RK Hydro-Vac, Inc.

Plain-English summary

An RK Hydro-Vac employee leaned over the unprotected edge of a 30-foot roof without tying off after returning from lunch. The company had adequate written fall-protection rules, supplied each worker with equipment, and provided extensive initial and twice-yearly training. The judge nevertheless found constructive knowledge because the company did not inspect its Alabama worksites and had no formal enforcement or disciplinary policy. Those same gaps defeated the unpreventable employee misconduct defense. The violation was affirmed as serious, but the penalty was reduced to $750 based on good faith and the company's clean 20-year OSHA history.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(1)
• Outcome: The roof-edge fall-protection violation was affirmed as serious with a $750 penalty.
• Key point: Strong rules and training are insufficient when remote worksites receive no meaningful supervision and safety violations carry no defined consequences.

Full text (OSHRC public release)

Secretary of Labor,
Complainant,
v. OSHRC Docket No. 03-1583
RK Hydro-Vac, Inc.,
Respondent.

Appearances:

      Mary Beth Zamer Bernui, Esq., Office o f the Solicitor, U . S. De partm ent of Labo r, Nashville, Tennessee
      For Com plainant

      Jay St. Clair, Esq., Bradley, Arant, Rose & White, LLP, Birmingham, Alabama
      For Respond ent

Before: Administrative Law Judge Nancy J. Spies

                                           DECISION AND ORDER

      R. K. Hydro-Vac, Inc. (RKH), is a specialty contractor in the commercial roofing industry. As a

subcontractor, it vacuums gravel off roofs for reroofing projects undertaken by a general contractor.
On July 23, 2003, Occupational Safety and Health Administration (OSHA) compliance officer
Michelle Sotak conducted an inspection of an RKH worksite in Birmingham, Alabama. As a result of
Sotak’s inspection, the Secretary issued a one-item citation to RKH on August 1, 2003, alleging that RKH
committed a serious violation of § 1926.501(b)(1) for failing to require an employee working at the edge
of a 30-foot building to use fall protection.
This case was designated as an E-Z proceeding pursuant to Commission Rule 2200.200, et seq.
A hearing was held in this matter on November 13, 2003, in Birmingham, Alabama. RKH asserts the
affirmative defense of unpreventable employee misconduct. The parties have filed post-hearing briefs.
For the reasons discussed below, RKH’s employee misconduct defense is rejected and the citation
is affirmed, with a substantial reduction in the Secretary’s proposed penalty.
Background
On July 23, 2003, compliance officer Michelle Sotak was driving on Valleydale Road in
Birmingham, Alabama, on her way to a construction site. As she was driving, she observed a man on the
roof of a building at the corner of Valleydale Road and Highway 37. The man did not appear to be using
fall protection. Sotak pulled over across the street from the building and took pictures of the man leaning
over the edge of the building’s roof (Exhs. C-1, C-2, C-3; Tr. 13-14). A string of flags used as an
awareness barrier had been placed 6 feet from the edge of the roof. It had been taken down where the
employee was located (Exh. C-2; Tr. 19). After the employee noticed Sotak taking pictures, he stepped
away from the edge of the roof and replaced the awareness barrier (Exh. C-4; Tr. 20).
Sotak approached the building and proceeded to the office trailer of the general contractor. She
met with the general contractor’s site manager, Mr. Faircloth. Faircloth stated that the man on the roof was
an employee of subcontractor RKH. Faircloth accompanied Sotak to the roof of the building, but by the
time they got there, the employee was gone (Tr. 14-15). The roof was approximately 30 feet high (Tr. 21).
Sotak came back down to the front of the building and met Mike Petrey, who identified himself
as an employee for RKH. She then met with the man who had been on the roof, Fernando Acateca, who
also identified himself as an employee for RKH (Tr. 15). When asked why Acateca had not been using
fall protection, both Petrey and Acateca stated that Acateca had been tied off while on the roof prior to their
lunch break. Acateca told Sotak “that he forgot to put [his safety harness] back on when he went up to the
roof after lunch” (Tr. 16). It was approximately 2:30 when Sotak interviewed Acateca (Tr. 16). RKH had
a safety harness available on site for Acateca and he put it on in Sotak’s presence (Tr. 17).
RKH is based in Charlotte, North Carolina, with satellite offices in Florida and Georgia. RKH is
owned and operated by partners Richard Girouard and Ron Shafer, and has been in business for
approximately 20 years (Tr. 63-65). RKH employs approximately 32 employees, who work in two-man
crews (Tr. 56).
The crew members are designated as the keeper and the CDL driver. The crew members use a large
tandem vacuum truck to vacuum the gravel. The vacuum truck pulls a supply trailer that carries the hoses
and pipes. The keeper drives a pickup that carries various tools and other supplies. The CDL driver sets
up the truck on the ground below the area of the roof from which the crew is removing the gravel. After
setting up the hoses and pipes, both crew members go on the roof and vacuum the gravel. The average job
takes 4 or 5 days to complete (Tr. 63-64). The Birmingham job at issue here was a larger project, on which
RKH had worked for 2 weeks at the time of Sotak’s inspection. RKH needed 2 or 3 more days to complete
the job after Sotak’s inspection (Tr. 78).
As a result of the inspection, the Secretary issued the citation that gave rise to the present case.

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The Citation
In order to establish a violation of an occupational safety or health standard, the
Secretary has the burden of proving: (a) the applicability of the cited standard, (b) the
employer’s noncompliance with the standard’s terms, (c) employee access to the violative
conditions, and (d) the employer’s actual or constructive knowledge of the violation (i.e.,
the employer either knew or, with the exercise of reasonable diligence could have known,
of the violative conditions).

Atlantic Battery Co., 19 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
The Secretary alleges that RKH committed a serious violation of § 1926.501(b)(1), which provides:
Each employee on a walking/working surface (horizontal and vertical surface) with an
unprotected side or edge which is 6 feet (1.8 m) or more above a lower level shall be
protected from falling by the use of guardrail systems, safety net systems, or personal fall
arrest systems.

   It is undisputed that § 1926.501(b)(1) applies to the roof on which Acateca was working. RKH

concedes that Acateca was not tied off and was not using any other form of fall protection, in violation of
§ 1926.501(b)(1). Exhibits C-1, C-2, and C-3 show that Acateca was leaning over the immediate edge of
the building, exposed to a 30-foot fall. The only element of the Secretary’s case at issue is whether RKH
had actual or constructive knowledge of the violation.
Did RKH Have Actual Knowledge of the Violation?
At the hearing, the Secretary proceeded on the theory that Petrey was Acateca’s supervisor and that
his knowledge of Acateca’s failure to tie off could be imputed to RKH. Sotak testified, “I asked Mr.
Petrey, I asked who was in charge. He stated that he was” (Tr. 22). Sotak stated the Acateca’s failure to
use fall protection was in plain view and that she observed him from the road as she was driving by
(Tr. 22). She believed that Petrey was aware of Acateca’s failure to tie off for two reasons: “One, I believe
[Petrey] was on the ground tying the pieces to the rope where Mr. Acateca could pull them up; and, two,
when I asked why Mr. Acateca wasn’t wearing fall protection, he stated he probably forgot” (Tr. 23).
The testimonyof RKH witnesses Michael Corigliano and Richard Girouard, however, undercut the
Secretary’s position that Petrey had supervisory control over Acateca.
Michael Corigliano is a firefighter with the City of Charlotte Fire Department. For the past 9 years,
he has worked part-time as RKH’s safety directory and CDL driving trainer (Tr. 31-32). Corigliano
testified that RKH’s two crew members were equal in terms of safety training and job responsibility

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(Tr. 56). When asked if he knew what Petrey meant when he told Sotak that he was in charge, Corigliano
responded (Tr. 57):
No, I don’t. They are all equal as far as that goes, except he drives a bigger truck
which that could cause him to be in charge, but he does have the CDL driver’s license.
Let’s put it that way.
...
[T]here’s two different types of trucks. The CDL driver for the big truck and then
there are the regular drivers that hold the regular driver’s license to run the smaller trucks.
...
In my training, they’re all trained equally as far as the rules go of OSHA. They’re
all aware of it, they’re all trained in CPR, they’re all trained by OSHA standards, and they
all know the operations except for, of course, some of the new people.

   Girouard corroborated Corigliano’s testimony that one crew member did not have supervisory

authority over the other (Tr. 64):
They just team it, both ways. One guy gets on the ground, and one guy goes on the
roof, setting it up, and then when they’re vacuuming, they are both on the roof and they just
take turns. Essentially, every day, they do the exact same job. They will just take turns
doing it.

   Girouard stated that Acateca’s only supervisors were himself and his partner Ron Shafer (Tr. 65).

When asked if Petrey was a supervisor, Girouard stated (Tr. 70-71):
Girouard: Well, we like to call them two-man teams because they are basically two people
that do the same thing. There’s nobody saying, “Hey, you do this, you do that.”

   Q.: Does he have the authority to hire and fire people?

   Girouard: No, he doesn’t.

   Q.: Does he have the authority to order people around?

   Girouard: They don’t have the authority to order people around, but mainly it’s a two-man
   team. You have to work together just like when I said when they get to the job, they go up
   and figure out how they’re going to do it and they go to work from there. They do the exact
   same job.

   Q.: Now, one person that may be designated as in charge, there was some discussion about
   CDL. Does that play into how somebody may think they’re in charge?




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Girouard: Well, they’re in charge when they’re driving the big trucks, and they’re the ones
that’s going to have to be the lead person because they have to drive the big truck and pull
the trailer, and, then, one of them will have the contact sheet, and who they’re going to
contact at the job, and one of them will do the paperwork and fax in their time sheet every
night.

     RKH has clarified that it is only in driving the vehicles that the CDL driver is designated as the lead

crew member. Once they are at the job site, the two crew members are equals, with no supervisory
authority over each other. Both Petrey and Acateca were called into the office after the event because RKH
considered the violation to be a team failure. In her post-hearing brief, the Secretary does not argue that
Petrey was Acateca’s supervisor. She does not argue that RKH had actual knowledge of the violative
conduct, but rather contends that RKH could have known of it with the exercise of reasonable diligence.
This is the showing necessary to prove constructive knowledge.
The record does not establish that RKH had actual knowledge of Acateca’s failure to tie off.
Did RKH Have Constructive Knowledge of the Violation?
An employer is assumed to have constructive knowledge of a violative condition if the condition
could have been discovered or disclosed with the exercise of reasonable diligence. Whether an employer
was reasonably diligent involves a consideration of several factors including the employer’s obligation to
have adequate work rules and training programs, to adequately supervise employees, and to take measures
to prevent the occurrence of violations. Pride Oil Well Services, 15 BNA OSHC 1809, 1814 (No. 87-692,
1992).
Adequate Work Rules
RKH has an extensive written safety program, copies of which are given to all employees
(Exh. R-1; Tr. 34-35). The written program sets out the requirements for fall protection. The program
states (Exh. R-1, p. 3-52):
Each employee engaged in roofing activities on low-slope roofs with unprotected sides and
edges 6 feet (1.8 meters) above lower levels shall be protected from falling by guardrail
system or a combination of a warning line system, warning line system and personal fall
arrest system, or warning line system and safety monitoring system.

     The safety program’s section on fall arrest systems is illustrated showing how to configure the fall

arrest system and includes a page on how to calculate fall distances. The program states (Exh. R-1,
p. 3-49):

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FALL ARREST SYSTEM
When guardrails or other safeguards are not in place, rely on fall arrest.
A fall arrest system typically consists of:
• full body harness
• lanyard (with locking snap hooks or D-clips)
• rope grab
• lifeline
• lifeline anchor
You must use a fall arrest system if you are in danger of falling:
• more than 6 feet

   RKH’s work rules regarding the use of fall protection are consistent with the requirements of

§ 1926.501(b)(1). The work rules are determined to be adequate.
Training Program
The record establishes that RKH has an exemplary training program. Corigliano testified that when
an employee is hired, he is given a safety manual and safety bag, and attends mandatory safety and driver
training (Tr. 33-34). The safety bag contains a hard hat, gloves, two pairs of safety glasses, a lanyard, a
safety harness, 50 feet of safety rope, and a personal fall lanyard (Tr. 43-44). The initial safety training
lasts 11 hours (Tr. 54).
Twice a year at 6-month intervals, all RKH employees attend a mandatory 3-day training seminar
(Tr. 33). Both Petrey and Acateca attended these seminars (Exhs. R-2, R-3; Tr. 37-38, 145-149). RKH’s
safety training program is determined to be more than adequate.
Supervision
The two-man crews work on their assigned projects without on-site supervision. RKH contends
that it provides adequate supervision for its employees in three ways: (1) random site visits by safety
director Corigliano, (2) random site visits by owner Girouard, and (3) random site visits by RKH’s
insurance carrier. RKH contends, “Since employees do not know when a surprise visit will occur, they
must assume that every day is an inspection day” (RKH’s brief, p. 3).
Corigliano testified (Tr. 50):
I go to a random site and look at the operation and make sure the perimeter warning is up,
and make sure that the men are abiding by our safety rules and they’re being followed.
They are just usually random because my days in the fire department are different. So, they
never know when I will be there.

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He stated that he averaged two or three on-site visits a month. “We work throughout the Southeast,
and there is not always a local job site that I can visit because of my work schedule. I have to work my
other job the next day, so I can’t leave for an overnight visit” (Tr. 53). Corigliano conceded that his on-site
visits are limited to North Carolina and that he would be unable to visit a worksite in Alabama (Tr. 53).
Girouard testified that he makes unannounced visits to worksites six to ten times a month (Tr. 66).
He stated that RKH had approximately ten jobs in Alabama in the past year, and that he had visited none
of them (Tr. 74).
Girouard also testified regarding on-site visits by RKH’s insurance carrier (Tr. 67):
[W]e’re in a self insurance fund through our Workman’s Comp, and also our insurance
company makes a request probably six to eight times a year that they want to visit a job site
when they’re going to be in the Charlotte area or wherever they’re going to be. They have
a safety director, and they’ll call me up and say, “Hey, we want to see a job site. Can you
give me an address?”

    There was no evidence that the insurance carrier ever ventured as far as Alabama to inspect an RKH

site. Based upon the record, RKH has established that, while it may adequately supervise its employees
in North Carolina, it does not provide adequate supervision of its employees on its Alabama worksites.
No one from RKH or its insurance carrier had been to Alabama in the past year. RKH employees
on the Alabama worksites were aware that it was unlikely that a surprise inspection would take place. This
lack of supervisory oversight is evidence of failure to exercise reasonable diligence to discover violative
conditions. Employees who know there is only a remote chance that a supervisor will show up on a site
are more likely to take shortcuts. In the instant case, not only did Acateca violate RKH’s work rule
requiring him to tie off, he did so in the presence of Petrey, who failed to remind Acateca to tie off.
Despite all their training, neither employee followed the safety rules when they believed they could get
away with not doing so. RKH’s failure to provide adequate supervision over its Alabama worksite
establishes its constructive knowledge of the § 1926.501(b)(1) violation.
Enforcement Policy
RKH’s constructive knowledge of the § 1926.501(b)(1) violation is also established by its lack of
an enforcement policy. Despite being RKH’s safety director, Corigliano testified that his safety training
does not include any discussion of a disciplinary system, stating, “That’s not my job” (Tr. 52). He took
no part in disciplining Petrey and Acateca following the OSHA inspection (Tr. 54).

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Girouard testified that RKH does not have a graduated disciplinary scale. Enforcement is not part
of the safety program (Tr. 75). Girouard and Shafer called Acateca and Petrey into their office and talked
to them. RKH gave all of its employees a refresher course in safety training as a result of the OSHA
citation (Tr. 72-73). Girouard stated that he and Shafer handled safety violations on an individual basis
and did not have a formal policy for enforcing RKH’s safety rules.
Without knowing there will be repurcussions, employees may more readily ignore safety rules.
Failure to implement an enforcement policy or disciplinary policy for employees who fail to follow
company rules is evidence of lack of reasonable diligence. Revoli Construction Co., Inc., 19 BNA OSHC
1682 (No. 00-0315, 2001).
Unpreventable Employee Misconduct Defense
RKH asserts the affirmative defense of unpreventable employee misconduct. In order to establish
the affirmative defense of employee misconduct, the employer is required to prove (1) that it has
established work rules designed to prevent the violation, (2) that it has adequately communicated these
rules to its employees, (3) that it has taken steps to discover violations, and (4) that it has effectively
enforced the rules when violations are discovered. Precast Services, Inc., 17 BNA OSHC 1454, 1455
(No. 93-2971), aff’d without published opinion, 106 F.3d 401 (6th Cir. 1997). The Review Commission
has noted that the elements of proof for the employee misconduct defense overlap the proof establishing
constructive knowledge. See Revoli, 19 BNA OSHC 1682 (No. 00-0315, 2001); Danis Shook Joint
Venture XXV, 19 BNA OSHC 1497 (No. 98-1192, 2001).
The previous section on constructive knowledge determined that RKH had an established work rule
designed to prevent the violation of § 1926.501(b)(1) and that RKH’s training program had adequately
communicated that work rule to its employees. It also concluded that RKH failed to take steps to discover
the violation through adequate supervision and that it failed to effectively enforce the rule once a violation
was discovered.
RKH’s employee misconduct defense fails for the same reasons that constructive knowledge was
held to be established.
Penalty Determination
The Commission is the final arbiter of penalties in all contested cases. In determining an
appropriate penalty, the Commission is required to consider the size of the employer’s business, history

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of previous violations, the employer’s good faith, and the gravity of the violation. Gravity is the principal
factor to be considered.
RKH employed approximately 32 employees at the time of the inspection (Tr. 24). It had no prior
history with OSHA (Tr. 25). The gravity of the violation is high. Acateca was leaning over the edge of
a roof 30 feet above the ground without fall protection. Death would be the likely result of a fall.
The Secretary proposed a penalty of $2,500.00. Despite the high gravity of the violation, it is
determined that a significant reduction in the penalty is warranted due RKH’s history and the good faith
demonstrated by the company.
RKH has an extensive written safety program. The company provides each employee with a
complete safety bag and trains them in the use of the equipment. Its intensive safety training seminars
given to new employees and twice a year to all other employees demonstrate a strong commitment to
employee safety. The Secretary had never cited RKH before in its 20-year history, despite RKH’s being
in a highly visible industry.
For these reasons, it is determined that an appropriate penalty is $750.00.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW

   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.
ORDER
Based upon the foregoing decision, it is ORDERED that:
Item 1 of the citation, alleging a serious violation of § 1926.501(b)(1), is affirmed, and a penalty
of $750.00 is assessed.

                                                   /s/ Nancy J. Spies
                                                   NANCY J. SPIES
                                                   Judge

Date: December 15, 2003

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