Sandy Woodmansee d/b/a S.A.W.S.

Plain-English summary

S.A.W.S. was repairing a Massachusetts residential roof when OSHA found its sole employee using a pneumatic nail gun without eye protection and working on the roof without fall protection. The roof ranged from 6 feet 10 inches to 13 feet above the ground. The nail-gun manual warned of severe eye injury from flying fasteners and debris, and a fall could have caused death or serious injury. The owner assigned and directed the work and could see the conditions, so his knowledge was imputed to the company. S.A.W.S. did not appear at the hearing, and the Secretary's evidence was uncontested. Both serious items were affirmed and $6,000 in total penalties was assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.102(a)(1); 29 C.F.R. § 1926.501(b)(13)
• Outcome: Two serious items affirmed with $3,000 penalties for each, totaling $6,000.
• Key point: Residential roofing work with a pneumatic nail gun requires both appropriate eye protection and fall protection when the employee works more than 6 feet above the ground.

Full text (OSHRC public release)

                       United States of America
        OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                           1120 20th Street, N.W., Ninth Floor
                              Washington, D.C. 20036-3457

                                            :

SECRETARY OF LABOR, : SIMPLIFIED PROCEEDING
:
Complainant, :
:
v. : OSHRC DOCKET NO. 11-1851
:
SANDY WOODMANSEE d/b/a S.A.W.S. :
:
Respondent. :
:

APPEARANCES: James L. Polianites, Jr., Esq. Sandford A. Woodmansee
U.S. Department of Labor Sandy Woodmansee d/b/a S.A.W.S.
Office of the Regional Solicitor 24 Beede Road
JFK Federal Building Epping, New Hampshire 03042
Room E-375 For the Respondent, Pro Se
Boston, Massachusetts 02203
For the Complainant

Before: Dennis L. Phillips
Administrative Law Judge

                         DECISION AND ORDER

                                Background

   This proceeding is before the Occupational Safety and Health Review Commission (“the

Commission”) pursuant to §10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C.

§651 et seq. (“the Act”). On May 2, 2011, the Occupational Safety and Health Administration

(“OSHA”) inspected the worksite of Sandy Woodmansee, d/b/a S.A.W.S. (“Respondent” or

“S.A.W.S.”). As a result of the inspection, on May 6, 2011 OSHA issued to S.A.W.S. a serious
citation containing two items. The total proposed penalty for the citation was $6,000. Respondent

contested the citation and proposed penalty pursuant to §10(c) of the Act.

    Citation 1, Item 1 alleges that S.A.W.S. violated 29 C.F.R. § 1926.102(a)(1). The item

asserts that on May 2, 2011 an employee of S.A.W.S. was using a pneumatic nail gun without

proper eye and face protection. The proposed penalty for Citation 1, Item 1 is $3,000. The

standard provides:

            § 1926.102 Eye and face protection.

                (a) General (1) Employees shall be provided with eye and face
            protection equipment when machines or operations present potential eye
            or face injury from physical, chemical, or radiation agents.

    Citation 1, Item 2 alleges a violation of 29 C.F.R. § 1926.501(b)(13). The citation asserts

that on May 2, 2011 an employee of Respondent was not protected from falling while working

on a roof that was more than six feet above a lower level. The proposed penalty for Citation 1,

Item 2 is $3,000. The standard provides:

            § 1926.501 Duty to have fall protection.
                            *       *       *
               (b)(13) 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.

    On August 11, 2011, pursuant to Commission Rule 203(a), 29 C.F.R. § 2200.203(a), the

case was assigned to Simplified Proceedings where pleadings were not required and the Federal Rules

of Evidence did not apply at the hearing. (Tr. 8).
 The Hearing

     On November 22, 2011, Complainant filed the Secretary’s Motion for Default and For

Dismissal of Respondent’s Notice of Contest (“Motion to Dismiss”) based upon Respondent’s

alleged general inattentiveness and unavailability in this matter, including its failure to disclose

any affirmative defenses and file its pre-hearing statement.1 On December 1, 2011, the Secretary

filed a request of the Court on behalf of pro se Respondent to continue the hearing set for

December 12, 2011 at Boston, Massachusetts (“Motion for a Hearing Continuance”).2 On

December 7, 2011 the Court granted Respondent’s Motion for a Hearing Continuance and

rescheduled the trial for February 8, 2012.3

     By Order dated March 27, 2012, the Court scheduled the hearing to commence at 9:00

a.m., E.D.T., on May 18, 2012 in Boston, Massachusetts. The Court also ordered Respondent to

file its pre-hearing statement and disclose its hearing documents by April 18, 2012. On May 8,

2012, the Secretary timely filed an amended pre-hearing statement.4 In a letter accompanying

that pre-hearing statement, the Secretary stated that “[t]o date the undersigned has received no

documents, exhibits or other written materials of any sort from Mr. Woodmansee. Telephone

messages have been left but not returned.” On May 10, 2012, the Court sent a “Notice of Precise

Hearing Location and Order” to both parties by Federal Express. This Notice informed the

parties that the matter was scheduled for hearing on May 18, 2012 in Boston, Massachusetts.

     At the hearing, the Secretary’s attorney, Mr. Polianites, stated that he attempted to

contact Respondent’s owner, Mr. Woodmansee, by telephone three times over the prior two

1
On December 7, 2011, the Secretary withdrew, without prejudice, her Motion to Dismiss in view of Respondent’s
representations that it would file a pre-trial statement and disclose to the Secretary, in advance, any documents and
photographs Respondent intended to offer at trial, and appear at the hearing.
2
The Secretary did not object to Respondent’s Motion for a Hearing Continuance.
3
The February 8, 2012 trial date was cancelled because of a reported settlement that never materialized.
4
Respondent failed to file any pre-hearing statement.
weeks, including twice on the day before the hearing. He left messages, but never received any

return call. Mr. Polianites also stated that, the day before the hearing, he made a final call to Mr.

Woodmansee and left a message reminding him of the hearing, including the location and the

time. (Tr. 34). Respondent failed to appear for the May 18, 2012 hearing in Boston,

Massachusetts. The Secretary’s attorney appeared at the hearing and presented her case.

Through him, she offered several exhibits that were admitted into evidence at the hearing. (Ex.

C-1 through Ex. C-5). The Secretary served a copy of her post-hearing brief upon Respondent on

July 6, 2012. S.A.W.S. neither offered any exhibits into the record nor filed a post-hearing brief.

(Tr. 10). Commission Rule 64 states that the failure of a party to appear at a hearing “may result

in a decision against that party.” 29 C.F.R. § 2200.64(a). A failure to appear may be excused

where good cause is shown, but a request for reinstatement must be made within five days of the

hearing. 29 C.F.R. § 2200.64(b). Respondent has made no such request. The evidence produced

by the Secretary is uncontested since Respondent failed to appear at the hearing, proffer any trial

exhibits, or file any post-hearing brief.

                                         Jurisdiction


   Under the Act, each employer “shall comply with occupational safety and health

standards promulgated under this chapter [of the Act].” § 5(a)(2) of the Act, 29 U.S.C.§

654(a)(2). The Act defines an employer as “a person engaged in a business affecting commerce

who has employees.” § 3(5) of the Act, 29 U.S.C. § 652(5). The Act further 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 (other than the Trust Territory of the Pacific Islands), or between points in

the same State but through a point outside.” § 3(3) of the Act, 29 U.S.C. § 652(3).
 The evidence establishes that, at the time of the OSHA inspection, S.A.W.S. was nailing

shingles to a roof with a nail gun. (Tr. 10, 22; Ex. C-3). Roof repair qualifies as “construction

work” which is defined as “work for construction, alteration, and/or repair, including painting

and decorating.” 29 C.F.R. § 1926.32(g). The construction industry as a whole affects

commerce, and even small employers within that industry are engaged in commerce. Slingluff v.

OSHRC, 425 F.3d 861, 866-67 (10th Cir. 2005); Clarence M. Jones, d/b/a C. Jones Co., 11 BNA

OSHC 1529, 1531 (No. 77-3676, 1983). The record also establishes that S.A.W.S. had at least

one employee who was nailing the shingles to the roof. (Tr. 16; Ex. C-3, Ex. C-4 pp. 1-2).

     Based on the evidence of record, the Court finds that Respondent, at all relevant times,

was engaged in a business affecting commerce and was an employer within the meaning of §§

3(3) and 3(5) of the Act. Also, by virtue of Respondent’s filing of its Notice of Contest,

jurisdiction of this proceeding is conferred upon the Commission by § 10(c) of the Act, 29

U.S.C. § 659(c).

                                The Secretary’s Burden of Proof

     Having established that OSHA had appropriate jurisdiction over the worksite at issue, the

Court turns next to the violations alleged by the Secretary. To establish a violation of an OSHA

standard, the Secretary must establish that: (1) the standard applies to the facts; (2) the employer

failed to comply with the terms of that standard; (3) employees had access to the hazard covered

by the standard, and (4) the employer knew or could have known of the existence of the hazard

with the exercise of reasonable diligence. Atl. Battery Co. 16 BNA OSHC 2131, 2138 (No. 90-

1747, 1994).5

5
The Court finds that the Secretary has proved all of the elements of a violation of each of the cited standards, and
no defense was either offered at the hearing or found by the Court.
 Discussion

    Assistant Area Director (“AAD”) Robert Carbone, Jr., testified at the hearing for the

Secretary.6 (Tr. 13). AAD Carbone testified that he was the AAD for the construction division of

the OSHA Andover Office in Massachusetts. He has been employed at OSHA for six years. He

started as an electrician in 1984 and has worked in the heavy construction industry for many

years. From about 1999 through 2006, he worked on the “Big Dig” project in Boston,

Massachusetts. He also taught at the International Brotherhood of Electrical Workers Apprentice

Training School for 14 years. He has been involved in hundreds of cases involving residential

fall protection citations. (Tr. 12-14).

    On April 29, 2011, OSHA received an anonymous complaint that a roofer was working

on a residential home without any fall protection or hard hat at 24 Edgemere Road, in Lynnfield,

Massachusetts. (Tr. 15; Ex. C-2). As a result of that complaint, AAD Carbone assigned CO

White to conduct an inspection of the site and he was dispatched to do so. Upon his arrival at the

site on May 2, 2011, the CO identified himself, presented his credentials and conducted an

opening conference with Mr. Woodmansee. (Tr. 10, 15). Mr. Woodmansee was identified as the

owner of the company.7 (Ex. C-1, p. 2). The house was a two-story single family residence with

a single story shed and Florida room attached. Respondent had started the roofing job on April

28, 2011 and planned to complete it by May 12, 2011. (Ex. C-1, pp. 2-3).

    Mr. White observed and photographed an employee on the roof, working on the single

story section of the house, nailing shingles to the roof with a nail gun. The CO measured the

height of the roof. The peak of the roof was 13 feet above the ground. The lowest point of the

roof off the ground was six feet, ten inches. (Tr. 16, 22, 25-27; Ex. C-3, p. 4). The employee,

6
Edward White, the Compliance Officer (“CO”) who conducted the inspection, was unavailable to testify at the
hearing. CO White had served as an OSHA CO for about 6 years at the time of the inspection. (Tr. 13, 15).
7
Respondent performs small jobs and renovations, including kitchen cabinets.
identified as Jason Merrill, was not provided with any fall protection equipment and was not

wearing any form of eye or face protection. (Tr.16, 20-22, 28; Ex. C-4). Mr. Merrill was

Respondent’s only employee and the only employee at the site. (Ex. C-1, pp.1, 4). The CO asked

Mr. Woodmansee to remove the employee from the roof. (Tr. 15, 27).

   Citation 1, Item 1 alleges a serious violation of 29 C.F.R. § 1926.102(a)(1). The standard

requires that employees wear appropriate eye and face protection when operating machinery or

equipment that present a potential hazard to the eye or face. Respondent was engaged in

construction work and was using a pneumatic nail gun to nail shingles to a roof. The nail gun’s

Operation and Maintenance Manual (“Manual”) contains warnings that eye protection be used at

all times when operating the nail gun. (Tr. 28; Ex. C-5, p. 3). The cited standard, 29 C.F.R. §

1926.102(a)(1), applies to this case.

   The nail gun expels one inch and one-quarter inch nails at pressures ranging from 70-90

pounds per square inch. (Ex. C-3, p.2) The Manual clearly states that eye protection is required

to guard against flying fasteners and debris, which could cause severe eye injury. The Manual

states that the operator must wear eye protection that provides protection from debris to the sides

and front of the eyes. (Tr. 28-29; C-5, p.3). When engaged in this activity the employee was not

wearing any form of eye or face protection in plain violation of the standard. While using the nail

gun, the employee was exposed to the hazard. (Tr. 29).

   The evidence establishes that Mr. Woodmansee assigned and directed all work to be done

by the employee, and that the work was in plain view of Mr. Woodmansee. (Ex. C-3, p.2). Mr.

Woodmansee knew or should have known with the exercise of reasonable diligence that the

employee was operating a nail gun without the appropriate eye or face protection. As the
supervisor at the site, Mr. Woodmansee’s knowledge is imputed to S.A.W.S. See Jersey Steel

Erectors, 16 BNA OSHC 1162, 1164 (No. 90-1307, 1993), aff’d, 19 F.3d 643 (3rd Cir. 1994).

   Finally, the evidence also establishes that the violation was serious. A violation is

properly characterized as serious if the Secretary establishes that, if an incident occurs, the result

could be death or serious physical harm. Beverly Enters., Inc., 19 BNA OSHC 1161, 1188 (No.

91-3144, 2000)(Consol.). The Manual for the nail gun plainly states that: “[e]ye protection is

required to guard against flying fasteners and debris, which could cause severe eye injury.” (Tr.

29; Ex. C-5, p.3). The OSHA 1-B also identifies possible results of an accident as “cuts,

contusions, eye and face injuries, loss of an eye, death.” (Ex. C-3, p.2).

   The undisputed evidence establishes that: (1) the standard applies, (2) its terms were

violated, (3) an employee was exposed to the hazard addressed by the standard and (4)

Respondent knew or with the exercise of reasonable diligence should have known of the

violative condition. The evidence also establishes that the violation could have caused serious

physical injury. Citation 1, Item 1 is affirmed.

   Citation 1, Item 2 alleges a serious violation of 29 C.F.R. § 1926.501(b)(13). This

standard requires that employees engaged in residential construction, working more than six feet

above the lower level, be provided with appropriate fall protection. The evidence establishes that

Respondent’s employee was working on repairing a residential roof that ranged in height from 6

feet 10 inches to 13 feet above the ground. (Tr. 26-27, 29). Respondent was obligated to provide

its employee with an appropriate form of fall protection. The cited standard, 29 C.F.R. §

1926.501(b)(13), applies.

   Mr. Merrill was photographed working near the peak of the roof. (Tr. 26; Ex. C-4). He

was not provided with any form of fall protection. There was no fall arrest system, safety net
system, guardrails, or other methods of fall protection at the site. (Tr. 19-22, 29-30; Ex. C-3, p.3,

C-4, pp. 2-5). Mr. Merrill was working on the roof, over six feet above the ground, and was

clearly exposed to the hazard. The cited standard was violated.

   As with Item 1, the evidence establishes that Mr. Woodmansee assigned and directed all

work to be done by the employee and that the work was in plain view of Mr. Woodmansee. (Ex.

C-3, p.2). Mr. Woodmansee knew or, with the exercise of reasonable diligence, should have

known that the employee was working on the roof without appropriate fall protection. The record

establishes that a fall from the roof, nearly 13 feet high at its peak, could have caused death or

serious physical harm. Mr. Carbone testified that the severity, or potential injury, resulting from

the violation was high. (Tr. 30; Ex. C-3, p.3). Roofing is an inherently dangerous activity. See

Daniel Crowe Roof Repair, 23 BNA OSHC 2001, 2017 (No. 10-2090, 2011) (roofing an

inherently dangerous activity). A fall of over six feet to the ground is likely to result in death or

serious physical injury.

                                        Penalties


   Section 17(j) of the Act, 29 U.S.C. § 666(j), requires that in assessing penalties the

Commission give "due consideration" to four criteria: the size of the employer's business, the

gravity of the violation, the employer's good faith, and its prior history of violations. Specialists

of the South, Inc., 14 BNA OSHC 1910 (No. 89-2241, 1990). The Secretary proposed a $3,000

penalty for each of the two items. When determining the gravity of a violation the Commission

considers both the number of employees exposed and the duration of that exposure. J. A. Jones

Constr. Co., 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993). The record establishes that one

employee was exposed to the violative conditions for approximately four hours. (Ex. C-3, pp. 1,

3). On this evidence, the Court finds the Secretary properly rated the violations to be of moderate
gravity. (Ex. C-3, pp. 1, 3). The record also establishes that with only one employee S.A.W.S. is

entitled to a 40% discount as a small employer. (Ex. C-1, p. 4). Respondent has no history of

prior violations. (Tr. 30). Finally, the record establishes that S.A.W.S. has no written safety

program and no training program for its employee. On that basis, the Court finds that it is not

entitled to any credit for good-faith.8 Considering the Section 17(j) factors, the Court finds that a

penalty of $3,000 for each violation is appropriate. (Tr. 30-31).

                             Findings of Fact and Conclusions of Law


     All findings of facts and conclusions of law relevant and necessary to a determination of

the contested issues have been found and appear in the decision above. See Fed. R. Civ. P. 52(a).

                                              ORDER


    Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that


    1. Citation 1 Item 1 for a serious violation of Section 5(a)(2) of the Act for a failure to

comply with the standard at 29 C.F.R. § 1926.102(a)(1) is AFFIRMED and a penalty of $3,000

is ASSESSED; and

    2. Citation 1 Item 2 for a serious violation of Section 5(a)(2) of the Act for a failure to

comply with the standard at 29 C.F.R. § 1926.501(b)(13) is AFFIRMED and a penalty of

$3,000 is ASSESSED.

8
See Daniel Crowe Roof Repair, 23 BNA OSHC at 2017(A company’s failure to provide its roofers with any form
of fall protection or training demonstrates that it is not entitled to any credit for good faith in the penalty
assessment.).
.
SO ORDERED.

                       __/s/____________________________
                         The Honorable Dennis L. Phillips
                              U.S. OSHRC JUDGE

Date: September 25, 2012
Washington, DC