Allstate Roofing, Inc.

Plain-English summary

Allstate Roofing had about five employees working on a nearly flat roof that measured 200 by 120 feet and was 20 feet above the ground. OSHA observed employees without the fall protection required for built-up roofing work, including one worker who came within about three feet of an unguarded edge. The judge rejected Allstate's infeasibility defense because the company admitted compliance was possible and did not show that guardrails, warning lines, or the other specified systems were infeasible. He also found that one safety monitor could not provide equivalent protection across the large roof, especially with mechanical equipment and noise present. The violation was willful because Allstate knew the rule from three prior citations and OSHA explanations but deliberately substituted its own procedures based on an unreasonable reading of the standard. The judge affirmed the willful violation but reduced the proposed penalty from $28,000 to $12,000 because the likelihood of an accident was low.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.500(g)(1).
• Outcome: Modified. The willful violation was affirmed, but the proposed penalty was reduced to $12,000.
• Key point: Repeated notice of a clear fall-protection rule can support willfulness when an employer knowingly substitutes a noncompliant system.

Full text (OSHRC public release)

                                        UNITED STATES Of AMERICA
                OCclJPATlONAL SAFETY AND HEALTH REVIEW cohdfb!lSs~ON
                                         One Lafayette Centre
                                   1120 20th Street, N.W. - 9th Floor
                                      Washington, DC 20036-3419

\ /

PHONE: .
COM (202j 60641~ f

Frs (202) aobalrn ,

            SECRETARY       OF LABOR
                              Complainant,
                     v.                                                    OSHRC DOCKET
                                                                           NO. 93-0832
            ALLSTATE      ROOFING, INC.
                              Respondent.


                                  NQTICE OF DOCKETING
                           OF ADMINISTRATIVE LAW JUDGE’S DECISION
                The Administrative Law Judge’s Report in the above referenced case was
           docketed with the Commission on December 10, 1993. The decision of the Judge
           will become a final order of the Commission on January 10, 1994 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
           December 30, 1993 in order to permit sufficient time for its review. See
           Commission Rule 91, 29 C.F.R. 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. 20036-34 19
           Petitioning parties shall also mail a copy to:

                                  Daniel J. Mick, Esq.
                                  Counsel for Regional Trial Liti ation
                                  Office of the Solicitor, U.S. DO5
                                  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.




          Date: December     10, 1993                Ray H.
                                                     Execu Pve

DOCKET NO. 93-0832

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mid, @@F
Counsel for Re Trial Liti ation
Office of the SOF *&or, U.S. DOc
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Tedrick House, Esq.
Re ional Solicrtor
Of&e of the Solicitor U S DOL
Federal Office Bldg., ko& 2106
911 Walnut Street
Kansas City, MO 64106

Vanessa M. Ceravolo, Esquire
P. 0. Box 1197
Kalispell, MT 59903 1197

James H. Barkley
Administrative Law Jud e
Occupational Safety an d Health
Review Commission
Room 250
1244 North S eer Boulevard
Denver, CO tr0204 3582

00111625097:08
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1244 N. SPEER BOULEVARD
ROOM 250
DENVER, COLORADO 80204-3582

PHONE FAX
COM (303) 844-2281 COM (303) 8463759
FE (303) 844-2281 fls (303) 844-3759

SECRETARY           OF LABOR,

                                  Complainant,

           v.                                                        OSHRC DOCKET
                                                                     NO. 93-0832
ALLSTATE          ROOFING,      INC.,

                                  Respondent.



           APPEARANCES:

                  For the Complainant:
                          DeweyP. Sloan, Jr., Esq. Office of the Solicitor,
                          U. S. Department of Labor, Kansas City, Missouri

                  For the Respondent:
                          Vanessa M. Ceravolo, Esq., Kalispell, Montana




                                        DECISION AND ORDER
Barkley, Judge:
           This proceeding arises under the Occupational             Safety and Health Act of 1970 (29

U.S.C., Section 651, et. seq, hereafter referred to as the Act).
Respondent, Allstate Roofing, Inc. (Allstate) at all times relevant to this action,
maintained a place of business at Charles and Monad, Billings, Montana, where it was
engaged in roofing construction. Allstate admits it is an employer engaged in a business
affecting commerce and is subject to the requirements of the Act.
On January 19, 1993 the Occupational Safety and Health Administration (OSHA)
conducted an inspection of Allstate’s Charles and Monad worksite (Tr. 17). As a result of
the inspection, Allstate was issued a “willful” citation alleging violation of #1926.500(g)(1),
together with proposed penalties, pursuant to the Act. By filing a timely notice of contest
Respondent brought this proceeding before the Occupational Safety and Health Review
Commission (Commission).
On August 19, 1993, a hearing was held in Billings, Montana. The parties have
submitted briefs on the issues and this matter is ready for disposition.
Alleged Violations
Citation 1, item 1 states:
29 CFR 1926.500(g)(l): Employees engaged in built-up roofing work on low-pitched roofs
with a ground to eave height greater than 16 feet were not protected from falling by using
one of the methods described in 29 CFR 1926.500(g)(l)(i) through (iii) at all unprotected
sides and edges of the roof.

(a) Monad & Charles: Employees working on edge of roof approximately 20 feet above
ground level.

       The cited standard provides:

       (g) Guarding of low-pitched roof perimeters duting the pefoMance of built-up roofing
       work--( 1) Gerteral provisiom. During the performance of built-up roofing work on
       low-pitched roofs with a ground to eave height greater than 16 feet (4.9 meters),
       employees engaged in such work shall be protected from falling from all unprotected
       sides and edges of the roof as follows:
         (i) By the use of a motion-stopping-safety system (MSS system)‘; or
         (ii) By the use of a warning line system erected and maintained as provided in
         paragraph (g)(3) of this section and supplemented for employees working between
         the warning line and the roof edge by the use of either an MSS system or, where
         mechanical equipment is not being used or stored, by the use of a safety monitoring
         system; or
         (iii) By the use of a safety monitoring system on roofs fifty feet (15.25 meters) or
         less in width (see Appendix A), where mechanical equipment is not being used or
         stored.




 ’ $1926.502(j) defines MSS Systems (motion stopping-safety systems) as “fall protection using the

following equipment singly or in combination; standard railings (guardrails) as described in ~1926SOO(f);
scaffolds or platforms with guardrails as described in 51926.451; safety nets as described in $1926.105; and
safety belt systems as described in 51926.104.

                                                2

Issues
I Whether the Secretary has, by a preponderance of the evidence, made out a prima
fHcie case that Allstate violated §1926.5OO(g)(l) on January 19, 1993?

     a. Whether, in order to prove a violation of a standard under $5(a)(2) of the Act,
     the Secretary has the burden of proving the reasonableness of abatement measures
     specified within cited standards?

II Whether Allstate has shown the infeasibility of abatement measures specified under
§;926.5OO(g)( l)?

III . Whether alternative protective measures taken by Allstate excuse the cited violation?

IV. Whether alternative protective measures taken by Allstate render any violation de
minimk?

V Whether Allstate’s violation of 51926.500(g)(l), if any, was correctly classified as
Gillful?”

VI . Whether the proposed penalty of $28,000.00 is appropriate?

                                           Facts
     On August 19, 1993, following a phone complaint, OSHA Compliance Officer (CO),

Thomas Wild, visited Allstate’s Billings worksite (Tr. 17-18). There Wild observed and
videotaped approximately five Allstate employees scattered on the north, east and southeast
end of a roof, working without the benefit of fall protection (Tr. 19020,23,55, 59, 171; Exh.
C-l through C-6; see also, testimony of James Jones, Tr. 144, 147; Stanley Ludwig, Tr. 155).
Specifically, Wild observed one employee walk to within approximately three feet of the
unguarded roofs edge to throw down roofing materials (Tr. 24,39,76,158; Exh. C-7, C-8).
Allstate’s safety director evaluates each job site prior to commencement of work,
including the pitch of the roof and the ground to eave height.
The rooftop was 20 feet from the eaves to the ground (Tr. 81). It measured 200 feet
long by 120 feet wide (Tr. 91). The roof was nearly flat, with a 1:12 pitch (Tr. 157, 186).
Allstate employees were operating drills; there was also a heat welding machine with a
generator or compressor running near the center of the roof (Tr. 50-51, 166). CO Wild
 testified that the site was very noisy; that the compressor noise interfered with conversation
within approximately 30 feet of it (Tr. 50-52).
Discussion
I.
Under Commission precedent, in order to prove a violation of section 5(a)(2) of the
Act, the Secretary need show only that (1) the cited standard applies, (2) there was a failure
to comply with the cited standard, (3) employees had access to the violative condition and
(4) the cited employer either knew or could have known of the condition with the exercise
of reasonable diligence. See, e.g., Walker Towing Cop., 14 BNA OSHC 2072, 2074, 1991
CCH OSHD 729239, p. 39,157 (No. 87-1359, 1991).
Allstate admits that the single-ply roof system attached with mechanically fastened
. screws and heat welded seams at Charles and Monad falls under OSHA’s definition of
“built-up roofing”*, governed by s1926SOO(g) (Tr. 83, 113, 135). The ground to eave height
was greater than sixteen (16) feet. Allstate’s supervisor and safety director, Michael Phillips
further admits that they “did not implement 500(g)” at that location (Tr. 201). The evidence
establishes that employees were exposed to the cited condition, and that the employer was
not only aware of those condition, but approved of them. The Secretary has, therefore,
made out her prima facie case.
Allstate argues that the Secretary failed to meet her burden of proving that the use
of the required safety equipment was reasonable or appropriate at Allstate’s worksite, relying
on Spancrete Northeast, I&. V. OSHRC, 905 F.2d 589 (2nd Cir. 1990). The case cited by
Allstate, however, does not reflect the state of the law of either the Ninth Circuit, where this
case is situated, or of the Commission itself.

     * $1926.502( 1) Built-uproofing--a weather-proofing cover, applied over roof decks, consisting of either a
liquid-applied system, a single-ply system, or a multiple-ply system. Liquid-applied systems generally consist
of silicone rubber, plastics, or similar material applied by spray or roller equipment.        Single-ply systems
generally consist of a single layer of synthetic rubber, plastic, or similar material and a layer or adhesive. . ..

II .
In order to make out the affirmative defense of infeasibility, Allstate must show that
none of the abatement measures specified in subsection 500(g) were feasible at Allstate’s
Billings worksite. The Commission has held that:
Employers must alter their customary work practices to the extent that alterations are
reasonably necessary to accommodate the abatement measures specified by OSHA
standards. . .. [However,] an abatement measure must be useable, during employees’
activities, for its intended purpose of protecting employees. If there is no way to use
a measure for its intended purpose without unreasonably disrupting the work
activities, the mere fact that the measure’s installation is physically possrble does not
in our view mean that we should compel the employer to install the measure. Seibel
Modem Mfg. & Welding Corp. supra at 1228, 39,685.

At the hearing, Allstate specifically stated that compliance with the cited standard was
possible (Tr. 118, 192), although it introduced evidence that safety lines would become
tangled and pull up the screws holding down the roof, increasing the time necessary to
complete the job (Tr. 118, 135-36, 156, 192). No evidence regarding the feasibility of other
motion-stopping systems, such as guardrails was introduced, nor did Allstate address the
feasibility of a warning line system.
Allstate failed to show that the safety measures specified by the standard were
infeasible, and so to make out its affirmative defense.
III .
In addition, this judge rejects Allstate’s argument that its use of a verbal safety
monitoring system as provided for under 5OO(g)(iii ) excuses its failure to use physical fall
protection. The plain language of subsection (g)(iii) restricts the use of safety monitoring
systems to roofs fifty feet or less in width, where mechanical equipment is not being used
or stored. The plain language of (g)(iii) clearly does not provide for a safety monitoring
system here, where the roof width was 120 feet3 and mechanical equipment was in use.

3 Simple rectangular roofs may not be subdivided. Appendix A to Subpart M for ~1926SOO(g)(l)--Roof
Widths, serves as a guideline to subdividing irregularly shaped roofs. Its stated purpose is to “minimize the
number of roof areas where ~1926SOO(g)(l)(iii) can be applied.”

                                                  5

The Commission has held that where a specifications standard does not provide for
an alternative form of compliance, “the fact that the employer has implemented an
alternative measure instead of the specified measure cannot, in itself, justify vacating a
citation.” Secretary of Labor v. R & R Builders, Inc., 15 BNA OSHC 1383,199l CCH OSHD
ll (No. 88-282, 1991).
IV .
Allstate argues that its alternative measures, though not in technical compliance with
the standard, provide equal protection from the fall hazard, and that the violation should
properly be classified as de minimik Allstate cites Phoenix RooFtg, Inc. v. Dole, 874 F.2d
1027 (5th Cir. 1989), a case involving the same standard in which the Fifth Circuit found “no

significant difference between the protection provided by the employer and that which would
be afforded by technical compliance with the standard.” Id at 1032.
The facts of the case at bar, while similar to those addressed in Phoenix Roofing, do
not compel the result reached there. Here, the roof was too large for the single monitor,
Ludwig, to see all the employees at once (Tr. 83, 136; Exh. C-l, at 350). Ludwig admitted
at hearing that he had to move around the roof to observe employees who were performing
different tasks on different sections of the roof (Tr. 155). Additionally, the noise from the
drills and compressor in use on the rooftop could have prevented Ludwig’s warnings from
being heard or heeded.
A designation of de mirzimis is appropriate only where the absence of any direct nexus
between the employer’s noncompliance and employee safety and health renders an
abatement order inappropriate. This judge finds that Allstate’s use of a safety monitoring
system did not provide protection equal to that mandated by the standard, and appreciably
diminished worker safety. The violation cited was not merely technical, and cannot be
classified as de minimis.
V
Under Commission precedent, a violation is willful if “it was committed voluntarily
with either an intentional disregard for the requirements of the Act, or plain indifference to
employee safety.” United States Steel Cop, 12 BNA OSHC 1692, 1703, 1986-87 CCH
OSHD li27,517, po 35,675 (No. 79-1998, 1986).
On September 10, 1991 Allstate received a “serious” citation alleging violation of
$1926.500(g) (Tr. 91; Exh. C-11). At that time CO Wolf advised the job superintendent,
Mike Phillips, as to the requirements of $1926.500(g), specifically discussing safety belts,
lanyards, and static lines as well as warning lines (Tr. 61-67). Stan Ludwig was the foreman
on the job site (Tr. 91). On March 24, 1992, and June 2, 1992 Allstate received “repeat”
citations for violations of the same standard (Tr. 94, Exh. C-12, C-14). Either Ludwig or
Phillips were involved in each of the cited incidents (Tr. 96). Phillips executed all three
settlement agreements (Tr. Exh. C-12, C-14). At the hearing, Allstate admitted it knew the
requirements of 51926.500(g) prior to the inspection (Tr. 93).
Nonetheless,
, despite three previous citations, and their admitted familiarity with
$1926.500(g), Allstate personnel went on to uniformly testify that they believed the
abatement measures discussed with OSHA applied only to the specific roof& they were
working on at the time they were cited, and that the cited standard allowed them complete
latitude to determine the “appropriate” fall protection to be provided. (Testimony of Wilbur
Phillips, Tr. 115-116; 122; Stanley Ludwig, Tr. 164-165, Michael Phillips, Tr. M-93).
This judge finds such testimony unconvincing. Although a violation is not willful if
the employer had a good faith opinion that it complied with the requirements of a cited
standard, the test of good faith for these purposes is an objective one, i.e. whether the
employer’s belief concerning the interpretation of a standard, was reasonable under the
circumstances. Calang Cop., 14 BNA OSHC 1789, 1791, 1987-90 CCH OSHD ll29,080, p.
38,870 (No. 85-319, 1990).
The plain language of §1926.5OO(g)(1) is unambiguous; the constraints on the options
available to an employer are clearly set forth in the standard. Allstate’s supervisory
personnel, particularly its safety director, had a duty as well as ample opportunity to read
and understand 5OO(g)‘srequirements following each of the three prior citations issued since
September 1991. Given Allstate’s citation history, its settlements, and the explanation of
500(g) provided by OSHA officials, Allstate’s litigation position that it believed it had
complete latitude to substitute its own judgment for the requirements of the standard is not

                                              7

credible. Given its knowledge of $1926.500(g), and its knowledge of the ground to cave
height, which triggered the standard’s applicability at this particular worksite, Allstate’s
decision to substitute its own safety procedures for those required by the standard indicates
a disregard for the Act’s requirements rising to the level of willfulness.
VI .
The size of the employer and the gravity of the offense are factors to be considered
in determining the appropriateness of a penalty. Nacirema Operating CO., 1 BNA OSHC
1001, (No. 4, 1972).
One indicia of a company’s size is the amount of business it does. Allstate’s gross
income during 1991 and 1992 was estimated at between two and three million dollars (Tr.
133) .
CO Wolf testified, without contradiction, that a fall from 20 feet would result in
serious injury or death (Tr. 60). However, Allstate’s roofing personnel were experienced and
the fall hazard was an obvious one. Weather conditions were good and there were no
tripping hazards visible. The likelihood of an accident taking place was small; this judge
believes that the gravity of the violation was overstated.
Because the gravity of the violation was overstated, the proposed penalty of
$28,000.00 is found to be excessive. A penalty of $12,000.00 will be assessed.
Findings of Fact and Conclusions of Law
All findings of fact and conclusions of law relevant and necessary to a determination
of the contested issues have been found specially and appear in the decision above. See
Rule 52(a) of the Federal Ru!es of Civil Procedure.
Order

1. Citation 1, item 1 is d a penalty of $12,000.00 is
   ASSESSED.

Dated: December 3, 1993 I