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RF-2024-JR339-0032-ADOSH · Arizona Division of Occupational Safety and Health · 2024-10-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

DIVISION OF OCCUPATIONAL SAFETY AND HEALTH OF THE INDUSTRIAL COMMISSION OF ARIZONA,

Complainant

v.

PROGRESSIVE SERVICES, INC. DBA PROGRESSIVE ROOFING,

Respondent Employer.

No. RF-2024-JR339-0032-ADOSH

FINDINGS AND ORDER

On November 16, 2023, the Division of Occupational Safety and Health of the Industrial Commission of Arizona (“Division”) conducted an inspection of Progressive Services, Inc. dba Progressive Roofing at 1135 E Dunlap Ave, Phoenix, AZ 85020, resulting in the issuance of a Citation on April 26, 2024.

Citation 1, Item 1a was issued for an alleged Serious violation of 1926.501 (b)( 4)(ii). Citation 1, Item 1a had an assessed penalty of $10,046.00.

Citation 1, Item 1b was issued for an alleged Serious violation of 1926.501 (b)(10). Citation 1, Item 1b had an assessed penalty of $0.00.

Citation 1, Item 1c was issued for an alleged Serious violation of 1926.502(f)(l)(iv). Citation 1, Item 1c had an assessed penalty of $0.00.

Citation 1, Item 1d was issued for an alleged Serious violation of 1926.502(f)(2)(ii). Citation 1, Item 1d had an assessed penalty of $0.00.

Citation 2, Item 1 was issued for an alleged Non Serious violation of 1910.1200(g)(8). Citation 2, Item 1 had an assessed penalty of $0.00.

WHEREAS, Respondent filed a timely Notice contesting the Citation on May 13, 2024.

WHEREAS, a hearing on this matter is not currently scheduled before the Office of Administrative Hearings (“OAH”.)

Having fully considered the file, records, and all other relevant matters, the OAH enters Findings and Conclusions as follows:

FINDINGS AND CONCLUSIONS

The parties have filed a Settlement Agreement resolving all issues and disputes involved in this matter. The Settlement Agreement fully appears to be consistent with the provisions and objectives of the Arizona Occupational Safety and Health Act, A.A.C. R20-5-827. Accordingly, the Settlement Agreement is by this reference adopted herein and made a part hereof.

The terms of the Settlement Agreement provide Citation 1, Items Grouped Items 1a through 1d will be reclassified from Serious to Non-Serious pursuant to 29 CFR 1926.503 and the penalty will be reduced from $10,046.00 to $7,500.00.

Citation 2, Item 1 will be deleted in its entirety.

Respondent agrees to the following:

Within fourteen (14) days after the date that the OAH approves the Findings and Order Confirming Settlement Agreement (“Order”), Respondent agrees to deliver a bank check or money order in the amount of $7,500.00 made out to “Industrial Commission of Arizona” and mail or the payment will be delivered the check to Robert Irani, Legal Division, Industrial Commission of Arizona, 800 West Washington Street, Suite 303, Phoenix, Arizona 85007.

Within 90 days after the date that the OAH approves the Order, Respondent agrees to prepare training powerpoints and share information as part of a presentation to the roofing and other construction industry invitees as a case example on how the Company has worked to build and foster a safety culture with a focus on the people and systems to help reduce or eliminate safety shortcuts, including sharing information on pre-orientation training, fit for duty testing for positions, safety training, obtaining and renewing safety certifications such as forklift, safety equipment and assignment and teaching of inspecting and using equipment, discipline, counseling and consequences for safety violations, monitoring and supervising, and policies and checklists.

Within 90 days after the date that the OAH approves the Order, the Company agrees to present the information and serve on a panel with ADOSH Director Brian Hudson to share the information with a Q & A session at the ICA Auditorium or other location within 6 months from date the Court issues the Findings and Order. The Company and its legal counsel will invite construction roofing and other companies to attend the program.

Within 9 months days after the date that the OAH approves the Order, the Company agrees to create two You Tube videos in Spanish and English on (1) “Fall Protection and Inspecting and Using Fall Protection Equipment; and (2) “Ladders and Using Correct Ladder for the Job.”

Within 90 days after the date that the OAH approves the Order, the Company agrees to participate in the Roofing Alliance for two (2) years.

Within 90 days after the date that the OAH approves the Order, the Company agrees to retrain all of its workers in Arizona regarding SDS sheets and the electronic SDS program and the locations of SDS Sheets either in hard copy and electronically.

Within 90 days after the date that the OAH approves the Order, the Company agrees to complete retraining of all employees in Arizona regarding fall protection requirements and equipment.

The Citations or alleged violations shall not be deemed as an admission of any matter, and Respondent does not admit that it violated the standards cited.

ORDER

IT IS HEREBY ORDERED that, Citation 1, Items Grouped Items 1a through 1d shall be reclassified from Serious to Non-Serious pursuant to 29 CFR 1926.503 with penalty reduced from $10,046.00 to $7,500.00.

Citation 2, Items 1 shall be deleted in its entirety.

IT IS FURTHER ORDERED that the Citations or alleged violations shall not be deemed as an admission of any matter, and Respondent does not admit that it violated the standards cited.

IT IS FURTHER ORDERED each party is to bear its own attorney's fees and costs.

NOTICE:

Any party dissatisfied with this Decision may request review by the Occupational Safety and Health Review Board by filing a written request with the Administrative Law Judge Division of the Industrial Commission within fifteen (15) days after the mailing of the Decision as provided by Arizona Revised Statutes §§ 23-421(C) and 23-423(A) and (B). If no such request is made within the time provided, the Decision becomes final.

DATED October 23, 2024.

By: Tammy L. Eigenheer

Honorable Tammy L. Eigenheer

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Brian Hudson, Director

Arizona Division of Occupational Safety and Health

[email redacted]

Julie A. Pace, Esq.

Gammage & Burnham, PLC

[email redacted]

Robert Irani

Industrial Commission of Arizona

[email redacted]

By: OAH Staff