Jose Luna Roofing

Plain-English summary

OSHA observed Jose Luna Roofing employees performing roofing work without fall protection on a low-slope roof approximately 41 feet above the ground. The owner was present during the inspection and confirmed that the workers were his employees and that he knew they were on the roof. The company did not appear for the hearing, and the Secretary's evidence established that the fall-protection standard applied, was violated, exposed employees, and was known to the employer. The judge affirmed the violation as serious and assessed the proposed $1,500 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(10)
• Outcome: The serious fall-protection citation was affirmed and a $1,500 penalty was assessed.
• Key point: Employees performing roofing work on a low-slope roof six feet or more above a lower level must be protected by one of the fall-protection systems specified in the standard.

Full text (OSHRC public release)

                                               United States of America
                   OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                              721 19th Street, Room 407
                                               Denver, Colorado 80202

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 Judg e Sidn ey J. G oldstein

                                         DECISION AND ORDER

                                             Procedural History

    This 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 Findings

   On 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



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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).

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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

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