C.R. Huffer Roofing

Plain-English summary

C.R. Huffer Roofing worked on a fire-station renovation in Upper Arlington, Ohio. The Secretary withdrew the accident-program and repeat-training allegations, and the parties agreed that the aerial-lift control-check item would be other-than-serious. The ALJ vacated a personal fall-protection item because the evidence did not establish that the roofer lacked a safety belt and lanyard, and he vacated a ladderway-guarding item because the evidence did not prove Huffer employees used the openings. The ALJ affirmed a serious violation for allowing employees to climb over an aerial-lift basket rail to reach the roof and assessed a $3,000 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.20(b)(1); 29 C.F.R. § 1926.28(a); 29 C.F.R. § 1926.500(b)(2); 29 C.F.R. § 1926.556(b)(2)(i); 29 C.F.R. § 1926.556(b)(2)(iv); 29 C.F.R. § 1926.21(b)(2).
• Outcome: Mixed. Two disputed items were vacated; the aerial-lift basket item was affirmed with a $3,000 penalty, and another lift item was agreed as other-than-serious.
• Key point: The aerial-platform rule requiring employees to stand on the basket floor also bars climbing over the rail to use the lift as elevated roof access.

Full text (OSHRC public release)

OCCUPATION/k &i;~?z~~i:ci~“,EW COMh/iISSION
One Lafayette Cents
1120 20th Street, NOW.- 9th Floor
Washington, DC 20036-3419

FAX:
PHONE
COM (202) 606-6100 COM (202) 6oGsoso
Frs (202) 6066100 RS (202) 6oG5050
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SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-2537
C. R. HUFFER ROOFING
Respondent.

NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION

The Administrative Law Judge’s Re ort in the above referenced case was
er 15, 1993. The decision of the Judge
docketed with the Commission on Otto iiF
will become a final order of the Commission on November 15, 1993 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received by the Executive Secretary on or before
November 4, 1993 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 C.F.IQ. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Re ‘onal Trial Liti ation
Office of the SoQicitor, U.S. DOf
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION

/y$+$&444&g/px’k/
Date: October 15, 1993 Ray H. Darling, Jr.
Executive Secretary

DOCKET NO. 922537
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mid, m.
Counsel for Re 'O& Trial Liti ation
Office of the So7 i&or, U.S. DOf
Room S4004
. 200 Constitution Ave., N.W.
Washington, D.C. 20210

William S. Kloepfer
Assoc. Re ‘onal Solicitor
Office of tf e Solicitor, U.S. DOL
Federkl Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199

Roger L. Sabo, Esq.
Schottenstein, 20x & Dunn
Huntin on Center
41 Souta Hi Sreet
Columbus, 8 H 43215

John H. Frye, III
Administrative Law Jud e
Occupational Safety an cf Health
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990 .
Washington, DC 20036 3419

00018013474:05

OCCUPATIONAL ~A&~~%E~~~~i?iiE”lEW Co~h/!lSSiON
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 200363419

FAX:
COM (202) 606-5050
n-s (202) 606-5050

SECRETARY OF LABOR, ..

Complainant,
l
l

v. l
a Docket No. 92-2537
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CR. HUFFER ROOFING & SHEET ..
METAL, INC., l
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Respondent. .0
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Appearances:

Kenneth Walton, Esquire Roger L Sabo, Esquire
Office of the Solicitor Schottenstein, Zox & Dunn
U.S. Department of Labor Huntington Center
Cleveland, Ohio Columbus, Ohio

For the Secretary For the Respondent

BEFORE: Administrative Law Judge John H Frye, III

Ia INTRODUCI’ION

This case arises under the Occupational Safety and Health Act of 1970, 29 U.S.C.
651-678 (1970). On June 16 and 17, 1992, Richard L Burns, a Compliance Officer of the
United States Department of Labor, Occupational Safety and Health Administration,
conducted an inspection of a worksite which involved remodeling and rehabilitation of a fire
station in Upper Arlington, Ohio, at which Respondent, C.R. Huffer Roofing and Sheet
Metal, Inc., was a subcontractor engaged in roofing work. As a result of that inspection,

citations were issued against Respondent alleging it had committed serious violations of
Section 5(a)(Z) of the Act, 29 U.S.C. 654(a)(2). Respondent timely filed a Notice of
Contest. Pursuantto Notice, this case was heard in Columbus, Ohio, on March 25, 1993.
No additional parties appeared to intervene. Following the hearing, briefs were submitted
by the parties.

II0 FINDINGS OF FACI’
A. Background
1a Respondent C.R. Huffer Roofing and Sheet Metal, Inc. does
commercial installation of roofing. This includes rubber roof% built-up roofs, shingles, and
slate (Tr. 93).
20 Huffer has a safety program (Tr. 64,72,99). Huffer has periodic safety
meetings where issues such as safety belts and life lines are discussed and videos are shown
(Tr. 99). This includes training of the employees on the work site in question (Tr. 64,72073,
76, 82).
B l The Upper Arlington Fire Station Project.
1l In June of 1992, Huffer was working on renovation of Fire House No.
1 in Upper Arlington, Ohio (Tr. 12,95). The station is located on Arlington Avenue in that
town, a suburb of Columbus, Ohio (Tr. 95).
20 Huffer placed shingles on the mansard roof and dormer windows, and
a rubber roof on the flat portion of the roof (Tr. 95-96; RX 3).
C0 OSHA Inspects the Project.
10 On June 16, 1992, at around 12:OOnoon, Richard Bums of the
Occupational safety and Health Administration arrived at the Arlington Fire Station to
conduct a reguhuly scheduled inspection (Tr. 11). He sat outside of the site and observed
what was going on for about fifteen minutes (Tr. 12).
2 Following his observation of the site, Mr. Bums identified himself to the
general contractor’s representative and asked him, when he finished his lunch, to gather a
foreman from each of the five contractors on site for the opening conference (Tr. 13-14).

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At the conference, Huffer was represented by Jim mdin@on, who was not the foreman (Tr.
83)a
3 l Mr. Burns then conducted an inspection of the site, including Huffefs
work on the roof (Tr. 15). He observed two Huffer employees on the flat roof part and one
employee on the roof jacks (Tr. M-17; GX 3; GX 4). He also observed a stairwell, which
he concluded was inappropriately guarded, located between both the second and third floors
(Tr. 50).
D0 Citations Are Issued to Huffer.
1a On July 12,1992, the Secretary issued the following citations to Huffer:
a. Citation 1, Item 1, charged a serious violation of Section 29
C.F.R. 1926.20(b)(l) in that Huffer allegedly did not have an accident prevention program
dealing with predictable fall hazards;
ba Citation 1, Item 2, charged a serious violation of Section 29
C.F.R. 1926.28(a) in that Huffer employees allegedly did not utilize appropriate personal
protective equipment to guard against falls;
c. Citation 1, Item 3, charged a serious violation of Section 29
C.F.R. 1926.500(b)(2) in that Huffer allegedly did not guard ladderway openings with
standard railings and toeboards;
d0 Citation 1, Item 4, charged a serious violation of Section 29
C.F.R. 1926,556(b)(2)(i) in that the lift controls on a Rode Finn aerial lift allegedly were not
checked daily; .
e. Citation 1, Item 5, charged a serious violation of Section 29
C.F.R. 1926.556(b)(2)@) in that employees working in an aerial lift allegedly were not -
standing firmly on the floor of the basket, but were observed climbing over the top of the
guard rails onto the roof;
fl Citation 2, Item 1, charged a repeat violation of 29 C.F.R.
1926.21(b)(2) in that Huffer allegedly did not instruct its employees in the recognition and
avoidance of unsafe conditions such as open sided floors; and

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Citation 2, item 2, charged a repeat violation of 29 C.F.R.
1926.21(b)(2) in that Huffer allegedly did not instmt its employees in the recognition and
avoidance of We conditions such as 35 foot fall hazards.
2 At the opening of the hearing, the Secretary’s counsel indicated that the
Secretary was vacating Citation 1, Item 1, and all of Citation 2. He also reported that the
parties had agreed that Citation 1, Item 4, should be affirmed as an other-than-serious
violation. Trial proceeded on Citation 1, Items 2, 3, and 5.

III a Opinion
A. CITATION 1, ITEM 2 - EMPLOYEE’S ALLEGED FAILURE TO WEAR
APPROPRIATE PROTECTIVE EQUIPMENT WHEN EXPOSED T0.A
FALL OF APPROXIMATELY 35 FEET - 29 C.F.R. 1926.2&(a).

Citation 1, Item 2, alleges a violation of 29 C.F.R. 1926.28(a), which provides:

The employer is responsible for requiring the wearing of appropriate personal
protective equipment in all operations where there is an exposure to
hazardous conditions or where this part indicates the need for using such
equipment to reduce the hazards to employees.

The Commission has held that a violation of this standard requires a showing first,

that employees are exposed to a hazard requiring the use of personal protective equipment

and second, that 29 C.F.R. Part 1926 indicates a need for using such equipment to reduce

the hazard to employees. L.E. Myem Co., 12 BNA OSHC 1609 (1986), afd on other

gnuads, 818 F. 2d 1270 (6th Cir. 1987), tea denieci, 484 U.S. 989 (1987). The Secretary

alleges that one of Respondent’s employees, Mr. George Hickman, was observed standing

on a roof jack’ approximately 35 feet above the ground without any fall protection.

‘A roof jack consists of planking resting on brackets attached to a steeply pitched roof in order to provide a
place from which to work. In this case, the roof jack was attached to the mansard roof.

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Further, the Secretary argues that 29 C.F.R. 1926.451(u) indicates a need for using a safety

belt and lany~&in such a situation.

It is mputed that Mr. Hickman was in fact working on the roof jack and thus was

exposed to this fall hazard. However, whether he was utilizing a safety belt and lanyard is

disputed. Mr. Bums, the Compliance officer, maintains that he was not, while Mr. Hickman

and his foreman, Mr. Herman Hickman, maintain that he was (Tr. 21,61062,64-65,66,73-

75). Mr. Burns took a photograph of Mr. Hickman standing on the roof jack which does

not indicate whether Mr. Hickman was tied off (Tr. 40-41; GX-3), and a blow-up of that

photo (R&3), while it indicates that Mr. Hickman may have been tied-off, is not

conclusive.2 Because the sum total of the evidence is inconclusive, I find that the Secretary

has failed to meet his burden of establishing that a violation of 9 1926.28(a) occurred.

Accordingly, Citation 1, Item 2 is vacated.

B0 CITATION 1, ITEM 3 - ALLEGED FAILURE TO UDDERWAY
FLOOR OPENINGS - 29 C.F.R. 1926.500(b)(2).

The Secretary maintains that Respondent’s failure to ensure that ladderway floor

openings were guarded violated 29 C.F.R. 1926.500(b)(2). That standard is part of the

standards governing temporary or emergency conditions in construction work where there .
is a danger of employees falling through floor, roof or wall openings and provides, in

pertinent part=;

2The blow-up depicts an object extending downward from the left side of Mr. Hickman’s belt which may or
may not be a lanyard The Compliance Officer testified that another exhibit (RX-2) shows a tiety line
attached to the left side of Mr. Hickman’sbelt. See Tr. 41-45.

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Ladderway floor openings or platforms shall be guarded by standard railings with
standardtoeboards on all exposed sides...

During the inspection,Mr. Burns noticed that on the east side of the second and third floors,

ladderway floor openings were unguarded, exposing employees to at least a 12 foot fall to

the next level. Mr. Bums testified that Jim Eddington, who represented Huffer at the

opening conference, stated that Respondent’s employees had utilized the ladderway openings

for access to and egress from the roof?

Respondent points out that no pictures were introduced with respect to Huffer

employees utilizing the ladderways. It notes that the only basis for the violation is the

statement by Mr. Burns that Eddington told him he had used the stairwell. Eddington

testified that he did not recall making any such statement (Tr. 88).

Respondent argues that citations may not be affirmed based on hearsay and notes

that, given the existence of five contractors on the project, the Compliance Officer could well

be confused about use of the ladderways by Huffer employees.’ In his reply, the Secretary

argues that Eddington’s statement is not hearsay under Federal Rules of Evidence 801(d)(2).

Regardless whether Eddington’s statement may be viewed as hearsay, in lightof the differing

statements of the other employees who testified and Eddington’s failure of recollection, his

statement is insufficient to satis@ the Secretary’s burden of proof. I find that the Secretary

3 The Secretarymqnizes that Respondent’s employees testified at the hearing that they accessed the roof
by way of the aerial platform. However, he argues that, given the nature of the work and the period of time
the Respondent was on the worksite, employee testimony that they never used the ladderwayopenings is so
unlikely that it simply can not be taken seriously.

4Employeesot he r than those of Huffer also worked on the roof (Tr. 66). Mr. Burns had only been on twenty
inspections as of the date of this inspection, including joint inspections (Tr. 32). It was his impression
Eddington was the foreman or that there were two foremen and one worker (Tr. 37-38), although Herman
Hickman was the only foreman and in charge (Tr. 59).

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has failed to establish that a violation of s 1926.500@)(2) occurred. Accordingly, Citation

1, Item 3 is -ted.

C l CITATION 1, ITEM 5 - RESPONDENTS PRACTICE OF ALLOWING
EMPLOYEES TO CLIMB ON THE EDGE OF THE BASKET OF THE
AERIAL LIFT FOR ACCESS TO THE ROOF AREA ALLEGEDLY
VIOLATED 29 C.F.Re 1926S56(b)(2)(iv)

It is undisputed that Respondent allowed employees to climb over the edge of the

basket of the aerial Iift to gain access to the roof? The Secretary maintains that this

violated 29 C.FeR. 1926e556(b)(2)(iv)e That standard provides, in pertinent part:

Employees shall always stand firmly on the floor of the basket, and shall not sit or
climb on the edge of the basket..,,

Huffer disputes that the cited standard is applicable. Huffer asserts that the standard

applies only to the use of the Iift as a work platform, not as a means of access to a work

area, pointing out that under OSHA’s interpretation, an employee could never get in or out

of an aerial basket. If that is a hazard, Huffer argues, it is not dealt with by the standard,

which cannot be expanded “to mean what an agency [alIegedIy] intended but did not

adequately express.” Diamond Roofing COeVeOSHRC, 528 F. 2d 645, 649 (5th Cir, 1973).

See aLso, Gates & FOX COeV. OSHRC, 790 Fe 2d 154 (Dec. Cir. 1986). “A standard must

clearly state what an employer is required to do in order to comply.” Contractors Wekiihg

of Watem NW .Yo& 15 BNA OSHC 1249,1251(1991)e In his reply, the Secretary points

out that “[c]learly, the words as well as the intent of the standard prohibits the use of the

lift in the manner used by Respondent in this case.”

%k Bums and Mr. George Hickman described this process. See Tr. 27,61.

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The secretary’s interpretation of the standard is reasonable. There is no provision

in the s-d& which covers ingress and egress at elevated locations, and the fact that

employees had to climb over the railing to do SOimplies that the aerial lift was not intended

to be used in the manner in which Huffer used it. Moreover, a separate standard -

0 1926.552 Material hoists, personnel hoists, and elevators - covers this particular function.

Citation 1, Item 5, is affirmed. Respondent did not contest the amount of the penalty levied;

consequently it too is affirmed.

Iv l CONCLUSIONS OF LAW

Ae Respondent Ce Re Huffer Roofing & Sheet Metal, IWe, wan at all times

pertinent hereto an employer within the meaning of Section 3(5) of the Occupational Safety

& Health Act of 1970, 29 UeSeCeSection 651-678 (1970).

B l The Occupational Safety & Health Review Commission has jurisdiction of the

parties and the subject matter.

Ca Respondent Ce R. Huffer Roofing & Sheet Metal, Inc.9 wan not in violation

of the standard set out at 29 CFR 0 192628(a) as charged in Citation 1, Item 2.

D l Respondent C. Re Huffer Roofing & Sheet Metal, Inc.9 was not in violation

of the standard set out at 29 CFR 0 1926.500(b)(2) as charged in Citation 1, Item 3e

E l Respondent Ce Re Huffer Roofing & Sheet Metal, Inc.9 committed a serious

violation of the standard set out at 29 CFR 0 1910e556(b)(2)(iv) as charged in the Citation

1, Item 5e A civil penalty of $3000 is appropriate.

Vl ORDER

A. Citation 1, Items 2 and 3, are vacated.

Bl Citation 1, Item 5, is affirmed. A civil penalty of $3000 is assessed.

Jage, OSHRC

Dated: NT 15 1993
Washington, D.C.