D.W. Caldwell, Inc.

Plain-English summary

D.W. Caldwell employees installed metal panels on a steep roof with an eave 32 feet above the ground. The crew wore harnesses but, with one temporary exception, did not connect them to anchor points, and the foreman knowingly allowed the practice after the general contractor warned him the previous day. The judge rejected the company's unpreventable-misconduct defense because its rule was not treated as mandatory, worksite monitoring was inadequate, and discipline had not prevented the same crew from repeating fall-protection violations. The violation was not willful because the company maintained a written safety program, held regular training, supplied fall-protection equipment, and showed some enforcement and good-faith efforts. The specific steep-roof standard was affirmed as serious with a $6,000 penalty, while the general unprotected-edge allegation was vacated as duplicative.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(1); 29 C.F.R. § 1926.501(b)(11)
• Outcome: The steep-roof item was affirmed as serious rather than willful with a $6,000 penalty, and the general fall-protection allegation was vacated as duplicative.
• Key point: A foreman's participation defeated the misconduct defense, but an inadequate safety program did not by itself establish the heightened state of mind required for willfulness.

Full text (OSHRC public release)

                                          United States of America
              OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                           1924 Building - Room 2R90, 100 Alabama Street, S.W.
                                       Atlanta, Georgia 30303-3104



Secretary of Labor,
          Complainant
    v.                                                  OSHRC Docket No. 12-1056
D. W. Caldwell, Inc.,
          Respondent.

Appearances:
Charna Hollingsworth-Malone, Esq., U. S. Department of Labor, Office of the Solicitor, Atlanta, Georgia
For Complainant

      Andrew N. Gross, Esq., H B Training & Consulting, LLC, Lawrenceville, Georgia
      For Respondent

Before: Administrative Law Judge Ken S. Welsch
DECISION AND ORDER
D. W. Caldwell, Inc. (DWC) is a commercial sheet metal and roofing contractor in
Douglasville, Georgia. On March 29, 2012, a DWC crew was installing a new metal roof on the
student center building at a college in Selma, Alabama, when an inspection was initiated by the
Occupational Safety and Health Administration (OSHA). The OSHA compliance officer had
observed employees on the steep roof without tying off their safety harnesses to anchor points.
As a result of the OSHA inspection, DWC received a willful citation for the lack of fall protection
on March 26, 2012. DWC filed a timely notice of contest.
The citation alleges DWC willfully violated 29 C.F.R. § 1926.501(b)(1) for failing to
protect employees on a roof from falling by the use of a guardrail system, safety net system or
personal fall arrest system. In the alternative, OSHA alleges a willful violation of 29 C.F.R.
§ 1926.501(b)(11) for the lack of a fall protection system on a steep roof.1 The citation proposes a
penalty of $28,000.00.

1
The Secretary of Labor’s unopposed motion to amend the citation to plead in the alternative a violation of 29 C.F.R.
§ 1926.501(b)(11) was granted on October 2, 2012.
 The hearing was held in Atlanta, Georgia, on October 12, 2012. The parties stipulated
jurisdiction and coverage (Tr. 4). The parties filed post-hearing briefs on January 17, 2013.
DWC denies the alleged violation, willful classification, and proposed penalty. DWC
argues that the company was not aware of the crew’s failure to utilize fall protection and it should
not be held to the knowledge of the crew foreman. If a violation is found, DWC argues that it was
the result of unpreventable employee misconduct.2
For the reasons discussed, a serious violation of 29 C.F.R. § 1926.501(b)(11) is affirmed
and a penalty of $6,000.00 is assessed.
Background
DWC, a corporation, is a roofing and sheet metal company with an office and workshop in
Douglasville, Georgia. DWC is owned and operated by Mr. Daniel Caldwell and Mrs. Debra
Caldwell. Mr. Caldwell performs the cost estimating and oversees the jobs. His wife, corporate
secretary, is the office manager who also conducts safety meetings and training for employees.
DWC has been in business for approximately 20 years and performs roofing work in Georgia and
Alabama. Since 2008, DWC has almost exclusively performed commercial roof work. At the
time of the OSHA inspection, DWC employed approximately 15 employees and operated two
field crews supervised by foremen; the sheet metal crew and the low pitch (flat roof) crew (Tr. 66,
111-112, 118-119, 150).
In February 2012, DWC, pursuant to a contract with the general contractor, began
installing a metal roof on the new student center at Wallace Community College in Selma,
Alabama. The construction of the student center had started in August 2011. The college is
located approximately 200 miles from DWC’s Douglasville office (Tr. 14-15, 153).
The new student center is a two-story building with a sloped roof. The eave is 32 feet
above the ground level and it is 45 feet to the peak. The roof’s slope is 5:12. The roof is
approximately 200 feet in length and 100 feet in width (Exh. C-1; Tr. 15, 30-31, 76). To install
the metal roof, DWC used its sheet metal crew of three employees under the supervision of a
foreman, employed by DWC for four years (Tr. 74-75, 84).

2
Issues not briefed are deemed waived. See Georgia-Pacific Corp., 15 BNA OSHC 1127 (No. 89-2713, 1991).
 On March 29, 2012, an OSHA safety compliance officer, who was assigned a targeted
inspection based on the Dodge Report, drove to the community college. 3 Upon arriving at the
college at approximately 10:15 a.m., he observed the employees on the roof of the student center
installing metal panels. He observed them for approximately 20 minutes. Throughout the time,
the employees, including the foreman, were observed wearing safety harnesses. Except for one
employee working at the eave, the harnesses were not connected to the rope anchor points. The
one employee at the eave was properly connected to an anchor but he disconnected from the
anchor to talk on a cell phone while remaining near the eave (Exh. C-4; Tr. 35-36). There were
no perimeter guardrails or safety nets at the eaves (Exhs. C-5, C-6; Tr. 25, 28-29, 53).
As a result of his observations, the compliance officer initiated an OSHA inspection and
took photographs. He met with the general contractor’s superintendent who identified DWC as
the roofing contractor and who removed the employees from the roof (Tr. 27). The compliance
officer held an opening conference with the DWC foreman. In the foreman’s interview
statement, he admitted the crew was not tied off despite DWC’s policy of 100 percent fall
protection (Exh. C-8; Tr. 48). The foreman claimed that it was difficult for the crew to tie-off
because they had to walk 60-100 feet to pick up material and it slowed production to anchor the
harness (Tr. 81-82). After requesting training records and 300 OSHA logs, the compliance
officer conducted a closing conference by telephone with Mrs. Caldwell (Tr. 49-50).
The willful citation was issued to DWC on April 26, 2012. The general contractor
received an OSHA citation for lack of handrails (Tr. 13).
Discussion
The Secretary has the burden of proving:
(a) the applicability of the cited standard, (b) the employer’s
noncompliance with the standard’s terms, (c) employee access
to the violative conditions, and (d) the employer’s actual or
constructive knowledge of the violation (i.e., the employer
either knew, or with the exercise or reasonable diligence could
have known, of the violative conditions). Atlantic Battery Co.,
16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

    DWC does not dispute the application of the Fall Protection standards at § 1926.500 et

3
Dodge Report assists OSHA in selecting projects for inspection on a neutral basis. OSHA Instruction Directive No.
CPL 02-00-141 (July 14, 2006), Inspection Scheduling for Construction.
seq. to its roofing work at the student center. Also, DWC does not dispute that the crew failed to
properly use fall protection on a steep roof and that the crew was exposed to fall hazard of 32 feet
while installing the metal roof (DWC Brief, p. 8).
DWC argues that it lacked knowledge of the crew’s failure to secure their harnesses
because it violated the company’s rule for 100 percent fall protection. If a violation is found,
DWC asserts unpreventable employee misconduct as to the foreman and crew.
WILLFUL CITATION
Alleged Violation of § 1926.501(b)(1) or § 1926.501(b)(11)
The citation alleges that at “3000 Earl Goodwin Parkway Selma, AL: On or about
March 29, 2012, and at times prior to; the employer exposed his employees to a fall hazard in that
employees were installing metal panels 32 feet in height on a 5 : 12 sloped roof without the use of
fall protection.” Section 1926.501(b)(1) provides:
Each employee on a walking/working surface (horizontal and
vertical surface) with an unprotected side or edge which is 6 feet
(1.8 m) or more above a lower level shall be protected from falling
by the use of guardrail systems, safety net systems, or personal fall
arrest systems.

     In the alternative, the Secretary alleges the same alleged violation description. However,

§ 1926.501(b)(11) provides:
Steep roofs. Each employee on a steep roof with unprotected sides
and edges 6 feet (1.8m) or more above lower levels shall be
protected from falling by guardrail systems with toeboards, safety
net systems, or personal fall arrest systems.

     A steep roof is defined as “a roof having a slope greater than 4 in 12 (vertical to

horizontal)” § 1926.500(b) Definitions. DWC agrees that the roof was a steep roof (Tr. 152).
According to the compliance officer, § 1926.501(b)(11) was not cited because at the time of his
inspection, he could not verify that it was a steep roof (Tr. 68).
The more specific standard, § 1926.501(b)(11), is deemed the applicable standard because
it applies to steep roofs and roof at issue has a 5 in 12 slope. Since the same hazard is addressed,
as in this case, by two standards, the more specific standard preempts the application of the general
standard. McNally Construction & Tunneling Co., 16 BNA OSHC 1879, 1880 (No 90-2337,
1994). Also see, § 1910.5(c). The parties agree to the application of § 1926.501(b)(11)
(Secretary Brief, p. 11; DWC Brief, p. 8).
There is no dispute that the DWC crew was installing metal panels on a 32-foot high roof
without securing their safety harnesses to anchor points or otherwise being protected from a fall
hazard. The record shows that there were no guardrails or safety nets at the unprotected eaves
(Exh. C-1; Tr. 29). According to the foreman, the crew was not tied off because it was difficult to
carry the metal panels across the roof with two hands while also moving the rope lanyard. He also
told the compliance officer that it slowed production (Exh. C-8; Tr. 81-82).
The roof work at issue was hazardous because it was steep and the eave was 32 feet above
the ground. There were numerous tripping threats including boxes, plastic containers, metal
panels and equipment such as ropes, anchors, drills, sleeves, hammers and a saw (Tr. 40, 76).
Employees walked under metal panels carried by other employees. Employees frequently walked
60 to 100 feet across the roof and installed metal panels at the eaves. In the course of the
employees’ duties, it was clearly “reasonably predictable” that the employees “have been, are, or
will be in a zone of danger” without proper fall protection. Fabricated Metal Products, Inc., 18
BNA OSHC 1072, 1074 (No. 93-1853, 1997) (citations and footnotes omitted).
The OSHA compliance officer observed the employees working on the roof for
approximately 20 minutes. He observed and photographed them working on the roof at
numerous locations, including the roof’s eaves, without securing their harnesses to anchor points
(Exhs. C-1, C-6; Tr. 32-33). One employee was properly attached to an anchor but he
disconnected from the anchor to talk on a cell phone while still near the eave (Exh. C-4; Tr. 35).
Therefore, the record establishes that § 1926.501(b)(11) was applicable to DWC’s roofing
work at the student center and the terms of § 1926.501(b)(11) were not complied with by the
crew’s failure to tie off their harnesses to anchor points and the lack of other fall protection
systems. Without fall protection, the crew members were exposed to a fall hazard of 32 feet from
a steep roof. DWC agrees that the evidence establishes clear improper conduct by the crew
(DWC Brief, p. 20).
Despite the foreman’s claim that the crew could not use fall protection because they could
not transport the panels 60 to 100 feet with the harnesses connected to anchors, DWC does not
assert infeasibility as a defense (DWC Brief, p. 21). After the OSHA inspection, DWC provided
the crew with retractable lanyards (Tr. 138-139).
 The issue remaining, to establish the Secretary’s prima facie violation § 1926.501(b)(11),
is whether DWC had the requisite knowledge of the violative condition.
DWC’s Knowledge
DWC argues that it was unaware the crew was not properly using fall protection. DWC
claims that the foreman’s knowledge of the condition should not be imputed because of its safety
program, training and monitoring of employees.
In order to establish knowledge of the hazardous condition, the Secretary must show that
the employer knew, or with the exercise of reasonable diligence, could have known of a hazardous
condition. A.L. Baumgartner Construction Inc., 16 BNA OSHC 1995, 1998 (No 92-1022, 1994).
There is no dispute that DWC’s foreman at the student center project was a supervisor.
He was in charge of installing the metal roof, directing and supervising the crew, and overseeing
the safety of the crew. He directed the crew’s work and had the authority to correct hazards
(Exhs. C-13 and C-13A, Nos 18, 21; Tr. 55, 96, 110, 157). The foreman knew that at least three
employees including him were not tying off their harnesses (Exh. C-6; Tr. 78-79). He testified
that he discussed the use of anchors with one employee, but decided not to require it (Tr. 81). He
indicated that he did not use fall protection by stating “I don’t use the rope;” referring to the anchor
intended for attachment of his harness (Exh. C-8).
On the day prior to the OSHA inspection, the foreman was advised by the general
contractor’s superintendent that an employee was not tied off. The superintendent had seen the
employee working on the roof and wearing a harness that was not tied off (Tr. 11, 15-16). The
superintendent informed him that “he’s not allowed on the roof without being tied off,” according
to the general contractor’s policy (Tr. 12). The foreman said “Okay” and told the employee to tie
off. He admitted that the crew was “caught” (Tr. 83). However, the next day the foreman
allowed the crew to continue to not tie off their harnesses.
When a supervisory employee has actual knowledge of the condition as in this case, his
knowledge is imputed to the employer and the Secretary satisfies her burden of proving knowledge
without having to demonstrate any inadequacy or defect in the employer’s safety program. Dover
Elevator Co. 16 BNA OSHC 1281, 1286 (No. 91-862, 1993). An employer is charged with the
knowledge of conditions which are plainly visible to supervisory personnel.
DWC’s argument that knowledge cannot be established because Mr. Caldwell was
unaware of the crew’s failure to tie off is misplaced. The argument ignores that corporations such
as DWC obtain knowledge through supervisory personnel. “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).
Based on DWC’s imputed knowledge of the crew’s failure to tie off, a violation of
§ 1926.501(b)(11) is established unless DWC can show unpreventable employee misconduct.
Unpreventable Employee Misconduct
DWC argues that if a violation is found, it was the result of employee misconduct. The
company has a 100 percent fall protection rule on which the employees were trained. Also, DWC
claims the roof projects were monitored and employees were disciplined for violations of the rule.
In order to establish the affirmative defense of unpreventable employee misconduct, an
employer is required to prove that it has (1) established work rules designed to prevent the
violation, (2) adequately communicated these rules to its employees, (3) taken steps to discover
violations, and (4) effectively enforced the rules when violations are discovered. American
Sterilizer Co., 18 BNA OSHC 1082, 1087 (No. 91-2494, 1997).
DWC’s Work Rule
As essential element of the misconduct defense, the employer needs to show that it has
work rules designed to prevent the unsafe condition or violation of the OSHA standard. Pride Oil
Well Serv., 15 BNA OSHC 1809, 1816 (No. 87-692, 1992). A work rule is defined as “an
employer directive that requires or proscribes certain conduct, and that is communicated to
employees in such a manner that its mandatory nature is made explicit and its scope clearly
understood.” J.K. Butler Builders, Inc., 5 BNA OSHC 1075, 1076 (No. 12354, 1977).
DWC has a 100 percent fall protection rule (Tr. 48, 93). The written safety program by
the National Roofing Contractors Association contains a Fall Protection section which describes
the options available for low sloped and steep sloped roofs. It identifies the harness and anchor
system to use by employees. The company’s written program was at the student center project
(Exh. R-3; Tr. 87). Also, DWC kept the manufacturer’s instructions for the specific equipment
(Exhs. R-4, R-5).
 Despite knowing the rule and having the information available, the foreman apparently
believed there were exceptions to DWC’s 100 percent rule based on the difficulty to remain tied
off while carrying the metal panels or that production was slowed. The foreman’s conduct shows
that DWC’s fall protection rule was not presented as mandatory. Also, the record fails to show
DWC evaluated the potential problems involved in installing the metal panels while remaining tied
off. After the OSHA inspection, DWC purchased retractable lanyards which resolved the
problem.
DWC’s Communication of its Work Rules
Mrs. Caldwell is primarily responsible for providing the safety training to employees. She
conducts 30-minute weekly safety meetings at the company office (Tr. 125, 164). DWC
presented five months (January – May, 2012) of safety meetings for the sheet metal crew
(Exh. R-6). During the period, the crew received two training sessions prior to the OSHA
inspection; January 26, 2012, and March 9, 2012, on fall protection requirements. The general
contractor for the student center project also held safety meetings (Tr. 91, 95). The day after the
OSHA inspection, Mr. Caldwell at a meeting with the crew “laid down the law to them” (Tr. 129).
DWC’s efforts in training employees in its safety program, although important, do not
show adequate communication of the fall protection rules as evident by the crew’s pattern of
non-compliance. The crew, including the foreman, failed to properly tie off the fall protection
equipment despite having been warned by the general contractor the day prior to the OSHA
inspection. The foreman conceded to never “using the rope” and that the crew did not tie off
(Exh. C-8 p. 2; Tr. 82).
It is noted that Mr. and Mrs. Caldwell were not shown to have a safety background or
evidence of receiving safety training such as the 10-hour OSHA course (Tr. 154). They learned
fall protection requirements from “reading the manuals and whatnot” (Tr. 154). The owners do
not speak Spanish despite that the crew was predominantly Spanish speaking (Tr. 156). Although
the foreman speaks English, he needed an interpreter present during his trial testimony to provide
assistance (Tr. 72-73).
DWC’s Steps to Discover Violations
Although an employer is not required to provide constant surveillance, it is expected to
take reasonable steps to monitor for unsafe conditions. Ragnar Benson, Inc., 18 BNA OSHC 1937,
1940 (No. 97-1676, 1999). An effective program requires “a diligent effort to discover and
discourage violations of safety rules by employees.” Paul Betty d/b/a Betty Brothers., 9 BNA
OSHC 1379, 1383 (No. 76-4271, 1981).
Mr. Caldwell is primarily responsible for visiting the projects on a “regular basis”
(Tr. 130). He sometimes makes surprise inspections. However, he does not record his
inspections unless he sees a problem and wants it recorded. Mr. Caldwell then calls the office to
record the visit (Tr. 120-121, 131). For example, he made an inspection on June 15, 2011, where
he decided the site needed more frequent inspections after having been notified by the general
contractor of the crew’s failure to tie off (Exh. R-7; Tr. 136).
DWC’s method to discover a crew’s disregard of fall protection was not shown adequate.
When Mr. Caldwell visited a project, there is no showing he was performing a complete safety
inspection of the crew, following a checklist or other guideline. The frequency of his visits is
based on the worksite’s proximity to the Douglasville office and how often DWC needed to deliver
materials and check on the progress of the work (Tr. 130-131). The student center at issue was
200 miles from DWC’s office in Douglasville, Georgia. He apparently visited the Selma site
three times during a six week period after the crew began the roofing work (Tr. 149). Surprising,
he did not discover that the crew was not using fall protection despite its obvious failure to comply
and the crew’s need for retractable lanyards. The superintendent of the general contractor and
OSHA were able to observe the crew’s failure. Even the year before, March 2011, it was the
general contractor that discovered the lack of fall protection by the crew (Tr. 133).
DWC’s Enforcement of Safety Rules
Adequate enforcement is the final element of the misconduct defense. To show that an
employer’s disciplinary system is more than a paper program, an employer must have evidence of
having actually administering the discipline outlined in its policy. Rawson Contractors, Inc., 20
BNA OSHC 1078, 1081 (No. 99-0018, 2003). Evidence of a variety of disciplinary measures
which progress to higher levels of punishment designed to provide deterrence tends to demonstrate
that an effective disciplinary system is in place.
DWC notes that after the OSHA inspection, the crew members were verbally reprimanded
and in August 2012 sent to a third party for retraining instruction on fall protection and received
certification cards (Tr. 110). As evidence of its discipline program, DWC presented handwritten
entries (Exh. R-7). The entries include: (1) March 24, 2011, when the general contractor had
called Mr. Caldwell to complain about the crew’s failure to tie off, Mr. Caldwell immediately
correcting the problem by phoning the crew and then going to the site to ensure the crew was tied
off (Tr. 133); (2) June 7, 2011, where a foreman suspended an employee by sending him home for
not following safety rules (Tr. 135); (3) July 14, 2011, where Mr. Caldwell reprimanded the crew
for not having warning lines on the roof (Tr. 136); and (4) March 22, 2012 where the employees
were reprimanded for failing to have personal protective equipment (Tr. 137, 161-162).
DWC’s disciplinary program is not written and fails to provide for progressive discipline
(Tr. 154, 158). The foreman and crew at issue had received written reprimands a year before the
OSHA inspection for not tying off. No one was suspended (Exh. C-9; Tr. 84-85). Other than
verbal warnings or written reprimands, there is no evidence that discipline included loss of pay,
days off from work, or termination. As a result of the student center project, the crew received a
similar written reprimand as received by the crew the year proceeding and still no escalated
discipline (Exh. R-8; Tr. 139).
Where all employees in a crew violate an employer’s work rule, the unanimity of their
non-compliance shows weak enforcement of the work rule. Daniel International Corp., 9 BNA
OSHC 1980, 1983 (No. 15690, 1991). In this case, the four employees including a foreman failed
to comply with the rule. As discussed, the same crew had behaved similarly the prior year.
Despite the failure to tie off, no one was suspended. The foreman remains a sheet metal foreman
and has received no penalty for his several unsafe acts. In the only instance in which a foreman
sent an employee home, Mr. Caldwell could not remember why (Tr. 135).
Based on the record, DWC’s unpreventable employee misconduct defense is not
established. DWC’s overall safety program was not shown sufficient to prevent and discover
safety violations. The failure to comply by the four employees indicates deficiencies in DWC’s
safety program. Also, “where a supervisory employee is involved, the proof of unpreventable
employee misconduct is more rigorous and the defense is more difficult to establish since it is the
supervisor’s duty to protect the safety of employees under his supervision. . . . A supervisor’s
involvement in the misconduct is strong evidence that the employer’s safety program was lax.”
Archer-Western Contractors Ltd., 15 BNA OSHC 1013, 1016-1017 (No. 87-1067, 1991).
Willful Classification
 OSHA classified DWC’s violation of § 1926.501(b)(11) as willful. It is well settled that a
willful violation is one committed with intentional, knowing or voluntary disregard for the
requirements of the Act, or with plain indifference to employee safety. Continental Roof Systems,
Inc., 18 BNA OSHC 1070, 1071 (No. 95-1716, 1997). A willful violation is differentiated by
heightened awareness of the illegality of the conduct or conditions and by a state of conscious
disregard or plain indifference when the employer committed the violation. Hern Iron Works,
Inc., 16 BNA OSHC 1206, 1214 (No. 89-433, 1993).
DWC’s conduct in this case did not rise to the level of willful. DWC is a small employer
with 15 employees. Although inadequate, as discussed, DWC has a written safety program and
provides weekly safety meetings. Mr. Caldwell regularly visits projects at least once a week to
check on progress and employee safety. When he observes a safety problem, the record shows he
immediately corrects the problem. DWC issues verbal warning and files written reprimands on
employees, including foreman, as a means to enforce its safety rules. DWC provides employees
with the necessary fall protection equipment; harnesses, lanyards, ropes, and anchors. At the
student center project, the crew was wearing appropriate safety harnesses and the rope anchors
were in place. The foreman was experienced and had attended the 10-hour OSHA safety course
(Tr. 90). After the OSHA inspection, the entire crew received formal fall protection training in
August 2012 through a third party and obtained certificates (Tr.110).
The OSHA compliance officer agrees that the crew was properly trained in the
requirements for fall protection by DWC. He rated the company’s safety program, safety
training, safety communication, and enforcement of safety program as “average” (Exh. R-2;
Tr. 63). DWC maintained the appropriate OSHA 300 logs and safety training documents
(Tr. 49). The company demonstrated a good faith effort to comply with all OSHA requirements.
The foreman’s conduct demonstrated poor judgment but was not intentional or reckless
disregard. Although he was aware of the company’s fall protection rule, the foreman
unfortunately believed that not using the rope anchors while carrying the metal panels 60 feet, was
not a fall hazard because of the size of the roof and that most of the work was being done near the
peak (Tr. 81). He was an experienced foreman who had received proper fall protection training.
To address the concern of the foreman, DWC purchased retractable lines after the OSHA
inspection. The retractable lines allowed the employees to have their hands free to carry the metal
panels (Tr. 138, 139). DWC agrees that the evidence in this case clearly establishes “improper
conduct by this crew” (DWC Brief, p. 20). However, such conduct was not established as willful.
DWC had received a prior OSHA citation for lack of fall protection in 2008 for a violation
of § 1926.501(b)(10). The citation was resolved by an informal settlement agreement with a
reduction in the penalty (Tr. 48, 70). Although the prior citation addresses fall protection on a low
sloped roof, the nature of the violative condition differs from this case. In the 2008 citation, the
crew had started to survey the roof and determine where to place the warning lines when the
OSHA inspection occurred (Tr. 140-141). The crew members at issue were already working on
the roof and had the appropriate fall protection equipment available (harnesses, lanyards, and rope
anchors) but failed to tie off.
A willful violation of § 1926.501(b)(11) is not established. The violation of
§ 1926.501(b)(11) is reclassified as “serious” based on the DWC’s knowledge, as discussed, and
the potential for death or serious injury from a fall of 32 feet to the ground.4
Penalty Assessment
The Commission is the final arbiter of penalties in all contested cases. In determining an
appropriate penalty, the Review Commission is required to consider the size of the employer’s
business, history of previous violations, the employer’s good faith, and the gravity of the violation.
Gravity is the principal factor to be considered.
DWC is a small employer with 15 employees (Tr. 66). DWC is not entitled to credit for
history because of receiving an OSHA citation in 2008 for violation of § 1926.501(b)(10). It is
noted the citation was settled with a reduction in the penalty (Tr. 48, 71-72). DWC is entitled to
good faith credit based on having an average safety program with a written safety manual and
regularly safety training.
A $6,000.00 penalty is reasonable for serious violations of § 1926.501(b)(11). The
gravity of the violation is considered high because at least four DWC employees, including the
foreman, were on a steep roof without tying off their safety harnesses. The employees were
exposed to a 32 foot fall hazard.
FINDINGS OF FACT AND

4
A “serious” violation under § 17(k) of the Occupational Safety and Health Act is established if there is a substantial
probability of death or serious physical harm that could result from the cited condition and the employer knew or
should have known with the exercise reasonable diligence of the presence of the violative condition.
 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 No. 1, alleged violation of 29 C.F.R. § 1926.501(b)(11) is affirmed as serious
and a penalty of $6,000.00 is assessed. The alleged violation of § 1926.501(b)(1) is vacated as
duplicative.

   SO ORDERED.
                                                       /s/
                                                       Judge Ken S. Welsch
                                                       1924 Building, Suite 2R90
                                                       100 Alabama Street, S.W.
                                                       Atlanta, Georgia 30303-3104
                                                       Phone (404) 562-1640

Dated: February 11, 2013
Atlanta, Georgia