Robert Lettrick Roofing Co.

Plain-English summary

Robert Lettrick Roofing Company did roofing work in the Albany, New York area. After an OSHA inspection of a steep mansion-roof job in Saratoga, New York in September 1993, the Secretary issued serious, repeat, and other-than-serious citations, and Administrative Law Judge Barbara L. Hassenfeld-Rutberg held a hearing and issued a decision. The Commission then directed the case for review, but before it ruled the parties filed a stipulation and settlement agreement. In this order, Chairman Stuart E. Weisberg and Commissioner Velma Montoya approved the settlement, found its terms consistent with the OSH Act and the Commission's rules, incorporated them into the order, and set aside the ALJ's decision to the extent it conflicted with the settlement. Under the settlement the Secretary withdrew one serious electrical item (29 C.F.R. § 1926.405(a)(2)(ii)(J)), reduced the penalties on the hard-hat item (§ 1926.100(a)) and a scaffold item (§ 1926.451(s)(1)) to $500 and $600, reduced three repeat items (the OSHA-notice posting requirement, § 1903.2(a)(1), and two hazard-communication items, § 1926.59(e)(1) and § 1926.59(g)(8)) to $500 each, and reclassified a repeat scaffold item (§ 1926.451(u)(3)) as serious with a $3,000 penalty. Robert Lettrick Roofing withdrew its notice of contest and agreed to pay a total penalty of $5,600, without admitting the violations. This order is the final order of the Commission in the case.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.100(a) (head protection); §§ 1926.451(s)(1) and 1926.451(u)(3) (scaffolds); § 1926.405(a)(2)(ii)(J) (electrical, withdrawn); § 1903.2(a)(1) (posting the OSHA notice); §§ 1926.59(e)(1) and 1926.59(g)(8) (hazard communication)
• Outcome: The Commission approved the parties' stipulation and settlement and incorporated it into this order, setting aside the ALJ's decision where inconsistent. Total agreed penalty $5,600, with no admission of liability.
• Key point: This is the Commission's final order approving a negotiated settlement reached after the case was directed for review; it supersedes the underlying ALJ decision wherever the two conflict.

Full text (OSHRC public release)

United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-3419

Office of Phone: (202) 606-5100
Executive Secretary Fax: (202) 606-5050

SECRETARY OF LABOR,

Complainant,

v. OSHRC Docket No. 93-3396

ROBERT LETTRICK ROOFING COMPANY,
Respondent.

ORDER

This matter is before the Commission on a direction for review entered by Chairman Stuart

E. Weisberg and Commissioner Velma Montoya on June 1, 1995. The parties have now filed a

stipulation and settlement agreement supplemented by a letter from the Secretary.

Having reviewed the record, and based upon the representations appearing in the stipulation

and settlement agreement and the Secretary’s letter, we conclude that this case raises no matters

warranting further review by the Commission. The terms of the stipulation and settlement agreement

do not appear to be contrary to the purposes of the Occupational Safety and Health Act and are in

compliance with the Commission’s Rules of Procedure.

1995 OSHRC No. 53
Accordingly, we incorporate the terms of the stipulation and settlement
+. agreement into this

order, and we set aside the Administrative Law Judge’s decision and order to the extent that it is

inconsistent with the stipulation and settlement agreement. This is the final order of the Commission

in this case. See 29 U.S.C. §§ 659(c), 660(a), and (b).

Stuart E. Weisberg
Chairman

Date*
. December 11, 1995
Velma Montoya
Commissioner
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-3419

Office of Phone: (202) 606-5100
Executive Secretary Fax: (202) 606-5050

SECRETARY OF LABOR,
Complainant,

v. OSHRC Docket No. 93-3396

ROBERT LETTRICK ROOFING COMPANY,

Respondent.

NOTICE OF COMMISSION DECISION

The attached decision and order by the Occupational Safety and Health Review Commission was issued
on December 11, 1995. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO
WISHES TO OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL
WITH THE APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE
DATE OF THIS DECISION. See Section 11 of the Occupational Safety and Health Act of 1970,29
U.S.C. § 660.

FOR THE COMMISSION

Date: December 11. 1995
Ray H. Darling, Jr.
Executive Secretary
93-3396

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick
Orlando J. Pannocchia
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Patricia Rodenhausen
Office of the Solicitor, U.S. DOL
201 Varick Street, Room 707
New York, NY 10014

Donald W. Boyajian
Dreyer, Boyajian & Tuttle
75 Columbia Street
Albany, NY 12210
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

ROBERT B. REICH, SECRETARY OF LABOR, 0

Complainant, 0

v. :OSHRC Docket No. 93-3396

ROBERT LETTRICK ROOFING COMPANY,

Respondent.

STIPULATION AND SETTLEMENT AGREEMENT

The parties have reached agreement on a full and complete

settlement and disposition of the issues in this proceeding which

is currently pending before the Commission,

It is hereby stipulated and agreed by and between the

Complainant, Secretary of Labor and the Respondent, Robert

Lettrick Roofing Company, that:

1 l Complainant hereby withdraws item 4 of Serious Citation

1, alleging a violation of 29 C.F.R. § 1926.405(a)(2)(ii)(J)

issued to Respondent and the notification of proposed penalty for

that item,

2 l -Complainant hereby amends the proposed penalty for item

2 of Serious Citation 1 to $500 for the alleged violation of

§ 1926.100(a)
30 Complainant hereby amends the proposed penalty for item

5 of Serious Citation 1 to $600 for the alleged violation of

§ 1926.451(s)(1).

4 l Complainant hereby amends the proposed penalties for

items 1, 2, and 3 of Repeat Citation 2, alleging violations of

§ 1903.2(a)(1)
1926.59(e)(1) and 1926.59(g)(8) respectively, to

$500 for each item, for a total proposed penalty of $1,500. I

5 l Complainant hereby amends item 5 of Repeat Citation 2

to characterize the alleged violation of § 1926.451(u)(3) as a

serious violation of the Act. The proposed penalty for this

citation item is amended to $3,000.

6 l Respondent hereby withdraws its notice of contest to

the citations and penalties as referenced and amended herein.

70 Respondent hereby agrees to pay a penalty of $5,600 by

submitting its check, made payable to U.S. Department of Labor,

Occupational Safety and Health Administration (OSHA) to the

Albany, N.Y. Area Office within 45 days from the date of this

Agreement.

8e Each party agrees to bear its own fees and other

expenses incurred by such party in connection with any stage of

this proceeding.

90 None of the foregoing agreements, statements,

stipulations,
-- or actions taken by Robert Lettrick Roofing Company

shall be deemed an admission by Respondent of the allegations

contained in the citations or the complaint herein. The

agreements, statements, stipulatio,ns, and actions herein are made

solely for the purpose of settling this matter economically and

amicably and shall not be used for any other purpose, except for

subsequent proceedings and matters brought by the Secretary of

Labor directly under the provisions of the Occupational Safety

and Health (OSH) Act of 1970.

10 l Respondent states that there are no authorized

representatives of affected employees.

11 l The parties agree that this Stipulation and Settlement

Agreement is effective upon execution.

12 0 Respondent certifies that a copy of this Stipulation '

and Settlement Agreement was posted at its main office on the

/C%day of November 1995, pursuant to Commission Rules 7 and
100, and will for a period of ten (10) days.

November.. 1995.

Respectfully submitted,

THOMAS S. WILLIAMSON, JR.
Solicitor

JOSEPH M. WOODWARD
Associate Solicitor for
Occupational Safety and Health

DONALD G. SHALHOUB
Deputy Associate Solicitor for
Occupational Safety and Health

DANIEL 3. MICK
Counsel for Regional

Dreyer, Boya
75 Columbia Washington, D.C.
Albany, N.Y. 12210

U.S. Department of Labor - Office of the Solicitor
Washington, D.C. 20210

December 6, 1995
via Telefax
Ray H. Darling, Jr.
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th Street, N.W.
Suite 980
Washington, D.C. 20036-3419

Re : Secretary of Labor v. Robert Lettrick
Roofina Co., OSERC Docket No. 93-3396

Dear Mr. Darling:

In response to your correspondence of December 1, 1995, this is
to inform the Commission that respondent has agreed to pay
additional penalties totalling $2,400 assessed by the
administrative law judge as a result of her affirming serious
citation 1, item 3 ($800), and repeat citation 2, item 4
($1,600) Complainant and respondent overlooked incorporating

these two items in the Settlement as they were not among the
issues directed for review in this case. The parties regret any
inconvenience this may have caused the Commission.

Sincerely,

Orlando J. Pannocchia
Attorney for the
Secretary of Labor

cc: Donald W. Boyajian, Esq.
DREYER, BOYAJIAN & TUTTLE
75 Columbia Street
Albany,
-- NY 12210
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

coM(202)606-5100
Frs(202)606-6100

SECRETARY OF LABOR 1
Complainant,
v. I OSHRC DOCKET
NO. 93-3396
ROBERT LETTRICK ROOFING
Respondent. I
)

NOTICE 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 May 3, 1995. The decision of the Judge
will become a final order of the Commission on June 1, 1995 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 etition should be received by the Executive Secretary on or before
May 23, 1695 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 8 .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. 20036-3419

Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOFL
Room S4004
200 Constitution Avenue, N.W.
-- Washington, DC. 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 COh4-iMISSION

Date: May 3, 1995
DOCKET NO. 93-3396
NOTICE IS GIVEN TO THE FOLLOWING:

Patricia Rodenhausen, Esq.
Re ional Solicitor
Of&e of the Solicitor U.S. DOL
201 Varick, Room 707
New York, NY 10014

Donald B. Boyajian, Es uire
Dre er, Boyajran & Tutt9 e
75 (!olumbra Street
Albany, NY 12210

Barbara Hassenfeld-Rutberg
Administrative Law Jud e ’
Occupational Safety an cf Health
Review Commission
McCormack Post Office and
Courthouse, Room 420
Boston, MA 02109 4501

--

00106154719:02
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
JOHN W. McCORMACK POST OFFICE AND COURTHOUSE
ROOM 420
BOSTON, MASSACHUSETTS 02109-4501

COM (617) 223-9746
COM (617) 223-4004
FTS (617) 223-9746
FTS (617) 2234004

SECRETARY OF LABOR :

Complainant :

v. OSHRC
DOCKET NO. 93-3396
ROBERT LETTRICK ROOFING :
COMPANY ..

Respondent ..

Appearances:

William G. Staton, Esq. Donald W. Boyajian, Esq.
Office of the Solicitor Boyajian & Tuttle
U.S. Department of Labor Albany, NY 12210
For Complainant For Respondent

Before: Administrative Law Judge Barbara L. Hassenfeld-Rutberg

DECISION AND ORDER
This is a proceeding under § 10(c) of the Occupational Safety and Health Act of 1970,
29 U. S.C., et seq., (“the Act”), to review a citation issued by the Secretary of Labor
(“Secretary”) pursuant to $ 9(a) of the Act and proposed assessments of penalties issued
thereon pursuant to 5 10(c) of the Act.
On November 3,1993, Respondent, Robert Lettrick Roofing Company (‘Lettrick”),
was issued three citations, a serious citation alleging seven violations, a repeat citation
alleging five violations and an other than serious citation alleging two violations. Lettrick
contested the serious and repeat citations but did not contest the two items in the other than
serious citation. The Secretary withdrew items 1 and 6 of the serious citation, leaving in
contest five serious items with a total proposed penalty of $5,800.00 and five repeat items
with total proposed penalty of $15,600.00 for a total proposed penalty for both citations of
$21,400.00. The citations resulted from an investigation conducted by the Occupational
Safety and Health Administration (“OSHA”) of a construction site at 722 North Broadway,
Saratoga, New York from September 28-30, 1993.
Lettrick filed a timely Notice of Contest and Answer to the Complaint; thus, a hearing
was held in Albany, New York on October 12 and 13, 1994, presided over by Judge Barbara

L. Hassenfeld-Rutberg.
BACKGROUND
The Respondent is in the roofing business in the Albany, New York area and at the
time of the inspection was performing work on the roof of an older mansion type home in
Saratoga, New York (Tr. 13). As a result of a telephone complaint received by OSHA,
compliance officer Mr. Paul Wigger, a construction specialist with OSHA since 1983, was
sent to the site. Upon arrival at the site, Mr. James Taylor, the foreman, came down from the
roof to talk to the compliance officer at the latter’s request. The home was a three story
structure and had some very steep towers, and Wigger determined the pitch of the roof to
be a twelve pitch, forty-five degree angle roof (Tr. 13). At the time of the inspection, Lettrick
had six employees on the site (Tr. 13).
DISCUSSION
I. Serious Citation 1, Item 1
This item was withdrawn by the Secretary at the hearing and in writing by a
Stipulation of Partial Withdrawal filed with the undersigned judge on December 20, 1994.
I. Serious Citation 1. Item 2
The Secretary has charged that the Respondent violated 29 C.F.R. § 1926.100(a)‘.
The OSHA compliance officer, Mr. Paul Wigger, testified that when he arrived at the site, he

l 29 C.F.R 0 100(a) provides: Employees working in areas where there is a possible danger of head
injury firom impact, or from falling or flying objects, or Tom electrical shock and burns, shall be protected by
protective helmets.

did not see anyone wearing a hard hat (Tr. 21,24). He observed employees working on the
roof approximately 28 from ground level and employees on the ground directly below the
roof (Tr. 21). The men on the ground were engaged in picking up materials at ground level
or in cutting plywood (Tr.21). Employees on the roof were putting down plvood and one
employee was on the ground cutting the plywood to the size needed, carrying the pieces
partially up the ladder and handing them to someone working on the roof (Tr. 23). Wigger
opined that the two employees working on the ground near the house without a hard hat were
exposed to the danger of serious head injury from falling objects because other employees
were working on the roof overhead (Tr. 22,24-26). There was material right near the bottom
of the eave of the roof and in the front of the house and there was a porch; thus, there also
was the danger that material could slide off the porch onto the ground directly in front of the
house where the employees were seen picking up material (Tr. 24). This violation is affirmed
as serious and in consideration of the testimony on this item and the penalty criteria in § 17(j)
of the Act, 29 U.S.C. § 666(j), I find based on the size of the company of less than twenty-five
employees, some prior history and the serious nature of the violation, that $1400.00 is a
reasonable and appropriate penalty for this violation.
III. Serious Citation 1, Item 3
For this violation, the Secretary has charged that the Respondent has violated 29
C.F.R §152(axlp because there were two 2 % gallon plastic containers partially filled with
gasoline used to fuel a gas powered Honda Portable Generator on the site (Tr.28, 33).
Wigger testified that these plastic containers did not meet the definition of an approved

container or a safety can as it had no flash arresting screen and self-closing lid (Tr. 28-29,
Exs. C-l & C-2). One of the containers was found in the rear of the house and the other one
very close to the generator (Tr. 29). The compliance officer testified that there was a danger

--
29 C.F.R $1926.152(a)( 1) provides that: Only approved containers and portable tanks shall be used
for storage and handling of flammable and combustible liquids. Approved metal safety cans shall be used for
the handling anduse of flammable liquids in quantities greater than one gallon, except that this shall not apply
to those flammable liquid materials which are highly viscid (extremely hard to pour), which may be used and
handled in original shipping containers. For quantities of one gallon or less, only the original container or
approved metal safety cans shall be used for storage, use, and handling of flammable liquids.

fi-omthe use of those containers with flammable fluids because if there was a fire, the gasoline
would accelerate a fire (Tr. 32). This violation is aB’irmedas serious and in consideration of
the testimony on this item and the penalty criteria in 0 17(j) of the Act, 29 U.S.C. § 666(i),
find based on the size of the company of less than twenty-five employees, some prior history
and the serious nature of the violation, that $800.00 is a reasonable and appropriate penalty
for this violation.
IV. Serious Citation 1, Item 4
The violation alleged here concerns 29 C.F.R.§1926.405(a)(2)(ii)(J)3 by the
Respondent’s use of a compressor on the roof to power pneumatic tools that was connected
to the Honda Portable Generator by an ungrounded extension cord. The compliance officer
found that the standard requiring the use of three-wire cords on construction sites was not
met as the plug in issue here had a ground prong missing. This cord was being used from the
generator to an air compressor that powered pneumatic tools used to put down material on
the roof (Tr. 35). He fdt that electrical current would flow through a person and through the
ground and back to the generator, thus causing serious injury or electrocution to the
employees (Tr.36) . This violation is afEn& as serious and in consideration of the testimony
on this item and the penalty criteria in § 17(j) of the Act, 29 U.S.C. § 666(j), I find based on
the size of the company of less than twenty-five employees, some prior history and the serious
nature of the violation, that $800.00 is a reasonable and appropriate penalty for this violation.
V. Serious Citation 1. item 5
The Secretary has alleged that Lettrick violated 29 C.F.R. § 1926.45 l(s)( 1)4by using a
ladder jack scaffold at a height greater than 20 feet above the ground.
Wigger testified that there were ladder jack scaffolds on the side and rear of the house
(Tr. 38). He used trigonometric calculations to estimate the height of the ladder jack

--
329 C.F.R$ 1926.405(a)(2)@)(J) provides that: Extension cord sets used with portable electric tools
and appliancesshall be of three-wiretype and shallbe designedfor hard or extra-hardusage. Flexible cords used
with temporary and portable lights shall be designed for hard or extra-hard usage.

4 29 C.F.R# 1926.451 (s)(l) providesthat:All ladder jack sctiolds shall be limited to light duty and
shall not exceed a height of 20 feet above the floor or ground.

scaffolds. His calculations established the respective heights to 24 and 26 feet above the
ground (Tr.41). The inspector never observed employees working on the ladder jack
scaffolding. However, he did speak to Lettrick’s foreman about whether the height of the
ladder jack sctiolds had recently changed and was told that it had not. From this information,
Wigger determined that a violation had occurred (Tr.42).

Mr. George Allain, Jr., Lettrick’s manager (Tr. 271), testified at the hearing that he
installed snow shields on the roofs eave using the ladder jack scaffolds on the side of the
house. He estimated that the height of the ladder jack sctiold to be between 21 and 23 feet
above the ground (Tr. 282). Section 1926.45 l(s)( 1) prohibits the use of ladder jack
scaffolding at height greater than 20 feet above the ground. Allain’s testimony, the
information given to Wigger by the foreman along with measurements and calculations made
by Wigger establish that a violation occurred. The compliance officer noted that exceeding
the load on the planking could lead to its breaking, which could result in serious physical harm
or death (Tr. 55). This violation is afEirmed as serious and in consideration of the testimony
on this item and the penalty criteria in § 17(j) of the Act, 29 U.S.C. § 6660)’ I find based on

the size of the company of less than twenty-five employees, some prior history and the serious j
nature of the violation, that $800.00 is a reasonable and appropriate penalty for this violation.
VI. Serious Citation 1. item 6
This item was withdrawn by the Secretary.

VII. Serious Citation 1. item 7
The Secretary alleged that Lettrick violated section 1926.45 1 (~)(2)~ by its failure to
install roofing brackets on a roof with a ground to cave height greater than 16 feet and a pitch
greater than 4 inches in 12 inches. Wigger testified that he saw Lettrick employees working
on the roof without roofing brackets (Tr. 56). The Secretary introduced into evidence
photographs taken by Mr. Wigger of the two Lettrick employees working on the front roof
(Exhibit C-5 & C-6). These photographs show one employee standing near the eave and

exhibit C-5 also shows a second employee sitting near the top of roof. Wigger testified that

529 C.F.R 6 1926.45 l(u)(2) provides in relevant part: Brackets shall be secured in place by nailing
in addition to the pointed metal projections. When it is impractical to nail brackets, rope supports shall be used.
the employee near the eave was standing on a roofing bracket but the other one was not (Tr.
59-60). Mr. Wigger decided that violation had occurred because the second employee did not
have the support of a rootig bracket.
The issue of whether the second employee is supported by a roofing bracket is difficult
to resolve based upon exhibit C-5. Allain testified that it was hard to determine from the
photograph whether there was anything under the employee’s foot (Tr. 246). He also testified
that the requirements of roof installation necessitates occasions where workers will be
unable to work with roofing brackets for support, which is especially true when installing the
roof!ing brackets (Tr. 243-244).
In order to prove a violation of section 5(a)(2) of the Act, the Secretary must establish
that a particular standard applies to the facts, that the cited employer failed to comply with
the standard, and that employees had access to the hazard. Anning Johnson Co., 4 BNA
OSHRC 1193,1197,1975 -1976 CCH OSHD 720,690 (Nos. 3694 and 4409, 1976). Section
1926.45 l(u)(2) requires the installation of roofing brackets; section 45 l(u)( 1) requires the
brackets to be constructed to fit the pitch of the roof
The Secretary has not shown that Lettrick ftied to comply with section 1926.45 l(u)(2).
Wigger testified that a roofing bracket was installed at the eave of the roof but found a
violation because there were no roofing brackets installed at intervals up the roof The
evidence introduced by way of testimony and photographs was not conclusive on the issue
of what brackets were on the roof above the eave and in what stages of work the brackets
were required to be used on the roof Also, the Secretary did not introduce any evidence that
the section cited requires interval installation of roofing brackets. No violation of section
1926.45 l(u)(2) is found and the item is vacated.
ReDeat Citation 2
The Occupational Safety and Health Review Commission (“Commission”) has set as
precedent-that a violation is repeated if, at the time of the alleged repeated violation, there
was a Commission f!inalorder against the same employer for a substantially similar violation.
Poflatch COT.,7 BNA OSHC lo617 10637 1979 CCH OSHD 723,294 (No. 1618371979).
Under Potlatch, the Secretary may establish a prima facie case of similarity by showing that

the prior violations are for failure to comply with the same standard. The burden is then
shifted to the employer to show that the past and present violations are not substantially
similar. Ifthe standards are not the same7however, the Secretary must present other evidence
that the violations were substantially similar and involved similar hazards. John R. Jurgensen
Co., 12 BNA OSHC 1889,1895,1986 CCH OSHD p. 27,641 (No. 8301224’1986).

VIII. Repeat Citation 2. Item 1
The Secretary alleged that Lettrick violated 29 C.F.R. § 1903.2(a)(1) because it failed

to post at the work site an OSHA Notice to inform employees of the protections and
obligations provided for in the Act.
Wigger testified that he did not see an OSHA notice on the job site (Tr. 158) and asked
either Taylor or Allain whether there was an OSHA Notice posted who told him there was

none (Tr. 197-198). Lettrick presented no evidence to indicate that the notice was posted at
the time of the inspection. Therefore, a violation of 29 CFR 1903.2 (a)( 1) is found to have
occurred and the item is aflirmed.
The Secretary classified this violation as repeat. As evidence of the repeat nature of the
violation, the Secretary introduced a copy of a previous citation issued to the Lettrick on
April 6, 1992. A final order for the previous citation was issued against Lettrick on August
10, 1992 (Exhibit C-7). The past and present violations are of the same standard. Lettrick
presented no evidence to show that the violations were not substantially similar. Under
PotZatch, Citation4 2, item 17 this violation is aBrmed as repeat. In consideration of the
testimony on this item and the penalty criteria in 5 17(j) of the Act, 29 U. S.C. $666(j), I find
based on the size of the company of less than twenty-five employees, and the repeat nature
of the violation, that $800.00 is a reasonable and appropriate penalty for this violation.

--
29 C.F.R. § 1903.2(a)(1) provides in relevant part: Each employer shall post and keep posted a notice
or notices, to be fiunished by the Occupational Safety and Health Administration... informing employees of the
protections and obligations provided for in the Act, and that for assistance and information.. .employees should
contact the employs or the nearest office of the Department of Labor. Such notice or notices shall be posted by
the employs in each estziblishmentin a conspicuous place or places where notices to employees are customarily
posted...

IX. Repeat Citation 2. items 2.3 & 4
The Secretary alleged that Lettrick violated three sections of the Hazard Communication
Standard: 29 C.F.R. §1926.59(e)( 1)’ failure to maintain a written hazard communication
program at the workplace; section 1926.59(g)(8)* failure to maintain copies of Material
Safety Data Sheets (“MSDSs”) for hazardous chemicals located within the workplace; and
section 1926.59(h)’ failure to provide employees with information and training on hazardous
chemicals in their workplace.
Upon arriving at the Respondent’s workplace, Wigger discovered hazardous chemicals,
including gasoline, flashing cement, roofing primer and roofing sealant (Tr. 165). He asked
Taylor for Let&k’s written hazard communication program, and the foreman told him that
one existed but admitted it was not at the job site (Tr. 164). The compliance officer next
asked Taylor for the MSDSs for the hazardous chemicals present at the workplace and was
told that there were no MSDSs present (Tr. 172). When Wigger inquired from other
employees about Lettrick’s hazard communication program and any OSHA training they had
received, including how to retrieve information from an MSDS, the workers did not indicate
that they had received training and appeared not even to know what he was talking about
(Tr. 175). Citation 2, items 2 and 3 were issued because there was no written hazard
communication program (including MSDSs) at the workplace. Citation 2, item 4 was issued

7 29 C.F.R #192659(e)(l) provides in relevant part: Employ~s shall develop, implement, and maintain
at each workplace, a written hazard communication program which at least describes how the criteria specified
in paragraphs (f), (g), and (h) of this section for labels and other forms of warning, material safety data sheets,
and employee information and training will be met...

• 29 C.F.R. #1926.59(g)(8) provides in relevant part: The employer shall maintain in the workplace
  copies of the required material safety da& sheets for each hazardous chemical, and shah ensure that they are
  readily accessible during each work shift to employees when they are in their work area(s).

g29 C3R.g 1926.59(h) provides in relevant part: Employers shall provide employees with effective
information and training on hazardous chemicals in their work area at the time of their initial assignment, and
whenev~ a new physical or health hazard the employees have not previously been trained about is introduced
intotheirworkarea.. . . (2)Employees shalI be informed of : (I) methods and observation that may be used to
detect the presence or release of a hazardous chemical in the work area. . . . (iv) The details of the hazard
communication program developed by the employer, including an explanation of the labeling system and the
material safety data sheet, and how employees can obtain and use appropriate hazard information.

because the employees did not receive proper training regarding the hazardous materials at

the job site .
Respondent’s manager testified that Lettrick did have a written hazard communication
program and that copies of the program were normally kept in the trucks at the various work
sites (Tr. 248-251). He alleged that the written hazard communication program for this site
had been inadvertently removed from the truck the previous day during a routine cleaning of
the truck (Tr. 250). Allain asserted that the written hazard communication program contained
MSDSs for the chemicals at the workplace and that all employees had received OSHA
training (Tr. 251).
Section 192659(e)(l), requires employers to “develop, implement and maintain at the
workpZace” (emphasis added) a written hazard communication program. Section 1926.59
(g)(8) requires that the MSDS for each hazardous chemical in the workplace be “readily
accessible during each work shift”. “Workplace” is defined in Section 1926.59 (c)‘Oto
include each of an employer’s job sites. There is a reason for these requirements. If the
employee at the job site should need to consult the program for information regarding a
hazardous material that he is about to use, or has used, or that has been spilled or otherwise
caused an emergency situation, the program provides him no help ifit is located miles away
at the company office. Ford Development Corp., 15 BNA OSHC 2003,2005, 1992 CCH
OSHD 129,900 (No. 90-1505, 1992). Lettrick’s failure to keep the written hazard
communication program and MSDSs readily accessible at the workplace while employees
were exposed to hazardous chemicals violates sections 1926.59(e)(1), and 1926.59(g)(8).
Lettrick’s argument that the violation was excusable because circumstances surrounding the
removal of the written hazard communication program from the site were unforeseeable is
not persuasive. If indeed Allain instructed an employee to clean out the truck, he had the
responsibility to ensure that the employee put the hazard communication program back into
the truck-so as to be at the job site where it would be available and accessible for the
employees. A valid excuse can only be found where Lettrick did more than was done in the

loWorkplace means an establishment, job site, or project, at one geographical location containing one
or more work areas.

instant case to ensure that the violative condition did not exist. See, Honze Plumbing and
Heating Co. VI OSHRC, 528 F.2d 564, 569 (1976).
The employees’ apparent lack of knowledge about Lettrick’s written hazard
communication program or how to retrieve information fi-om MSDS is sufficient to establish
that Lettrick violated section 1926.59 (h). Respondent failed to show that its employees had
been trained in accordance with the regulation.
The Secretary classified the present the hazard communication violations as repeat. To
support this classification, the Secretary introduced into evidence copies of two citations
issued to Let-trick on April 6, 1992, containing allegations of violations of section 1926.59,
paragraphs (e)(l), (g)(S), and (h) (Exhibits C-14 & C- 15). A final order against Lettrick was
issued on those items on August 10, 1992. The Secretary has presented a prima facie case,
as contemplated inPothztch Lettrick has failed to prove that the past and present violations
were not substantially similar; thus, Citation 2, items 2’3, and 4, were correctly classified as
repeat. In consideration of the testimony on these three items and the penalty criteria in 6 17(j)
of the Act, 29 U.S.C. § 666(j), I find based on the size of the company of less than twenty-five
employees, and the repeat nature of the violations, that $1600.00 per item for a total penalty
of $4800.00 for all three items is a reasonable and appropriate penalty for these violations.
X. Citation 2. Item 5
In this item, the Secretary alleges that Lettrick violated 29 C.F.R. 1926 §
1926.45 l(u)(3)‘l by not providing the required fall protection. Catch platforms were not
installed as required below the working area of roof with an eave height greater than 16 feet
above the ground and a pitch greater than 4 inches in 12 inches without a parapet. In lieu of
a catch platfiorm, safety belts and lifelines may be used. At the hearing, Wigger testified that
he witnessed Lettrick employees working on the roof with a ground to eave distance of 28
feet and a pitch of 12 inches in 12 inches, but neither the mandated catch platforms or safety
--

*l29 C.F.R§ 1926.45 l(u)(3) provides:A catch platiom shall be installed below the working area of
roo& more than I6 f=t from the ground to the eaves with a slope greater than 4 inches in 12 inches without a
parapet.In width,the platform shall extend 2 feet beyond the protection of the eaves, and shall be providedwith
a guardrail, midrail, and toeboard. This provision shall not apply where employees engaged in work upon such
I roofs are protected by a safety belt attached to a lifeline.

belts and lifelines were installed (Tr. 177-179).
Lettrick counters that section 1926.45 l(u) (3) was not applicable because the correct
“working” height was the less than 11 feet (the distance from the roof eave to the roof of the
porch). No precedent was cited for this unique way to measure the height of the roof Lettrick
fiuther argues that even if section 1926.45 l(u)(3) applied, neither catch platforms or safety
belts and lifelines were feasible for installation on this particular roof, that the installation of
catch platforms would be too expensive and time consuming and that lifelines created tripping
hazards. The Secretary’s burden is to show that installation of fall protection was required.
The burden then shifts to Lettrick to show impossibility of compliance because compliance
with the standard was functionally impossible or would preclude performance of required
work; and alternative means of employee protection are unavailable or were in use. See, AU
Lee Corzs~ction Co., 7 OSCH 1140, 1979 OSHD T 23,330 (1979). Respondent’s excuses
for f&e to comply with the standard do not meet burden required for an adequate defense
for non-compliance. See, Brockv. Williams Enteqwises of Georgia, Inc., 832 F.2d 567, 573
(1987). Respondent violated section 1926.45 (u)(3), by failing to provide the required fall
protection, and the citation is afIirmed.
The Secretary classified citation 2, item 5 as repeat. As evidence of a substantially
similar past violation, the Secretary introduced a copy of wills violation 29 C.F.R. § 1926.500(g) ( 1)12citation issued to Lettrick on April 6, 1992 (Exhibit C-l 6, Tr. 184). A final
order on that citation against Lettrick was issued on August 10, 1992. Where the Secretary
asserts that the violation is repeat but the previous standard differs fi-om the present standard,
the Secretary bears the burden of showing that hazards involved in both violations are
substantially similar. Jurgensen, supra at 1889.
Section 1926.500(g) (1) requires that employees working on a low pitch roof, with a
ground to eave height greater than 16 feet, must be protected from falling by use of either a
motion stopping system, a warning line system, or a monitor. The facts presented in the

l229 C.F.R 0 1926.5OO(g)(1) provides: During the @omance of built-up rootig work on low pitched
roo& with a ground to eave height greater than 16 feet (4.9 meters), employees engaged in such work shall be
protected fi9111
falling~&IIallunprotectedsides and edges of the roof as follows: (I) by use of motion stopping
system; or (ii)by use of a warning line system; or (iii)by use of a safety monitoring system.

instant case are sufkient to find a substantially similar repeat violation. Sections 1926.500(g)
(1) and 1926.451(u)(3) address the same hazard - protecting employees fi-om falling hazards
while working on a roof greater than 16 feet above the ground. The present violation was
correctly classified as a repeat. In consideration of the testimony on this item and the penalty
criteriain § 17(j) of the Act, 29 U.S.C. § 666(i), I find based on the size of the company of less
than twenty-five employees, and the repeat nature of a prior willful violation, that $1O,OOO.OO
is a reasonable and appropriate penalty for this violation.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
All findings of fact relevant and necessary to a determination of the contested issues have
been found specially and appear herein. See Rule 52(a) of the Federal Rules of Civil
Procedure. Proposed findings of fact and conclusions of law inconsistent with this decision
are denied.
ORDER
Serious citation 1, item 1 was WITHDRAWN by the Complainant.
Serious citation 1, item 2, alleging a violation of 29 C.F.R. § 1926.100(a) is AFFIRMED
and a penalty of $1400.00 is assessed.
Serious citation 1, item 3, alleging a violation of 29 C.F.R. @1926.152(a)(l) is
AFFIRMED and a penalty of $800.00 is assessed.
Serious citation 1, item 4, alleging a violation of 29 C.F.R.§1926.405(a)(2)(ii)(J) is
AFFIRMED and a penalty of $800.00 is assessed.
Serious citation 1, item 5, alleging a violation of 29 C.F.R. § 1926.45 l(s)(l) is
AFFIRMED and a penalty of $800.00 is assessed.
Serious citation 1, item 6 was WITHDRWVN by the Complainant.
Serious citation 1, item 7, alleging a violation of 29 C.F.R.§1926.451(u)(2) is
VACATED.
Repeat-citation 2, item 1, alleging a violation of 29 C.F.R.§1903.2(a)( 1) is AFFIRMED
and a penalty of $800.00 is assessed.

Repeat citation 2, item 2, alleging a violation of 29 C.F.R.§59(e)(l) is AFFIRMED and

a penalty of $1600.00 is assessed.
Repeat citation 2, item 3, deging a violation of 29 C.F.R.§59(g)(8) is AFFIRMED ad
a penalty of $1600.00 is assessed.
Repeat citation 2, item 4, alleging a violation of 29 C.F.R.§59(h) is AFFIRMED and a
penalty of $1600.00 is assessed.
Repeat citation 2, item 5, akging a violation of 29 C.F.R.545 l(u)(3) is AFFIRMED ad
a penalty of $1O,OOO.OO
is assessed.

BARBARA L. HASSENFELD-RUTBERG
Judge, OSHRC

Da&x ADri.3. 24.I 1995
Boston, Massachusetts