Modern Building Solutions, LLC

Plain-English summary

A Modern Building Solutions worker replaced missing roof-sheathing nails and removed boards on an 8-in-12 church roof without conventional fall protection. The judge found the church was a commercial project, so the alternative residential-construction provision did not apply. The inspection exception also did not apply because roofing work was still underway and the worker was expected to perform corrective tasks, not merely observe completed work. Flat 2x4 boards and a pneumatic-tool hose did not provide the protection required for a steep roof. The serious violation was affirmed, and the proposed $2,400 penalty was reduced to $1,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(11); 29 C.F.R. § 1926.501(b)(13)
• Outcome: One serious steep-roof fall-protection item was affirmed, with a $1,000 penalty.
• Key point: The inspection exception does not cover an employee who is expected to correct roof work during ongoing construction.

Full text (OSHRC public release)

                  UNITED STATES OF AMERICA
      OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Secretary of Labor,
Complainant
v. OSHRC Docket No. 10-2559
Modern Building Solutions, LLC, Simplified Proceedings
Respondent.

Appearances:

      Charna Hollingsworth-Malone, Esquire, Office of the Solicitor, U.S. Department of Labor, Atlanta,

Georgia
For Complainant

      James E. Bacon, pro se, General Contractor, Modern Building Solutions, LLC, St. Augustine, Florida
              For Respondent

Before: Administrative Law Judge Ken S. Welsch

                                     DECISION AND ORDER

      Modern Building Solutions, LLC (MBS) is a general construction company located in St.

Augustine, Florida. On November 2, 2010, MBS was constructing a new church in St. Augustine
when the project was inspected by the Occupational Safety and Health Administration (OSHA). As
a result of the OSHA inspection, MBS received a serious citation on November 10, 2010, alleging
a violation of 29 C.F.R. § 1926.501(b)(11) for a worker on a steep roof without fall protection. The
citation proposed a penalty of $ 2,400.00. MBS timely contested the citation.
The case was designated for Simplified Proceeding pursuant to 29 C.F.R. § 2200.200 et. Seq.
The Secretary’s motion to amend the citation to plead in the alternative a serious violation of
29 C.F.R. § 1926.501(b)(13) for the lack of a fall protection system on residential construction was
granted on February 18, 2011 (Tr. 3). The Simplified Proceeding Conference Call Order, dated
February 24, 2011, identified the issues in dispute.

                                                    1

The hearing, held on March 9, 2011, was in St. Augustine, Florida. MBS was represented
pro se by its owner, James Bacon (Tr. 4). The parties filed post-hearing position statements on
April 4, 2011.
MBS denies the alleged violation and that it is an employer engaged in a business affecting
commerce. MBS claims that the employee on the roof was not required to wear fall protection
because he was inspecting the sheathing pursuant to the exception at §1926.500(a)(1). Also, MBS
argues that the worker was protected from a fall hazard because of the placement of the horizontal
slide guards1 and the hose of the pneumatic nail gun. MBS maintains that the project was residential
construction because of the construction materials used in building the church (Tr. 9, 156).
For the reasons discussed, MBS’s arguments are rejected. The serious violation of
§ 1926.501(b)(11) is affirmed. A penalty of $1,000.00 is assessed.
The Inspection
MBS is a small general construction contractor of commercial and residential projects with
its office in St. Augustine, Florida. MBS was started in 2007 by James Bacon who has more than 20
years of construction experience. Other than Mr. Bacon, MBS has no regular employees. For the
project at issue, it hired workers through a temporary staffing agency (Tr. 18, 28-29, 145).
In September 2010, MBS started construction for a new church, First Coast Metropolitan
Community Church, in St Augustine, Florida. The church, a single-level, 3,000 square foot structure
containing a sanctuary, offices, break room, restrooms, and a gift shop, was completed on
February 11, 2011 (Exhs. C-1, C-15; Tr. 147-148).
By October 29, 2010, the church walls, made of wooden logs from a North Carolina
company, and roof trusses were installed and approximately 90 percent of the roof’s sheathing was
complete. The pitch of the roof was 8 in 12 (vertical to horizontal). The roof’s eave was 10 feet,
two inches, above the ground and its peak was 24 feet above the ground (Exhs. C-7, C-8; Tr. 32-33,
42-43, 65, 71, 108).

    1
     Throughout the hearing, the parties referred to the 2x4 boards nailed to the sheathing as toeboards.

However, the record shows the 2x4 boards were intended to be used as slide guards under Appendix E to Subpart
M, Fall Protection, standards.

                                                   2

Pursuant to a worker’s complaint regarding the lack of fall protection while installing the
roof’s trusses, the project was inspected by OSHA Compliance Officer (CO) Jeffrey Lincoln on
October 29, 2010.2 When CO Lincoln arrived at approximately 4:00 p.m., no one was on the project.
CO Lincoln took photographs and left the site (Tr. 40-41, 46-47).
On November 2, 2011, CO Lincoln returned to the site at approximately 9:00 a.m. When he
arrived, he observed a worker near the roof’s peak. The worker was not wearing a safety harness.
There were no guardrails or safety nets at the roof’s eave. When interviewed, the worker confirmed
that he was on the roof without personal fall protection. There were horizontal 2x4 boards nailed
flat, at 3 ½-foot intervals, to assist the worker on the roof. The worker stated that he was on the roof
to replace missing nails in the sheathing. The worker carried a pneumatic nail gun and a claw
hammer. He said that he had been on the roof for approximately 20 minutes (Exhs. C-11, C-13, R-1;
Tr. 47, 49-50, 51, 149)
Mr. Bacon testified that he had instructed the worker to inspect the sheathing to ensure it was
completely nailed down for the county inspection. Mr. Bacon had nailed down the sheathing and did
not anticipate that he missed any nails. If not completely nailed, Mr. Bacon expected the worker to
complete the nailing. The worker was also instructed to remove the toeboards in preparation for
laying the tar paper. Mr. Bacon agreed there were no guardrails and safety nets on the roof. He
agreed the worker was not utilizing a safety harness and lanyard (Tr. 33-34, 35-36, 119).
As a result of the OSHA inspection, the serious citation was issued to MBS on November 10,
2010.
Discussion
The Secretary has the burden of proof.
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).

    2
        The employee’s complaint is not part of the citation’s allegation at issue.

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MBS concedes the worker on the roof was not utilizing a guardrail system, safety net system,
or a safety harness and lanyard for fall protection on November 2, 2010. The fall hazard was more
than 10 feet.
MBS denies it is a covered employer under § 3(5) of the Occupational Safety and Health Act,
29 U.S.C § 652(5) (Act). MBS also denies the alleged violation because the worker was conducting
an inspection pursuant to the § 1926.500(a)(1) exception. The worker was protected from a fall by
the hose of the pneumatic nail gun and the 2x4 boards nailed horizontal across the sheathing.3
MBS Is An Employer Engaged in Commerce
Section 3(5) of the Act defines a covered employer as a person engaged in a business affecting
commerce who has employees. The Act defines a “person” to include individuals, partnerships,
associations, and corporations such as MBS. “Commerce” is defined as trade, traffic, commerce,
transportation, or communications among the several States or between a State and any place outside
thereof. Sections 3(3) and 3(4) of the Act.
The nature of its business and the use of materials and equipment in the stream of commerce
establishes MBS was engaged in a business affecting commerce within §3(5) of the Act. MBS’s
construction activities affect commerce. Clarence M. Jones d/b/a C. Jones Co., 11 BNA OSHC
1529 (No. 77-3676, 1983) (construction work is within the class of activities Congress intended to
regulate and thus an employer engaged in construction activities is in a business affecting commerce).
The record also shows that the church project used logs and lap siding from “Log Cabin
Home,” a Rocky Mount, North Carolina business (Exhs. C-3, C-4; Tr. 24). MBS installed the
wooden logs and siding. MBS used a leased forklift from Sunbelt Rental (Exhs. C-2; Tr. 22, 147).
According to its website, Sunbelt Rentals is one of the largest equipment rental companies in the
United States, based in Fort Mill, South Carolina.

    3
       Issues not briefed are deemed waived. See Georgia-Pacific Corp., 15 BNA OSHC 1127 (No. 89-2713,

1991). During the hearing, Mr. Bacon alluded to the defense of employee misconduct. This defense was not
raised prior to the hearing or tried by consent of the Secretary (Tr. 138-139). During the conference call on
February 24, 2011, MBS did not offer any information upon which the defense could be inferred. Therefore, the
defense is deemed waived. However, even if properly claimed, the record fails to show an established a work rule
communicated to employees which was monitored and the subject of a disciplinary program by MBS. American
Sterilizer Co., 18 BNA OSHC 1082, 1087 (No. 91-2494, 1997).

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To establish MBS as an employer with employees, it is noted that its owner, James Bacon was
an employee who worked at the project and drove the leased lull ( a forklift) (Tr. 18, 22). To assist
in constructing the church, Mr. Bacon hired and supervised temporary workers from a temporary
staffing agency. The worksite was contracted to MBS to build the church. MBS provided most of
the tools and equipment to the workers. Mr. Bacon supervised and directed the workers’ activities
while on the project. He had the authority to hire and fire the workers, set their hours of work, and
direct their work (Tr. 28-29, 136-137). MBS through Mr. Bacon controlled the worksite. Vergona
Crane Co., 15 BNA OSHC 1782 (No. 88-1745, 1992). The workers hired through a temporary
staffing agency are considered employees of MBS.
MBS was an employer with employees engaged in business affecting commerce within §3(5)
of the Act.
SERIOUS CITATION NO. 1
Alleged Violation of § 1926.501(b)(11) or in the alternative §1926.501(b)(13)
The citation alleges that “[O]n or about November 2, 2010, on the 8:12 pitch roof, employees
installing roof sheathing were exposed to a 10-foot fall hazard in that they were not protected by a
fall protection system.”
Section 1926.501(b)(11) provides:
Steep Roofs. Each employee on a steep roof with unprotected sides
and edges 6 feet (1.8 m) or more above lower levels shall be protected
from falling by guardrails systems with toeboards, safety net systems,
or personal fall arrest systems.

   Section 1926.501(b)(13) 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 systems, 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.




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The standards require that the prescribed fall protection precautions be fully implemented
before an employee is exposed to the fall hazard. Phoenix Roofing Inc., 17 BNA OSHC 1076, 1079
(No 90-2148, 1995), aff’d, without published opinion, 79 F.3d 1146 (5thCir. 1996). Employers must
consider the elimination of fall hazards on each work site. Infeasibility and greater hazards are
exceptions to the requirement. There is a presumption that conventional fall protection is feasible and
not a greater hazard.4
MBS has not claimed that conventional fall protection was an infeasible or a greater hazard.
On the contrary, MBS utilized conventional fall protection during installation of the roof trusses,
sheathing, tar paper, and shingles (Tr. 27, 120, 124, 128, 142).
The parties do not dispute that the worker was on the roof during the OSHA inspection
without the §1926.501(b)(11) prescribed fall protection systems; guardrails, safety nets, personal fall
arrest (Tr. 33-34, 149). The worker acknowledged the failure to utilize fall protection (Exh. C-11).
MBS, through its owner Mr. Bacon, knew the conditions on the roof and the worker’s lack of fall
protection. Mr. Bacon assigned the worker that morning to replace any missing nails and remove the
toeboards. He did not make any provision for the worker to utilize the prescribed fall protection
systems and instead considered the use of toeboards and a hose as adequate (Tr. 34, 149). The
worker while on the roof was in clear view of Mr. Bacon working on the ground, driving the lull
(Exh. R-1). Mr. Bacon conceded that he “could see the employee” (Tr. 98). The worker was
exposed to a fall hazard of at least 10 feet to the ground without the standard’s prescribed fall
protection. The slope of the roof was steep at 8 in 12 (vertical to horizontal). See §1926.500(b),
Definitions.
A violation of §1926.501(b)(11) is established and applicable to the church’s roof unless MBS
is entitled to the inspection exception.
Section 1926.501(b)(13), Residential Construction, Not Applicable
Section 1926.501(b)(13), which was plead in the alternative by the Secretary, is not deemed
applicable. Section 1926.501(b)(13) applies to residential construction. The standard does not define

     4
      In the Note following §1926.501(b)(13), there is a presumption that it is feasible and will not create a

greater hazard to implement one of the identified fall protection systems and the employer has the burden of
showing that it is appropriate to implement a fall protection plan which complies with §1926.502(k) for the
particular workplace, in lieu of the identified fall protection systems.

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what projects are considered residential construction. The church was not intended for residential
or dwelling purposes. As identified in the building permit from the local zoning authority, the church
was a commercial project and therefore designated as nonresidential (Exh. C-15). When completed,
the church consisted of a sanctuary for worship, church offices, restrooms, a break room and a gift
shop (Tr. 147). It was for nonprofit commercial purposes.
OSHA, however, has small commercial projects within the definition of residential if the
construction techniques were similar to that used in residential construction. OSHA Instruction,
Directive STD 3-0.1A, effective June 18, 1999, defines residential construction “where the working
environment, materials, methods, and procedures are essentially the same as those used in building
a typical single-family home or townhouse.” Also, it applies where “the construction of a discrete
part of a large commercial building (not the entire building), such as a wood frame, shingled
entranceway to a mall” (Exh. R-4). Such construction would not be considered residential if it was
constructed with precast concrete floors, structural steel, or other materials not traditionally used in
stick frame home construction. OSHA Standards Interpretation and Compliance Letter, May 25,
2000, 2001 CCH Employment Safety and Health Guide, Developments ¶ 14,337.
Although the church project included the use of wood logs for walls which are used in home
construction, there is no showing the methods and procedures were generally the same as used in
building a single family home. Based upon the photographs of the project, the floor appears a
concrete slab and there are two sets of structural steel beams (Exhs. C-1, C-5). Despite the use of
wood siding during construction, the STD references only a “discrete” part of commercial buildings
for consideration as residential construction.
Section 1926.501(b)(13) residential construction requirements are not applicable.5
MBS’s Claimed Inspection Exception Not Applicable
MBS claims its worker was inspecting the roof at the time of the OSHA inspection and
therefore was excepted from utilizing fall protection systems. Pursuant to the Scope and application
of the fall protection requirements, § 1926.500(a)(1) states that:

    5
      Even if §1926.501(b)(13) was applicable, MBS failed to provide any of the required fall protections

systems including monitoring and controlled access zones under §1926.502(k). As discussed, the reliance upon
the horizontal 2x4 boards and hose were not adequate and properly installed.

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Exception: The provisions of this subpart do not apply when
employees are making an inspection, investigation, or assessment of
workplace conditions prior to the actual start of construction work or
after all construction work has been completed.

   As identified, this is an “exception.” The party (MBS) seeking the benefit of an exception has

the burden to show that it is in compliance. Kasper Wire Works, Inc., 18 BNA OSHC 2178, 2194
(No. 90-2775, 2000), aff’d 268 F.3d 1123 (D.C. Cir. 2001). Also, exceptions are narrowly
construed. See Armstrong Steel Erectors, Inc., 17 BNA OSHC 1385 (No. 92-262, 1995).
The inspection exception at § 1926.500(a)(1) did not apply to work performed by MBS’s
worker on the roof. His work activities were a continuation of MBS’s roofing construction work.
Although the worker was examining the sheathing to ensure it was completely nailed down, he was
responsible for replacing any missing nails and removing the horizontal 2x4 boards before laying the
tar paper(Tr. 36, 119). Also, the sheathing had not been completely installed. According to Bacon,
sheathing was installed on approximately 90 percent of the roof at the time of the OSHA inspection
(Tr. 32). After installing the sheathing and removing the 2x4 boards, tar paper and shingles needed
to be installed before MBS completed its roof construction (Tr. 33, 63, 123, 127).
As stated in the preamble to Subpart M Fall Protection standards:
Therefore, OSHA has decided to reword the provision to make it
clear that the exclusion only applies when the employer establishes
that employees are inspecting, investigating, or assessing workplace
conditions prior to the actual start of work or after the work has been
completed. It was OSHA’s intent when it proposed this provision that
the exclusion would only apply at the two times stated above, not
during the period when construction work is being performed. As
explained in the preamble to the proposed rule, the exception would
apply where an employee goes onto a roof in need of repair to inspect
the roof and to estimate what work is needed. During such an
inspection, guardrails, bodybelts, bodyharnesses, safety nets, or other
safety systems would not be required. However, if inspections are
made while construction operations are underway, all employees who
are exposed to fall hazards while performing these inspections must
be protected as required by subpart M. (Exh. C-16, p. 4, 59 FR
40675, Aug. 9, 1994).

   At the time of the OSHA inspection, MBS’s construction/roofing operations were ongoing.

The worker was assigned to complete the nailing of the sheathing and to remove the 2x4 boards. The

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worker’s additional inspecting activities were not performed after construction work was complete.
The worker needed to utilize fall protection.
The § 1926.500(a)(1) exception was not applicable.
Employee Lacked Fall Protection
MBS’s reliance on the “OSHA Standards for the Construction Industry,” an AAA
Construction Manual, to argue that the employee was protected because of its horizontal rows of 2x4
boards at 3-foot intervals which exceeded OSHA’s requirement, is misplaced. The manual excerpt
relied upon by MBS is a redrafting of Appendix E to the Subpart M standards (Exh. R-4). Appendix
E which is the non-mandatory guideline for complying with §1926.502(k), applies to employers
engaged in leading edge work, precast concrete construction work and residential construction work
who can demonstrate that it is infeasible or creates a greater hazard to use conventional fall protection
systems.
As discussed, MBS’s work on the church project was not leading edge work, precast concrete
work or residential construction. Also, MBS has not argued nor does the record show that the use
of conventional fall protection was a greater hazard or infeasible when the worker replaced missing
nails or removed the boards. The record shows that safety harnesses and lanyards were used to install
the roof trusses, sheathing, and tar paper.
Further, under §1926.502(k), MBS failed to show that it created or implemented a fall
protection plan in the manner required by the standard. The standard requires the fall protection plan
conform with ten specific requirements including its preparation and modifications approved by a
qualified person, implementation under the supervision of a competent person, documentation why
not utilizing conventional fall protection systems, and the designation of controlled access zones in
compliance with § 1926.502(g). MBS has not claimed and failed to show it implemented or utilized
a fall protection plan. There was no evidence of a plan in place, the designation of a controlled access
zone, or any of the ten requirements under § 1926.502(k).
Appendix E which provides non-mandatory guidelines for complying with §1926.502(k),
includes sample fall protection plans to be used as guidance to employers and identifies the type of
information that is required to be discussed in the plans. In the sample fall protection plan for
residential construction which includes a section on roof sheathing operations, it provides for the

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installation of slide guards as fall protection when conventional fall protection cannot be utilized. A
slide guard however must be constructed with “no less than nominal 4" height capable of limiting the
uncontrolled slide of worker” and “extending the width of the roof.” Also, with roofs with pitches
less than 9 in 12, the slide guards shall be attached at intervals not to exceed 13 feet (Appendix E to
Subpart M, Roof Sheathing Operations).
MBS’s use of horizontal 2x4 boards, even if exceeding the interval distance contemplated by
Appendix E and the use of the hose for the pneumatic nail gun does not comply and were not shown
to provide a level of fall protection to at least that as required by §1926.501(b)(11). MBS did not
provide the worker on the roof replacing missing nails with use of conventional fall protection. Also,
as identified in Appendix E, MBS does not claim the worker’s task during the OSHA inspection was
part of the sheathing operation. The 2x4 boards and hose did not provide adequate personal fall
protection for the worker.
Appendix E and STD 3.0-1A identify the use of slide guards as fall protection (Exhs. R-3, R­
4). As discussed, these guidelines apply to residential construction which the court has deemed not
applicable to the church construction at issue.
Also, to be considered a slide guard, specific provisions must be satisfied which MBS failed
to meet by the 2x4 boards utilized on the church’s roof (Exh. R-3, p. 5). First, the guidelines require
that slide guards may only be used if the roof system is not stable enough to support a conventional
fall protection system anchorage. MBS did not provide any evidence as to the instability of the
sheathing to support fall protection anchorage. Second, the boards used as slide guards must be at
least 4-inch nominal height and extend across the full width of the roof. On the church project, there
is no dispute that the 2x4 boards were installed flat and did not meet the four-inch nominal height
requirement. Also, the record shows the boards did not extend the full width of the roof (Exhs. C-13,
C-14; Tr. 63, 180, 183).
The hose of the pneumatic nail gun carried by the worker was also not shown to provide fall
protection. The hose was not secured to the worker to prevent a fall. The roof was steep, 8 in 12,
which a worker who had worked on the sheathing, acknowledged was difficult to work on because
of the pitch. “A toe board or not, you have to have something to hold your weight” (Tr. 127). He
preferred to use a lanyard.

                                              10

MBS failed to provide an adequate fall protection system as required by §1926.501(b)(11).
Serious Classification
In order to establish that a violation is “serious” under § 17(k) of the Act, 29 U.S.C. § 666(k),
the Secretary must establish that there was a substantial probability of death or serious physical harm
as the result of the cited condition and the employer knew or should have known with the exercise
reasonable diligence of the presence of the violation. In determining substantial probability, the
Secretary needs to show that an accident was possible and the result of the accident would likely have
been death or serious physical harm. The likelihood of the accident is not an issue. Spancrete
Northeast, Inc., 15 BNA OSHC 1020, 1024 (No. 86-521, 1991).
MBS’s violation of § 1926.501(b)(11) was properly classified as serious. Mr. Bacon knew
the conditions of the roof’s sheathing and the lack of fall protection utilized by the worker. He
assigned the worker the tasks to perform (Tr. 36, 72, 119). The worker performed the task in clear
view of Mr. Bacon. If the worker fell from the roof, he was exposed to a fall hazard of at least 10
feet to the ground which could have resulted in serious injury including broken bones or possibly
death.
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.
MBS, as a small employer, is entitled to credit for size. MBS is also entitled to credit for
history and good faith. MBS has no history of prior OSHA citations (Tr. 75). According to the
testimony of witnesses, MBS held daily half-hour safety meetings at the project and employees
regularly utilized fall protection when installing the sheathing, tar paper, and shingles (Tr. 119, 120,
124, 138). CO Lincoln agreed the workers were adequately trained in fall protection (Tr. 90).
A penalty of $ 1,000.00 is reasonable for MBS violation of § 1926.501(b)(11). One employee
was exposed to a fall hazard for approximately 20 minutes. There were horizontally installed 2x4
boards, although laid flat, to provide some support to the worker. The roof’s pitch was steep and
very difficult to work on without adequate fall protection.

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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
Serious Citation No. 1:
1. Item 1, alleged serious violation of § 1926.501(b)(11), is affirmed and a penalty of $
1,000.00 is assessed.

                                                     /s/ Ken S. Welsch
                                                  _____________________________
                                                  KEN S. WELSCH
                                                  Judge

Date: April 25, 2011

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