Accu-Rate Roofing Co.

Plain-English summary

OSHA observed an Accu-Rate Roofing employee shingling a steep roof about 13 feet above the ground without fall protection. The access ladder was not tied off, did not extend three feet above the roof edge, and left the employee without a secure handhold when stepping onto the roof. The employee said Accu-Rate had provided no safety training, including fall and ladder training. Accu-Rate later received a bankruptcy discharge and did not appear at the E-Z Trial hearing, where the Secretary established a prima facie case. Judge Stanley M. Schwartz affirmed all four serious items and assessed a combined $1,200 penalty, the reduced amount asserted in the bankruptcy proceeding.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.503(a)(1); 29 C.F.R. § 1926.1060(a); 29 C.F.R. § 1926.501(b)(11); 29 C.F.R. § 1926.1053(b)(1)
• Outcome: Four serious items affirmed with a combined $1,200 penalty.
• Key point: When an employer does not appear, OSHA may still obtain affirmance by presenting evidence that proves each cited violation and its serious classification.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Complainant,

                           v.                               OSHRC DOCKET NO. 99-0240

ACCU-RATE ROOFING CO.,
Respondent.

APPEARANCES:

      For the Complainant:
               Helen J. Schuitmaker, Esq., Office of the Solicitor, U.S. Department of Labor, Chicago, Illinois

Before: Administrative Law Judge: Stanley M. Schwartz

                                      DECISION AND ORDER

      This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C.

Section 651 et seq.; hereafter called the “Act”).
Respondent, Accu-Rate Roofing Co. (Accu-Rate), at all times relevant to this action
maintained a place of business on Burlington Road, Union Grove, Wisconsin, where it was
engaged in roofing. Respondent admits it is an employer engaged in a business affecting
commerce and is subject to the requirements of the Act.
On November 6, 1998 the Occupational Safety and Health Administration (OSHA)
conducted an inspection of Accu-Rates Burlington Road work site. As a result of that
inspection, Accu-Rate was issued citations alleging violations of the Act together with proposed
penalties. By filing a timely notice of contest Accu-Rate brought this proceeding before the
Occupational Safety and Health Review Commission (Commission).
In June, 1999, the parties reached an oral agreement to settle the above captioned action;
however, the written settlement agreement was not signed by Accu-Rate, and the matter was set
for hearing. Prior to the hearing Accu-Rate filed for and received a discharge in bankruptcy (Tr.
5, 24; Exh. C-1).
 On November 3, 1999, an E-Z trial hearing was held in Milwaukee. Accu-Rate did not
appear. The Secretary set forth her prima facie case on the record, and this matter is ready for
disposition.
Alleged Violations
Serious citation 1, item 1a alleges:
29 CFR 1926.503(a)(1): The employer shall provide a training program for each employee who
might be exposed to fall hazards in accordance with CFR 1926 Subpart M-Fall Protection.

    (a)    The employee did not provide training to all employees who were exposed to a
           fall hazard.

    Serious citation 1, item lb alleges:

29 CFR 1926.1060(a): The employer did not provide a training program for each employee
using ladders and stairways which would train each employee in the procedures to be followed
to minimize hazards related to ladders and stairways:

    (a)    Employees were not trained to identify hazards of ladder use.

    Serious citation 1, item 2 alleges:

29 CFR 1926.501(b)(11): Guardrail systems with toeboards, safety net systems, or personal fall
arrest system were not used to protect employees from falling from a steep roof with unprotected
sides and edges 6 feet or more above lower levels.

    (a)    Employees working on a steep roof, were not protected from falling 13 feet to the
           ground.

    Serious citation 1, item 3 alleges:

29 CFR 1926.1053(b)(1): Portable ladders were used for access to an upper landing surface and
the ladder side rails did not extend at least 3 feet (.9 m) above the upper landing surface to which
the ladder was used to gain access:

    (a)    Employee’s ladder access to the roof did not extend at least three feet above the
           landing surface.

Facts
Compliance Officer (CO) Nishiyama-Atha testified that on November 6, 1998, as he was
conducting another inspection, he noted a worker at Accu-Rate’s work site shingling a sloped
roof at a height of approximately 13 feet without any fall protection (Tr. 9-12). Nishiyama-Atha
testified that he observed a ladder placed in the center off the roof for access, but that the ladder
was not tied off, nor did it extend the required 36 inches above the edge (Tr. 14). Nishiyama-
Atha testified that an employee carrying heavy shingles up to the roof could deflect the ladder,
causing it to move, and unbalance the employee (Tr. 15). Nishiyama-Atha further stated that an
employee climbing to the top of the ladder would have nothing to grab onto as he dismounted
the ladder (Tr. 14). Nishiyama-Atha interviewed the worker, who told him that he was an
experienced roofer, but had not received any safety and/or health training from his employer,
Accu-Rate (Tr. 14). The employee was not aware of the 36 inch requirement, but was aware of
the need to tie off the ladder (Tr. 15).
Nishiyama-Atha testified that the cited violations were classified as serious, because a
fall from 13 feet could result in broken bones or death (Tr. 13). He further stated that he
followed the formula set forth in OSHA’s Field Information Reference Manual in calculating the
proposed penalties (Tr. 20). Reductions were made based on the small size of the employer and
the absence of any prior violations (Tr. 20). No reductions were made for good faith because it
did not appear that Accu-Rate had any safety and health program (Tr. 18, 21-22).
Discussion
Having found that the Secretary’s prima facie case established the cited violations, the
citation was affirmed on the record (Tr. 27-30). As part of pre-hearing settlement negotiations,
the Secretary filed a proof of claim in Accu-Rates’ bankruptcy proceedings. The proof of claim
was for a reduced total penalty in the amount $1,200.00 (Tr. 24). That amount will be assessed.

                                          ORDER

1. Citation 1, item 1a and 1b, alleging violations of §1926.503(a)(1) and 1926.1060(a) are
   AFFIRMED.

2. Citation 1, item 2 alleging violation of §1926.501(b)(11) is AFFIRMED.

3. Citation 1, item 3, alleging violation of §1926.1053(b)(1) is AFFIRMED.

4. A combined penalty of $1,200.00 is ASSESSED.
    Stanley M. Schwartz
   Judge, OSHRC

Dated: