Murray Roofing Company, Inc.

Plain-English summary

Six Murray Roofing employees reached a one-story roof by climbing a ladder to a canopy and then climbing the remaining three-foot elevation without a ladder or other safe access. OSHA also observed two roofers near an unprotected 15.5-foot edge after warning lines had been moved for membrane work. Judge Ann Z. Cook found that the surrounding scaffold was incomplete and did not provide fall protection, while the informal monitoring arrangement failed because no monitor was designated and workers had other duties. She affirmed the access item as serious for $750 and the roof fall-protection item as repeated for $2,400 based on a prior final order under the same standard.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.1051(a); 29 C.F.R. § 1926.501(b)(10).
• Outcome: Serious roof-access item affirmed for $750 and repeated low-slope-roof fall item affirmed for $2,400.
• Key point: Warning lines may be moved only temporarily and safety monitors must be specifically assigned without distracting duties; an incomplete scaffold does not protect an adjacent roof edge.

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

SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET No. 98-0333
MURRAY ROOFING COMPANY, INC.,
Respondent.

APPEARANCES:

      For the Complainant:
              Susan B. Jacobs, Esq., Office of the Regional Solicitor, U.S. Department of Labor
              New York, New York

      For the Respondent:
              Robert G. Walsh, Esq., Walsh, Fleming & Chiacchia, P.C., Blasdell, New York

Before: Administrative Law Judge Ann Z. Cook

                                 DECISION AND ORDER

      This proceeding is before the Occupational Safety and Health Review Commission (“the

Commission”) pursuant to section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C.
§ 651 et seq. (“the Act”). The citations at issue in this proceeding allege one serious and one repeat
violation arising from an Occupational Safety and Health Administration (“OSHA”) inspection on
November 19, 1997. Respondent Murray Roofing Company, Inc. (“Murray”) timely contested the
citations, and the trial of this matter was held on March 18, 1999. Both parties have filed post-
hearing and rebuttal briefs. Murray does not contest that it is an employer engaged in a business
affecting interstate commerce and that it is subject to the requirements of the Act. (Answer ¶ I).
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                                        Introduction
   On November 19, 1997, OSHA compliance officer (“CO”) Michael Scime inspected the

Riverfront Medical Center in North Tonawanda, New York, where Murray was the roofing
contractor on the new, single-story building. During his inspection, Scime saw two roofers without
fall protection working at the edge of the roof. Scime accessed the roof using the only visible means,
which was, by climbing the ladder to the canopy and then climbing the remaining 3 feet without a
ladder. Murray’s foreman, Charles Weaver, told Scime that safety monitoring and warning lines were
being used, but that the lines had been moved to roll out the roofing material. (Tr. 7-14, 38). OSHA
cited Murray for failing to provide safe access to the roof in violation of 29 CFR 1926.1051(a) and
for failing to provide fall protection in violation of 29 CFR 1926.501(b)(10).
The Secretary’s Burden of Proof
To establish a violation of a standard, the Secretary has the burden of proving, by a
preponderance of the evidence:
(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).
Serious Citation 1
Citation 1 alleges a violation of 29 CFR 1926.1051(a), which provides as follows:
A stairway or ladder shall be provided at all personnel points of access where there is a break
in elevation of 19 inches (48 cm) or more, and no ramp, runway, sloped embankment, or
personnel hoist is provided.
The citation alleges as follows:
(A) Front of the building. Employees were climbing the 3 feet from the metal canopy roof
onto the main roof without safe access being provided by a ladder, ramp, or runway.
CO Scime testified that the only means of accessing the roof that day was to climb a ladder
to the metal canopy on the east side of the building and to then climb the remaining 3 feet to the roof
without a ladder. Weaver, the foreman, and the six employees working on the roof, confirmed this.
The CO further testified that this means of access subjected the employees to the hazard of falling
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backward onto the canopy, which could have caused serious injuries. He said safe access to the roof
could have been provided by a ladder from the canopy to the roof or by a ladder from the ground to
the roof. (Tr. 9-10, 13, 16, 19-20, 59).
Murray argues that using a ladder from the canopy to the roof was more dangerous than
climbing to the roof without one and that newly-erected scaffolding surrounded the building and
prevented the use of a ladder directly from the ground to the roof. (R. Brief pp. 3-4). Weaver and
Michael Spangler, one of the roofers, testified in support of Murray’s position. (Tr. 74-75, 92-93).
However, the CO testified that scaffolding did not surround all sides of the building. (Tr. 47-51). In
any event, the record shows that Murray was able to remove a section of scaffolding so that a
ground-to-roof ladder could be installed. (Tr. 20, 80). Murray’s argument is therefore rejected.
The record establishes the alleged violation, and, because the roofers were exposed to falls
that could have caused serious injuries, the violation was serious. The proposed penalty for this item
is $750.00. In determining penalties, the Commission is to give due consideration to the gravity of
the violation and the employer’s size, history and good faith. The gravity of the violation, generally
the most significant factor, depends upon such matters as the number of employees exposed, the
duration of the exposure, the precautions taken against injury, and the likelihood that an injury would
result. J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993). Considering that
six employees were exposed to falls onto and from the canopy of the one-story building, I find the
gravity of the violation to be moderate. I also find that no reductions for size, history or good faith
are warranted. The proposed penalty of $750.00 is appropriate and is accordingly assessed.
Repeat Citation 2
Citation 2 alleges a violation of 29 CFR 1926.501(b)(10), which states as follows:
Except as otherwise provided in paragraph (b) of this section, each employee engaged in
roofing activities on low slope roofs, with unprotected sides and edges 6 feet (1.8 m) or more
above lower levels shall be protected from falling by guardrail systems, safety net systems,
personal fall arrest systems, or a combination of warning line system and guardrail system,
warning line system and safety net system, or warning line system and personal fall arrest
system, or warning line system and safety monitoring system. Or on roofs 50-feet (15.25 m)
or less in width ... the use of a safety monitoring system alone ... is permitted.
The citation alleges as follows:
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   (A) Roof at the Riverfront Medical Center. Warning lines were not erected along the North
   and East sides of the flat roof. Employees were exposed to a fall of 15’6" to the ground.
   The CO testified that from the ground, he saw two roofers working without fall protection

near the edge of the northeast corner of the building. The roof was more than 50 feet wide and was
15.5 feet above the ground. When he arrived on the roof, the roofers were some distance from the
edge, seaming together the last-laid sheets of membrane. The CO said that at the northeast corner
where the roofers had been working, membrane was laid out to the edge and no warning lines were
up. (Tr. 13-14, 16-17, 36, 60, 75, 89-90). The CO also said that Weaver, the foreman, told him that
warning lines and safety monitors were being used as fall protection. Weaver told him that the
warning lines had been moved out of the way when material was laid out, and had not yet been put
back. CO Scime testified that neither of the two roofers he observed near the edge could have
monitored the other because while they worked, they were often bending, kneeling and/or working
back to back. (Tr. 14, 36, 50).
Murray contends that scaffolding surrounded the building and thus there was no unprotected
edge and no fall danger. However, the CO testified credibly that only parts of the building were
scaffolded and only parts of the scaffolding were guarded. He further testified that scaffolding
provided fall protection only if it were tarped, planked or otherwise guarded. The record shows that
at the northeast corner, where the roofers worked near the edge, the scaffolding was unguarded and
afforded no protection. (Tr. 47-51; C-1). Murray’s contention is rejected.
Murray also contends that safety monitors and warning lines were used at the site but that the
lines had to be removed to accomplish the membrane work. Weaver and Spangler testified the
warning lines had been moved away because laying out and sealing the membrane could not be done
properly with them in place. (Tr. 68-70, 80-81, 90-91). Under this reasoning, safety lines would
seldom be in place to protect roofers working near the edge. The CO’s more credible view was that
Murray should have followed the general industry practice of moving safety lines only temporarily
to roll out the membrane. (Tr. 61). Regarding safety monitors, Weaver testified that he had not
appointed a monitor but that employees usually did so among themselves when working near the
edge. He also testified he watched the employees as well, although his attention could be diverted.
(Tr. 84-86). This testimony does not show that a monitoring system meeting the requirements of
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Subpart M was used; specifically, the employer cannot designate as monitor an employee with other
job responsibilities that might take his attention away from his monitoring function. See 29 CFR
1926.502(h)(1)(v). The evidence demonstrates that neither safety monitors nor warning lines were
in use in the cited area. The Secretary has therefore established the alleged violation, and, in light
of the 15-foot fall hazard, the violation was serious.
As to the repeated characterization, a violation is repeated under section 17(a) of the Act if,
at the time of the alleged repeated violation, there was a Commission final order against the same
employer for a substantially similar violation. Potlatch Corp., 7 BNA OSHC 1061, 1063 (No. 16183,
1979). The record shows that Murray was cited for violating the same standard on December 4,
1995, that the citation was affirmed on January 26, 1996, by way of settlement, and that the citation
became a final order on March 4, 1996. (Tr. 22; C-2). Murray has not disputed the repeated
classification of the citation. This citation item is therefore affirmed as repeated.
The Secretary has proposed a $2,400.00 penalty for this citation item. I find the gravity of
the violation to be moderately severe, given that two employees were exposed to falls of 15 feet for
a short time and that no fall protection was provided. I also find that no reductions for size, history
or good faith are warranted. The proposed penalty of $2,400.00 is appropriate and is accordingly
assessed.
Findings of Fact
The foregoing constitutes my findings of fact in accordance with Federal Rule of Civil
Procedure 52(a). Any proposed findings of fact inconsistent with this decision are hereby denied.
Conclusions of Law
1. Murray is engaged in a business affecting commerce and has employees within the
meaning of section 3(5) of the Act. The Commission has jurisdiction of the parties and the subject
matter of the proceeding.
2. Murray was in serious violation of section 5(a)(2) of the Act as alleged in Citation 1, and
a penalty of $750.00 is appropriate for this item.
3. Murray was in repeat violation of section 5(a)(2) of the Act as alleged in Citation 2, and
a penalty of $2,400.00 if appropriate for this item.
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                                           ORDER
     On the basis of the foregoing Findings of Fact and Conclusions of Law, it is ordered that:
     1. Citation 1 is affirmed as a serious violation, and a penalty of $750.00 is assessed.
     2. Citation 2 is affirmed as a repeated violation, and a penalty of $2,400.00 is assessed.




                                                   Ann Z. Cook
                                                   Judge, OSHRC

Dated:
Washington, D.C.