Fillable OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION United States (Occupational Safety & Health Review Commission)

Fill Online, Printable, Fillable, Blank OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION United States (Occupational Safety & Health Review Commission) Form

Use Fill to complete blank online OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION (DC) pdf forms for free. Once completed you can sign your fillable form or send for signing. All forms are printable and downloadable.

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION United States (Occupational Safety & Health Review Commission)

On average this form takes 16 minutes to complete

The OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION United States (Occupational Safety & Health Review Commission) form is 36 pages long and contains:

0 signatures
0 check-boxes
64 other fields

Country of origin: US
File type: PDF

U.S.A. forms for Occupational Safety & Health Review Commission

BROWSE OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION (DC) FORMS

Fill has a huge library of thousands of forms all set up to be filled in easily and signed.

Fill in your chosen form

Sign the form using our drawing tool

Send to someone else to fill in and sign.

find another form

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

OSHRC DOCKET NO. 16-0094

3-D BUILDERS, LLP,

Respondent.

Appearances:

Oscar L. Hampton III, Esq., Regional Solicitor, Judson H. Dean, Esq., Office of the

Regional Solicitor, Philadelphia, PA

For the Complainant

Shawn Davis, pro se

3-D Builders, LLP, Morgantown, WV 26508

For the Respondent

Before: Carol A. Baumerich

Administrative Law Judge

DECISION AND ORDER

Respondent 3-D Builders, LLP (Respondent or 3-D Builders) is a business engaged in

construction activities. Following an anonymous complaint, the Occupational Safety and Health

Administration (OSHA) inspected Respondent’s residential construction worksite in Morgantown,

West Virginia. The result of the inspection was a one-item serious citation, with subparts, a one-

item willful citation, and a notification of penalty (citation), alleging violations of the OSHA’s

construction standards regarding ladders, 29 C.F.R. § 1926.1053(b)(1), and fall protection required

for employees engaged in residential construction activities, 29 C.F.R. § 1926.501(b)(13).

Respondent 3-D Builders timely contested the citation, bringing the matter before the

Occupational Safety and Health Review Commission (Commission) pursuant to section 10(c) of

the Occupational Safety and Health Act of 1970, 29 U.S.C. § 659(c) (the Act). A hearing

was

held in Pittsburgh, PA on January 25, 2017.

The Secretary was represented by counsel at the

hearing. No Respondent representative attended or participated in the hearing. (Tr. 4-6). The

Secretary filed a post-hearing brief. Respondent did not file a post-hearing brief.

For the following reasons, the serious citation 1, item 1(a)

and willful citation 2, item 1

are affirmed and a total penalty of $16,000 is assessed.

BACKGROUND

The OSHA Inspection.

On Wednesday, November 18, 2015, the OSHA Charleston, West Virginia, Area Office

received an anonymous complaint about possible hazardous conditions at a worksite in

Morgantown, West Virginia. OSHA Compliance Safety and Health Officer (CO) Anthony Milam

was assigned to travel to the worksite and conduct an inspection. The CO arrived at the worksite,

located at 709 McKinley Avenue, Morgantown, West Virginia, around 12:00 p.m. (noon). Upon

arrival, before leaving his vehicle, the CO took several photographs of the construction worksite,

a two-story house, and the two workers located on the front porch roof. The residential construction

job in progress was the removal of an old shingle roof and installation of a new roof, on the porch

and main house. (Tr. 22-23, 25-33, 46-48, 61-62, 75-76; Exs. C-2, C-3, C-4, C-5).

After parking his vehicle, the CO approached a man standing on the worksite grounds. The

CO presented his credentials and explained that OSHA had received a complaint regarding

possible hazards at the worksite. The man identified himself as Shawn Davis, the company owner.

Mr. Davis said the company’s name was 3-D Builders. A copy of the complaint OSHA received

was provided to Mr. Davis. The CO took additional photographs, including a photo of two workers

on the house back roof. (Tr. 34-38, 40-41; Exs. C-1, C-6, C-7, C-8).

The transcript is amended to reflect the corrections listed on the attached errata sheet.

Several prehearing Notices and Orders, issued in this proceeding, were received in evidence as

hearing exhibits. In this decision, they are designated Ex. ALJ-1 though Ex. ALJ-7(a). (Tr. 7-9).

At the hearing, the Secretary withdrew serious citation 1, item 1(b), alleging a violation of 29

C.F.R. § 1926.1060(a), training requirements for employees using ladders. (Tr. 61). Accordingly,

serious citation 1, item 1(b) is vacated.

Shawn Davis is identified in the decision as Mr. Davis, Respondent owner, 3-D Builders’ owner,

or Respondent’s representative.

The CO asked Mr. Davis to have his employees come down off the roof, so he could speak

with them. At approximately 12:45 – 1:00 p.m., the CO observed three workers use the ladder,

located at the right front corner of the house, to come down from the roof.

(Tr. 34-35, 65, 79-80).

Two of the workers who came down from the roof were the workers the CO had photographed on

the back roof. (Tr. 41). The CO briefly spoke to the three workers: Jacob Davis, Timothy Dalton,

and Casey Barnett. (Tr. 38-39).

The CO interviewed 3-D Builders’ owner while they stood on the residence driveway.

During the interview, the CO recorded the information Mr. Davis provided on a witness statement

form.

During the interview Mr. Davis stated that the job began on Monday. The job involved

removing the shingle roof from the residence. They worked Monday, all day Tuesday, and that

day, Wednesday, beginning at 7:00 a.m. They finished the main roof on Tuesday. Respondent

owner Davis estimated that the “porch roof is about 3/12 and the main roof is about 10/12.”

Mr.

Davis said the “porch roof is 11-13 feet high and the main roof is about 20-22 feet high.” Mr.

Davis told the CO that 3-D Builders was subbing for Lynn Wood Company; and that Mr. Lynn

Wood didn’t say anything about fall protection. Mr. Davis said he had never been inspected by

OSHA. Mr. Davis said that he knows that fall protection is required for any work over six feet.

He stated that they were not wearing fall protection on this worksite. Mr. Davis confirmed that

the only way to access the roof was to use the extension ladder, which was located at the right

front corner of the house. (Tr. 39, 44-45, 48, 57, 65, 78-79; Ex. C-1).

The Secretary contends that the evidence supports a finding that on the day of the inspection,

Respondent’s owner Mr. Davis also worked on the roof. And further, that the evidence discloses

that there were four 3-D Builders workers on the inspected worksite, including Mr. Davis, exposed

to the hazards alleged. (Sec’y Br. at 2-3). I agree. Photographs taken during the inspection, within

a short time-frame, disclose four workers on the roof. (Tr. 80).

Great weight is given to the admissions recorded in Mr. Davis’ signed OSHA interview

statement. See Fed.R.Evid. 801(d)(2)(D). While interviewing Mr. Davis at the inspection

worksite, the CO recorded his statements contemporaneously. Mr. Davis reviewed, signed, and

dated the statement. (Tr. 41-44, 79; Ex. C-1). The accuracy of the statement is unrebutted.

The CO testified that Mr. Davis’ statement that the “porch roof is about 3/12 and the main roof

is about 10/12,” was an estimate of the roof slope. In comparison, a 12/12 sloped roof would be

almost vertical, a 1/12 sloped roof would be flat. On this residential worksite, the main roof of the

house had a steeper slope. (Tr. 45-46; Ex. C-4). The slope of the back roof, where employees

were photographed using the scraper, was approximately 3/12. (Tr. 67).

During the inspection, the CO measured the height of the porch roof to the ground to be

approximately ten feet high. He measured the height of the main roof, from the roof peak to the

ground, to be approximately twenty to twenty-two (20 to 22) feet high. (Tr. 52-53, 63; Ex. C-4).

Prehearing Pleadings and Discovery

The Secretary filed the complaint in this case, attaching as exhibits the citation and

Respondent’s January 5, 2016 notice of contest. Respondent’s answer, filed on May 27, 2016,

was a copy of Respondent’s notice of contest, with several attached exhibits. As instructed by the

undersigned judge, Respondent’s representative Mr. Davis filed a more specific answer on July

12, 2016.

Respondent’s notice of contest generally contests the violations alleged in the citation and

the penalties proposed. Respondent’s notice of contest and answers specifically contend that 3-D

Builders is not an LLP, rather it is a general partnership with no employees.

(Tr. 13). In

Respondent’s more specific answer, Mr. Davis added that 3-D Builders Partnership was a

subcontractor of Lynn Wood Company of Morgantown, on this worksite.

Respondent’s notice of contest, answer, and more specific answer are set forth in the October 26,

2016 Order granting the Secretary’s Motion to Compel discovery responses (Order compelling

discovery). (Ex. ALJ-5). The Order compelling discovery, at pages 2 – 4, describes the exhibits

attached to Respondent’s answer.

The exhibits attached to Respondent’s answer are a part of the answer for all purposes. See

Commission Rule 30(d); 29 C.F.R. § 2200.30(d). While a part of the Respondent’s answer, setting

forth Respondent’s defenses, these exhibits have not been considered in this decision. These

pleading exhibits are accorded no weight. As stated in the Order compelling discovery, at page 4,

many questions are raised by Respondent’s notice of contest, answers, and attached exhibits. (Ex.

ALJ-5). As Respondent did not comply with the Order compelling discovery, the questions raised

remain unanswered.

Respondent contends in its notice of contest and answers that Shawn Davis, Jacob Davis,

Timothy Dalton, and Casey Barnett have a written partnership agreement, they are registered

through the State of West Virginia as a general partnership, they are exempt from workers’

compensation because they are a partnership with no employees, and they file a general partnership

tax return. In Respondent’s more specific answer, Mr. Davis reiterated Respondent’s contention

that 3-D Builders Partnership is not an LLP. Respondent contends that OSHA has no regulations

on a partnership. Respondent contends that every 3-D Builders partner is self-employed and that

3-D Builders has no employees.

See Order compelling discovery. (Ex. ALJ-5).

Throughout this proceeding, Respondent owner Mr. Davis has self-represented

Respondent.

During prehearing conference calls and in prehearing Notices and Orders, Mr.

Davis was reminded that, as Respondent’s representative, he must comply with all requirements

relating to these proceedings, including participating in telephone conference calls, filing and

serving appropriate papers, and timely responding to discovery requests. The importance of active

participation in the prehearing discovery process, including the importance of timely serving and

responding to discovery requests, was emphasized. Mr. Davis was advised that if Respondent did

not respond to the Secretary’s discovery requests by either answering each request, providing the

document(s) requested, or stating an objection to each request or document, the Commission Rules

provide that discovery sanctions may be ordered. Mr. Davis was firmly cautioned that

Respondent’s failure to cooperate in the prehearing discovery process may result in Respondent

being sanctioned.

(Tr. 13-14).

In August 2016, counsel for the Secretary served two discovery requests on Respondent:

Complainant’s first set of Requests for Admissions and Complainant’s first set of Requests for

Production of Documents. Respondent answered the requests with handwritten discovery

responses that were summary, incomplete, and without affirmation. Respondent provided no

documents in response to the Secretary’s request for documents.

Following receipt of

See July 29, 2016 Notice of Hearing, Scheduling Order and Special Notices (Ex. ALJ-1) (Tr.

12-13). During prehearing conference calls and in prehearing Notices and Orders, Mr. Davis was

advised that the Commission Rules provide that in proceedings before the Commission any party

may appear in person (self-represented), through an attorney, or through another representative

who is not an attorney. See Commission Rule 22; 29 C.F.R. § 2200.22. (Tr. 14).

See July 29, 2016 Notice of Hearing, Scheduling Order and Special Notices (Ex. ALJ-1);

September 22, 2016 Order (Ex. ALJ-2); October 26, 2016 Order compelling discovery (Ex. ALJ-

5); November 14, 2016 Notice of Rescheduled Hearing, and Notice of Prehearing Conference

Calls, and Revised Scheduling Order (Ex. ALJ-4); and November 17, 2016 Notice of Rescheduled

Hearing and Order (Ex. ALJ-3).

Respondent’s handwritten responses to the Secretary’s Requests for Admissions were without

affirmation and incomplete. Respondent’s handwritten, summary, responses to the Secretary’s

Requests for the Production of Documents were also incomplete. Respondent provided no

documents in response to the Secretary’s discovery request. Respondent referenced the documents

Respondent attached to its answer. Respondent did not state a legal objection to providing the

documents requested. Respondent specifically stated its refusal to provide certain documents,

including bank account statements, complete federal and state tax returns, and documents

regarding vehicle ownership. See Order compelling discovery, pp. 6-12 (Ex. ALJ-5). (Tr. 16-17).

Respondent’s incomplete discovery responses, counsel for the Secretary filed a Motion to Compel.

(Tr. 14-15).

On October 26, 2016, an Order issued granting the Secretary’s Motion to Compel (Order

compelling discovery). (Ex. ALJ-5). Respondent was directed to provide the responsive

documents requested by the Secretary and supplement Respondent’s answers and responses to the

Secretary’s discovery requests. The actions Mr. Davis needed to take, as Respondent’s

representative, to comply with the Order compelling discovery, were outlined in specific detail.

A conference call was held on November 16, 2016, during which the actions Respondent

needed to take to comply with the Order compelling discovery were explained to Mr. Davis.

Respondent was granted an extension of time to provide the discovery documents and responses

to counsel for the Secretary as ordered. During the call, the parties agreed to the rescheduled

January 2017 hearing dates.

(Tr. 15).

Thereafter, Respondent failed to comply with the Order compelling discovery. Respondent

did not provide the supplemental discovery responses as ordered. Respondent did not provide the

requested discovery documents as ordered.

(Tr. 15).

Discovery Sanctions Motion and Order to Show Cause

Pursuant to Commission Rule 52(f), on December 1, 2016, the Secretary filed a Motion

requesting discovery sanctions as Respondent failed to comply with the Order compelling

discovery (Motion for sanctions). The Secretary’s Motion requested narrowly tailored sanctions

directed to Respondent’s failure to comply. Respondent did not file a written response to the

Secretary’s Motion.

An Order to show cause issued, directing Respondent to file a written Response to the

Secretary’s Motion for sanctions, on or before January 6, 2017.

Respondent did not file a written

Response. (Tr. 10-11).

Discovery Sanctions Discussion

Well established Commission policy is to decide cases based on their merits, rather than

on procedural flaws. The Commission consistently has held that dismissal of a party’s case is too

See November 17, 2016 Notice of Rescheduled Hearing and Order. (Ex. ALJ-3).

See Order to show cause. (Ex. ALJ–5).

See December 19, 2016 Order to show cause. (Exs. ALJ-5, 5(a)).

harsh a sanction for failure to comply with certain prehearing orders, absent evidence of prejudice

to the opposing party, contumacious conduct by the noncomplying party, and/or a pattern of

disregard for Commission Rules by the noncompliant party. See Stone & Webster Constr., Inc.,

23 BNA OSHC 1939, 1943-44 (No. 10-0130, 2012)(consolidated); Sealtite Corp., 15 BNA OSHC

1130, 1133 (No. 88-1431, 1991); Duquesne Light Co., 8 BNA OSHC 1218, 1222-23 (No. 78-

5034, 1980)(consolidated).

The Commission Rules provide for prehearing discovery by the parties, including requests

for document production and requests for admissions. See Commission Rules 52, 53 and 54; 29

C.F.R. §§ 2200.52, 2200.53, 2200.54. Cooperation by the parties during the prehearing discovery

process is anticipated. Commission Rule 52(f) provides for the imposition of sanctions when a

party refuses or obstructs discovery.

A Commission hearing judge may impose any sanction stated in Fed.R.Civ.P. 37 for failing

to comply with a discovery order; however, the sanction imposed must not be “too harsh under the

circumstances of the case.” St. Lawrence Food Corp., 21 BNA OSHC 1467, 1472 (No. 04-1734,

2006)(consolidated).

The Commission has held that the “extreme sanction” of the “exclusion of critical

evidence” to a party’s case, may be appropriate where a party has “willfully deceived” the

Commission Rule 52(f), 29 C.F.R. § 2200.52(f), states:

Failure to cooperate; Sanctions. A party may apply for an order compelling

discovery when another party refuses or obstructs discovery. For purposes of this

paragraph, an evasive or incomplete answer is to be treated as a failure to answer.

If a Judge enters an order compelling discovery and there is a failure to comply

with that order, the Judge may make such orders with regard to the failure as are

just. The orders may issue upon the initiative of a Judge, after affording an

opportunity to show cause why the order should not be entered, or upon the motion

of a party. The orders may include any sanction stated in Federal Rule of Civil

Procedure 37, including the following:

(1) An order that designated facts shall be taken to be established for purposes of

the case in accordance with the claim of the party obtaining that order;

(2) An order refusing to permit the disobedient party to support or to oppose

designated claims or defenses, or prohibiting it from introducing designated

matters in evidence;

(3) An order striking out pleadings or parts thereof, or staying further proceedings

until the order is obeyed; and

(4) An order dismissing the action or proceeding or any part thereof, or rendering

a judgment by default against the disobedient party.

Commission or “flagrantly disregarded” a Commission order. Jersey Steel Erectors, 16 BNA

OSHC 1162, 1166 (No. 90-1307, 1993). See Architectural Glass & Metal Co., 19 BNA OSHC

1546, 1547 (No. 00-0389, 2001). When reviewing a sanction order regarding the exclusion of

evidence, the Commission considers whether the party against whom the evidence is being offered

has been prejudiced in preparing or presenting its case by the conduct of the noncomplying party

and whether the noncomplying party’s conduct was contumacious. Jersey Steel Erectors, 16 BNA

OSHC at 1166-67. See also Duquesne Light Co., 8 BNA OSHC at 1222-23; Sealtite Corp., 15

BNA OSHC at 1134 (A consistent pattern of failure to comply with Commission Rules and with

judge’s orders, delaying a proceeding, constitutes contumacious conduct.).

The Commission has an obligation to provide all parties to a case with an opportunity to

for a “full, fair, and equal opportunity to be heard.” Choice Elec. Corp., 14 BNA OSHC 1899,

1900-01 (No. 88-1393, 1990). The Commission recognizes that employers who participate in

proceedings before the Commission self-represented, without an attorney, may require additional

consideration as they may not be knowledgeable about the Commission’s procedural requirements

and legal procedures. Id.; Sealtite Corp., 15 BNA OSHC at 1133-34.

The Commission hearing judge has broad discretion to decide whether sanctions should be

ordered. See Architectural Glass & Metal Co., 19 BNA OSHC at 1547 Jersey Steel Erectors, 16

BNA OSHC at 1165; Sealtite Corp., 15 BNA OSHC at 1134; Duquesne Light Co., 8 BNA OSHC

at 1222.

The Commission Rules and Federal Rules of Civil Procedure provide an opportunity for

all parties to engage in prehearing discovery. Prehearing discovery enables the parties to a

proceeding to gather the information and evidence on which the Secretary’s citations and

Respondent’s defenses are based. With the information received in discovery each party’s

understanding of the case increases, enabling each party to evaluate the relative strengths and

challenges of their case and of their opponent’s case. In many cases, this increased understanding

facilitates settlements. Unfortunately, in this case, the opportunity for prehearing discovery to

increase the Secretary’s understanding of Respondent’s defenses was lost. Respondent failed to

fully respond to the Secretary’s discovery requests in a meaningful manner and Respondent

refused to comply with the undersigned judge’s Order compelling discovery.

In this case, I find Respondent’s consistent pattern of failing to comply with the

undersigned’s Orders constitutes contumacious conduct. These Orders include the Order

compelling discovery, the Order to show cause, the Notice of Rescheduled Hearing and Order

directing the parties to file a prehearing statement, participate in a prehearing conference call, and

attend the scheduled hearing.

(Tr. 19-21).

A party is prejudiced if the opposing party’s failure to fully respond to discovery requests

impairs the requesting party’s ability to determine the facts and merits of the opposing party’s

claims or defenses. I find that Respondent’s conduct, in refusing to comply with the Order

compelling discovery, prejudiced the Secretary in the preparation of the Secretary’s case to address

and rebut the defenses raised by Respondent.

Respondent contends that it is a partnership in which every partner is self-employed, that

Respondent has no employees, and that OSHA has no regulations on a partnership.

These

defenses are raised by Respondent in its notice of contest and answers. Therefore, an issue in this

proceeding is the employment status of the individuals working with Respondent at the inspected

worksite. As stated in the Order compelling discovery, several of the documents requested by the

Secretary are relevant to the employment status of the individuals working with Respondent,

including bank account statements, completed federal and state tax returns, documents regarding

vehicle ownership, training programs, payroll records, and work hours, among others. Respondent

refused to produce to the Secretary documents regarding the employment indicia of the individuals

working with Respondent at the time of the OSHA inspection. (Tr. 16-17). Respondent has not

articulated a legal basis for its refusal to produce the documents.

Respondent’s representative Mr. Davis participated in prehearing conference calls on July 1,

July 25, August 26, September 20, and November 16, 2016. During these calls, Mr. Davis’

questions were answered. The importance of participation and cooperation with the prehearing

discovery process was explained to Mr. Davis. Mr. Davis was advised that sanctions may be

ordered, if Respondent did not comply with the Order compelling discovery. (Tr. 14).

Importantly, despite receiving courtesy reminders, no one from Respondent joined scheduled

conference calls on November 8 and 10, 2016 and on January 13, 2017. If Respondent’s

representative Mr. Davis had unanswered questions regarding Commission procedures, the

undersigned judge’s Orders, or the upcoming hearing, his failure to participate in the scheduled

conference calls were missed opportunities. (Tr. 20).

See Note 9 above.

See Order to show cause, Order compelling discovery (Ex. ALJ 5, 5(a)).

Whether an individual is an employee is a case specific, fact-based analysis. All incidents

of the employment relationship are considered. One employment factor alone is not decisive. See

Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 448-451 (2003). As the

Supreme Court stated in Clackamas, “[t]he mere fact that a person has a particular title – such as

partner . . . should not necessarily be used to determine whether he or she is an employee or a

proprietor.” Id at 450. See generally, Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992).

Respondent’s refusal to comply with the Order compelling discovery, despite having been

granted time extensions and second chances to comply, prejudiced the Secretary in the preparation

of the Secretary’s case. In this case, I find the narrowly tailored sanctions requested by the

Secretary in the Motion for sanctions warranted and appropriate.

Discovery Sanctions Order

As stated on the record, at the beginning of the hearing, the Secretary’s Motion for

sanctions was granted as follows.

It is Ordered that the following designated facts shall be taken to be established for

purposes of the case in accordance with the claims of the Secretary.

a. First, as alleged in the complaint and in the citations issued in this case,

that Respondent’s workers at the worksite inspected by OSHA, 709

McKinley Avenue, Morgantown, WV 26506, on or about November 18,

2015, were “employees” of Respondent 3-D Builders, LLP, within the

meaning of section 3(6) of the Act. “Employee” means an “employee

of an employer who is employed in a business of his employer which

affects commerce.”

b. Second, as alleged in the complaint and in the citations issued in this

case, that Respondent 3-D Builders, LLP, is an “employer” within the

meaning of section 3(5) of the Act. “Employer” means a “person

engaged in a business affecting commerce

who has employees ….”

It is further Ordered, that Respondent not be permitted to dispute the facts

designated above, in paragraphs (a) and (b), that the workers were employees of

Respondent 3-D Builders and that Respondent 3-D Builders is an employer. It is

Ordered that Respondent not be permitted to dispute these issues or present any

evidence at the hearing, through witness testimony, documents, or exhibits, to

dispute these designated facts.

Section 3(3) of the Act defines commerce as “trade, traffic, commerce, transportation, or

communication among the several States, or between a State and any place outside thereof, or

within the District of Columbia, or a possession of the United States, or between points in the same

State but through a point outside thereof.”

(Tr. 11-12, 21). See Commission Rule 52(f) Failure to cooperate; Sanctions. 29 C.F.R.

§ 2200.52(f).

The Hearing

Respondent had full knowledge of the hearing date, time, and location. A Notice of

Rescheduled Hearing and Order issued in this case.

This Notice and Order set forth the agreed

hearing dates, the final prehearing conference call date and time, and the due date for the parties

to file a joint prehearing statement.

A Notice of Hearing Location issued stating the specific

courthouse location, in Pittsburgh, Pennsylvania, for the hearing scheduled to begin on January

25, 2017.

Prior to the final prehearing conference call, the judge’s legal assistant called and

spoke to Respondent’s representative Mr. Davis to remind him of the scheduled call and to remind

him to file Respondent’s prehearing statement. Mr. Davis did not join the scheduled call. No

prehearing statement was received from Respondent. (Tr. 6-9, 11).

During the final prehearing conference call, counsel for the Secretary was advised that the

Secretary’s Motion for sanctions would be granted, with the decision granting the Motion stated

on the record when the hearing opened. Notice that the Secretary’s Motion for sanctions would

be granted also was stated prior to the hearing, in an email exchange between the judge’s legal

assistant and the parties. (Tr. 9-10).

Approximately one week before the hearing and again early on the morning of the hearing,

counsel for the Secretary spoke to Respondent’s representative Mr. Davis. During both

conversations, Mr. Davis stated his intention to attend the scheduled hearing. Counsel for the

Secretary attended the hearing and presented evidence through witness testimony and exhibits.

Respondent did not attend the hearing or present a defense. (Tr. 4-6). At the beginning of the

The hearing in this case originally was scheduled to begin on December 6, 2016. See July 29,

2016 Notice of Hearing, Scheduling Order and Special Notices. (Ex. ALJ-1).

See November 17, 2016 Notice of Rescheduled Hearing and Order. (Exs. ALJ-3, 3(a); ALJ-4).

The parties were reminded that the scheduled January 2017 hearing was not an informal

conference. Rather the hearing would be a formal hearing on the record transcribed by a court

reporter. At the hearing, both parties must have their necessary witnesses present to give sworn

testimony and the documents and exhibits that they intend to offer into evidence to support their

positions. The parties were specifically cautioned that failure to be present at the hearing when

the case was called may result in summary dismissal of claims or defenses.

(Tr. 4). See January 4, 2017 Notice of Hearing Location. (Exs. ALJ-6, 6(a)); January 13, 2017

Notice of Hearing Location. (Exs. ALJ-7, 7(a)).

hearing, the decision granting the Secretary’s Motion for sanctions was stated on the record. (Tr.

10-21).

Counsel for the Secretary’s post-hearing brief was filed with the undersigned Commission

judge and served on Respondent. Respondent did not file a post-hearing brief. Respondent has

not offered any explanation for Respondent’s failure to participate in the hearing.

JURISDICTION

As discussed above, designated facts are taken to be established, for purposes of the case,

as alleged in the complaint and in the citation, (a) that Respondent’s workers at the worksite

inspected by OSHA, in Morgantown, West Virginia, on or about November 18, 2015, were

“employees” of Respondent 3-D Builders, LLP, within the meaning of section 3(6) of the Act, and

(b) that Respondent 3-D Builders, LLP, is an “employer” engaged in a business affecting

commerce within the meaning of section 3(5) of the Act.

Further, the evidence establishes, at the time of the OSHA inspection, Respondent’s

employees were engaged in roofing activities, at a construction worksite, located in Morgantown,

West Virginia. The roofing work performed was the removal of an old shingle roof and the

installation of a new roof, on the porch roof and main roof of a two-story house. The construction

industry affects commerce. Even a small employer, whose activities and purchases are purely

local, when aggregated with others engaged in similar activities, has a substantial effect on

interstate commerce. See Slingluff v. OSHRC, 425 F.3d 861, 867 (10th Cir. 2005); Clarence M.

Jones, 11 BNA OSHC 1529, 1531 (No. 77-3676, 1983) (“There is an interstate market in

construction materials and services and therefore construction work affects interstate commerce.”).

Based on the record evidence, I find that Respondent 3-D Builders, LLP, at all relevant

times, was in a business affecting commerce and was an employer within the meaning of sections

3(3) and 3(5) of the Act. Accordingly, the Commission has jurisdiction over the parties and the

subject matter.

Commission Rule 64 states that “failure of a party to appear at a hearing may result in a decision

against that party.” Upon a showing of good cause, the Commission or the Judge may excuse the

failure to appear. However, absent extraordinary circumstances, requests to reinstate the hearing

must be made within five days after the scheduled hearing date. 29 C.F.R. § 2200.64. Respondent

did not request reinstatement of the hearing.

DISCUSSION REGARDING CITATION

To establish a violation of an OSHA standard, the Secretary must prove that: (1) the cited

standard applies; (2) its terms were violated; (3) employees were exposed to the violative condition

and (4) the employer knew of could have known with the exercise of reasonable diligence of the

violative condition. See Astra Pharm. Prods. Inc., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981)

aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982)

Respondent does not contest the applicability of the cited standards, violation of the

standards’ terms, employee exposure to the hazardous, violative, conditions, or Respondent

owner’s actual knowledge of the violative conditions. Respondent contends that Respondent is a

partnership in which every partner is self-employed, that Respondent had no employees, and that

OSHA has no regulations on a partnership.

In other words, Respondent contends that OSHA

and the Commission do not have jurisdiction over Respondent. Respondent’s assertions have been

considered and rejected above.

Alleged Violations

a. Serious citation 1, item 1(a) – alleged ladder violation.

The Secretary alleges that 3-D Builders violated 29 C.F.R. § 1926.1053(b)(1),

on or about

November 18, 2015, when the portable extension ladder,

used by the workers to access the roof

above the front porch, was not extended at least three feet above the landing surface.

The CO testified that when employees, at this worksite, used the portable extension ladder

to access the roof, the standard requires that the side rails of the extension ladder extend at least

three feet above the landing surface. When the side rails are properly extended an employee can

See Note 9 above.

Section 1926.1053(b)(1) states:

When portable ladders are used for access to an upper landing surface, the ladder

side rails shall extend at least 3 feet (.9 m) above the upper landing surface to which

the ladder is used to gain access; or, when such an extension is not possible because

of the ladder’s length, then the ladder shall be secured at its top to a rigid support

that will not deflect, and a grasping device, such as a grabrail, shall be provided to

assist employees in mounting and dismounting the ladder. In no case shall the

extension be such that ladder deflection under a load would, by itself, cause the

ladder to slip off its support.

A portable ladder is defined as “a ladder that can be readily moved or carried.” 29 C.F.R.

§ 1926.1050(b), Definitions.

easily step on and off the roof holding onto the top of the ladder side rail. If the ladder is not

properly extended when an employee steps on or off the ladder they may become off balance and

fall. (Tr. 53-54).

The CO, upon arrival at the worksite, observed and photographed a ladder placed at the

front right corner of the house.

It was a portable, aluminum, extension ladder, manufactured by

Werner. He also photographed two men working on the front porch roof. (Tr. 30-33, 38, 54-55;

Ex. C-2, C-3, C-4, C-5).

When the CO approached the worksite, he spoke to the 3-D Builders’ owner Mr. Davis and

asked that the employees come down from the roof to speak with him. The CO observed three

workers use the ladder located at the right front corner of the house to come down from the roof.

(Tr. 34-35, 55). The CO took additional photographs that show the house front, the porch roof

where the employees worked, and the ladder the employees used to access the roof. (Tr. 35-38;

Ex. C-6, C-7). He also photographed employees working on the house back roof using a scraper

to remove the old shingle roof. (Tr. 40-41; Ex. C-8).

Regarding the portable extension ladder, used by the employees to access the roof, the CO

determined that the side rails extended approximately two feet, six inches, above the roof surface.

The CO reached this conclusion by confirming that the distance between Werner ladder rungs is

twelve inches and the length of the side rails that extend above the top ladder rung is six inches.

The CO counted the number of ladder rungs above the roof surface. At the time of the inspection,

the third rung down from the top of the cited ladder was even with the roof surface. The CO’s

calculation that the side rails extended approximately two feet, six inches, above the roof surface,

was less than the three feet extension required by the cited standard. (Tr. 55-57; Ex. C-7).

Respondent owner Mr. Davis’ interview statement reads, in part:

I know the OSHA requirement from studying for my contractor’s test. The

extension ladder is the only way to access the roof. I used a ladder stabilizer to

secure it. . . . . I don’t think it needs to be extended with the stabilizer.

The photographs taken by the CO during the inspection also show a second ladder at the

worksite, located at the back, left corner, of the house. (Tr. 32, 73-74; C-4). This second ladder

was not cited. (Sec’y Br. at 2 n.4, 5-6 n.8). There is no evidence that this second ladder was used

by employees, in the position or location, where it was photographed. There is no evidence of

employee exposure regarding this second ladder.

The CO understood Mr. Davis’ mention of a “ladder stabilizer” to reference the “bracket,”

attached to the extension ladder used by the workers to access the roof. The CO testified that this

“bracket” allows the ladder to be placed against the house, without putting weight and pressure on

(Tr. 45; Ex. C-1).

Citation Evidence Summary and Findings

The evidence establishes that the cited construction standard regarding portable ladders

applied to this construction worksite, where 3-D Builders’ workers were engaged in roofing

activities. The CO’s testimony and inspection photographs reveal that the cited standard was

violated, as the side rails of the extension ladder did not extend at least three feet above the roof

landing surface.

The evidence must also show that the employer knew, or with the exercise of reasonable

diligence could have known, of the violative condition. See e.g., Revoli Constr. Co., 19 BNA

OSHC 1682, 1684 (No. 00-0315, 2001). The hazards identified in this ladder citation were plainly

visible to Respondent owner Mr. Davis, who was present on the worksite. This is sufficient to

show actual or constructive knowledge of the violative condition. See A.L. Baumgartner Constr.,

Inc., 16 BNA OSHC 1995, 1998 (No. 92-1022, 1994) (finding employer had constructive

knowledge when the cited condition was plainly visible to employer’s foreman); Clarence M.

Jones, 11 BNA OSHC at 1531 (constructive knowledge found where the ladders were in plain

view and the foreman was present at the worksite at all times); MCC of Fla., Inc., 9 BNA OSHC

1895, 1898 (No. 15757, 1981) (finding constructive knowledge when the violative condition was

in plain view and foremen were in the area).

The Secretary does not need to show that the employer was aware that a condition

violates the cited standard. Phoenix Roofing, Inc., 17 BNA OSHC 1076, 1079-80 (No. 90-2148,

1995), aff’d, 79 F.3d 1146 (5th Cir. 1996) (unpublished). Awareness of the condition itself

satisfies the test. Id.

Respondent’s owner Mr. Davis had actual knowledge of the violative condition, as he was

present at the worksite when he, along with 3-D Builders’ workers, used the noncompliant ladder

to access the roof.

In his signed, inspection statement, Mr. Davis acknowledged that the cited

extension ladder was the only way to access the roof.

the gutters, so workers climbing up and down the ladder will not damage the gutters. The primary

purpose of this “bracket” is to protect the gutters from damage, not to stabilize the ladder. (Tr. 48-

50, 57-58). The inspection photograph of the ladder does not show a grasping device such as a

grabrail. (Ex. C-7).

See Note 5 above. (Tr. 80).

Further, the evidence establishes that Respondent’s workers were exposed to the violative

condition created by the noncompliant extension ladder. The CO observed the workers descend

from the roof to speak with him during the inspection using the cited ladder.

Classification and Penalty Amount

Serious

The Secretary characterizes this citation item as serious. A violation is “serious” if there

was a substantial probability that death or serious physical harm could have resulted from the

violative condition. 29 U.S.C. § 666(k). The CO testified that there was a likelihood of serious

harm and that four workers, including Mr. Davis, were exposed to the violative condition. If an

employee were to fall ten feet, the CO testified that likely injuries could include permanent

disability or death. The cited extension ladder, located at the right front corner of the house, was

positioned on the residence driveway. An employee falling from the cited ladder would land on

the hard surface of the driveway, made of concrete or asphalt. (Tr. 58; Ex. C-3). The citation is

properly classified as serious.

Penalty

Section 17(j) of the Act provides that the Commission shall have the authority to assess all

civil penalties. When determining the appropriateness of a penalty, the Commission must give

due consideration to four criteria: (1) the size of the employer’s business, (1) the gravity of the

violation, (3) the good faith of the employer, and (4) the history of previous violations.

The gravity of the violation is the most important factor in the penalty assessment.

Determination of the gravity of a violation requires a consideration of the number of exposed

employees, the precautions taken to protect employees, the duration of employee exposure, and

the probability that an accident will occur. See J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2214

(No. 87-2059, 1993), and cases cited therein.

The CO determined the severity of the ladder violation to be high based on the fall risk

from ten feet to the ground. He determined the probability to be lesser based on the duration of

employee exposure to the hazard created by the noncompliant ladder.

The time of employee

The record does not specifically disclose the length of time the cited ladder, located at the right

front corner of the house, was positioned at this location, with side rails extended less than three

feet above the roof surface. The Secretary infers that Mr. Davis’ reference to a ladder “stabilizer,”

is a broad reference to the way the ladder was set up at the worksite for several days. (Tr. 57-58).

The inspection photographs disclose that ladders were moved and repositioned during this roofing

exposure climbing on and off the ladder typically would be short. Concluding that the severity is

high, and the probability is lesser, the gravity-based penalty would be calculated as $5,000. 3-D

Builders has no OSHA history. There is no evidence of past inspections. Therefore, Respondent’s

history warrants neither an increase nor a decrease in the penalty amount. See M.V.P. Piping Co.,

Inc., 24 BNA OSHC 1350, 1352 (No. 12-1233, 2014) (finding that history factor did not support

a low penalty when the employer had not been inspected within the past five years). OSHA did

not consider a good faith penalty reduction, as the citation includes a willful violation. As 3-D

Builders is a small employer, the Secretary proposed a sixty percent penalty reduction for size.

Therefore, the Secretary proposed a penalty for this citation item of $2,000. (Tr. 58-60; Sec’y Br.

at 8). I agree.

Therefore, a penalty of $ 2,000 is assessed for the serious violation of § 1926.1053(b)(1)

set forth in citation 1, item 1(a).

b. Serious, willful citation 2, item 1 – alleged fall protection violation.

The Secretary alleges that 3-D Builders violated 29 C.F.R. § 1926.501(b)(13),

on or about

November 18, 2015, as employees were exposed to a fall of approximately ten to twenty feet to

the ground while installing shingles to a residential roof. Respondent’s workers were not protected

by guardrail systems, safety net system, personal fall arrest system, or any alternative fall

protection measure under another provision of paragraph § 1926.501(b).

(Tr. 65, 72).

The CO testified that OSHA standard 1926.501(b)(13) applies to residential construction

roofing work, the work performed by 3-D Builders at the inspected worksite. The standard

job. Compare Ex. C-4 with Ex. C-5. I decline to draw the broad inference that the cited right front

corner ladder, noncompliant at the time of the OSHA inspection, was positioned and used in a

noncompliant manner during the workdays prior to the Wednesday OSHA inspection.

Section 1926.501(b)(13), in pertinent part, states: Duty to have fall protection. Residential

construction. “Each employee engaged in residential construction activities 6 feet (1.8 m) or more

above lower levels shall be protected by guardrail systems, safety net system, or personal fall arrest

system unless another provision in paragraph (b) of this section provides for an alternative fall

protection measure.”

The Note to Section 1926.501(b)(13) provides that “[t]here is a presumption that it is feasible

and will not create a greater hazard to implement at least one of the above-listed fall protection

systems.” Therefore, it is the employer’s burden to establish that it is infeasible or creates a greater

hazard to use conventional fall protection equipment. In this case, Respondent failed to present a

defense and clearly did not meet this burden.

requires that when employees are working six feet or greater above the ground, they shall be

provided with fall protection. (Tr. 61).

During the inspection, the CO measured the height of the porch roof to the ground to be

approximately ten feet high. He measured the height of the main roof, from the roof peak to the

ground, to be approximately twenty to twenty-two (20 to 22) feet high. Therefore, employees

working on any area of this house roof were required by the standard to be protected from falling.

(Tr. 52-53, 63; Ex. C-4).

During the inspection, the CO photographed two workers on the front porch roof and two

workers on the house back roof using a scraper to remove the old shingle roof.

Had the workers

on the back roof fallen they would have fallen to onto the hard surface driveway, made of concrete

or asphalt. On this worksite, 3-D Builders’ workers were not protected from falling by using a

personal fall arrest system. On this worksite, there was no evidence of a guardrail system or safety

net system. (Tr. 33, 38, 40-41, 62-64; Ex. C-5, C-8).

Respondent owner Mr. Davis’ interview statement reads, in part:

We started the roof on Monday. We are removing the shingle roof. The porch roof

is about 3/12 and the main roof is about 10/12. We have been on the roof since

7:00 a.m. this morning. We have two harnesses.

We have worn them before on

the beauty college downtown. I have been doing construction for 20 some years. I

know fall protection is required. I know the requirement anything over six feet

need to have fall protection. We weren’t wearing it because it’s a pain in the ass.

The ropes get tangled around hoses and feet. If I was doing this job by the book I

would have had fall protection. I have fallen off roofs before, so I know the hazard.

We do a lot of roofs. Most of the jobs we don’t wear fall protection. I have never

been inspected by OSHA. We are subbing for Lynn Wood Company. He didn’t

say anything about fall protection. I know the OSHA requirement from studying

for my contractor’s test. . . . The porch roof is 11-13 feet high and the main roof

is about 20-22 feet high. The guys finished the main roof yesterday.

We didn’t

wear fall protection for that roof either.

The old shingles were nailed to the roof. The workers slide the scraper under the shingle and

jostle the shingle, to remove the nail and pry the shingle off the roof. The scraper was used like a

crowbar. (Tr. 66-67).

The CO did not know if Mr. Davis meant that 3-D Builders had two harnesses on this jobsite or,

generally, that the company had two harnesses at the shop. (Tr. 69, 75).

Mr. Davis specifically admits knowledge that the employees did not wear fall protection on

Tuesday when working on the main roof of the house. (Tr. 78-79; Ex. C-1).

(Tr. 44-45; Ex. C-1).

The CO understood Mr. Davis’ statement that “[t]he ropes get tangled around hoses and

feet,” to reference “rope vests” used in fall protection systems,

and air “hoses” used in roofing

to connect pneumatic nail guns to air compressors. He testified that most employers use pneumatic

nail guns to secure shingles to the roof. Air hoses were used on this roofing worksite. They are

visible in the inspection photographs. (Tr. 47-48, 68, 75; Exs. C-6, C-8).

Citation Evidence Summary and Findings

The evidence establishes that the cited construction standard applied to this residential

construction worksite, where 3-D Builders’ workers were engaged in roofing activities on a two-

story house. The CO’s testimony, Respondent owner Mr. Davis’ admissions, and the inspection

photographs reveal that the cited fall protection standard was violated. On this worksite,

Respondent’s workers were not protected by guardrail systems, safety net system, personal fall

arrest system, or any alternative fall protection measure.

As discussed in greater detail above, the record evidence must establish that the employer

knew, or with the exercise of reasonable diligence could have known, of the violative condition.

See e.g., Revoli Constr. Co., 19 BNA OSHC at 1684.

In this case, Respondent owner Mr. Davis had actual knowledge of the OSHA fall

protection requirement, the violative condition at this worksite, and the fall hazard. Mr. Davis was

present working on this jobsite.

The fall protection violation was obvious, in plain view. This is

sufficient to show actual or constructive knowledge of the violative condition. In fact, when

interviewed, Respondent owner Mr. Davis boldly admitted that, during this entire roofing job,

3-D Builders’ workers had not used fall protection. Mr. Davis stated he thought using fall

protection was “a pain in the ass.” The evidence establishes that Mr. Davis had knowledge of the

OSHA fall protection standard cited. Mr. Davis acknowledged knowing that fall protection is

required for any work performed “over six feet.” He told the CO if he “was doing this job by the

book [he] would have had fall protection.” Mr. Davis told the CO he knew the OSHA requirement

Based on the record, I find the CO’s statement regarding “rope vests used in fall protection

systems,” to reference lanyards and body harnesses, components of a personal fall arrest system.

29 C.F.R. §§ 1926.502(d)(Personal fall arrest systems); 1926.500(b)(Definitions: Lanyard). When

interviewed by the CO, Mr. Davis mentioned fall protection “harnesses.” (Ex. C-1).

See Note 5 above.

from studying for his contractor’s test. In addition, Mr. Davis stated that he had personal

knowledge of the fall hazards roofing presented, as he had fallen off roofs before. (Tr. 45, 64; Ex.

C-1).

The evidence establishes that Respondent’s workers were exposed to the violative

condition created by Respondent’s failure to protect the workers from the fall hazard. The CO

observed and photographed four workers at this worksite without fall protection: two workers on

the front porch roof and two workers on the house back roof.

Characterization and Penalty Amount

Serious

The Secretary characterizes this citation item as serious and willful. See Complaint ¶ 6. A

violation is “serious” if there was a substantial probability that death or serious physical harm

could have resulted from the violative condition. 29 U.S.C. § 666(k). The CO testified that there

was a likelihood of serious harm and that four workers, including Mr. Davis, were exposed to the

violative condition. The fall protection violation exposed employees to a fall risk from ten feet to

the ground from the front porch roof and a fall risk from approximately twenty feet to the ground

from the main roof. The CO testified that a fall injury from those heights could result in permanent

disability or death. (Tr. 65, 72). The citation is properly classified as serious.

Willful

“The hallmark of a willful violation is the employer's state of mind at the time of the

violation—an ‘intentional, knowing, or voluntary disregard for the requirements of the Act or ...

plain indifference to employee safety.”’ Kaspar Wire Works, Inc., 18 BNA OSHC 2178, 2181

(No. 90-2775, 2000) (citation omitted), aff'd, 268 F.3d 1123 (D.C. Cir. 2001).

[I]t is not enough for the Secretary to show that an employer was aware of conduct

or conditions constituting the alleged violation; such evidence is already necessary

to establish any violation .... A willful violation is differentiated by heightened

awareness of the illegality of the conduct or conditions and by a state of mind of

conscious disregard or plain indifference ....

Hern Iron Works, Inc., 16 BNA OSHC 1206, 1214 (No. 89-433, 1993); see also Bianchi Trison

Corp. v. Chao, 409 F.3d 196, 208 (3d Cir. 2005) (A willful violation of the OSH Act “constitutes

an act done voluntarily with either an intentional disregard of, or plain indifference to, the OSH

Act's requirements.”).

There must be evidence that an employer knew of an applicable standard or

provision prohibiting the conduct or condition and consciously disregarded the

standard. Without such evidence of familiarity with the standard's terms, there must

be evidence of such reckless disregard for employee safety or the requirements of

the law generally that one can infer that if the employer had known of the standard

or provision, the employer would not have cared that the conduct or conditions

violated it.

Williams Enterps., Inc., 13 BNA OSHC 1249, 1257 (No. 85-355, 1987). See MJP Constr. Co.,

Inc., 19 BNA OSHC 1638, 1648 (No. 98-0502, 2001),aff’d, 56 F. App'x 1 (D.C. Cir. 2003)

(unpublished) (an employer with knowledge of the standards’ requirements and knowledge of the

conditions that violate the standard, who fails to correct the violation, demonstrates knowing,

conscious disregard of the standard).

At the time of the inspection, 3-D Builder’s owner Mr. Davis had a heightened awareness

of the OSHA fall protection requirements. Mr. Davis also had a heightened awareness of roofing

work hazards when fall protection is not used. (Sec’y Br. at 10).

Several statements made by Mr. Davis, during his OSHA inspection interview, disclose his

heightened awareness. Mr. Davis stated that he had been in business for over twenty years, he

knew that OSHA required fall protection for any work over six feet, and that OSHA required fall

protection when working on a roof. He knew of OSHA’s fall protection requirement from studying

for his contractor’s test. Also, Mr. Davis said that the company had two harnesses, they just didn’t

wear them. Mr. Davis knew of the fall hazard, as he had fallen off roofs in the past. Mr. Davis

said that they weren’t wearing fall protection on this worksite because it was “a pain in the ass,”

and the ropes get tangled around hoses and feet. Mr. Davis admitted that on most jobs they do not

wear fall protection. In fact, the day before the OSHA inspection, when the employees were

working on the very steep main roof of this house, the employees did not wear fall protection. Mr.

Davis had actual knowledge that he and the other 3-D Builders’ roofers, on this jobsite, worked

without fall protection. (Tr. 68-71; Ex. C-1). Mr. Davis’ bold admissions in his OSHA interview

statement are unrebutted.

Respondent owner Mr. Davis consciously disregarded the OSHA fall protection

requirements. Recklessly, Mr. Davis had the 3-D Builders’ roofers work at heights, without any

fall protection, exposing them to disabling injuries and potentially death from falls. Mr. Davis’

interview statements disclose plain indifference to the fall hazards to which the roofers were

exposed. The citation is properly classified as willful.

Penalty

The Secretary contends that the willful fall protection violation warrants a finding of high

severity and greater probability. (Tr. 76; Sec’y Br. at 11). The CO determined the severity of the

fall protection violation to be high based on the fall risk from ten feet to the ground from the front

porch roof and the fall risk from approximately twenty feet to the ground from the main roof. A

fall injury from those heights could result in permanent disability or death. (Tr. 65, 72).

At the hearing and in its post-hearing brief, the Secretary contends that this violation

warrants a finding of greater probability.

The record evidence establishes that there were four

employees on the roof, they had been on this roofing worksite for two and a half days at the time

of the inspection, there was no fall protection system used, and the work task the CO observed of

employees using a scraper to remove the shingles, potentially could have resulted in an employee

losing his balance and falling. When using the scraper to remove the shingles, the workers leaned

forward toward the back-roof edge and exerted bodily force. (Tr. 64-68, 71-72, 80; Ex. C-8).

Further, the presence of air hoses on the roof increased the probability of an employee tripping on

an air hose and falling to the ground. (Tr. 68). The roofers worked for approximately six hours

on the inspection day.

Mr. Davis admitted that the workers had not used fall protection, on the

day before the inspection, when working on the very steep main roof.

The record establishes

that employees were exposed to a fall hazard for approximately two days. (Tr. 71; Exs. C-1; C-

4).

The gravity-based penalty for a willful violation of high severity and greater probability

would be calculated as $ 70,000. 3-D Builders has no OSHA history. OSHA did not consider a

good faith penalty reduction, as the citation classification is willful. 3-D Builders is a small

employer, with fewer than ten employees; therefore, the Secretary proposed an eighty percent size

reduction regarding the willful violation penalty. Therefore, at the hearing and in its post hearing

Initially, at the time the citation issued, the CO determined the probability to be lesser.

Therefore, as issued, the proposed penalty for the willful violation was $11,000. (Tr. 65, 76).

On Wednesday, the day of the OSHA inspection, the employees started work at approximately

7:00 a.m. and came down from the roof at approximately 12:45 – 1:00 p.m. (Tr. 65; Ex. C-1).

“We didn’t wear fall protection for that roof either.” (Tr. 45; Ex. C-1). I find that Mr. Davis’

use of the pronoun “we,” during his statement to the CO, reveals that on Tuesday more than one

employee worked on the main roof without fall protection.

brief, the Secretary proposed a penalty of $14,000 for this willful citation item. (Tr. 72-73, 76;

Sec’y Br. at 11). I agree.

Therefore, a penalty of $ 14,000 is assessed for the willful violation of § 1926.501(b)(13) set

forth in citation 2, item 1.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The forgoing decision constitutes the findings of fact and conclusions of law in accordance

with Rule 52(a) of the Federal Rules of Civil Procedure.

ORDER

Based on the foregoing decision, it is hereby ORDERED:

Item 1(a) of Citation No. 1, alleging a serious violation of 29 C.F.R. § 1926.1053(b)(1) is

AFFIRMED, and a penalty of $ 2,000 is assessed.

Item 1(b) of Citation No. 1, alleging a serious violation of 29 C.F.R. § 1926.1060(a) is

VACATED; the request to withdraw this citation item is approved.

Item 1 of Citation No. 2, alleging a willful violation of 29 C.F.R. § 1926.501(b)(13) is

AFFIRMED, and a penalty of $14,000 is assessed.

/s/

Carol A. Baumerich

Judge, OSHRC

Dated: February 23, 2018

Transcript Errata Sheet. – 3-D Builders, LLC #16-0094

The transcript is amended to reflect the following corrections.

Page

Line(s)

Stated in transcript

As corrected

54(f)

52(f)

compliance

compliant

credible

critical

ordered

offered

Lynnwood

Lynn Wood

8, 11, 19

Lynnwood

Lynn Wood

that being six inches?

that being two feet six inches?

unless

issued

works

workers

probably

probability

Download
Save PDF to desktop

Email
Email completed PDF

Send for Signing
Email for others to sign

Print
Print document

NAME

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION United States (Occupational Safety & Health Review Commission)

View Audit Log
Print With Audit Log
Duplicate Document

Fillable OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION United States (Occupational Safety & Health Review Commission)

Fill Online, Printable, Fillable, Blank OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION United States (Occupational Safety & Health Review Commission) Form

First 20 documents completely FREE!