THIS CASE IS NOT A FINAL ORDER OF THE REVIEW COMMISSION AS IT IS PENDING COMMISSION REVIEW

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

Appearances:

For Complainant

Elena S. Goldstein, Acting Solicitor of Labor

Oscaar L. Hampton III, Regional Solicitor

M. del Pilar Castillo, Esq.

For Respondent

Mark J. Golen II

Justin M. Michitsch

Before: Chief Administrative Law Judge Covette Rooney

CentiMark Corporation (Respondent or CentiMark) engages in roofing work on a contractual basis. On January 9, 2020, the Occupational Safety & Health Administration (OSHA) began an inspection of one of its worksites located at 870 Riversea Road in Pittsburgh, PA (the “worksite”). As a result of the inspection, on April 24, 2020, the Secretary issued a two-item Citation and Notification of Penalty (Citation) to CentiMark alleging a serious violation of 29 C.F.R. § 1926.501(b)(11) and a repeat violation of 29 C.F.R. § 1926.501(b)(10). (Ex. J-1.)

A hearing was held on April 13 and 14^th, 2021, on a video conference platform. After being granted an extension, the parties filed post-hearing briefs on June 24, 2021, and reply briefs on July 8, 2021.

For the reasons below, the undersigned vacates Citation 1, Item 1 and affirms Citation 1, Item 2 as repeat and assesses a penalty of $48,195.

I.Jurisdiction

The parties stipulated:

1. The Review Commission has jurisdiction in this proceeding pursuant to § 10(c) of the OSH Act, 29 U.S.C. § 651 et seq.

2. Respondent utilizes tools, equipment, machinery, materials, goods and supplies which have originated in whole or in part from locations outside the State of Pennsylvania.

3. Respondent is an employer engaged in a business affecting commerce within the meaning of Sections 3(3) and 3(5) of the OSHA Act, 29 U.S.C. §§ 653(3), (5).

(Tr. 15.) Based upon the record, including the parties’ admission to jurisdiction, the undersigned concludes the Commission has jurisdiction over the parties and the subject matter of this case.

1. Background

Respondent is a commercial roofing company. (Tr. 303.) It was retained to install a new roof at WW Paterson’s (WW’s) facility at 870 Riversea Road in Pittsburgh, Pennsylvania.¹ (Tr. 280; Exs. C-2, C-3.) Rather than a single surface, the facility's top was more akin to four “mini” roofs, with some areas pitched and others having a low slope. (Tr. 44, 212; Exs. J-6, R-1; Stip. 1.)

OSHA Compliance Office Walter Visage (CO) observed a worker on WW’s roof who did not appear to have any fall protection at approximately 8:00 am on January 9, 2020.² (Tr. 34, 47.) The CO was in his car at the time, so he pulled over to observe the worker and started to take pictures. (Tr. 33, 38 43, 97; Ex. J-10.) In addition to the worker on the roof, he also saw several workers engaged in various activities at ground level. (Tr. 35-36, 49, 95.) One man was at the control panel for a crane while others were around the base of the crane bed. (Tr. 35, 50.) Workers were rigging the load for the crane to lift to the roof. (Tr. 50, 58-59, Ex. J-10.) To the CO, it appeared that the worker on the roof was communicating with the employees at ground level. (Tr. 166-67; Ex. C-3.)

The CO noticed a second employee on a different section of the roof, also without fall protection. (Tr. 38.) He was approximately 100 to 125 feet away from the workers during this observation period. (Tr. 97.)

After watching and photographing the workers for about 10 to 15 minutes, the CO opened an inspection and conducted an opening conference. (Tr. 37, 39.) He introduced himself and requested that those working on the roof return to the ground. (Tr. 29.) The workers on the roof were foremen.³ (Tr. 175; Exs. C-4, C-5; Stips. 3-4.) Mr. Kent had been on the steep pitched section of the roof. (Ex. J-10.) He was placing cones for a planned flag line that would demarcate what he considered a safe work area. (Tr. 59-60; Ex. J-10.) Mr. Harmon was on a low-slope roof. (Tr. 60; Exs. J-10, C-3, C-4.) He had gone to the roof to assess locations where he could signal the crane when hoisting materials onto the roof. (Tr. 76; Exs. C-3, C-4.)

The conference was brief, and the CO informed the workers that he would return later to conduct further interviews.⁴ (Tr. 40.) When he returned later the same day, he interviewed three employees and concluded the on-site portion of the inspection. (Tr. 40.) After the site visit, he had a few conversations with CentiMark employees and reviewed further information. (Tr. 40.) A closing conference was held on April 1, 2020.

2. Discussion

To establish a violation of a specific standard, the Secretary must show by a preponderance of the evidence that: (1) the cited standard applies; (2) its terms were violated; (3) the employer knew, or with the exercise of reasonable diligence could have known, of the violative condition; and (4) one or more employees had access to the cited condition.  Astra Pharm. Prods., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981), aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982).

A.Citation No. 1, Item 1

Citation 1, Item 1 alleges that Respondent violated 29 C.F.R. § 1926.501(b)(11), a construction industry fall protection standard. (Ex. J-1.) This standard addresses the use of fall protection on steep roofs:

Each employee on a steep roof with unprotected sides and edges 6 feet (1.8 m) or more above lower levels shall be protected from falling by guardrail systems with toeboards, safety net systems, or personal fall arrest systems.

29 C.F.R. § 1926.501(b)(11). It requires guardrails, safety nets or personal fall arrest systems on all steep roofs higher than six feet unless there are not unprotected edges. Id. A “steep roof” is a roof with a slope greater than 4 in 12 (vertical to horizontal).” 29 C.F.R. § 1926.500(b)(2). The term “unprotected sides and edges” is defined as “any side or edge … of walking/working surface, e.g., floor, roof, ramp … where there is no wall or guardrail system at least 39 inches (1.0 m) high.” 29 C.F.R. § 1926.501(b)(1).

1.Applicability & Violation

Respondent contends that the employees were not engaged in work.⁵ (Resp’t Br. 14.) Alternatively, if they were, they argue that no employee was exposed to the cited hazard. The Secretary disputes both points.

Respondent’s contention that the employees were not engaged in roofing work when the CO arrived is rejected. Approximately two months before the CO arrived, Respondent completed an inspection of the worksite. (Tr. 171.) It had already engaged in the pre-job inspection. Id. Employees had been on site for well over an hour when the CO drove by. (Stips. 3-4; Tr. 180, 262.) The employees were being paid at least from the time of their arrival.⁶ (Tr. 180-83.) They were not sitting around; the employees were working. Before the CO arrived, employees had placed trucks close to roofs, loaded materials onto the crane bed, and completed a “Fall Protection/Safety Work Plan.” (Ex. J-7; Tr. 68, 176, 262-63.) An employee was at the controls for the crane. (Tr. 49-50.) The crane riggers were out, and the boom was elevated. (Tr. 35, 236, 267-68; Ex. J-10.) An employee was directing traffic near the worksite. (Tr. 265-66.) Two employees were also on the roof itself at the time the CO observed the alleged violations. (Exs. J-10; C-4.) Approximately five other employees were working on the ground. (Tr. 36, 49.) As the CO explained, none of the people present were there for “leisure purposes,” they appeared to be “working.” (Tr. 49.)

Respondent acknowledges that its workers, including Mr. Kent, previously inspected the worksite. Still, it contends that January 9, 2020, was designated as the loading day. (Resp’t Br. 20-21.) It argues that employees were not expected to commence removing and replacing the roof. Id.

Respondent ignores that the work being done on January 9^th was integral to the project. The employees were there to engage in tasks necessary to complete the roofing job for which Respondent was retained. (Tr. 167.) As foreman Harmon succinctly explained to the CO on the day of the inspection, “Today we are on site to load our roofing materials so we can roof the building.” (Ex. C-4.) Similarly, foreman Kent indicated he “was going to stage materials on [the roof] and later we would be doing the roof.” (Ex. C-5 at 2.)

The employees were loading materials and setting up a crane. (Tr. 167.) By the time the CO arrived at the worksite, employees had already completed various tasks that were not tangential to the roofing work but required for the roofing work to be completed. (Tr. 170.) They were not retained to do other types of work. Respondent had already completed a worksite inspection, and the workers were present to address the roof. (Tr. 168, 198, 274-75.)

As for the cited standard’s limitation to steep roofs, Respondent acknowledges that Roof 1 falls within the standard’s definition of “steep roof.” (Resp’t Br. 27.) However, unlike many steep roofs, Roof 1 at the worksite only had a single unprotected edge.⁷ (Exs. R-1, R-4; Tr. 66, 270-71, 287-90.) Still, there is no dispute that the pitch of the roof and the unprotected edge triggered the requirements of the cited standard. The cited standard applies.

As for whether there was a violation, Mr. Kent was on Roof 1 when the CO arrived at the worksite. (Tr. 44; Resp’t Br. 6.) The CO observed and photographed him without any type of fall protection on the morning of January 9, 2020. (Tr. 38, 61; Exs. J-10, C-2.) Mr. Kent acknowledged he was not wearing fall protection as he traversed the roof to place the base plates and cones that would later serve as part of a warning line system. (Tr. 169, 270.) Respondent’s Corporate Safety Manager, Michael Litzenberger, also acknowledged that there did not appear to be any fall protection visible in the CO’s photograph of Mr. Kent. (Tr. 312.) The undersigned finds that the cited standard applies and was violated.

2.Knowledge

The Secretary must prove the employer either knew or with the exercise of reasonable diligence could have known of the violative condition. Revoli Constr. Co., 19 BNA OSHC 1682, 1684 (No. 00-0315, 2001). The employer's knowledge is directed to the physical condition that constitutes a violation. Phoenix Roofing, Inc., 17 BNA OSHC 1076, 1079-1080 (No. 90-2148, 1995), aff’d without published opinion, 79 F.3d 1146 (5th Cir. 1996). It is not necessary to show that the employer knew or understood the condition was hazardous. Id.

Knowledge is imputed to the employer “through its supervisory employee.” Am. Eng'g & Dev. Corp., 23 BNA OSHC 2093, 2095 (No. 10-0359, 2012). The formal title of an employee is not controlling. Id. The Commission has imputed the knowledge of crew leaders and foremen. Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2069 (No. 96-1719, 2000); Penn. Power & Light Co. v. Sec’y of Labor, 737 F.2d 350, 357-58 (3d Cir. 1984) (crew leader is a supervisory employee).

Mr. Kent was a foreman at the worksite and indicated that he was “in charge” of the job. (Stip. 4; Tr. 277, 279-80; Ex. C-5.) He knew he was not wearing fall protection and that there were no guardrails. (Tr. 269-79.) He was aware of the unprotected edge. (Tr. 56, 269; Ex. C-5 at 3.) One of Respondent’s safety managers was also on the job site. (Tr. 79; Ex. C-5 at 3.) Respondent had actual knowledge of the violative condition. See Calpine Corp., No. 11-1734, 2018 WL 1778958 (O.S.H.R.C., Apr. 6, 2018) (imputing supervisor’s actual knowledge of hazardous condition), aff’d, 774 F. App’x 879 (5th Cir. 2019) (unpublished); Kokosing Constr., 21 BNA OSHC 1629, 1631 (No. 04-1665, 2006) (imputing foreman’s constructive knowledge to the employer).

3.Exposure to the Cited Condition

To satisfy this element, the Secretary can show actual exposure to the cited condition or that such exposure was “reasonably predictable.” Nuprecon, LP, 23 BNA OSHC 1817 (No. 08-1037, 2012).) To assess whether exposure was reasonably predictable, the Commission looks at whether, either by operational necessity or otherwise (including inadvertence), the employees would be in the “zone of danger.” 23 BNA OSHC at 1818-19. What constitutes the “zone of danger” is determined by the hazard presented by the violative condition. See KS Energy Servs., Inc., 22 BNA OSHC 1261, 1265 (No. 06-1416, 2008) (indicating that the zone of danger is “the area surrounding the violative condition that presents the danger to employees which the standard is intended to prevent”); 23 BNA OSHC at 1919 (finding it reasonably predictable that employee would need to move about his entire work area).

Respondent maintains that the only employee on Roof 1, Mr. Kent, never got close enough to the unprotected edge to be considered having been exposed to the hazardous condition. (Resp’t Br. 27-30.) In its view, Mr. Kent was always far enough away from the unprotected edge, and his work activities could not reasonably be expected to bring him close enough to the unprotected edge to expose him to the hazardous condition. Id. at 29-32.

The CO observed and photographed Mr. Kent from approximately 100 feet away. (Tr. 90, 98, 141-52.) A small parapet wall on the roof slightly obscured his view of Mr. Kent. (Tr. 147; Exs. C-2, C-3 at 4.) “At times,” it appeared to the CO that Mr. Kent was less than six feet away from the unprotected edge. (Tr. 62.) However, the Violation Worksheet indicates that Mr. Kent was “6-7 feet from the edge of the roof” for one minute.⁸ (Ex. C-2 at 2.)

During the inspection and at the hearing, Mr. Kent maintained that he was always at least six feet away from the unprotected edge. (Tr. 62, 226, 273-74, 292-93; Exs. C-2, C-5.) He explained that when the CO observed him, he was in the process of setting up a flag line to demarcate a safe work area that was six to seven feet from the unprotected edge. (Tr. 226; Ex. C-5.) Mr. Kent understood that the flags were not a form of fall protection. (Tr. 271.) Rather, they were to form a warning line as an additional method of limiting exposure to the zone of danger. (Tr. 62, 152-53, 271.) For fall protection, Respondent’s fall protection plan required employees to be attached to a motion-stopping system before their work tasks required entry into the zone of danger by the one unprotected side. (Tr. 281-82, 297; Exs. C-5, R-9.)

To set up the flag warning line, Mr. Kent walked up along one side of the pitched valley on Roof 1, at least six feet from the edge, placed the flag cone, and then walked back down the same side to the bottom of the valley between Roofs 1 and 4. (Tr. 226, 269-70; Ex. C-5.) After completing this task, which took approximately one minute, he moved further away from the unprotected edge. (Tr. 62, 157-58, 227.) The CO acknowledged that he was generally walking straight up and down the pitch to complete his task. (Tr. 153, 155.) He explained that Mr. Kent was not walking on “other areas of the roof” or “going and doing other things.” (Tr. 153-54.) The nature of Mr. Kent’s task did not require him to come closer than six feet to an unprotected edge. (Tr. 271.) Nor was there any debris, cords, or tripping hazards. (Ex. J-10.) Another employee on the roof, Mr. Harmon, corroborated Mr. Kent’s statement that he was always at least six feet from the edge.⁹ (Tr. 226; Ex. C-4.)

The Secretary failed to establish that Mr. Kent got sufficiently close to the unprotected edge or that his work activities could reasonably be expected to bring him within the zone of danger.¹⁰ See Shaw Areva Mox Servs., LLC, 23 BNA OSHC 1821, 1824 (No. 09-1284, 2012) (record did not show that it was reasonably predictable that an adapter would be moved and used in another location). Mr. Kent was to mark a distance sufficiently far enough from the unprotected edge. Cf. Calpine Corp., 774 F. App’x 879, 884-85 (5th Cir. 2019) (unpublished) (assignment made it predictable that worker would access zone of danger). Large other sections of the roof protected the other three sides of Roof 1. (Exs. J-10; R-1.) Respondent’s fall protection plan addressed the possibility that employees would go beyond the warning line system later in the project. (Ex. J-7.) If such a situation arose, employees were to utilize the fall protection equipment that was on-site and being loaded to the roof. Id. Mr. Kent’s activities did not bring him within the zone of danger, nor were they reasonably expected to.

Citation 1, Item 1 is vacated, and no penalty for this item is assessed.

B.Citation 2, Item 1

As mentioned above, the worksite included a series of interconnected roofs. Citation 2 relates to a low sloped area, referred to as Roof 4. (Ex. J-1.) The Secretary alleges that Respondent violated 29 C.F.R. § 1926.501(b)(10), which requires fall protection for roofing work on roofs with a low slope. “Roofing work” is defined at 29 C.F.R. § 1926.500 as “the hoisting, storage, application, and removal of roofing materials and equipment, including related insulation, sheet metal, and vapor barrier work, but not including the construction of the roof deck.” The cited standard requires that “each employee engaged in roofing activities on low-slope roofs, with unprotected sides and edges 6 feet (1.8) or more above lower levels shall be protected ....” 29 C.F.R. § 1926.501(b)(10).

1.Applicability & Violation

After arriving at the worksite, the CO observed Mr. Harmon working or Roof 4. (Tr. 44.) This roof has a low slope and an unprotected edge that is approximately 35 feet above ground level. (Tr. 32, 34-35, 48, 309; Exs. J-10 at 1-8, C-3.) He was not wearing a personal fall arrest system. (Tr. 38, 48; Ex. C-4 at 2.) Nor do the photographs depict another means of fall protection such as guardrails or safety nets. (Exs. J-10, C-3.) Mr. Harmon acknowledges that he came within two to three feet of an unprotected edge without fall protection. (Ex. C-4 at 2.)

Respondent does not dispute that the cited standard requires the use of fall protection on low-sloped roofs such as Roof 4. Instead, it argues that an exception included within Subpart M -Fall Protection (Subpart M) applies to the activities the CO observed.¹¹ 29 C.F.R. § 1926.500 addresses the overall scope and applicability of Subpart M. Generally, Subpart M applies to all construction workplaces. 29 C.F.R. § 1926.500(a)(1). However, its provisions do not apply “when employees are making an inspection, investigation or assessment of workplace conditions prior to the actual start of construction work ....” 29 C.F.R. § 1926.500(a)(1). Respondent claims that Mr. Harmon’s activities fall within the exception’s scope. (Resp’t Br. 17-18.)

The Secretary refutes the exception’s applicability, arguing that it applies only if the “assessment” occurs before the actual start of construction work. (Sec’y Reply Br. 3-7.) He points to Subpart M’s preamble, which specifies that the exception applies only “two times,” before the work commences and “after all work has been completed, and the workers have left the area.” 59 Fed. Reg. 40672, 40675, Safety Standards for Fall Protection in the Construction Industry, (Aug. 9, 1994) (to be codified at 29 C.F.R. pt. 1926). There is no third exception for when materials are being gathered, i.e., there is no “load day” exception to the requirements for fall protection. Id. The exception is narrow; limited to a specific subset of activities (inspection, assessment, or investigation) and to specific points in time (before construction starts or after it concludes). (Sec’y Reply Br. 3-7.)

Respondent argues that Seyforth Roofing Co., 16 BNA OSHC 2031 (No. 90-0086, 1994) supports finding that Mr. Harmon was engaged in a pre-work inspection. (Resp’t Br. 17-18, 21.) Its reliance on Seyforth is misplaced for two reasons. First, the exception the Commission relied upon in Seyforth is materially different from the exception at issue in this case. Subpart M was substantially amended in 1995, roughly six months after Seyforth was decided. See 59 Fed. Reg. 40,672 (discussing the effective date of amended Subpart M). Coincident with the amendment, the exception, which was previously found only in subparagraph (g), was broadened to address fall hazards in construction generally, as opposed to those found on low-pitched roofs during built-up roofing operations. Compare 29 C.F.R. § 1926.500(a)(1) (current) with 29 C.F.R. § 1926.500(g) (amended Feb. 6, 1995).

Second, though the exception was broadened in terms of whom it applied to, it was also narrowed to the extent that it only applied at specific points in time: before the actual beginning of construction and after construction has been completed. 29 C.F.R. § 1926.500(a)(1). In Seyforth, the application of the old exception was limited to certain activities. 16 BNA OSHC at 2033-34. As amended, the exception applicable here added a restriction as to when those activities can occur. 29 C.F.R. § 1926.500(a)(1). Because the Commission in Seyforth did not have to address whether the events occurred before or after construction, its precedential value on the issue of the applicability and scope of 29 C.F.R. § 1926.501(a)(1) limited.¹² See Capeway Roofing Sys., 20 BNA OSHC 1331, 1343 n. 14 (No. 00-1968, 2003) (noting that prior decisions did not govern the outcome when there had been revisions to guidelines at issue), aff’d, 391 F.3d 56 (1st Cir. 2004).

Further, in the present matter, this was not his first time Respondent’s employees were at the worksite. (Tr. 171, 191, 193-94, 230-31, 274-75.) Mr. Kent and his supervisor previously visited the site for 30-60 minutes to conduct a pre-job inspection. (Tr. 274-75.) This work included going onto all four of the mini-roofs that connected to make the whole roof. (Tr. 275.) Mr. Kent acknowledged that he did not wear fall protection during this inspection. Id. He agreed that this was because the inspection visit occurred before work began on the project. Id. The goal of the inspection was to take some measurements and assess the roofs.¹³ (Tr. 275-76.)

In addition, Mr. Harmon, a supervisor and another employee, visited the worksite to inspect the gutter system and to design the work Respondent’s employees would be doing. (Tr. 191, 201, 230-31.) Mr. Harmon acknowledged that this constituted a pre-work “inspection.” (Tr. 190-92, 194, 198.) He indicated it lasted approximately 10-15 minutes and occurred about a week before the “load day.” (Tr. 195, 207.) The Secretary does not allege that the failure to wear fall protection during this inspection supports the Citation. (Sec’y Reply Br. 3-7.) Rather, he argues that this previous site visit was the inspection or assessment that falls within the meaning of the exception. Id. Because the pre-work inspection or assessment had already been completed, Mr. Harmon’s activities on January 9, 2020 should not also be considered pre-work inspection or assessments. Id. Instead, they should be viewed as occurring after the start of work, and therefore fall protection should have been used. Id.

With this pre-job assessment of the roof complete, Respondent fully anticipated that workers would be on the roof on the morning of January 9, 2020, to hoist materials. When the CO arrived, at least two individuals were already on the roof and work at the site had started. (Ex. J-10; Tr. 261-62.) As discussed above, the plan was to load the materials and then work on the roof itself. (Ex. C-5 at 2; Tr. 198, 213.) Mr. Harmon’s activities on January 9, 2020, did not take place “prior to the actual start of construction work,” as is required for the exception to apply. 29 C.F.R. § 1926.500(a)(1). Work at the site had been ongoing for over an hour before he went to the roof to assist with the loading and hoisting of materials.¹⁴ (Tr. 76, 175, 178-79, 185, 233, 261-62.)

Preparatory work is “work” within the meaning of the construction standard. See Capeway, 20 BNA OSHC at 1343-44; Phoenix, 17 BNA OSHC at 1079 (employees had access to the fall hazard when delivering materials). Preparatory work includes staging materials, traveling to the worksite, and walking through roof areas to other work areas. 20 BNA OSHC at 1343 n.17. Placing materials on the roof constitutes “roofing work.”¹⁵ Id. at 1344 n. 19.

Multiple employees were engaged in preparatory work on January 9, 2020. Roofing materials and other equipment were already at the worksite and ready to be moved when Mr. Harmon traveled from the ground to the roof to assist with the hoisting process.¹⁶ (Tr. 50, 58-59, 233; Ex. J-10.) See 29 C.F.R. § 1926.500 (including “hoisting” and “storage” of materials as part of roofing work); Capeway Roofing Sys. Inc., 391 F.3d 56, 61 (1st Cir. 2004) (finding roofing work was being performed). It is not the actual application of roofing material that triggers the requirements of the cited standard; it is the start of work.¹⁷ 20 BNA OSHC at 1343-44.

Mr. Harmon was not engaged in a pre-work assessment. His task was a necessary part of the hoisting process. (Tr. 231-33.) The exception set out in 29 C.F.R. § 1926.500(a)(1) does not cover his activities. The Secretary established that the cited standard applies and was violated.

2.Exposure

Unlike Mr. Harmon on Roof 4, Mr. Kent acknowledges coming within two feet of an unprotected edge. (Tr. 187; Ex. C-4 at 2.) The CO observed and photographed him doing so. (Tr. 57; Exs. J-10, C-3.) Mr. Harmon explained that his work necessitated him getting that close to the edge. (Tr. 187, 232; Exs. C-4, J-10.) He needed to be able to see the crane and could not do so further away. (Tr. 187; Ex. C-4.) The CO also indicated that unlike the relatively straight up and down path Mr. Kent took, Mr. Harmon was walking around the roof, “standing, moving around, doing different things” when he observed him. (Tr. 56-57, 98.)

Although the CO only saw him close to the unprotected edge for two to three minutes, the brevity “does not negate the violation or its seriousness.” See A.J. McNulty & Co., Inc. v. Sec’y of Labor, 283 F.3d 328, 335 (D.C. Cir. 2002) (employers do not have any reasonable time for exposing employees to the risk of harm; whatever compliance method a standard requires must be implemented before putting employees to work); Flint Eng’g & Constr. Co., 15 BNA OSHC 2052, 2056 (No. 90-2837, 1992) (brief exposure does not preclude finding a violation or its seriousness). It only takes a moment for someone to lose their footing and move beyond the unprotected edge. 15 BNA OSHC at 2056; Gate Precast Co., No. 15-1347, 2020 WL 2141954 (No. 15-1347, Apr. 28, 2020) (affirming a violation of the fall protection requirements when it was “reasonably predictable that this employee could have fallen off the roof after being knocked off-balance …, or by inadvertently straying toward the unprotected edge …”). The Secretary established exposure to the violative condition.

3.Knowledge

As for knowledge, Mr. Harmon and Mr. Kent were both supervisors, and both were on the roof without fall protection.¹⁸ (Tr. 85; Exs. C-2, C-4.) A supervisor’s awareness of a hazardous condition is sufficient to attribute that knowledge to his or her employer. Globe Contractors v. Herman, 132 F.3d 367, 373 (7th Cir. 1997) (foreman’s awareness of violations properly attributed to the employer). In addition, the safety manager (Mr. George) was on the ground observing Mr. Harmon when he was on the roof. (Exs. J-10A; C-5 at 3; Tr. 179.)

Mr. Harmon went to the roof without any tools or fall protection equipment. (Ex. C-4.) His lack of fall protection was readily observable. (Exs. J-10, C-3.) While he and others had fall protection equipment and tools at the worksite, Mr. Harmon brought nothing with him to the roof. (Tr. 177.) Instead, he placed his safety materials on the crane bed rather than carry them to the roof. (Tr. 177-78.)

The Secretary made out a prima facie case, establishing the cited standard’s applicability, its violation, employee exposure to the hazardous condition, and Respondent’s knowledge of the hazardous condition.

4.CentiMark’s Affirmative Defenses

CentiMark raises two affirmative defenses: feasibility and greater hazard.¹⁹ (Resp’t Br. 21-24.) The Secretary argues that it failed to establish either one. (Sec’y Reply 7-11.) The undersigned agrees.

a)Infeasibility Defense

To establish this defense, the proponent must prove: (1) means of compliance prescribed by the standard are technologically or economically infeasible, and (2) there are no feasible alternative means of protection. V.I.P. Structures, Inc., 16 BNA OSHC 1873, 1874 (No. 91-1167, 1994). Respondent failed to establish either element.

Mr. Harmon acknowledged that he could have, and previously had, carried a fall protection harness to a roof, i.e., it was not necessary to have the crane lift such materials. (Tr. 237.) As for installing an anchor point to connect the harness to, Mr. Harmon argued that this would require a power generator. Id. Neither he, nor anyone else explained why a manual screwdriver could not have been used.²⁰

Critically, Mr. Kent was able to install an anchor point later during the project (albeit in a different area of the roof) without a power source. (Tr. 272.) Doing so did not require him to make any modifications to the roof. Id. He acknowledged that it was possible to install an anchor point on January 20, 2020, when the CO observed him (i.e., before the crane had loaded anything onto the roof). Id. His testimony shows that it was possible to “screw a plate into the roof” when Mr. Harmon came to the edge of the roof to view the crane. Id. Compliance with the standard was neither technologically nor economically infeasible.

Respondent simply states, without support, that the other methods were not “practical” or technologically possible. (Resp’t Br. 22.) This is not enough to satisfy the requirements of the affirmative defense.²¹ A.J. McNulty & Co., Inc. v. Sec’y of Labor, 283 F.3d 328, 334 (D.C. Cir. 2002) (impracticality is not the test; the employer must show that it either “used alternative means of protection or that such means were infeasible”). Respondent failed to show it was infeasible for Mr. Harmon to have carried up screws and installed an anchor point. Nor did it show that any of the other methods permitted by the cited standard were technologically or economically infeasible. See R.G. Friday Masonry, Inc., 17 BNA OSHC 1070, 1072 (No. 91-2027, 1995) (rejecting employer's infeasibility claim because it failed to prove that it could not have used safer alternatives). “Before an employer will be excused from ignoring a standard’s requirement and leaving its employees unprotected, it must show that it has explored all alternate forms of protection.” State Sheet Metal Co., 16 BNA OSHC 1155 (No. 90-1260, 1993) (finding defense was not met.)

b)Greater Hazard

Respondent also argues that complying with the cited standard would have created a greater hazard. (Resp’t Br. 23-24.) The greater hazard defense has three core elements. The proponent of the defense must show: (1) compliance with the standard would create greater hazards than non-compliance; (2) alternative protective measures were taken or were not available; and (3) a variance application is inappropriate. E & R Erectors, Inc. v. Sec’y of Labor, 107 F.3d 157, 163-64 (3d Cir. 1997). Respondent failed to carry its burden.

As discussed, Mr. Harmon claimed he could not have installed an anchor plate or otherwise tied off when he went to the roof. His colleague, fellow foreman, Mr. Kent indicated that it was possible to screw an anchor plate into the roof at that time. (Tr. 272.) Further, at best, Mr. Harmon’s statement goes to feasibility, not whether using fall protection would create a greater hazard than non-compliance or the practicality of a variance application.²² Respondent failed to establish the first element of the defense.

Nor did Respondent show that alternative protective measures were taken or were not available. State Sheet, 16 BNA OSHC at 1159-60. Respondent claims, without record support, that compliance would have involved longer periods of time working at the edge. (Resp’t Br. 24.) However, it does not explain why an anchor point would have to be installed at the edge or why its use would have necessitated coming within six feet of the edge.

In terms of alternative protection, Respondent alleges another employee, Mr. Glass, was on the roof and argues he was acting as a safety monitor. Id. Respondent did not call Mr. Glass to testify.²³ He did not sign Respondent’s fall protection plan. (Ex. J-7.) OSHA’s violation worksheet indicates that Mr. Harmon was alone, and Mr. Glass does not appear in any of the CO’s photographs. (Exs. J-10, C-3 at 2; Tr. 244.) Only Mr. Harmon testified as to his presence at the worksite.²⁴ (Tr. 214.)

Importantly, on January 20, 2020, neither Mr. Kent nor Mr. Harmon referred to his presence, let alone his alleged role as a safety monitor. (Exs. C-4, C-5; Tr. 243.) At that time, Mr. Harmon told the CO he was alone on the roof.²⁵ (Tr. 77; Exs. C-3, C-4.) This statement was given closer to the actual events and is supported by photographic evidence. (Exs. C-4; J-10.) The undersigned gives it greater weight than Mr. Harmon’s self-serving statement at the hearing that Mr. Glass was acting as a safety monitor. (Tr. 214, 216, 239.) Further, as Mr. Harmon acknowledged, he was not using a “safety monitor” as fall protection.²⁶ (Tr. 242.)

Finally, Respondent has not shown that a variance was unavailable or inappropriate.²⁷ See Altor, Inc., 23 BNA OSHC 1458, 1470 (No. 99-0958, 2011) (rejecting greater hazard defense to a fall protection violation because the employer did not provide an explanation for not seeking a variance), aff’d, 498 F. App’x 145 (3d Cir. 2012) (unpublished).

5.Characterization

The Secretary alleges that Citation 2, Item 1, should be characterized as serious and repeat, within the meaning of 29 U.S.C. § 666(k). (Ex. C-3.) Respondent challenges only the repeat characterization.

The CO explained that the hazard involved a 30–40-foot fall from the roof to the concrete surface below. (Tr. 84-85.) Such an occurrence would likely result in permanent disability or possibly death. (Tr. 85; Ex. C-3.) See Sec’y of Labor v. Trinity Indus., 504 F.3d 397, 401 (3d Cir. 2007) (a violation is serious if, were an accident to occur, death or serious injury could result); Merchant’s Masonry, Inc., 17 BNA OSHC 1005, 1007 (No. 92-424, 1994) (finding that a fall from 18 feet was likely to cause serious injuries). The undersigned agrees that the violation was serious.

Turning to the repeat characterization, a violation is considered repeat “if, at the time of the alleged violation, there was a Commission final order against the same employer for a substantially similar violation.” Reich v. D.M. Sabia, Co., 90 F.3d 854, 856 (3d Cir. 1996). The Secretary may establish substantial similarity by showing that the violations are of the same standard.²⁸ Monitor Constr. Co., 16 BNA OSHC 1589, 1594 (No. 91-1807, 1994). The burden then shifts to the other party to rebut the Secretary’s prima facie showing of similarity. Potlach Corp., 7 BNA OSHC 1061, 1063 (No. 16183, 1979). “[T]he principle factor in determining whether a violation is repeated is whether the two violations resulted in substantially similar hazards.” Id. at 1065. The seriousness of the hazard involved in the two violations need not be the same. John R. Jurgensen Co., 12 BNA OSHC 1889 (No. 83-1224, 1986), aff’d, 872 F.2d 1026 (6th Cir. 1989).

To support his classification, the Secretary points to a citation issued to Respondent on January 19, 2018, concerning a violation of the same standard at issue here, 29 C.F.R. § 1926.501(b)(10).²⁹ (Tr. 308-9.) The violation concerned a failure to provide fall protection to employees working on a low-sloped roof. Id. Like the present matter, the prior citation also had the same means of abatement (use of guardrails, safety nets, or personal fall arrest systems). (Tr. 87.) This prior citation became a final order on February 8, 2018, when Respondent executed a settlement agreement on that date. (Stip. 4; Ex. C-3.)

Respondent argues that even though the same standard was cited, the “scenario” was different such that the violation should not be characterized as repeat. As the Secretary points out, the focus is on the similarity of the hazards, not the factual situation that led to the hazard’s creation. See Amerisig Se., Inc., 17 BNA OSHC 1659, 1661, 1995-97 (No. 93-1429, 1996) (violation repeat because it involved the same standard and the hazard of being caught in unguarded machinery), aff'd, 117 F.3d 1433 (11th Cir. 1997). Geographic differences, commonality of supervisory control, or the employer’s attitude are not relevant to the characterization assessment. Midwest Masonry, Inc., 19 BNA OSHC 1540, 1542 (No. 00-322, 2001); J.L. Foti Constr. Co. v. Sec’y of Labor, 687 F.2d 853, 857 (6th Cir. 1982) (“substantial similarity” is determined “with reference to the similarity of the ‘violative elements’ of the infractions”).

Both matters concerned employees working on low sloped roofs without fall protection. (Tr. 308-9.) Respondent attempts to differentiate the two matters by arguing that employees involved in the prior citation had been working at the site for several weeks, while the present matter concerned an employee conducting an inspection. (Tr. 307.)

At best, this distinction goes to the applicability of the cited standard, not whether the violation is appropriately characterized as repeat. Further, as discussed, the undersigned finds that this distinction is without merit. Employees at both sites were engaged in construction work on low-sloped roofs. See Midwest, 19 BNA OSHC at 1542 (language of successor standard was substantially similar, and the hazard was the same).

Respondent’s reliance on Wynnewood Refining, Inc., No. 13-0644, 2019 WL 1466257 (O.S.H.R.C. Mar. 28, 2019), aff’d, 978 F.3d 1175 (10th Cir. 2020) is misplaced. (Resp’t Br. 25.) Wynnewood concerned a successor corporation, not the same corporation being cited for violating the same standard. 2019 WL 1466257, at *2-3, 8-9 (predicate violations were committed by a different entity when it was a subsidiary of a different parent company). Nor do the unreviewed ALJ cases Respondent cites merit a different outcome. (Resp’t Br. 26-27.) In both Nabors Drilling USA, LP, 25 BNA OSHC 1104 (No. 11-2026, 2014) (ALJ) and Mondo Constr. Co., LLC, 25 BNA OSHC 1285 (No. 13-1322, 2014) (ALJ), the ALJs were confronted with citations based on different standards and different hazards. In contrast, the present matter concerns the same hazard and the same standard.

The lack of fall protection while in such a work environment is the “violative element,” supporting a finding of substantial similarity between the prior citation for violating 29 C.F.R. §1926.501(b)(10) and the present Citation for violating the same standard. See J.L. Foti, 687 F.2d at 856-57; Lake Erie Constr. Co., Inc., 21 BNA OSHC 1285, 1289 (No. 02-0520, 2005) (affirming a repeat classification because they involved the same standard and fall hazard); Monitor Constr. Co., 16 BNA OSHC 1589, 1598 (No. 91-1807, 1994) (holding that the Secretary can establish substantial similarly to support a repeat classification by showing similar hazard and means of abatement). The violation is appropriately characterized as repeat.

6.Penalty Amount

While it challenged whether there was a violation and the characterization of any violation, Respondent did not raise any specific challenges to the proposed penalty amount itself. To determine the appropriate penalty, the Commission considers: (1) the size of the business, (2) the violation’s gravity; (3) the employer’s good faith, and (4) the employer’s violation history. 29 U.S.C. § 666(j). Gravity is generally the primary factor to be considered. Orion Constr., Inc., 18 BNA OSHC 1867 (No. 98-2014, 1999).

Respondent is a large employer with approximately 3,500 employees. (Tr. 303.) The parties agree that a reduction for size is not appropriate, and the undersigned agrees. See S&G Packaging Co., LLC, 19 BNA OSHC 1503, 1508 (No. 98-1107, 2001) (no reduction given for large employer with 279 employees).

Turning to the violation’s gravity, the Secretary argues that one person was exposed but acknowledges that the exposure was approximately two minutes.³⁰ (Ex. C-3.) Mr. Harmon was moving about the roof and sometimes was further away from the exposed edge. (Tr. 57; Ex. C-3.) Despite the brevity of the exposure, a slip or fall could result in severe injury or death because of the building’s height. (Tr. 81-83; Ex. C-3.) See Sec’y of Labor v. Trinity Indus., 504 F.3d 397, 401 (3d Cir. 2007); Merchant’s, 17 BNA OSHC at 1007 (finding that a fall from 18 feet was likely to cause serious injuries).

Looking next at history and good faith, the Secretary argues that the evidence does not support a reduction for either of these factors. As discussed, Respondent had previously been cited for violating the same standard less than two years before the inspection that led to the present Citation. (Ex. C-3 at 1.) Respondent had a safety program and safety equipment on site. (Tr. 222, 267, 279, 302; Ex. J-7.)

Upon due consideration of section 17(j) of the Act, with due regard given to the enumerated penalty calculation factors, the undersigned finds a penalty of $48,185 is appropriate.

ORDER

The foregoing Decision constitutes the Findings of Fact and Conclusions of Law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Based upon the foregoing Findings of Fact and Conclusions of Law, it is Ordered that:

1. Citation 1, Item 1, alleging a serious violation of 29 C.F.R. § 1926.501(b)(11) is VACATED and no penalty is assessed.

2. Citation 2, Item 1 alleging a serious and repeat violation of 29 C.F.R. § 1936.501(b)(10) is AFFIRMED and a penalty of $48,195 is ASSESSED.

SO ORDERED.

/s/Covette Rooney

Dated: September 27, 2021 COVETTE ROONEY

Washington, D.C. Chief Judge, OSHRC