                                   Judge

Date: March 1, 2007

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