Document

SECRETARY OF LABOR,

Complainant,

v. OSHRC Docket No. 95-1716

CONTINENTAL ROOF SYSTEMS, INC.,

Respondent.

DECISION

Before: WEISBERG, Chairman; GUTTMAN, Commissioner.

BY THE COMMISSION:

Continental Roof Systems, Inc., (“Continental Roof”) was engaged by the National

Park Service (“NPS”) to repair the roof and chimneys of the Franklin D. Roosevelt home in

Hyde Park, New York. Following a safety complaint from NPS on May 15,1995, OSHA

inspected the work site on May 16, and subsequently issued three citations alleging sixteen

violations of various standards under the Occupational Safety and Health Act of 1970, 29

U.S.C. §§ 651-687, and proposed a combined penalty of $139,600. The judge affirmed all

the citation items, but downgraded the two willful items to serious, assessing a total penalty

of $32,100.

Continental Roof is no longer in business and the judge originally dismissed the citation

under Jacksonville Shipyards, Inc., 16 BNA OSHC 2053, 1993-95 CCH OSHD ¶ 30,539

(No. 94-0888, 1994), rev’d , 102 F.3d 1200 (11th Cir. 1997). The Commission reversed and

remanded the case for a decision on the merits. Continental Roof Systems Inc., 17 BNA

OSHC 2104, 1997 CCH OSHD ¶ 31,351 (No. 95-1716, 1997).

The Secretary of Labor (“Secretary”) petitioned for review, alleging error only with

respect to Citation 2, Sub-Items 2(a) and 2(b), which concern a lack of requisite guardrails

on a tubular welded frame scaffold and on a pump jack scaffold. The Secretary argues that

the judge incorrectly found Sub-Items 2(a) and 2(b) to be not willful. Specifically, the

Secretary alleges that the judge erred by disregarding CO Kay Coffey’s testimony that

Continental Roof supervisor Eric Baginski admitted that NPS project supervisor Ed Sturm

advised Baginski prior to the inspection of the need for scaffold guardrails. The Secretary

argues that this testimony constitutes “unrebutted, corroborative evidence” of a pre-

inspection warning, which is sufficient to establish that the violation was willful. For the

reasons discussed below, we affirm the judge’s decision.

BACKGROUND

Ed Sturm testified that on April 24 he had a conversation with Continental Roof

supervisor Chris Michaluk concerning unsafe conditions on the chimney scaffold, but there

is no evidence that they discussed any need for guardrails. When Eric Baginski replaced

Michaluk as project supervisor soon thereafter, Sturm discussed with him various safety

concerns about the scaffolding, including the need to tie off safety railings, remove the saw

horses, and properly tie off the front scaffold, but there is similarly no evidence they

discussed guardrails at that time. Sturm did testify, however, that he discussed the need for

guardrails with Baginski on “approximately” May 10. As the Secretary notes, CO Coffey

provided partially corroborative testimony when he stated that Baginski admitted to him that

Sturm had advised Baginski prior to the inspection to install scaffold guardrails.

Sturm was present on the jobsite each day of the relevant period, and kept a

contemporaneous daily diary that he testified would contain notes of any serious concerns

that he had or discussed with the contractor. Sturm’s diary indicates that the contractor was

not on site on May 10, and that it was on site on only five dates prior to the May 16 OSHA

inspection. None of the diary entries prior to that of May 15 indicates that Sturm noted or

The chimney scaffold is not the subject of the citation item at issue on review.

discussed with anyone a need for guardrails on any of the scaffolds. In his notes of May 15,

a date when Continental Roof was not on site and just one day prior to the OSHA inspection,

Sturm’s notes indicate the absence of mid-point guardrails. When confronted with the diary

entries on cross-examination, Sturm confirmed that the first specific diary reference to a lack

of scaffold guardrails occurred on May 15.

DISCUSSION

It is well settled that a willful violation is one committed with intentional, knowing

or voluntary disregard for the requirements of the Act, or with plain indifference to employee

safety. Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1539, 1991-93 CCH OSHD ¶ 29,617,

p. 40,101 (No. 86-360, 1992) (consolidated). A finding of willfulness, however, must be

predicated upon a showing that the employer possessed a “heightened awareness,” rather

than simple knowledge of the conduct or conditions constituting a violation. Williams

Enterp., Inc., 13 BNA OSHC 1249, 1256-57, 1986-87 CCH OSHD ¶ 27,893, p. 36,589 (No.

85-355, 1987)(“not enough for the Secretary to show that an employer was aware of conduct

or conditions constituting a violation; such evidence is necessary to establish any violation”).

Where the requisite state of mind is manifested through the actions of supervisory

employees, it is imputed to the employer to the same extent as would be a supervisor’s

knowledge of violative conditions. Tampa Shipyards, 15 BNA OSHC at 1539, 1991-93

CCH OSHD at p. 40,101-102.

The judge’s finding that Continental Roof violated the cited standard is not at issue

on review. Rather, the sole issue is whether the judge’s finding that the violation was not

willful was erroneous because he apparently failed to consider the compliance officer’s

corroborative testimony concerning a pre-inspection warning. This warning might arguably

establish the requisite heightened awareness for a willful violation. We conclude that while

the judge did not discuss this testimony in his decision, the record evidence, including the

omitted testimony, is insufficient to warrant overturning the judge’s conclusion that the

violation was not willful.

The evidence is contradictory regarding whether Sturm noticed a lack of scaffold

guardrails prior to May 15, and whether he discussed a need for guardrails with any

Continental Roof personnel prior to the inspection. Although Sturm testified that he advised

Michaluk on April 24 that the chimney scaffold was unsafe, there is no evidence that Sturm

noted or discussed with Michaluk a need for guardrails. Similarly, although Sturm spoke

with Baginski about various safety concerns soon thereafter, there is no evidence that they

discussed a need for guardrails at that time. Sturm did testify that later, on approximately

May 10, he told Baginski that the scaffold located at the front of the building needed

guardrails. That conversation is mentioned in the post-inspection daily diary summary Sturm

prepared for CO Coffey. As the Secretary emphasizes, Coffey partially corroborated this

testimony when he stated that Baginski admitted receiving a pre-inspection warning from

Sturm about the need for guardrails.

Sturm’s contemporaneous daily diary, however, tells a different story. The diary

indicates that Continental Roof was not at the worksite at all on May 10. It contains no

reference to a need for guardrails until May 15, another day on which the employer was not

on site. On cross-examination, Sturm testified that his diary would contain notes of any

serious concerns that he had or discussed with Continental Roof, and admitted that the first

reference to any deficiency regarding guardrails was contained in the diary entry of May 15.

We find that in view of these discrepancies concerning pre-inspection warnings of the

need for scaffold guardrails, Judge Frye did not err in concluding that the Secretary did not

establish willfulness. We also note that as neither party has sought review of the penalty,

find that Judge Frye’s assessment is supported by the record. Accordingly, we affirm the

judge’s decision.

Sturm summarized the diary entries in an undated memorandum to CO Coffey. That memo,

however, also states that the information was taken from the daily notes, and Sturm testified

to that effect at the hearing.

/s/

Stuart E. Weisberg

Chairman

/s/

Daniel

Dated: October 31, 1997 Commissioner