Chenal Valley Construction, Inc.

Plain-English summary

The judge had affirmed residential fall-protection and ladder citations against Chenal Valley Construction as the controlling employer at an Arkansas homebuilding site. The case was directed for Commission review. Before the Commission decided the merits, the Secretary withdrew every remaining citation item. Because the withdrawal resolved the entire case, the Commission vacated the judge's decision and order. No citation or penalty remained in effect.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.25(a); 29 C.F.R. § 1926.501(b)(13); 29 C.F.R. § 1926.1053(b)(1); 29 C.F.R. § 1926.1053(b)(9); 29 C.F.R. § 1926.1053(b)(22)
• Outcome: All citation items were withdrawn, and the judge's decision and penalties were vacated.
• Key point: When the Secretary withdraws all citation items during Commission review, no merits issue remains for the Commission to decide.

Full text (OSHRC public release)

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MicrosoftInternetExplorer4

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v.

������� OSHRC Docket
No. 11-1351

CHENAL VALLEY CONSTRUCTION, INC.,

�������

Respondent.

FINAL ORDER

Administrative Law Judge Sharon
D. Calhoun issued a Decision and Order in this case affirming all of the
citation items at issue, and that decision was directed for review on October
20, 2011. On May 8, 2012, the Secretary notified the Commission by letter of
her decision to withdraw all of the citation items affirmed by the judge. This
withdrawal resolves all remaining issues in this case. Cuyohoga Valley Ry. Co. v. United Transp. Union , 474 U.S. 3 (1985)
(holding that Secretary�s discretion to withdraw citation is unreviewable).
Because the Secretary has withdrawn all citation items in this case, the
Commission vacates the Administrative Law Judge�s Decision and Order.

SO ORDERED.

����������������������������������������������������������������������� BY
DIRECTION OF THE COMMISSION

����������������������������������������������������������������������� RAY
H. DARLING, JR.

����������������������������������������������������������������������� EXECUTIVE
SECRETARY

�����������������������������������������������������������������������

Dated: June 7, 2012 ������������������������������������ ________

����������������������������������������������������������������������� John
X. Cerveny

����������������������������������������������������������������������� Deputy
Executive Secretary

United States of America

OCCUPATIONAL SAFETY AND
HEALTH REVIEW COMMISSION

1924 Building ‑ Room 2R90, 100
Alabama Street, SW

Atlanta, Georgia 30303‑3104

Secretary of Labor,

���������
Complainant,

��������������������� v.

����
OSHRC Docket No. � 11-1351

Chenal Valley Construction, Inc.,

���������
Respondent.

Appearances:

�����������������������

Lindsay Wofford, Esq., Office of the Solicitor, U. S.
Department of Labor,

Dallas, Texas

For the Complainant

W. D. Walker, Walker Companies

Little Rock, Arkansas

For the Respondent

Before: ���������������������� Administrative Law Judge Sharon D. Calhoun

����������������������������������������������������� DECISION AND
ORDER

Chenal
Valley Construction, Inc. (Chenal Valley) is a construction company which
engages exclusively in residential construction activities. � It functions as a general contractor on
residential construction sites. � On
February 17, 2010, Chenal Valley was engaged as a general contractor at a
construction site located at 13900 Fern Valley, Little Rock, Arkansas, in a
residential area known as the Woodlands Edge subdivision, when Occupational
Safety and Health Administration (OSHA) Compliance Officer Michelle Martin
initiated an inspection of the construction site. � As a result of Martin  s
inspection, on April 12, 2011, the Secretary issued a Citation and Notification
of Penalty to Chenal Valley for five serious items alleging violations of the
Occupational Safety and Health Act of 1970 (Act), and proposing penalties in
the amount of $18,600.00. � Chenal Valley
denies it violated the cited standards and contests the citation and proposed
penalties. � Thereafter, this case was
designated for the Commission  s
Simplified Proceedings. � A hearing was
held before the undersigned on August 1, 2011. �
Prior to the hearing, the Secretary withdrew items 1 and 4 and the
proposed penalties for those items. � At
issue are items 2, 3 and 5 and proposed penalties in the total amount of
$12,600.00 �

For
the reasons that follow, items 2, 3 and 5 of the citation are affirmed and a
penalty of $1,500.00 is assessed for each item.

Stipulations

At the hearing, the parties announced the following
stipulations:

1. The
   inspection which led to the issuance of the citations was conducted pursuant to
   the Regional Emphasis Program for Region 6 (Tr. 9-10).

2. Carlos
   Reynolds will appear as Chenal Valley�s witness without the necessity of a
   subpoena (Tr. 9).

3. Chenal
   Valley requires its subcontractors to carry liability insurance on their
   vehicles, liability insurance in the workplace, and workers� compensation
   insurance (Tr. 259-260).

Jurisdiction

Chenal Valley denies that at all times relevant to this
action it was an employer engaged in a business affecting interstate commerce
within the meaning of � 3(5) of the Act, 29  U.S.C.
� 652(5). � The evidence shows Chenal
Valley engages in construction work and has three  employees who are
officers of the corporation (Tr. 295). �
It uses vehicles which were not made in the state of Arkansas, as there
are no truck manufacturers in the state of Arkansas (Tr. 29. 32). � It also has a web page on the internet (Tr.
29-30; Exh. C-2). �� These facts show that
Chenal Valley is in a business affecting interstate commerce. � Moreover, construction work is within the
class of activities Congress intended to regulate, and thus, an employer
engaged in construction activities is in a business affecting commerce. � Clarence
M. Jones d/b/a C. Jones Co., 11 BNA OSHC 1529 (No. 77-3676, 1983). � Construction work per se affects interstate commerce because there is an interstate
market in construction materials and services. �
Clarence M. Jones d/b/a C. Jones
Co., id. � Also see Eric Ho, 20 BNA
OSHC 1361 (Nos. 98-1645, 98‑1646, 2003).

The
Act applies to a �person engaged in a business affecting commerce who has
employees.� 29 U.S.C. � 652(5), see Don
Davis, 19 BNA OSHC 1477, 1479 (No. 96-1378, 2001). � Section 3(4) defines �person� as �one or more
individuals, partnerships, associations, corporations, business trusts, legal
representatives, or any organized group of persons.� � Chenal Valley is a corporation. � All employees are covered under the Act,
including a company�s president and vice president when they are performing
work for the employer. � D & H Pump Service, Inc. , 5 BNA OSHC
1485 (No. 16246, 1977); Hydraform
Products Corp ., 7 BNA OSHC 1995 (No. 78-527, 1979). � Chenal Valley�s president and vice president
both performed work for the company as evidenced by their site visits. � The undersigned finds Chenal Valley is an
employer with employees in a business affecting interstate commerce. � Therefore, jurisdiction of this action is
conferred upon the Occupational Safety and Health Review Commission pursuant to
� 10(c) of the Act.

Background

Employer

Chenal Valley is a family-owned corporation
and has been in existence since 1991, engaging exclusively in residential
construction activities. � �Their goal is
to build high quality, energy-efficient homes that are both beautiful and
livable.� (Exh. C-2). � Jim Miles is the
owner and President of the company, which has two other officers, (Vice
President and Secretary). � Miles
contends, however, there are no employees of the company (Tr. 246; Exh.
C-2). � Chenal Valley functions as a
general contractor, hiring subcontractors, such as Daniels Framing, which
was hired to perform roofing work on the jobsite at issue located at 13900 Fern
Valley Road, Little Rock, Arkansas (Tr. 287). �

C henal Valley owned the site located at 13900
Fern Valley Road (Tr. 283). � It paid for
the materials used on the jobsite and provided instruction to Daniels Framing
regarding the materials installed on the property, (Tr. 283, 284). � All communications with the intended
homeowner of the property came through Chenal Valley to Daniels Framing (Tr.
285). � Owner Miles would ensure that any
safety problems on the jobsite were corrected (Tr. 289). � Joe Miles, Project Manager of Chenal Valley,
was responsible for visiting the job sites on a daily basis to check on the
progress of the work (Tr. 286, 287; Exh. C ‑2). � Owner Miles also went to the jobsites
approximately three times per week (Tr. 287).

� Inspection

����������� OSHA Assistant Area Director William
�Monty� Cole and Compliance Officer Michelle Martin initiated an inspection of
the construction site located at 13900 Fern Valley Road, Little Rock, Arkansas
on February 17, 2010, as a result of fall hazards they observed while driving
by the site (Tr. 135). � The inspection
site was in the Woodlands Edge subdivision and was selected for inspection as a
result of plain view hazards which were observed on a site where construction
activity was occurring (Tr. 15, 17-19). �
OSHA�s Compliance Directive for Construction instructs OSHA to conduct
inspections when plain view hazards in construction are observed (Tr. 81).

����������� On the day of the inspection,
subcontractor Daniels Framing was performing roofing work at the jobsite (Tr. 24-25,
28, 54, 149). � According to Owner Miles,
Daniels Framing was not scheduled to conduct roofing work on the day of the
OSHA inspection (Tr. 253). � While at the
jobsite, Cole and Martin observed employees working on a steep slope roof
without any type of fall protection, exposed to a fall of over 8 feet (Tr.
20-21, 25, 35, 39-40, 135; Exhs. C-3, C-4). � They also observed two ladders which did not
extend the appropriate distance above the edge of the roof (Tr. 35, 38; Exhs.
C-3, C-4). � Ladder 1 did not extend far
enough over the roof line and ladder 2 extended approximately � of a rung above
the roof edge (Tr. 42; Exh. C-7). ��
Cole observed employees accessing the roof by using ladder 1
(Tr. 59). � An employee also was
observed carrying a bag of shingles which weighed approximately 40 pounds onto
the roof by utilizing one of the ladders (Tr. 48-49, 147). � The employee climbing the ladder with the bag
of shingles did not maintain three-point contact with the ladder (Tr. 165).

� As a result of the violations observed,
citations were issued to Chenal Valley as the controlling employer, pursuant to
OSHA�s Multi-Employer Citation Policy (Tr. 61). �
Chenal Valley was determined by OSHA to be the controlling employer
because it had control over the work site, it owned the property upon which the
houses were being built, it made periodic visits to the work site, it provided
the materials used on the jobsite, and because it had the authority to either
correct the hazards or have its subcontractors correct the hazards (Tr. 62).

Based
upon the inspection, the Secretary issued the Citation and Notification of
Penalty to Chenal Valley on April 12, 2011. �

The Citation

The
Secretary alleges that Chenal Valley violated OSHA  s
standards found in Subpart M-Fall Protection and Subpart X-Stairways and
Ladders. �

Secretary�s
Burden �����

To prove a violation of an OSHA standard, the Secretary
must show by a preponderance of the evidence that (1) the cited standard
applies; (2) there was noncompliance with its terms; (3) employees had access
to the violative conditions; and (4) the cited employer had actual or
constructive knowledge of those conditions. �
Southwestern Bell Telephone Co., 19 BNA OSHC 1097, 1098 (No.
98-1748, 2000).

Controlling Employer

����������� The Citation was issued to Chenal Valley
pursuant to OSHA�s Multi-Employer Citation Policy (Tr. 62). � The Secretary contends Chenal Valley was the
general contractor on the jobsite and it was responsible for the violations due
to its capacity as controlling employer. �
Chenal Valley asserts that it was not a controlling employer. [1] � The Commission has recently reversed its
previous position, holding that the Secretary may cite a non-exposing,
controlling employer under this policy. �
In Summit Contractors , 23 BNA
OSHC 1196, 1205 (No. 05-0839, 2010), the Commission held:

�[A]n employer who
either creates or controls the cited hazard has a duty under   5(a)(2) of the Act . . .
to protect not only its own employees but those of other employers engaged in a
common undertaking.� McDevitt Street
Bovis, 19 BNA OSHC at 1109, 2000 CCH OSHD at p. 48,780 (citation
omitted). � With respect to controlling
employer liability �an employer may be held responsible for the violations of
other employers where it could be reasonably expected to prevent or detect and
abate the violations due to its supervisory authority and control over the
worksite.� Id. (citation omitted); Grossman Steel, 4 BNA OSHC 1188,
1975-1976 CCH OSHD at p. 24,791.

Chenal
Valley does not dispute that it hires subcontractors to perform work on
residential construction sites or that it hired Daniels Framing to conduct
roofing work for the jobsite at issue (Tr. 285). [2] � Chenal
Valley paid for the shingles and materials put on the house by Daniels Framing
(Tr. 140, 284). � Daniels Framing received
its instruction about what shingles to put on the house from Chenal Framing
(Tr. 283). � All communications with the
purchaser of the property came through Chenal Valley which, in turn, communicated
it to Daniels Framing (Tr. 285). �
Chenal Valley could instruct Daniels Framing to change what they were
doing if the homeowner was not happy (Tr. 286). �
As a part of his responsibilities, Miles�s son, Joe Miles, Project
Manager for Chenal Valley, visited the job site on a daily basis to check on
the progress of the work (Tr. 286, 287). �
Owner Miles would go to the jobsite approximately three times per week
(Tr. 287). � Chenal Valley tries to
have a representative onsite approximately three times per week (Tr. 140,
187). �����

In
order to ensure safety on the jobsite, owner Miles, at the beginning of the
year, renews the subcontract agreements, asks the subcontractors to provide all
of their insurance information, and discusses the subcontractors� safety and
training records (Tr. 258). � Although
Chenal Valley did not get involved in training Daniels Framing�s employees, it
required Daniels Framing to provide Chenal Valley with its training plans (Tr.
260-261). � Further, if an employee of
Daniels Framing violated any safety laws, Chenal would contact Daniels Framing
to get the problem resolved (Tr. 262). � If owner Miles was aware of a violation, he
would point it out to Daniels Framing, and owner Miles testified he probably
would ensure that the safety problem was corrected (Tr. 289). The undersigned
finds Chenal Valley had supervisory authority and control over the
jobsite. � Accordingly, the Secretary
properly issued the instant citation pursuant to OSHA�s Multi-Employer Citation
Policy . ����

Item
2: Alleged Serious Violation of � 1926.501(b)(13)

����������� The
Secretary charges Chenal Valley with violating � 1926.501(b)(13),
alleging that employees of Daniels Framing, a subcontractor of Chenal Valley,
failed to use fall protection when performing roofing work. � Specifically, the citation alleges �[o]n or
about February 17, 2011, at the worksite located at 13900 Fern Valley in Little
Rock Arkansas, employee straddled across the peak of an approximately 8:12
pitched roof installing vents was not protected from falling. � Employee was exposed to an approximately 12
ft. fall from elevation.� (Citation and Notification of Penalty). �

The standard found at � 1926.501(b)(13) provides:

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. � Exception: �
When the employer can demonstrate that it is infeasible or creates a
greater hazard to use these systems, the employer shall develop and implement a
fall protection plan which meets the requirements of paragraph (k) of �
1926.502.

Applicability

There
is no dispute that employees of Daniels Framing were engaged in roofing work at
the time of the inspection. � Employees
were observed carrying shingles to the roof and were photographed conducting
work activity on the roof (Tr. 147; Exhs. C-3, C-4, C-5, C-7). � Tar paper and shingles were being put on the
roof. � Daniels Framing was installing a
roof on the residence located at the inspection site. � It was engaged in residential
construction. � Subpart M defines roofing
work as �the hoisting, storage, application, and removal of roofing materials
and equipment, including related insulation, sheet metal, and vapor barrier
work . . . � (� 1926.500(b)). � The
cited standard is applicable.

Noncompliance with the Terms of the Standard

Martin
observed employees working on a roof without fall protection (Tr. 20-21, 25,
35, 39-40, 135; Exhs. C-3, C-4, C-5, C-7). �
The fall distance from the eve of the roof to the ground was determined
to be 8 feet (Tr. 20-21, 25, 35, 39-40, 135). �
As reflected in the photographs admitted into evidence, no guardrail
systems, safety net system, or personal fall arrest system was in place (Exhs.
C-3, C-4, C-5, C-7). � In addition, no one
was observed functioning as a monitor for employees working on the roof
(Tr.146). �

Chenal
Valley contends the employee shown in exhibit C-4 was tied off with the cord
depicted in the photograph and, therefore, protected from falling. � The undersigned disagrees. � Martin and Cole testified the cord depicted
in exhibit C-4 is a pneumatic nailer extension line which was not attached to
anything to prevent the employee from falling (Tr. 143, 145). � Both Martin and Cole testified consistently
and with assurance regarding the extension line, and are found to be reliable.
Although Martin testified on cross examination that she did not know if there
was a fall-safe device on the opposite side of the house (Tr. 160), a
preponderance of the evidence supports a finding that the employees working on
the front side of the house were not protected from falling. �

The
fall protection measures set forth in �
1926.501(b)(13) must be utilized unless any other provisions in
paragraph (b) provide for an alternative fall protection measure. � Cole and Martin testified the employees were
working on a steep slope roof without any type of fall protection, being
exposed to a fall of over 8 feet (Tr. 20-21, 25, 35, 39-40, 135; Exhs. C-3,
C-4). � Paragraph (b)(11) provides for
guardrail systems with toeboards as an additional fall protection measure for
steep roofs. Even assuming guardrail systems with toeboards could have been
used, the evidence adduced at the hearing shows that no fall protection at all
was used at the time of the inspection.

The
standard found at � 1926.501(b)(13) also provides an exception for
situations where the employer demonstrates infeasibility or greater
hazard. � Chenal Valley adduced no
evidence and advanced no arguments regarding infeasibility or greater
hazard. � Therefore, the exception to the
standard is not at issue. � The Secretary
has demonstrated the terms of the standard were violated. �

Employee Access to the Violative Conditions

As
an element of the Secretary  s
burden of proof, the record must show that employees were exposed or had access
to the violative condition. � Walker
Towing Corp ., 14 BNA OSHC 2072 (No. 87-1359, 1991). � Martin and Cole observed employees working on
a roof without fall protection (Tr. 20-21, 25, 35, 39-40, 135; Exhs. C-3, C-4,
C-5, C-7). � The fall distance from the
eve of the roof to the ground was determined to be 8 feet (Tr. 20-21, 25, 35,
39-40, 135). � Chenal Valley does not
dispute that employees of Daniels Framing were working on the roof at the
inspection site. � A preponderance of the
evidence shows Daniels Framing�s employees were exposed to fall hazards while
working unprotected from the roof of the house. �
Martin testified the violation was characterized as serious because a
fall from a roof could result in serious injury such as broken bones,
fractures, head concussions, contusions and possibly death (Tr. 149-150). � The undersigned agrees. The Secretary has met
her burden of establishing exposure or access to the violative condition.

Employer Knowledge

It
is the Secretary�s burden to adduce sufficient evidence to establish this
element of her case. � The Secretary must
establish actual or constructive knowledge of the violative conditions by
Chenal Valley in order to prove a violation of the standard. � In order to show employer knowledge of a
violation the Secretary must show the employer knew, or with the exercise of
reasonable diligence could have known of a hazardous condition. � Dun Par Engineered Form Co .,12 BNA
OSHC 1962, 1965-66 (No. 82-928, 1986). �
An employer is chargeable with knowledge of conditions which are plainly
visible to its supervisory personnel. � A.L.
Baumgartner Construction Inc ., 16 BNA OSHC 1995, 1998 (No 92-1022,
1994). �  Because
corporate employers can only obtain knowledge through their agents, the actions
and knowledge of supervisory personnel are generally imputed to their
employers, and the Secretary can make a prima facie showing of knowledge by
proving that a supervisory employee knew of, or was responsible for, the
violation.  � Todd Shipyards Corp . � 11 BNA OSHC 2177, 2179 (No. 77-1598,
1984). �

Chenal
Valley contends it had no knowledge of the violative conditions because it had
no employees on the site. � Further,
Chenal Valley contends it did not know Daniels Framing was working on the
jobsite, since they were not scheduled to be on the site. ���������

Chenal
Valley was not at the jobsite on the day of the inspection; therefore, it did
not have actual knowledge of the violative conditions. Since Chenal Valley did
not have actual knowledge of the violations, the Secretary must demonstrate
constructive knowledge. � The Secretary
points out in her brief that OSHA had conducted an inspection of another
jobsite in the Woodlands Edge subdivision earlier in the morning, and that
Daniels Framing was the subcontractor and Chenal Valley was the general
contractor on that site as well. [3] � According to the Secretary, the earlier
inspection of Daniels Framing put Chenal Valley on notice that Daniels Framing
was working unsafely and therefore, Chenal Valley should have exercised
reasonable diligence to determine whether Daniels Framing was working unsafely
on the inspection site at issue in this case (Secretary�s Brief, p.
14-15). � The undersigned agrees.

The
time between the morning inspection and the afternoon inspection was
approximately 1� hours, and the inspection sites were in close proximity of
each other (Tr. 119; Exh. C-1). � As in
the instant case, fall protection violations were found by OSHA during the
earlier inspection of Daniels Framing (Tr. 54). �
Project Manager Miles came to the site and was present during OSHA�s
initial inspection of Daniels Framing (Tr. 22). �
OSHA left the Woodlands Edge subdivision around noon after the earlier
inspection was conducted and did not return until 1:30 p.m. to conduct the
inspection at issue here (Tr. 118-119). �
The undersigned finds that Chenal Valley had sufficient time to discover
whether Daniels Framing was working safely at the jobsite at issue in this
case. � The undersigned also finds that
the Project Manager�s presence at the earlier inspection, put Chenal Valley on
notice that Daniels Framing was working, despite not being scheduled to work on
that day. � The violations were in plain
view and could be seen from the street (Tr. 23, 27, 59, 60, 61, 138). � With reasonable diligence Chenal Valley could
have discovered the violations. � The
undersigned discredits Chenal Valley�s arguments that Daniels Framing did not
begin working until after noon, as being inconsistent with a preponderance of
the evidence. The Secretary has established knowledge. � The undersigned finds the Secretary has met
her burden and has proven a violation of � 1926.501(b)(13), by a
preponderance of the evidence. � Item 2 is
affirmed. ��

Item 3: Alleged Serious
Violation of � 1926.1053(b)(1)

� The Secretary cited Chenal
Valley for serious violations of � 1926.1053(b)(1), alleging two instances
in which portable ladders used to access the roof of the home under
construction by subcontractor Daniels Framing did not extend at least 3 feet
above the upper landing surface.

� The cited standard, � 1926.1053(b)(1),
provides:

(b) Use . � The following requirements apply to the use
of all ladders, including job-made ladders, except as otherwise indicated:

(1) When portable
ladders are used for access to an upper landing surface, the ladder side rails
shall extend at least 3 feet (.9m) 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.

The
citation alleges in item 1:

(a)    On
or about February 17, 2011, at the front of the house being constructed at
13900 Fern Valley in Little Rock, Arkansas, the portable extension ladder used
by employees to access the roof extended approximately 6 inches above the edge
of the roof. � This condition exposed
employees to the hazard of falls from elevation

.

(b)    On
or about February 17, 2011 on the south side of the house being constructed at
13900 Fern Valley in Little Rock, Arkansas, the portable extension ladder used
by employees to access the roof extended approximately 14-16 inches above the
edge of the roof. � This condition exposed
employees to the hazard of falls from elevation.

(Citation and Notification of Penalty). �
In her brief, the Secretary states that she is withdrawing instance (a)
of the citation (Secretary�s Brief, p. 18, footnote 2). � Instance (a) therefore, is not at issue.

Applicability of the Standard

Employees of Daniels Framing, subcontractor to Chenal
Valley, used portable ladders to install the roof on the house under
construction at the inspection site. Two portable ladders were in use at the
jobsite. � The standard is applicable.

� Noncompliance
with the Terms of the Standard

Instance b: Chenal Valley was cited for
a ladder on the south side of the house which extended approximately 14-16
inches above the roof. As reflected by the photographs, the ladder did not
extend at least 3 feet above the roof, which was the upper landing surface
(Exhs. C-3, C‑6, C-7). � Further,
Cole and Martin testified the ladder was not secured (Tr. 45-46, 153). � Owner Miles contends the ladder used by
employees extended at least 3 feet above the roof (Tr. 270-271). � The undersigned disagrees. � The testimony of Martin and Cole, supported
by the photographic evidence, supports Cole�s and Martin�s testimony that the
ladders failed to extend the required distance. �
The undersigned finds the Secretary has established that Chenal Valley
violated the specific terms of the standard with respect to instance (b).

Employee Access to the Violative Conditions

The
testimony reveals that ladders were the only way to access the roof on the
jobsite (Tr. 75). � Photographs show
Daniels Framing employees working on the roof (Exhs. C-3, C-4, C‑5). � Martin testified she observed a Daniels
Framing employee using a ladder to access the roof, while carrying a bag of
shingles (Tr. 147). � As evidenced by tar
paper on the roof, Cole concluded employees of Daniels Framing accessed the
roof and were exposed (Tr. 57-58). � The
undersigned finds Cole and Martin credible as to the conditions they observed
on the jobsite. � Their testimony was
supported by the photographic evidence and was consistent. � Owner Miles was not at the jobsite on the day
of the inspection. � His testimony as to
conditions at the jobsite is not persuasive. According to Martin, a fall could
result in serious injury such as broken bones, fractures, head concussions,
contusions and the possibly death (Tr. 149-150). � The undersigned agrees. � The Secretary has established exposure.

Employer Knowledge

Constructive
knowledge is established as set forth above in the knowledge discussion for
Item 2. � The ladder violations were in
plain view and with reasonable diligence could have been detected. � The Secretary has established a prima facie
case as to Item 3 instance (b). � Item 3
instance (b) is affirmed.

Item
5: Alleged Serious Violation of � 1926.1053(b)(22)

Chenal
Valley was charged as controlling employer for a violation of
� 1926.1053(b)(22) which provides �[a]n employee shall not carry any
object or load that could cause the employee to lose balance and fall.� � The citation alleges:

On or about February 17, 2011, on
the south side of the house being constructed at 13900 Fern Valley in Little
Rock, Arkansas, employee climbed a portable extension ladder to access the roof
while carrying an approximately 40 lb. bag of roof shingles. � This condition exposed employee to the hazard
of falls from ladder elevations.

� (Citation and Notification of Penalty).

Applicability of the Standard

As
set forth above, employees of Daniels Framing, subcontractor to Chenal Valley,
used portable ladders to install the roof on the house under construction at
the inspection site. � The standard is
applicable.

� Noncompliance
with the Terms of the Standard

The standard is clear, while using
a ladder, employees are precluded from carrying items which could cause the
employee to lose balance and fall. �
Martin testified she observed an employee of Daniels Framing carrying a
bag of shingles up a ladder to the roof (Tr. 147). � Martin testified the bags of shingles weighed
40 pounds, as reflected by the weights listed on the discarded shingles bags
and bags of shingles she observed on the ground (Tr. 148). � A Daniels employee is depicted in exhibit C-7
in proximity to the ladder on the south side of the house carrying a bag of
shingles. � The undersigned finds that
carrying a bag of shingles up a ladder could cause an employee to lose balance
and fall. � Chenal Valley failed to comply
with the terms of the standard. ���

Employee Access to the Violative Conditions

Daniels
Framing employees were working on the roof and used the ladders to access the
roof. � Further, Martin observed an
employee carrying a bag of shingles up the ladder to the roof
(Tr. 147). � Her testimony is
supported by exhibit C-7 which shows a Daniels employee carrying a bag of
shingles in proximity to the ladder on the south side of the house. � Exposure is established.

Employer
Knowledge �

The
violation was in plain view. � As set
forth above in the discussion for Item 2, Chenal Valley, with reasonable
diligence, could have known of the violative condition. � Constructive knowledge is established. � The Secretary has met her burden as to Item

5. � Item 5 is affirmed.

Penalty Determination

The Commission is the final arbiter of penalties in all
contested cases. � Secretary v. OSHRC
and Interstate Glass Co. , 487 F.2d 438 (8th Cir. 1973). � The Commission must determine a reasonable
and appropriate penalty in light of  17(j) of the Act and may arrive at a different formulation
than the Secretary in assessing the statutory factors. � Section 17(j) of the Act requires the
Commission to give  due consideration  to four criteria when assessing penalties: � (1) the size of the employer's business; (2)
the gravity of the violation; (3) the good faith of the employer; and (4) the
employer's prior history of violations. � 29 U.S.C.   666(j) . � Gravity is the primary consideration and is
determined by the number of employees exposed, the duration of the exposure,
the precautions taken against injury, and the likelihood of an actual injury. � J. A. Jones Construction Co. , 15 BNA OSHC
2201 (No. 87-2059, 1993).

Chenal Valley employed only three employees at the time of
the inspection. � Due to its small
size, Martin reduced the penalty by 40%; however, no good faith reduction was
given because Chenal Valley did not make sure the site was in safe condition
(Tr. 151, 153). � No history reduction was
given because Chenal Valley had not been inspected previously for OSHA
violations (Tr. 151-152, 155, 157, 158). �

The undersigned finds that a high gravity is appropriate
here because if employees were to fall from the roof of the house under construction
or from ladders to access the roof, they could sustain serious injuries or
death. � Chenal Valley, however, is a
small employer and has had no history of prior violations. � These factors weigh in favor of a small
penalty. � Further, there is no evidence
that Chenal Valley failed to cooperate with the investigation and it
demonstrated good faith during these proceedings. � These good faith factors weigh against a
large penalty. � Considering these facts
and the statutory elements, a total penalty of $4,500.00 is appropriate.

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:

1. Citation 1, Item 1, alleging a violation of � 1926.25(a)
   and a proposed penalty of $1,800.00 is withdrawn;

2. Citation 1, Item 2, alleging a
   violation of �
   1926.501(b)(13) is affirmed and a penalty of $1,500.00 is assessed;

3. C itation 1, Item 3 instance (a), alleging a violation of � 1926.1053(b)(1) is withdrawn;

4. Citation 1, Item 3 instance (b), alleging a violation of � 1926.1053(b)(1) is affirmed and a penalty of $1,500.00 is assessed;

5. Citation 1, Item 4, alleging a violation of � 1926.1053(b)(9) and a proposed penalty of
   $4,200.00 is withdrawn; and

6. Citation 1, Item 5, alleging a violation of � 1926.1053(b)(22) is affirmed and a penalty
   of $1,500.00 is assessed.

���������� SO ORDERED. �������������������������������������

����������������������� /s/ �
Sharon D. Calhoun ������������������� ������������������������� ��������������������������������

SHARON D. CALHOUN

Judge

Date: � September 16,
2011

Atlanta, Georgia

[1]
Chenal Valley also argues the Secretary failed to follow her own administrative
procedures in selecting Chenal Valley for inspection and in conducting the
inspection in this case, in violation of the Administrative Procedures Act. The
undersigned has considered Chenal Valley�s arguments and finds they have no
merit and are not supported by a preponderance of the evidence. ���

[2]
Chenal Valley asserts the Sasser defense in its brief arguing �[a] general contractor may
rely on the assurances of a subcontractor, as long as it has no reason to
believe that the work is being performed in an unsafe manner. � Sasser
Elecric and Manufacturing Co., 11 BNA OSHC 2133 (No. 82-178, 1984).�
(Chenal Valley Brief, p. 5). � For the
reasons set forth below, this argument fails, as Chenal Valley had reason to
believe that Daniels Framing was performing work in an unsafe manner. �

[3] The earlier
inspection was conducted at Hoggard�s Ridge in the Woodlands Edge subdivision
(Tr. 119).