Facing adversity

In early December 2009, David Michaels was named the new assistant secretary of labor for occupational safety and health for the Occupational Safety and Health Administration (OSHA). In one of his first speeches on Jan. 20, 2010, to OSHA's Maritime Advisory Committee on Occupational Safety and Health, Michaels said: "This administration is returning the agency to the original intent of the OSH [Occupational Safety and Health] Act. This is a regulatory and enforcement agency, and we're going to act like it."

Based on what the roofing industry has witnessed since Michaels and his administration took over, it has become clear a regulatory and enforcement agency acts like a shark that has caught the scent of blood.

In recent months, OSHA has issued a number of new regulations drastically affecting the roofing industry, including a fall-protection instruction rescinding the use of slide guards and a new crane standard. Additionally, Michaels has placed emphasis on increasing job-site inspections and penalties, and OSHA budget increases have focused on hiring more inspectors.

NRCA has received an abundance of complaints from roofing contractors who have had bad experiences with OSHA, particularly during the past year; many mentioned frantically trying to comply with a plethora of new regulations, negative interactions with inspectors or even borderline harassment by the agency in some extreme cases.

I and other NRCA staff members have spoken with many contractors about their personal experiences with OSHA, but concerns about retaliation from the agency for speaking out were so great only two contractors allowed us to publish their accounts, and they asked to remain anonymous. Following are their stories.

Antagonistic attitude

A roofing contracting company based in a southern state had a negative experience stemming from an unannounced OSHA inspection in 2010.

After completing a small new construction project on a grocery store, one of the company's repair crews stopped by the job site to pick up two boxes of materials that had been left on-site.

"They parked the truck, properly set up and tied-off a 24-foot ladder, and proceeded to go up on the roof," says Contractor A, the company's president. "They were not on the roof one minute when a car pulled into the parking lot and four OSHA inspectors got out."

One of the workers climbed down the ladder to get a rope from the truck so the two boxes could be lowered from the roof.

"The OSHA inspectors began questioning our worker about fall protection," Contractor A says. "Our worker showed them the personal protective equipment in the truck, showed the crew members' OSHA 10-hour cards, acknowledged they had been trained numerous times about fall protection, and explained they were at the site only to retrieve the two boxes of materials and were not working."

A few days later, Contractor A received a call from one of the inspectors saying the company would be receiving a citation.

"The inspector said they had been across the street watching the job site and saw the workers go on the roof with no fall-protection equipment," he says.

There was no additional discussion of the events that had taken place. Several weeks later, the company received the citation for a serious fall-protection violation and a fine of $2,500.

"On the same day we received the citation, I called and set up an informal conference with the area director's administrative assistant," Contractor A says. "On the appointed day, my safety director and I drove more than an hour to the OSHA office with all our personnel and training records as well as all our documentation related to safety training.

"Upon our arrival at the OSHA office at 9 a.m., we sat in the waiting area for 20 minutes before anyone even acknowledged our presence," he continues. "We were greeted by a gentleman who introduced himself as a compliance officer. He told us the area director had been called out of town and couldn't meet with us. 'Would you mind waiting for about 30 minutes so I can review the file?' he asked."

According to Contractor A, after he and the company safety director presented their case, which involved an employee misconduct defense, they were told by the compliance officer that though they had a compelling defense, he was not authorized to do anything more than offer to reduce the fine 50 percent. After stating this was not acceptable, Contractor A was told he would have to reschedule his meeting with the area director. Before leaving the office, Contractor A set up another meeting for two days later.

"On the appointed day, my safety director and I again left our office for the one-hour drive to the OSHA office for an 11 a.m. meeting," Contractor A says. "While in the car, we received a call from the OSHA office telling us the area director would be unable to meet with us that day. The person said to call back later in the day and reschedule the appointment."

After arriving back at the office, Contractor A checked his calendar, called the OSHA office and asked to speak with the area director.

"The lady who answered the phone informed me, 'He doesn't schedule the appointments. I do,'" Contractor A says. "When I explained my wish to speak with the director because our past two appointments had been broken, she made it clear that if I wanted to set up an appointment, she was the one who was going to schedule it."

The woman then asked Contractor A when his citation date was and informed him the time frame to schedule an informal conference had expired.

"I counted to 10, no, 20, before explaining why the time frame had expired, and she put me on hold to investigate the matter," Contractor A says. "Eventually, an appointment for a third meeting was set."

After Contractor A finally was able to meet with the area director, the citation was dropped and the fine cancelled. However, for Contractor A, the damage had been done in the form of lost time.

"The entire episode was unprofessional, and there was complete indifference to the time wasted by my safety director and me," he says. "If the area director wasn't available, a timely telephone call from his office would have been in order on both occasions. The attitude of the OSHA personnel was unnecessarily antagonistic. However, to the area director's credit, when we finally met with him, I found him open-minded, realistic and knowledgeable.

"We have had previous interactions with our local OSHA agency, and my company was always treated professionally and with some level of respect," Contractor A continues. "There is a discernable difference in attitude now."

Repeat litigation

A roofing contracting company from the Midwest has had a couple negative encounters with OSHA, one occurring in 2005 and another in 2006, but has managed to avoid more recent problems with the agency.

However, in light of the extreme increases in OSHA action, the company has altered some of its practices to avoid additional run-ins with the agency.

In 2005, one of the company's crews was finishing tearing off an existing roof system on a library. The crew moved the warning lines back from the roof edge about 10 feet to access the edge. The company foreman was acting as monitor.

"An OSHA inspector was driving by and started filming our crew and then went on the roof to talk to our foreman," says Contractor B, the company's president. "Because the warning lines had been moved, OSHA conducted an investigation and issued us a citation two weeks later for a willful violation."

The company hired an attorney and argued the violation should only be considered willful if there was no safety equipment on the job site. After going back and forth with OSHA for several months, the willful charge finally was dropped.

Then, in 2006, the company was installing a new roof system at a hospital on a drive-up 15-foot-high canopy.

"Word came from the general contractor that OSHA inspectors were on their way to the site," Contractor B says. "The other subcontractors on the project decided to quit for the day. I told our crew to stay and work as long as they were working safely; they all agreed they were."

The OSHA inspectors arrived, approached the crew members and conducted interviews, after which they stated one worker had too much slack in his lifeline.

"Several weeks later, we received a citation for the slack in the lifeline, and I set up an informal conference with OSHA," Contractor B says. "I argued our workers were tied-off and the company cannot be held responsible for an individual who allows slack in his lifeline. I also told OSHA we were the only subcontractor that stayed on-site; they didn't seem to care. The fine was reduced by 30 percent."

Based on these experiences and concerns about future OSHA action regarding recent regulations, the company has changed some of its practices to avoid more incidents.

"We are now keeping separate employee files for commercial drivers license (CDL) drivers; non-CDL drivers who operate trucks less than 10,000 pounds; CERTA torch-trained employees; lead paint-certified employees; and crane operators," Contractor B says.

Additionally, to address OSHA's new crane regulation, the company has trained all its employees to avoid keeping yet another separate file.

"It seems like we have a new regulation to deal with each month," Contractor B says. "When will it stop?"

Punishment vs. prevention

As Michaels said in his Jan. 20, 2010, speech, "We're moving toward tougher citations and penalties not simply to punish, but to provide a powerful incentive for employers to respect their workers, integrate protection into business operations and make prevention a priority."

However, based on these contractors' experiences and stories from other contractors, prevention doesn't seem to be the agency's real priority; instilling fear, ruling with an iron fist and collecting money do.

During the years, the roofing industry has made great strides in protecting its workers from occupational hazards. It has adopted more efficient safety procedures and fall-protection measures, and it has vastly improved its employee training efforts. However, OSHA's actions and unwillingness to include roofing industry constituents, including NRCA, in open discussion regarding its new regulations, disregard those strides.

The Small Business Administration's Office of the National Ombudsmen receives comments from small businesses and acts as a liaison between those businesses and federal agencies. Comments received are forwarded to agencies for a high-level review, and agencies are requested to consider the fairness of their enforcement action. If your company has experienced problems with OSHA you feel are unfair or extreme, you can report them at www.sba.gov/ombudsmen.

Ashley St. John is Professional Roofing's associate editor.

Fighting back

NRCA, along with four roofing contractor co-plaintiffs, has filed a petition for judicial review of an OSHA rule that no longer allows the use of slide guards as an acceptable means of fall protection except in few circumstances.

On Dec. 2, 2010, NRCA Executive Vice President Bill Good and Associate Executive Director of Risk Management Tom Shanahan met with OSHA officials to argue NRCA's position: Slide guards are an effective and reliable method of fall protection and have been used successfully for more than 15 years, and OSHA's new rules are unnecessarily burdensome and will result in more accidents and injuries on job sites. They were told dialogue regarding the proposed rule would continue. However, eight days later, on Dec. 10, 2010, the rule was published.

The petition for judicial review argues OSHA did not follow appropriate rulemaking procedures when it eliminated the slide guard option and the agency acted without any evidence to suggest slide guards are not an effective method for fall protection. The petition also states OSHA failed to take into account the effect the new rule would have on small businesses.

OSHA has argued the rule is not a new standard and is beyond the reach of an appeal. NRCA has asked the court for a stay of enforcement until this matter is decided. Enforcement of the new rule is scheduled to begin June 16.