CentiMark Corporation

Plain-English summary

CentiMark employees replaced a damaged concrete roof panel at a steel facility with a roof more than 60 feet above the factory floor. After the panel was removed, adjacent panels showed missing and crumbling concrete and exposed reinforcing steel, but CentiMark did not conduct a closer inspection of the roof's underside or structural condition. An employee later fell through an adjacent panel and died. The judge found that a cursory visual check from the dark factory floor more than 60 feet below did not verify that the walking and working surface could support employees. CentiMark's long history at the facility, knowledge of the roof's age, and the newly exposed damage required a more reasonable assessment. The serious structural-integrity item was affirmed with a $7,000 penalty, while two other items were vacated under the parties' settlement.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(a)(2); 29 C.F.R. § 1926.850(a); 29 C.F.R. § 1926.501(b)(4)(i)
• Outcome: The structural-integrity item was affirmed with a $7,000 penalty, and two other items were vacated.
• Key point: An employer must verify a roof's structural adequacy before allowing work and reassess when newly exposed damage reveals additional risk.

Full text (OSHRC public release)

                         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,
v. OSHRC Docket No. 12-0920
CentiMark Corporation,
Respondent.

APPEARANCES:

   Elizabeth L. Ashley, Esquire
   Matt Scheff, Esquire
   U.S. Department of Labor, Cleveland, Ohio
          For the Secretary

   Kent D. Riesen, Esquire
   Anspach Meeks Ellenberger LLP, Toledo, Ohio
         For the Respondent

BEFORE: Carol A. Baumerich
Administrative Law Judge

                              DECISION AND ORDER
   This proceeding is before the Occupational Health and Safety Review Commission (the

Commission) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 659(c) (the Act). On October 12, 2011, the Occupational Safety and Health
Administration (OSHA) began an inspection of CentiMark Corporation (Respondent or
CentiMark) in response to a reported fatality. CentiMark’s employees were performing roofing
work at Superior Forge & Steel Corporation’s (Superior) facility in Lima, Ohio (worksite).
OSHA issued a three-item serious citation to CentiMark on March 13, 2012, with a total

                                           1

proposed penalty of $14,000.00. CentiMark filed a timely notice of contest, bringing this matter
before the Commission. (JX-1, Stip. 17).
A hearing was held in Cleveland, Ohio on January 3 and 4, 2013. At the hearing, the
parties submitted a Partial Settlement and Stipulation Agreement in which the parties agreed to
proceed to trial on Citation 1, Item 1a, with a proposed penalty of $7,000.00. The other two
citation items were vacated. (Tr. 9-10; JX-2, Stip. 18; JX-2). Both parties filed post-hearing
briefs. 1 For the reasons set forth below, I affirm Citation 1, Item 1a, and assess a penalty of
$7,000.00.

                                               Jurisdiction
     Based upon the record, I find that at all relevant times CentiMark was engaged in a

business affecting commerce and was an employer within the meaning of sections 3(3) and 3(5)
of the Act. I also find that the Commission has jurisdiction over the parties and subject matter in
this case. (Tr. 11; JX-1, Stips. 1, 4).

                                            Stipulated Facts
     The parties’ joint pre-hearing statement includes the following stipulated facts. (JX-1).
     ...
     2. At all times material, Respondent CentiMark was a corporation with an office and

place of business at 12 Grandview Circle, Canonsburg, PA 15317.
3. At all times material, Respondent CentiMark was engaged in work at Superior Forge
& Steel Corporation . . . at 1820 McClain Road in Lima, Ohio (hereinafter “work site”), and had
employees at said work site.
...
5. James Keith was the foreman for Respondent CentiMark on the Superior Forge job in
Lima, Ohio. Mr. Keith was a longtime coworker of Frank Cousey who was also assigned to the
Superior Forge job.
6. Peterson Construction (Peterson) was engaged by Superior Forge to install ventilation
units on the roof at Superior’s facility. Respondent CentiMark’s crew removed the gravel from
the area where each unit was to be installed, cut and removed the rubber membrane covering the

1
In its Answer, CentiMark raised several affirmative defenses which it did not pursue at the hearing or in its post-
hearing brief. I deem these affirmative defenses to be abandoned. See Georgia-Pacific Corp., 15 BNA OSHC
1127, 1130 (No. 89-2713, 1991).
2
roof and then removed the underlying insulation. Once the Peterson crew installed the
ventilation unit, Respondent CentiMark’s crew flashed the membrane to the curb.
7. While Respondent CentiMark was on-site, Superior identified a damaged concrete
roof panel and asked CentiMark to replace the panel. CentiMark had replaced panels previously
for Superior Forge.
8. The roof of Superior’s building was constructed, in part, from concrete panels, each
approximately 2 feet by 8 feet and weighing approximately 225 pounds. The short end of each
concrete panel was set on the building’s structural I-beams. Each roof panel had a piece of steel
or rebar within the long end of each concrete panel.
9. At the location [where] the damaged concrete panel had been identified, Messrs. Keith
and Cousey cut the rubber roof membrane, folded it back and removed the roof insulation.
10. Messrs. Keith and Cousey cut two small holes into the concrete panel, one on each
end. They each inserted rope and an attached two foot long (estimated) 2 by 4 board into the
holes for removal of the panel. The 2 by 4 board was fed through the hole lengthwise with the
rope attached to the middle of the board. Once through the hole the 2 by 4 would act like a
toggle on a toggle bolt. The rope attached to the 2 by 4 was used to raise the panel which then
was lifted out in one piece. Mr. Keith and Mr. Cousey were standing on opposite sides of the
damaged panel.
11. The Peterson crew assisted with the removal of the damaged panel. While Messrs.
Cousey and Keith raised one end of the panel, an employee of Peterson Construction slid a piece
of wood under the end of the panel to raise it up and support it in a propped up position. The
other end of the panel was lifted in the same manner.
12. The damaged panel was lifted, moved and placed on the adjacent panel to the south.
It was this southern panel that later collapsed.
13. The CentiMark crew used personal fall protection while removing the damaged
concrete panel; their retractable lanyards were attached to the rail for the retractable roof.
14. The CentiMark crew replaced one panel with metal decking. After the metal deck
was secured in place, Mr. Keith unhooked from his retractable lifeline. Mr. Keith gathered some
of the debris and moved it to the west side of the roof.
15. Mr. Cousey was left with the task of installing the insulation and the rubber
membrane on the new metal decking. Shortly thereafter, Mr. Cousey fell through an opening
that was created at the southern panel. No one witnessed the fall.
3
 16. Compliance Officer Joseph Margetiak investigated the accident and conducted a
closing conference with Rob Wilson, representative of CentiMark.
Background and Additional Facts
At the time of the inspection, CentiMark and Peterson were engaged in a project to install
several new ventilation units on Superior’s roof. Superior makes iron rolls for the steel industry.
Its Lima plant has a very large roof that is over 60 feet 2 above the factory floor. This ventilation
unit project had been ongoing for approximately a year. (Tr. 25, 267, 369, 372; Stip. 6).
Superior’s concrete roof deck panels were of original construction and at least 50 years
old. The roof was generally composed of concrete panels which were covered with a layer of
insulation, a layer of rubber membrane, and a cover of gravel. CentiMark had performed roofing
work for Superior for many years; an August 3, 1999 scope of work proposal shows CentiMark
performed an inspection of Superior’s roof at that time. (Tr. 188, 264-65, 272, 370, 379; CX-8).
Mr. Keith, the foreman, had worked for CentiMark for over 16 years; he and Mr. Cousey had
been to Superior’s facility at least 50 times over the years to perform roof repairs and replace
concrete panels. Mr. Keith estimated that he had replaced between 12 and 20 roof panels at the
Superior facility over the years. Mr. Keith verified work authorization forms for work he had
completed at Superior on 6 occasions between March and September 2011. (Tr. 365-66, 370-71,
410-13; RX-A9).
The year-long project required the installation of four ventilation units. To install a
ventilation unit, CentiMark would cut out the rubber membrane over the roof panels and remove
the insulation. Peterson would then remove the concrete 3 roof panels to install a new ventilation
unit (approximately six to eight panels per unit). A ventilation unit consisted of two exhaust
fans, weighing about 750 pounds. After the unit was welded to the building’s structural steel,
Peterson would resize and replace the concrete roof panels. CentiMark would then re-install the
insulation, rubber membrane, and flash the curbs of the ventilation unit to prevent leakage. The
ventilation units were installed on the northern portion of the roof. (Tr. 41-46, 141-42, 158-62,
193-94, 372-73; CX-9; Stip. 6).

2
The record shows various estimates of the distance from the factory floor to the roof, ranging from 60 to 65 feet.
(Tr. 43, 229, 419). I find the difference of 5 feet is not significant here. This decision will refer to the distance as
“over 60 feet.”
3
In the record, the “concrete” roof panels are sometimes referred to as “cement” roof panels. This decision uses the
term “concrete” throughout.
4
 On the day of the inspection, two CentiMark employees were on the roof, Frank Cousey
and James P. Keith II. Peterson’s crew included Amelia Sterner, William “Casey” Conover, and
Robb Rea. They were finishing the installation of the final ventilation unit. Earlier in the
project, Superior asked CentiMark to replace, after the last ventilation unit was installed, a single
damaged roof panel located in the southern portion of the roof. Looking up from the factory
floor, someone from Superior noticed the panel and requested that CentiMark replace it. Superior
provided the steel decking used to replace the damaged concrete panel. Mr. Keith testified that
he had walked through the factory previously and found that it was a “little rough to see” the roof
from inside the factory because it was dark. However, he testified that if you knew the general
area of the damaged panel, you could then see, from the factory floor, that it was sagging lower
than other panels. (Tr. 35, 50, 112, 151, 222, 250-51, 307, 310-12, 334, 357, 377, 422, 443-44;
Stips. 5, 7).
Mr. Keith and Mr. Cousey went to the south end of the roof to locate the damaged panel.
Mr. Keith saw a depression where water had accumulated and located the damaged panel. Mr.
Cousey then went inside the factory to flag off the area under the roof panel. According to Mr.
Keith, Mr. Cousey would have also checked the underside of the roof to determine if there were
any pipes, conduits or “anything that you could damage while you’re removing the panel.” 4 This
was a visual assessment from the factory floor over 60 feet away. There is no record evidence
that Mr. Cousey or Mr. Keith performed a detailed inspection of the panels adjacent to the panel
to be replaced. (Tr. 256, 261, 358, 377-78, 419-20, 443-44; CX-1).
Mr. Cousey returned to the roof where he and Mr. Keith proceeded with the replacement
of the damaged concrete panel. The gravel was removed, the roof membrane cut back, and
insulation removed to reveal the damaged concrete roof panel. The membrane was cut out just
slightly bigger than the size of the concrete panel being removed. After the membrane and
insulation were removed, the “busted” top of the damaged concrete panel was visible. Mr. Keith
testified that the panel was difficult to pry out; it was one of the more difficult panels he had

4
Mr. Keith testified:
Q: Okay. And why did he flag off that area?
A: If any debris would fall, it would keep workers out of the area.
Q: Okay. And is that part of your training why you flagged it off?
A: Yes.
Q: And what does your training require?
A: You flag the work area off so nothing -- that's when you perform your under deck inspection.
To check for, like I said, conduits, drain lines, water lines, anything that can be in the way.
(Tr. 400-401).
5
removed from Superior’s roof. Peterson’s employees noticed the difficulty that Mr. Keith and
Mr. Cousey were having with the panel and walked to that area of the roof to assist. (Tr. 165-66,
193, 199, 258, 378-80, 382, 420-21; CX-14).
While working to remove the panel, Peterson and CentiMark employees were standing
on the panels adjacent to the damaged panel, including the adjacent panels to the north and
south. 5 After the panel was loosened and ready for removal, Mr. Cousey told the Peterson
employees to step back because they were not wearing fall arrest systems. After the damaged
panel was removed, the long edges (8-foot) of the adjacent north and south concrete panels were
visible. The adjacent panel to the south is the panel that Mr. Cousey fell through to his death.
(Tr. 55, 60-61, 97, 109, 168-71, 172, 198, 202-03, 314-16, 379-85, 396; CX-9, -10; Stips. 11,
15).
Once the damaged panel was removed and set aside, Ms. Sterner saw that about 6 inches
of concrete was missing from the observable side edge of the southern panel and rebar was
visible. Further, Ms. Sterner testified that the southern panel looked “way worse” than the other
panels Peterson had removed during the year-long project. She testified that the southern panel
had “obviously flaked apart” and was “crumbling.” Mr. Conover testified that he saw 2-3 inches
of missing concrete from the southern panel. (Tr. 62-64, 97, 107, 130-34, 138-39, 172-78, 185,
189-90, 203-04, 210-11, 385, 394, 421; CX-2; RX-A1; RX-5).
As they were standing there, both Ms. Sterner and Mr. Conover mentioned to Mr. Keith
and Mr. Cousey that the southern panel didn’t look good. Ms. Sterner recalled stating that the
southern panel looked “just as bad” as the panel they had just removed and the southern panel
should also be replaced. Mr. Keith did not recall Ms. Sterner’s comment; however, he did recall
that Mr. Conover made a comment about the damage to the southern panel: that the concrete was
flaked and rebar exposed. Ms. Sterner and Mr. Conover both testified that Mr. Keith mentioned
there was only enough steel decking to replace the one concrete panel. That day, both Mr.
Sterner and Mr. Conover also mentioned that the adjacent panel to the north looked damaged and
should be replaced. (Tr. 62-65, 94, 107-08, 134, 142, 172-73, 177-78, 185, 251-52, 385, 394,
421-22; CX-2, -3, -4; RX-A1).

5
The record reveals that the CentiMark and Peterson employees used a chop saw, long pry bar, steel bar, 2 x 4s, 4 x
4s, and a rope to remove the damaged roof panel. (Tr. 58-59, 71-72, 103-04, 166-71, 178, 197-99, 312-15, 380-81,
392, 424-25, 437-38, CX-1, -2, -4; and Stip. 10).
6
 Mr. Keith told them that he would let Superior know about the condition of the southern
panel later. 6 Mr. Keith confirmed there was only enough steel decking that day to replace one
concrete panel. The Peterson employees then left the area and returned to the north section of
the roof. Mr. Keith and Mr. Cousey moved the damaged panel to the south, and then onto a cart
on the south section of the roof, where the panel fell apart. (Tr. 32, 200, 315, 386, 390-91, 422-
24, 428-29; RX-D1; Stip. 12).
To attach the steel decking, Mr. Keith worked from the west end of the steel roof decking
and Mr. Cousey worked from the east end. Mr. Keith testified that while he was on his knees
installing the new steel decking he could closely view the southern panel. He stated that he saw
no splits “going up the side.” He did observe that the concrete had “flaked” off the bottom and
exposed rebar. Mr. Keith testified that he did not notice any deflection or bowing of the panel.
He did not think the panel needed to be replaced. While Mr. Keith testified that the damage to
the southern panel was not different from damage he noticed on other concrete roof panels, he
did concede that on the other roof panels he had not seen exposed rebar. (Tr. 74, 384-88, 418-19,
429).
After the new decking was attached, Mr. Keith left to take the debris to another area of
the roof while Mr. Cousey finished replacing the insulation and rubber membrane over the new
decking. Mr. Keith did not see Mr. Cousey unhook or remove his personal fall arrest system. A
short time later, Mr. Cousey fell over 60 feet through the southern panel. No one saw Mr.
Cousey fall. The employees on the roof only became aware of the accident after they heard
sirens and were told to leave the roof. (Tr. 80, 120, 182, 289, 387; CX-1, -2, -4; Stips. 14, 15).
OSHA Compliance Officer (CO) Joseph Margetiak was assigned to investigate the
accident. On the day of the accident, he took photographs of the top side of the roof from the
aerial basket of the fire truck. He also took photographs of the underside of the roof from the
floor of the factory. From the floor, he could see the opening in the roof that Mr. Cousey fell
through; however, he wanted to be closer to the roof to evaluate and photograph that area. The
following day Superior arranged to have an aerial lift available so that CO Margetiak could get
close enough to see the roof panels. As a part of his investigation, CO Margetiak interviewed,

6
After the Peterson employees pointed out the damage to the southern panel, neither Mr. Keith nor Mr. Cousey
went to the factory floor to check the underside of the southern panel or any other panel adjacent to the roof panel
they had just removed. (Tr. 422). Mr. Keith testified that he did not see a reason for an inspection, at that time, as
the southern panel was not cracked and it had not bowed or flexed when the damaged panel was lifted. (Tr. 433-34).
7
and obtained signed statements from, Mr. Keith, Ms. Sterner, and Mr. Conover. (Tr. 220, 222-
24, 226-29, 317, 336; CX-1, -2, -4, -9, -10, -11; Stip. 16).
I credit the testimony of both Ms. Sterner and Mr. Conover regarding the visible damage
to the adjacent roof panels. Ms. Sterner’s testimony that the southern panel appeared “way
worse” than other panels she had seen during the year-long project is credible. Both she and Mr.
Conover remember expressing their concern about the condition of the adjacent panels and Mr.
Keith’s comment that he had only enough steel decking to replace the one panel. I observed
their demeanor on the stand and found them to be honest, well-meaning, straightforward
witnesses. Their testimony is consistent with the written, signed statements in evidence.
Further, they have no interest in the outcome of this proceeding.
Ms. Sterner’s testimony that the southern panel appeared “way worse” than the other roof
panels, is consistent with Mr. Keith’s recollection that no other roof panels had revealed exposed
rebar. Mr. Keith’s testimony that the damage to the southern panel was not different from other
roof deck panels is not credited. (Tr. 374-76, 418-19).
DISCUSSION
The Secretary’s Burden of Proof
To establish a violation of an OSHA standard, the Secretary must prove that: (1) the cited
standard applies; (2) the terms of the standard were violated; (3) one or more employees had
access to the cited condition; and (4) the employer knew, or with the exercise of reasonable
diligence could have known, of the violative condition. Astra Pharm. Prod., Inc., 9 BNA OSHC
2126, 2129 (No. 78-6247, 1981), aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982).

                                     Citation 1, Item 1a
   This item alleges a serious violation of 29 C.F.R. § 1926.501(a)(2), which states:
   The employer shall determine if the walking/working surfaces on which its
   employees are to work have the strength and structural integrity to support
   employees safely. Employees shall be allowed to work on those surfaces only
   when the surfaces have the requisite strength and structural integrity.

   For the following reasons, I find the Secretary has met his burden and established that

CentiMark did not make an adequate determination that the walking/working surface was
structurally sound both prior to its work to replace a damaged panel on the roof and after
removal of that panel revealed damage to the adjacent panels. As demonstrated through
testimony and Mr. Cousey’s unfortunate fall through the roof, it is clear that CentiMark’s

                                              8

employees were exposed to a fall hazard. However, CentiMark asserts that the standard is not
applicable, that it complied with the requirements of the standard, and further, that it could not
have known that the roof panel was not structurally sound.
The Standard is Applicable
First, CentiMark argues that the standard does not apply because at the time of Mr.
Cousey’s accident, they had completed the construction project. (R. Br. 15). 29 C.F.R. §
1926.500(a)(1) states that “[t]he provisions of this subpart do not apply . . . prior to the actual
start of construction work or after all construction work has been completed.” CentiMark asserts
that as soon as the steel deck panel was installed, the work was completed. (R. Br. 15, 21). This
argument is unpersuasive. Evidence shows that Mr. Cousey had not finished the work necessary
to the replacement of a roof panel. He was replacing the insulation and sealing the rubber
membrane to complete the roofing work. CentiMark’s argument is rejected. I conclude that the
standard is applicable.
Knowledge is Established
The Secretary must prove the employer either knew, or with the exercise of reasonable
diligence could have known, of the violative condition. Dun-Par Engineered Form Co., 12 BNA
OSHC 1962, 1965 (No. 82-928, 1986). “The actual or constructive knowledge of a foreman or
supervisor can be imputed to the employer.” N&N Contractors, Inc., 18 BNA OSHC 2121, 2123
(No. 96-0606, 2000) (citation omitted), petition for review denied, 255 F.3d 122 (4th Cir. 2001).
Knowledge is directed to the physical conditions that constitute a violation. The
Secretary need not show that an employer understood or acknowledged that the physical
conditions were hazardous. Phoenix Roofing, Inc., 17 BNA OSHC 1076, 1079-1080 (No. 90-
2148, 1995), aff’d without published opinion, 79 F.3d 1146 (5th Cir. 1996).
CentiMark argues that it did not know and could not have known that the roof panel
could collapse. (R. Br. 21-22). However, the violation here is the lack of assessment to
determine the roof’s structural integrity before employees began work to replace the damaged
panel. I find CentiMark had actual knowledge through its foreman, Mr. Keith, that the roof was
not assessed for its structural integrity as a walking/working surface.
The standard requires the assessment of an employee’s walking/working surface prior to
allowing an employee to work from that area. As evidenced by Mr. Keith’s testimony, this was
not an emergent problem; the damaged panel was scheduled to be replaced after the last
ventilation unit was installed. Because Superior had previously identified the area of the
9
damaged panel, CentiMark knew the nature of the work to be done and its general location on
the roof. Further, CentiMark’s foreman knew that Mr. Cousey did only a visual appraisal of the
underside of the roof from over 60 feet away.
CentiMark, through its foreman, knew the area immediately surrounding the damaged
panel would be a walking/working surface for its employees replacing the panel. CentiMark
knew the roof was over 50 years old; it had performed repairs and replaced other panels over
many years. Further, CentiMark was familiar with this building and aware that the factory floor
was over 60 feet below. A reasonable assessment, at a minimum, would require an examination
of the underside of the roof at a distance much closer than 60 feet. Therefore, I conclude that
CentiMark knew it had not assessed the walking/working surface for its structural integrity.
Also, even if CentiMark had not had a foreman onsite who knew that an assessment for
structural integrity was not done, it could have known this through the exercise of reasonable
diligence. As discussed above, this was a scheduled replacement of a damaged concrete roof
panel. CentiMark had a long work history at this factory, knew the age of the roof, and knew
that an aerial lift or similar equipment was needed to adequately assess the roof’s structural
stability as a walking/working surface.
CentiMark did not comply with the standard
CentiMark argues that it did an appropriate inspection. (R. Br. 20). However, it provided
no evidence of the method it uses to generally assess the structural integrity of a
walking/working surface. CentiMark is a roofing company and, thus, is aware that its employees
frequently use the surface of a roof as a walking/working surface. CentiMark generally asserts
that it did an inspection of the roof prior to its employees’ work to replace the damaged panel.
(R. Br. 7). CentiMark does not explain how its cursory visual assessment qualifies as an
appropriate inspection to determine the roof’s structural integrity as a walking/working surface.
CentiMark asserts that Mr. Cousey, when he went into the building to flag off the floor
area inside, also assessed the roof’s underside to determine its structural integrity. (R. Br. 7).
CentiMark’s only evidence of a pre-work assessment is a cursory, visual inspection to determine
if there were any pipes or other obstructions attached to the panel. As demonstrated during the
CO’s inspection, Superior could make an aerial lift available to conduct a closer assessment of
the underside of the roof. (Tr. 226-27). The purported assessment by Mr. Cousey was, at best, a
visual assessment with the naked eye performed from over 60 feet away in a darkly lit building.

                                              10

(Tr. 443-44). CO Margetiak testified that he had not learned of any additional inspections. (Tr.
357).
Further, there was no additional assessment when the removal of the damaged panel
revealed damage to the adjacent panels. CentiMark argues that there was no indication of
collapse while the employees were standing on the panel or when the damaged panel was placed
on top of the southern panel. (R. Br. 10). The record does not include any information about
whether there was any observation of the other surrounding panels that the employees had been
standing on.
CentiMark asserts that its training includes the inspection of a roof’s underside.
However, it provided no evidence regarding how it trains its employees to assess the roof as a
walking/working surface. Further, CentiMark states that because Mr. Keith is fully trained and a
competent person for fall protection, an adequate assessment of the roof deck must have been
done. 7 (R. Br. 20). However, Mr. Keith simply testified that he was trained to do an under-deck
inspection. 8 (Tr. 368). No evidence was adduced to show CentiMark’s guidelines or
expectations when assessing the structural integrity of a walking/working surface. Further,
evidence shows that on the day of the accident, the visual inspection was focused on whether
there was anything under or attached to the damaged panel. The record shows CentiMark
inspected Superior’s roof in 1999. 9 (Tr. 264-65; CX-8).
CentiMark’s expert, Mr. Vaughan, testified that an employer needs to do a visual
inspection of the top and the underside of the roof. If no problems are found, a further inspection
is not necessary. However, he also testified that if an additional problem or hazard is found, an
employer would need to expand the inspection and address that problem. Mr. Vaughan stated
that the amount of time that passed between an inspection and the work is relevant – for
example, an inspection a year-and-a-half earlier would not be adequate. (Tr. 475-82, 507).
Mr. Vaughan admitted that he based his opinion on photographs and other documents
CentiMark provided; he had never visited Superior’s facility. Further, he did not evaluate the
strength and integrity of the concrete panels and did not have an opinion about the strength of

7
Mr. Keith testified he took annual fall protection training and his foreman’s training included where to tie off and
inspection of the decking. Mr. Keith testified that Mr. Cousey would have received the same training. (Tr. 367-68,

434. See Tr. 402-410; RX-A5, RX-A10, RX-A11).
     8
     The issue of whether Mr. Keith was a competent person or properly trained under OSHA’s fall protection standard
     was not tried.
     9
     On cross-examination, CO Margetiak confirmed that one of OSHA’s suggestions to prevent future accidents was
     to conduct an engineering review of Superior’s roof. (Tr. 350-51).
     11
     Superior’s roof. Mr. Vaughan testified that he would not be able to determine a panel’s strength
     based simply on a description of a panel. (Tr. 463, 492-94; RX-C1).
     CentiMark asserts that it was Superior’s responsibility to determine the structural stability
     of the roof and relies upon the conditions included on the back of its Work Authorization invoice
     form (work form) as evidence. 10 (Tr. 284-86, 496; RX-A12). Mr. Vaughan, Superior’s expert,
     testified that it was his belief, based on the work form, that CentiMark had no obligation to
     comply with 29 C.F.R. § 1926.501(a)(2) because it was Superior’s contractual responsibility to
     do so. (Tr. 496; RX-A12).
     The evidence is silent about whether the work being done the day of the accident would
     have been subject to the condition on the work form. 11 The work form essentially outlines the
     nature of the work completed and the materials and time required for the repair. (RX-A9).
     CentiMark presented evidence of both “warranty” and “billable” work previously done by
     CentiMark on Superior’s roof for six dates between March and September 2011. Only two of
     the six work forms had a signature by a Superior employee. 12 (RX-A9). Mr. Keith testified that
     he completed the work form and that occasionally a Superior employee signed the form. He
     testified that a copy of the back of the work form was included. (Tr. 413, 415, 442: RX-A12). I
     find this evidence demonstrates that Superior, at best, did a minimal review of these work forms.
     There was no evidence provided to show the intent of this particular condition on
     CentiMark’s work form. No evidence was provided to show that it was a condition about which
     both parties (Superior and CentiMark) shared a common agreement and understanding. Further,
     the condition appears to be boilerplate and not specific to Superior or this roof. Nonetheless, it is
     not pertinent to CentiMark’s responsibility for its worksite.
     I qualified Mr. Vaughan as an expert in fall protection safety; however, I do not
     recognize him as an expert in the non-specific, generally-phrased “related OSHA standards.”
     (Tr. 448, 460, 479; RX-C1). I have considered his testimony about the cited standard at issue in
     this proceeding. His opinion that CentiMark need not comply with 29 C.F.R. § 1926.501(1)(2)
     10
     The second paragraph of CentiMark’s standard, “Work Authorization Form” includes as a condition: “Purchaser
     acknowledges that CentiMark has not performed any engineering, architectural or other such analysis of the
     structure upon which the roofing services are performed, and that CentiMark has not and will not perform any
     consulting services, or in any way represent itself as a consultant. Moreover, Purchaser acknowledges that it is
     responsible for obtaining any structural, engineering, or other architectural analysis of the building(s) on which the
     work is to be performed.” (RX-A12).
     11
     No work form for the October 12, 2011 damaged roof panel replacement work was offered into evidence. (RX-
     A9; RX-A12).
     12
     Mr. Keith testified that the two work authorizations that had been signed were signed by Superior employee, Jerry
     Chilcote. (Tr. 442; RX-A9).
     12
     due to its contract with Superior is not credited. Likewise, his opinion that CentiMark did not
     violate the cited standard is not credited. (Tr. 480, 490-91, 496; RX-C1).
     Case law is clear; an employer cannot relinquish its responsibility for employee safety. If
     an employer neither creates nor controls the hazardous condition at a multi-employer worksite, it
     may defend against a citation by showing that it protected its employees by taking reasonable
     alternative measures or that it could not reasonably have known of the hazardous condition.
     Capform, Inc., 16 BNA OSHC 2040, 2041-42 (No. 91-1613, 1994) (citations omitted).
     Commission precedent states that the employer’s conduct is viewed in its totality and “whether a
     reasonable employer would have done more.” Capform, 16 BNA OSHC at 2041-42. I find that
     CentiMark did not take reasonable alternative measures to ensure the walking/working surface
     for its employees was structurally adequate.
     Commission precedent holds that an employer must make a reasonable effort to assess an
     employee’s work area to determine the likely hazards and then provide adequate instructions or
     equipment to prevent exposure to an unsafe condition. Automatic Sprinkler Corp. of America, 8
     BNA OSHC 1384, 1387 (No. 76-5089, 1980) (employer “must make a reasonable effort to
     anticipate the particular hazards to which its employees may be exposed in the course of their
     scheduled work”). Here the standard clearly specifies that the employer needs to verify the
     structural adequacy of a walking/working surface before an employee begins work.
     The Commission decision in Agra Erectors is instructive in evaluating the requirements
     of this standard:
     [T]he phrase ‘are to work’ in the standard's first sentence requires an employer to
     determine in advance whether a surface is safe to work on, the employer's duty
     does not end after the initial inspection. The plain language of the second sentence
     clearly permits employees “to work on those surfaces only when the surfaces have
     the requisite strength and structural integrity.”
     Agra Erectors, Inc., 19 BNA OSHC 1063, 1066 (No. 98-0866, 2000) (footnotes omitted)
     (citations omitted).
     I find that CentiMark did not adequately assess the roof deck to determine if it was
     structurally sound. A simple visual assessment from over 60 feet below the underside of the roof
     deck in a dark building is not a reasonable assessment of the roof’s structural integrity as a
     walking/working surface and does not meet the standard. Further, the cursory visual assessment
     while replacing a roof panel does not constitute an assessment of the strength of the roof as a
     walking/working surface. Finally, no evidence was provided to show that CentiMark made any

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     inquiries to Superior or anyone else to determine if the roof was structurally adequate for the
     work being done.
     CentiMark argues that because Mr. Keith did not see any deflection in the adjacent south
     panel and had never replaced more than one panel at a time, he did not believe a closer
     inspection was needed. (R. Br. 10, 15). However, Mr. Keith’s general observation and prior
     experience is not a substitute for the assessment the standard requires. Further, CentiMark did
     not provide evidence about its policy or training for evaluating the structural integrity of a
     walking/working surface. The standard requires the employer to determine the structural
     integrity of a walking/working surface before allowing its employees to work on that surface.
     Testimony shows that the roof panels were covered with insulation and a rubber
     membrane, so the surface of the concrete panel itself was not visible until those materials were
     removed. CentiMark cut the membrane just a bit larger than the actual damaged panel it
     removed; it did not cut out a larger area to look at the surface of any of the surrounding panels.
     The visible damage to the surrounding panels put CentiMark on notice that a closer assessment
     of the roof’s structural integrity was warranted. CentiMark took no additional action when the
     damage to the adjacent panels was revealed. CentiMark’s own expert acknowledged that using
     an aerial lift to get a closer look at a roof’s underside is better than a visual assessment from over
     60 feet away with the naked eye, because “you may not be able to catch everything from the
     ground.” 13 (Tr. 506).
     I find that CentiMark did not take reasonable actions to assess the structural integrity of
     the roof as a walking/working surface as required by the standard. They did not conduct a proper
     assessment either before they started the work to remove the damaged panel or when the damage
     to the adjacent panels was revealed. I conclude the terms of the standard were violated.
     Other Arguments
     CentiMark asserts that because the CO is not a competent person with respect to fall
     protection, he could not inspect Superior’s roof for structural integrity as a walking/working
     surface. (R. Br. 13). This argument is irrelevant. The standard requires the employer to assess

13
CentiMark hired Mr. Vaughan to review documents to provide an opinion about the validity of the citations. (Tr.
448, 461, 491). He did not visit the worksite. On cross-examination, he acknowledged that even though he heard
testimony that differed from the information he had received before the hearing, the differing testimony had no
effect on his opinion. (Tr. 492, 501). He also admitted on cross that a simple viewing from the ground without
binoculars or some other device would be insufficient. (Tr. 506).
14
the walking/working surface prior to allowing employees to work – it does not require a CO to
be a competent person under the fall protection standard.
CentiMark also asserts it made a determination that only one panel needed to be replaced.
(R. Br.14). The evidence does not support this assertion. Superior identified the concrete panel
that it wanted CentiMark to replace with steel decking. Mr. Keith testified he could tell the panel
was sagging after Superior requested its replacement. CentiMark employees then located the
panel from the top side of the roof because water was collecting in a depression. There is no
indication CentiMark did a general assessment of the roof panels and then concluded there was
only one panel that was damaged. At best, after the panel’s location was determined, CentiMark
did a cursory visual “inspection” of the underside of the roof from over 60 feet below.
CentiMark further asserts that the Secretary’s case is flawed because he did not provide
specific guidelines as to an employer’s obligations to assess a roof’s structural stability. (R. Br.
18). This assertion is irrelevant. This performance-oriented standard allows the employer some
discretion in its method of compliance. Compliance is evaluated according to what would be
reasonable for a particular situation. See Siemens Energy & Automation, Inc., 20 BNA OSHC
2196, 2198 (No. 00-1052, 2005) (citations omitted). Also, a review of the rulemaking history for
this particular standard shows that OSHA added this requirement to its fall protection rule so that
an employer would be required to take a specific action, beyond its normal duties to assess
hazards, to determine if the surface could support the “weight of workers, equipment and
materials.” 59 Fed. Reg. 40672, 40681 (Aug. 9, 1994) (codified at 29 C.F.R. pt. 1926). Here,
CentiMark did not demonstrate that it took action to ensure the roof would support the scheduled
work activity.
I conclude that the Secretary has met his burden of proving the alleged violation of the
cited standard. This item is therefore affirmed.
Penalty
Section 17(j) of the Act requires the Commission to give due consideration to four
criteria in assessing penalties: the size of the employer’s business, the gravity of the violation,
the employer’s good faith, and its prior history of violations. Gravity is generally the primary
factor in the penalty assessment. See J. A. Jones Constr. Co., 15 BNA OSHC 2201, 2214 (No.
87-2059, 1993).
The Secretary classified the violation as serious and proposed a penalty of $7,000.00. A
violation is properly classified as serious if “there is substantial probability that death or serious
15
physical harm could result” if an accident occurs. See Compass Environmental, Inc., 23 BNA
OSHC 1132, 1136 (No. 06-1036, 2010). Here, an employee died after falling over 60 feet;
therefore, the classification of serious is appropriate.
CO Margetiak testified that to calculate the recommended penalty amount, he determined
that the severity was high and the probability was great. The gravity was high and, therefore,
CentiMark was not eligible for a good faith discount. Further, there was no reduction for size, as
the company had over 250 employees, or for history, due to the employer’s history of prior
serious citations. (Tr. 268-71, 359-60). Respondent does not dispute the testimony regarding
CentiMark’s history of prior serious citations.
I conclude the proposed penalty is appropriate. A penalty of $7,000.00 is assessed.

                         Findings of Fact and Conclusions of Law
    All findings of fact and conclusions of law relevant and necessary to a determination of

the contested issues have been made above. See Fed. R. Civ. P. 52(a). All proposed findings of
fact and conclusions of law inconsistent with this decision are denied.

                                            ORDER
    Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED

that:
1. Citation 1, Item 1a, alleging a serious violation of 29 C.F.R. § 1926.501(a)(2), is
AFFIRMED, and a penalty of $7,000.00 is ASSESSED.
2. Citation 1, Item 1b, alleging a violation of 29 C.F.R. § 1926.850(a), is VACATED.
3. Citation 1, Item 2, alleging a violation of 29 C.F.R. § 1926.501(b)(4)(i), is VACATED.

                                            _/s/______________________
                                            Carol A. Baumerich
                                            Judge, OSHRC

Date: August 26, 2013
Washington, D.C.

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