3-D Builders, LLP

Read the official release (oshrc.gov)

Plain-English summary

3-D Builders performed residential roofing work at heights of approximately 10 to 22 feet without guardrails, safety nets, personal fall arrest systems, or other fall protection. Workers also used an extension ladder whose side rails extended only about two feet, six inches above the roof landing instead of the required three feet. The owner was present, knew fall protection was required above six feet, and admitted that the company usually did not use it because the equipment was inconvenient. The judge found that these admissions showed conscious disregard and plain indifference, supporting a willful fall-protection violation. The ladder item was affirmed as serious, while the Secretary's withdrawal of a ladder-training item was approved and that item was vacated. Penalties of $2,000 and $14,000 were assessed, for a total of $16,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.1053(b)(1); 29 C.F.R. § 1926.1060(a); 29 C.F.R. § 1926.501(b)(13)
• Outcome: Serious ladder and willful fall-protection items affirmed; ladder-training item vacated; $16,000 total penalties assessed.
• Key point: An employer's admitted knowledge of the fall-protection rule and deliberate choice not to follow it can establish willfulness.

Full text (OSHRC public release)

Carol Baumerich
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�

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. 16-0094

3-D BUILDERS, LLP,

���

�������������������������
Respondent.

���

�

Appearances:

Oscar L. Hampton
III, Esq., Regional Solicitor, Judson H. Dean, Esq., Office of the Regional Solicitor, Philadelphia, PA

����������� For the
Complainant

Shawn Davis, pro se

3-D Builders, LLP, Morgantown, WV 26508

����������� For the
Respondent

Before: ����������� Carol A. Baumerich

����������� Administrative Law Judge

DECISION AND ORDER

����������� Respondent
3-D Builders, LLP (Respondent or 3-D Builders) is a business engaged in
construction activities. Following an anonymous complaint, the Occupational
Safety and Health Administration (OSHA) inspected Respondent�s residential construction
worksite in Morgantown, West Virginia. � The
result of the inspection was a one-item serious citation, with subparts, a one-item
willful citation, and a notification of penalty (citation), alleging violations
of the OSHA�s construction standards regarding ladders, 29 C.F.R. �
1926.1053(b)(1), and fall protection required for employees engaged in
residential construction activities, 29 C.F.R. � 1926.501(b)(13). � � � ��

Respondent 3-D
Builders timely contested the citation, bringing the matter before the
Occupational Safety and Health Review Commission (Commission) pursuant to
section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. � 659(c) (the Act). � A hearing [1]
was held in Pittsburgh, PA on January 25, 2017. [2]
� The Secretary was represented by counsel
at the hearing. � No Respondent
representative attended or participated in the hearing. (Tr. 4-6). The
Secretary filed a post-hearing brief. � Respondent did not file a
post-hearing brief. �

F or
the following reasons, the serious citation 1, item 1(a) [3]
and willful citation 2, item 1 are affirmed and a total penalty of $16,000 is
assessed.

BACKGROUND

The
OSHA Inspection.

����������� On Wednesday, November 18, 2015,
the OSHA Charleston, West Virginia, Area Office received an anonymous complaint
about possible hazardous conditions at a worksite in Morgantown, West
Virginia. � OSHA Compliance Safety and
Health Officer (CO) Anthony Milam was assigned to travel to the worksite and
conduct an inspection. The CO arrived at the worksite, located at 709 McKinley
Avenue, Morgantown, West Virginia, around 12:00 p.m. (noon). � Upon arrival, before leaving his vehicle, the
CO took several photographs of the construction worksite, a two-story house,
and the two workers located on the front porch roof. The residential
construction job in progress was the removal of an old shingle roof and
installation of a new roof, on the porch and main house. � (Tr. 22-23, 25-33, 46-48, 61-62, 75-76; Exs.
C-2, C-3, C-4, C-5).

����������� After
parking his vehicle, the CO approached a man standing on the worksite grounds. � The CO presented his credentials and
explained that OSHA had received a complaint regarding possible hazards at the
worksite. � The man identified himself as
Shawn Davis, the company owner. [4] � Mr. Davis said the company�s name was 3-D
Builders. � A copy of the complaint OSHA
received was provided to Mr. Davis. � The
CO took additional photographs, including a photo of two workers on the house
back roof. � (Tr. 34-38, 40-41; Exs. C-1, C-6,
C-7, C-8). �

The CO asked Mr.
Davis to have his employees come down off the roof, so he could speak with them. � At approximately 12:45 � 1:00 p.m., the CO
observed three workers use the ladder, located at the right front corner of the
house, to come down from the roof. [5] � (Tr. 34-35, 65, 79-80). Two of the workers
who came down from the roof were the workers the CO had photographed on the
back roof. � (Tr. 41). � The CO briefly spoke to the three workers:
Jacob Davis, Timothy Dalton, and Casey Barnett. (Tr. 38-39). �

The CO interviewed
3-D Builders� owner while they stood on the residence driveway. � During the interview, the CO recorded the
information Mr. Davis provided on a witness statement form. [6]

During the
interview Mr. Davis stated that the job began on Monday. The job involved
removing the shingle roof from the residence. They worked Monday, all day
Tuesday, and that day, Wednesday, beginning at 7:00 a.m. � They finished the main roof on Tuesday. Respondent
owner Davis estimated that the �porch roof is about 3/12 and the main roof is
about 10/12.� [7] � Mr. Davis said the �porch roof is 11-13 feet
high and the main roof is about 20-22 feet high.� � Mr. Davis told the CO that 3-D Builders was
subbing for Lynn Wood Company; and that Mr. Lynn Wood didn�t say anything about
fall protection. Mr. Davis said he had never been inspected by OSHA. � Mr. Davis said that he knows that fall
protection is required for any work over six feet. He stated that they were not
wearing fall protection on this worksite. �
Mr. Davis confirmed that the only way to access the roof was to use the
extension ladder, which was located at the right front corner of the house. � (Tr. 39, 44-45, 48, 57, 65, 78-79; Ex. C-1). �

During the
inspection, the CO measured the height of the porch roof to the ground to be
approximately ten feet high. � He measured
the height of the main roof, from the roof peak to the ground, to be
approximately twenty to twenty-two (20 to 22) feet high. � (Tr. 52-53, 63; Ex. C-4).

Prehearing
Pleadings and Discovery

The Secretary
filed the complaint in this case, attaching as exhibits the citation and
Respondent�s January 5, 2016 notice of contest. � Respondent�s answer, filed on May 27, 2016,
was a copy of Respondent�s notice of contest, with several attached exhibits. � As instructed by the undersigned judge,
Respondent�s representative Mr. Davis filed a more specific answer on July 12,
2016. [8]
�

Respondent�s
notice of contest generally contests the violations alleged in the citation and
the penalties proposed. Respondent�s notice of contest and answers specifically
contend that 3-D Builders is not an LLP, rather it is a general partnership
with no employees. [9] � (Tr. 13). �
In Respondent�s more specific answer, Mr. Davis added that 3-D Builders
Partnership was a subcontractor of Lynn Wood Company of Morgantown, on this
worksite. [10]

Throughout this proceeding, Respondent
owner Mr. Davis has self-represented Respondent. [11] � During prehearing conference calls and in
prehearing Notices and Orders, Mr. Davis was reminded that, as Respondent�s
representative, he must comply with all requirements relating to these
proceedings, including participating in telephone conference calls, filing and
serving appropriate papers, and timely responding to discovery requests. � The
importance of active participation in the prehearing discovery process,
including the importance of timely serving and responding to discovery
requests, was emphasized. � Mr. Davis was
advised that if Respondent did not respond to the Secretary�s discovery
requests by either answering each request, providing the document(s) requested,
or stating an objection to each request or document, the Commission Rules
provide that discovery sanctions may be ordered. � Mr. Davis was firmly cautioned that
Respondent�s failure to cooperate in the prehearing discovery process may
result in Respondent being sanctioned. [12]
(Tr. 13-14). �� ��

In August 2016, counsel for the
Secretary served two discovery requests on Respondent: �� Complainant�s first set of Requests for
Admissions and Complainant�s first set of Requests for Production of
Documents. � Respondent answered
the requests with handwritten discovery responses that were summary,
incomplete, and without affirmation. �
Respondent provided no documents in response to the Secretary�s request
for documents. [13] � Following receipt of Respondent�s incomplete discovery responses, counsel for
the Secretary filed a Motion to Compel. (Tr. 14-15). ��

On October 26,
2016, an Order issued granting the Secretary�s Motion to Compel (Order
compelling discovery). (Ex. ALJ-5). Respondent was directed to provide the
responsive documents requested by the Secretary and supplement Respondent�s
answers and responses to the Secretary�s discovery requests. The actions Mr.
Davis needed to take, as Respondent�s representative, to comply with the Order
compelling discovery, were outlined in specific detail.

A conference call
was held on November 16, 2016, during which the actions Respondent needed to
take to comply with the Order compelling discovery were explained to Mr.
Davis. � Respondent was granted an extension
of time to provide the discovery documents and responses to counsel for the
Secretary as ordered. During the call, the parties agreed to the rescheduled
January 2017 hearing dates. [14] � (Tr. 15). �

Thereafter,
Respondent failed to comply with the Order compelling discovery. Respondent did
not provide the supplemental discovery responses as ordered. � Respondent did not provide the requested
discovery documents as ordered. [15] � (Tr. 15). �

Discovery
Sanctions Motion and Order to Show Cause

Pursuant to
Commission Rule 52(f), on December 1, 2016, the Secretary filed a Motion
requesting discovery sanctions as Respondent failed to comply with the Order
compelling discovery (Motion for sanctions). The Secretary�s Motion requested
narrowly tailored sanctions directed to Respondent�s failure to comply. Respondent
did not file a written response to the Secretary�s Motion. �

����������� An
Order to show cause issued, directing Respondent to file a written Response to
the Secretary�s Motion for sanctions, on or before January 6, 2017. [16] � Respondent did not file a written Response. � (Tr. 10-11).

Discovery
Sanctions Discussion

Well established Commission
policy is to decide cases based on their merits, rather than on procedural
flaws. � The Commission consistently has
held that dismissal of a party�s case is too harsh a sanction for failure to
comply with certain prehearing orders, absent evidence of prejudice to the
opposing party, contumacious conduct by the noncomplying party, and/or a pattern
of disregard for Commission Rules by the noncompliant party. � See
Stone & Webster Constr. , Inc., 23
BNA OSHC 1939, 1943-44 (No. 10-0130, 2012)(consolidated); Sealtite Corp ., 15 BNA OSHC 1130, 1133 (No. 88-1431, 1991); Duquesne Light Co ., 8 BNA OSHC 1218,
1222-23 (No. 78-5034, 1980)(consolidated). ����

The Commission Rules
provide for prehearing discovery by the parties, including requests for document
production and requests for admissions. � See Commission Rules 52, 53 and 54; 29
C.F.R. �� 2200.52, 2200.53, 2200.54. �
Cooperation by the parties during the prehearing discovery process is
anticipated. � Commission Rule 52(f) provides
for the imposition of sanctions when a party refuses or obstructs discovery. [17] �

A Commission hearing judge may
impose any sanction stated in Fed.R.Civ.P. 37 for failing to comply with a
discovery order; however, the sanction imposed must not be �too harsh under the
circumstances of the case.� � St. Lawrence Food Corp ., 21 BNA OSHC
1467, 1472 (No. 04-1734, 2006)(consolidated).

The Commission has held that the
�extreme sanction� of the �exclusion of critical evidence� to a party�s case,
may be appropriate where a party has �willfully deceived� the Commission or �flagrantly
disregarded� a Commission order. � Jersey Steel Erectors , 16 BNA OSHC 1162,
1166 (No. 90-1307, 1993). � See Architectural Glass & Metal Co. ,
19 BNA OSHC 1546, 1547 (No. 00-0389, 2001). �
When reviewing a sanction order regarding the exclusion of evidence, the
Commission considers whether the party against whom the evidence is being
offered has been prejudiced in preparing or presenting its case by the conduct
of the noncomplying party and whether the noncomplying party�s conduct was
contumacious. � Jersey Steel Erectors , 16
BNA OSHC at 1166-67. � See also Duquesne Light Co. , 8 BNA OSHC at 1222-23; Sealtite Corp., 15 BNA OSHC at 1134 (A consistent pattern of
failure to comply with Commission Rules and with judge�s orders, delaying a
proceeding, constitutes contumacious conduct.).

The Commission has an obligation
to provide all parties to a case with an opportunity to for a �full, fair, and
equal opportunity to be heard.� � Choice Elec. Corp ., 14 BNA OSHC 1899,
1900-01 (No. 88-1393, 1990). � The
Commission recognizes that employers who participate in proceedings before the
Commission self-represented, without an attorney, may require additional consideration
as they may not be knowledgeable about the Commission�s procedural requirements
and legal procedures. � Id. ; Sealtite
Corp ., 15 BNA OSHC at 1133-34.

The Commission hearing judge has
broad discretion to decide whether sanctions should be ordered. � See
Architectural Glass & Metal Co. ,
19 BNA OSHC at 1547 Jersey Steel Erectors ,
16 BNA OSHC at 1165; Sealtite Corp.,
15 BNA OSHC at 1134; Duquesne Light Co.,
8 BNA OSHC at 1222.

The Commission Rules and Federal
Rules of Civil Procedure provide an opportunity for all parties to engage in
prehearing discovery. � Prehearing
discovery enables the parties to a proceeding to gather the information and
evidence on which the Secretary�s citations and Respondent�s defenses are
based. � With the information received in
discovery each party�s understanding of the case increases, enabling each party
to evaluate the relative strengths and challenges of their case and of their
opponent�s case. � In many cases, this
increased understanding facilitates settlements. � Unfortunately, in this case, the opportunity
for prehearing discovery to increase the Secretary�s understanding of
Respondent�s defenses was lost. � Respondent failed to fully respond to the
Secretary�s discovery requests in a meaningful manner and Respondent refused to
comply with the undersigned judge�s Order compelling discovery. �

In this case, I find
Respondent�s consistent pattern of failing to comply with the undersigned�s
Orders constitutes contumacious conduct. � These Orders include the Order compelling
discovery, the Order to show cause, the Notice of Rescheduled Hearing and Order
directing the parties to file a prehearing statement, participate in a prehearing
conference call, and attend the scheduled hearing. [18] � (Tr. 19-21).

A party is prejudiced if the
opposing party�s failure to fully respond to discovery requests impairs the
requesting party�s ability to determine the facts and merits of the opposing
party�s claims or defenses. � I find that
Respondent�s conduct, in refusing to comply with the Order compelling discovery,
prejudiced the Secretary in the preparation of the Secretary�s case to address
and rebut the defenses raised by Respondent. �

Respondent
contends that it is a partnership in which every partner is self-employed, that
Respondent has no employees, and that OSHA has no regulations on a partnership. [19] � These defenses are raised by Respondent in
its notice of contest and answers. � � Therefore, an issue in this proceeding is the
employment status of the individuals working with Respondent at the inspected worksite.
� As stated in the Order compelling
discovery, several of t he
documents requested by the Secretary are relevant to the employment status of
the individuals working with Respondent, including bank account statements,
completed federal and state tax returns, documents regarding vehicle ownership,
training programs, payroll records, and work hours, among others. Respondent refused
to produce to the Secretary documents regarding the employment indicia of the individuals
working with Respondent at the time of the OSHA inspection. � (Tr. 16-17). �
Respondent has not articulated a legal basis for its refusal to produce
the documents. [20] �

Whether an individual is an
employee is a case specific, fact-based analysis. � All incidents of the employment relationship are
considered. � One employment factor alone
is not decisive. � See Clackamas
Gastroenterology Assocs., P.C. v. Wells , 538 U.S. 440, 448-451 (2003). � As the Supreme Court stated in Clackamas , �[t]he mere fact that a
person has a particular title � such as partner . . . should not necessarily be
used to determine whether he or she is an employee or a proprietor.� � Id at

450. � See
     generally, Nationwide Mut. Ins. Co. v. Darden , 503 U.S. 318 (1992).

Respondent�s refusal to comply
with the Order compelling discovery, despite having been granted time extensions
and second chances to comply, prejudiced the Secretary in the preparation of
the Secretary�s case. � In this case, I
find the narrowly tailored sanctions requested by the Secretary in the Motion
for sanctions warranted and appropriate. �

Discovery Sanctions Order

As stated on the
record, at the beginning of the hearing, the Secretary�s Motion for sanctions was
granted as follows.

It is Ordered that
the following designated facts shall be taken to be established for purposes of
the case in accordance with the claims of the Secretary.

a.       
First, as alleged in the complaint and in the
citations issued in this case, that Respondent�s workers at the worksite
inspected by OSHA, 709 McKinley Avenue, Morgantown, WV 26506, on or about
November 18, 2015, were �employees� of Respondent 3-D Builders, LLP, within the
meaning of section 3(6) of the Act. �
�Employee� means an �employee of an employer who is employed in a
business of his employer which affects commerce.� �

b.      
Second, as alleged in the complaint and in the
citations issued in this case, that Respondent 3-D Builders, LLP, is an
�employer� within the meaning of section 3(5) of the Act. � �Employer� means a �person engaged in a
business affecting commerce [21]
who has employees �.�

It is further
Ordered, that Respondent not be permitted to dispute the facts designated
above, in paragraphs (a) and (b), that the workers were employees of Respondent
3-D Builders and that Respondent 3-D Builders is an employer. � It is Ordered that Respondent not be
permitted to dispute these issues or present any evidence at the hearing,
through witness testimony, documents, or exhibits, to dispute these designated
facts.

(Tr. 11-12,
21). See Commission Rule 52(f) Failure to cooperate; Sanctions . � 29 C.F.R. �  2200.52(f).

The
Hearing

Respondent had
full knowledge of the hearing date, time, and location. � A Notice of Rescheduled Hearing and Order
issued in this case. [22] � This Notice and Order set forth the agreed
hearing dates, the final prehearing conference call date and time, and the due
date for the parties to file a joint prehearing statement. [23]
A Notice of Hearing Location issued stating the specific courthouse location,
in Pittsburgh, Pennsylvania, for the hearing scheduled to begin on January 25,
2017. [24] � Prior to the final prehearing conference
call, the judge�s legal assistant called and spoke to Respondent�s
representative Mr. Davis to remind him of the scheduled call and to remind him
to file Respondent�s prehearing statement. �
Mr. Davis did not join the scheduled call. � No prehearing statement was received from
Respondent. (Tr. 6-9, 11). �

During the final
prehearing conference call, counsel for the Secretary was advised that the
Secretary�s Motion for sanctions would be granted, with the decision granting
the Motion stated on the record when the hearing opened. � Notice that the Secretary�s Motion for
sanctions would be granted also was stated prior to the hearing, in an email
exchange between the judge�s legal assistant and the parties. (Tr. 9-10).

Approximately one
week before the hearing and again early on the morning of the hearing, counsel
for the Secretary spoke to Respondent�s representative Mr. Davis. � During both conversations, Mr. Davis stated
his intention to attend the scheduled hearing. Counsel for the Secretary attended
the hearing and presented evidence through witness testimony and exhibits. � Respondent did not attend the hearing or present
a defense. (Tr. 4-6). � At the beginning
of the hearing, the decision granting the Secretary�s Motion for sanctions was
stated on the record. (Tr. 10-21).

Counsel for the
Secretary�s post-hearing brief was filed with the undersigned Commission judge
and served on Respondent. � Respondent did
not file a post-hearing brief. � Respondent
has not offered any explanation for Respondent�s failure to participate in the
hearing. [25]

JURISDICTION

As discussed
above, designated facts are taken to be established, for purposes of the case,
as alleged in the complaint and in the citation, (a) that Respondent�s workers
at the worksite inspected by OSHA, in Morgantown, West Virginia, on or about
November 18, 2015, were �employees� of Respondent 3-D Builders, LLP, within the
meaning of section 3(6) of the Act, and (b) that Respondent 3-D Builders, LLP,
is an �employer� engaged in a business affecting commerce within the meaning of
section 3(5) of the Act.

Further, the evidence establishes, at the time of the
OSHA inspection, Respondent�s employees were engaged in roofing activities, at a
construction worksite, located in Morgantown, West Virginia. � The roofing work performed was the removal of
an old shingle roof and the installation of a new roof, on the porch roof and
main roof of a two-story house. � The
construction industry affects commerce. � Even
a small employer, whose activities and purchases are purely local, when
aggregated with others engaged in similar activities, has a substantial effect
on interstate commerce. See Slingluff v.
OSHRC , 425 F.3d 861, 867 (10th Cir. 2005); Clarence M. Jones, 11 BNA OSHC 1529, 1531 (No. 77-3676, 1983) (�There
is an interstate market in construction materials and services and therefore
construction work affects interstate commerce.�). �

Based on the
record evidence, I find that Respondent 3-D Builders, LLP, at all relevant
times, was in a business affecting commerce and was an employer within the
meaning of sections 3(3) and 3(5) of the Act. �
Accordingly, the Commission has jurisdiction over the parties and the
subject matter. �

DISCUSSION
REGARDING CITATION

����������� To
establish a violation of an OSHA standard, the Secretary must prove that: (1)
the cited standard applies; (2) its terms were violated; (3) employees were
exposed to the violative condition and (4) the employer knew of could have
known with the exercise of reasonable diligence of the violative
condition. � See Astra Pharm. Prods. Inc. , 9 BNA OSHC 2126, 2129 (No. 78-6247,
1981) aff�d in relevant part , 681
F.2d 69 (1st Cir. 1982)

Respondent does not contest the applicability of the
cited standards, violation of the standards� terms, employee exposure to the
hazardous, violative, conditions, or Respondent owner�s actual knowledge of the
violative conditions. � Respondent
contends that Respondent is a partnership in which every partner is
self-employed, that Respondent had no employees, and that OSHA has no
regulations on a partnership. [26] � In other words, Respondent contends that OSHA
and the Commission do not have jurisdiction over Respondent. � Respondent�s assertions have been considered
and rejected above. ���

Alleged Violations

a.       
� Serious citation 1, item 1(a) � alleged ladder
violation.

The Secretary alleges that
3-D Builders violated 29 C.F.R. � 1926.1053(b)(1), [27]
on or about November 18, 2015, when the portable extension ladder, [28]
used by the workers to access the roof above the front porch, was not extended
at least three feet above the landing surface.

The CO testified that when
employees, at this worksite, used the portable extension ladder to access the
roof, the standard requires that the side rails of the extension ladder extend
at least three feet above the landing surface. When the side rails are properly
extended an employee can easily step on and off the roof holding onto the top
of the ladder side rail. � If the ladder
is not properly extended when an employee steps on or off the ladder they may
become off balance and fall. � (Tr.
53-54).

The CO, upon arrival at the
worksite, observed and photographed a ladder placed at the front right corner
of the house. [29] � It was a portable, aluminum, extension
ladder, manufactured by Werner. � He also
photographed two men working on the front porch roof. (Tr. 30-33, 38, 54-55;
Ex. C-2, C-3, C-4, C-5). �

When the CO approached the worksite,
he spoke to the 3-D Builders� owner Mr. Davis and asked that the employees come
down from the roof to speak with him. � The
CO observed three workers use the ladder located at the right front
corner of the house to come down from the roof. (Tr. 34-35, 55). The CO took
additional photographs that show the house front, the porch roof where the
employees worked, and the ladder the employees used to access the roof. � (Tr. 35-38; Ex. C-6, C-7). � He also photographed employees working on the
house back roof using a scraper to remove the old shingle roof. (Tr. 40-41; Ex.
C-8). �

Regarding the
portable extension ladder, used by the employees to access the roof, the CO
determined that the side rails extended approximately two feet, six inches,
above the roof surface. � The CO reached
this conclusion by confirming that the distance between Werner ladder rungs is
twelve inches and the length of the side rails that extend above the top ladder
rung is six inches. � The CO counted the
number of ladder rungs above the roof surface. � At the time of the inspection, the third rung
down from the top of the cited ladder was even with the roof surface. � The CO�s calculation that the side rails
extended approximately two feet, six inches, above the roof surface, was less
than the three feet extension required by the cited standard. (Tr. 55-57; Ex.
C-7). � Respondent owner Mr. Davis�
interview statement reads, in part:

I know the OSHA
requirement from studying for my contractor�s test. � The extension ladder is the only way to
access the roof. � I used a ladder
stabilizer to secure it. � . . . . � I don�t think it needs to be extended with
the stabilizer. [30] �

(Tr. 45; Ex. C-1). �

Citation
Evidence Summary and Findings

The evidence establishes
that the cited construction standard regarding portable ladders applied to this
construction worksite, where 3-D Builders� workers were engaged in roofing
activities. � The CO�s testimony and
inspection photographs reveal that the cited standard was violated, as the side
rails of the extension ladder did not extend at least three feet above the roof
landing surface. �

The evidence must
also show that the employer knew, or with the exercise of reasonable diligence
could have known, of the violative condition. �
See e.g., Revoli Constr. Co., 19
BNA OSHC 1682, 1684 (No. 00-0315, 2001). The hazards identified in this ladder
citation were plainly visible to Respondent owner Mr. Davis, who was present on
the worksite. � This is sufficient to show
actual or constructive knowledge of the violative condition. � See A.L.
Baumgartner Constr., Inc., 16 BNA OSHC 1995, 1998 (No. 92-1022, 1994)
(finding employer had constructive � knowledge when the cited condition was plainly
visible to employer�s foreman); Clarence
M. Jones, 11 BNA OSHC at 1531 (constructive knowledge found where the
ladders were in plain view and the foreman was present at the worksite at all
times); MCC of Fla., Inc. , 9 BNA OSHC
1895, 1898 (No. 15757, 1981) (finding constructive knowledge when the violative
condition was in plain view and foremen were in the area). �

The Secretary does not need to show that
the employer was aware that a condition violates the cited standard. � Phoenix
Roofing, Inc. , 17 BNA OSHC 1076, 1079-80 (No. 90-2148, 1995), aff�d , 79 F.3d 1146 (5th Cir. 1996)
(unpublished). � Awareness of the condition
itself satisfies the test. � Id . �

Respondent�s owner Mr. Davis
had actual knowledge of the violative condition, as he was present at the
worksite when he, along with 3-D Builders� workers, used the noncompliant
ladder to access the roof. [31] � In his signed, inspection statement, Mr.
Davis acknowledged that the cited extension ladder was the only way to access
the roof. �

Further, the evidence
establishes that Respondent�s workers were exposed to the violative condition
created by the noncompliant extension ladder. �
The CO observed the workers descend from the roof to speak with him
during the inspection using the cited ladder. ��

Classification
and Penalty Amount

Serious

The Secretary characterizes
this citation item as serious. � A
violation is �serious� if there was a substantial probability that death or
serious physical harm could have resulted from the violative condition. � 29 U.S.C. � 666(k).  The CO testified
that there was a likelihood of serious harm and that four workers, including
Mr. Davis, were exposed to the violative condition. If an employee were
to fall ten feet, the CO testified that likely injuries could include permanent
disability or death. The cited extension ladder, located at the right front
corner of the house, was positioned on the residence driveway. � An employee falling from the cited ladder
would land on the hard surface of the driveway, made of concrete or asphalt.
(Tr. 58; Ex. C-3). � The citation is
properly classified as serious.

Penalty

Section 17(j) of
the Act provides that the Commission shall have the authority to assess all
civil penalties. � When determining the
appropriateness of a penalty, the Commission must give due consideration to
four criteria: (1) the size of the employer�s business, (1) the gravity of the
violation, (3) the good faith of the employer, and (4) the history of previous
violations.

The
gravity of the violation is the most important factor in the penalty
assessment. � Determination of the gravity
of a violation requires a consideration of the number of exposed employees, the
precautions taken to protect employees, the duration of employee exposure, and
the probability that an accident will occur. �
See J.A. Jones Constr. Co. , 15
BNA OSHC 2201, 2214 (No. 87-2059, 1993), and cases cited therein.

The CO determined the
severity of the ladder violation to be high based on the fall risk from ten
feet to the ground. � He determined the
probability to be lesser based on the duration of employee exposure to the
hazard created by the noncompliant ladder. [32]
� The time of employee exposure climbing
on and off the ladder typically would be short. �
Concluding that the severity is high, and the probability is lesser, the
gravity-based penalty would be calculated as $5,000. 3-D Builders has no OSHA
history. T here is no evidence of past inspections. � Therefore, Respondent�s history warrants
neither an increase nor a decrease in the penalty amount. � See
M.V.P. Piping Co., Inc. , 24 BNA OSHC 1350, 1352 (No. 12-1233, 2014)
(finding that history factor did not support a low penalty when the employer
had not been inspected within the past five years). � OSHA did not consider a good
faith penalty reduction, as the citation includes a willful violation. � As 3-D Builders is a small employer, the Secretary
proposed a sixty percent penalty reduction for size. Therefore, the Secretary
proposed a penalty for this citation item of $2,000. � (Tr. 58-60; Sec�y Br. at 8). � I agree. �

Therefore, a penalty of $ 2,000 is assessed for the serious violation of �
1926.1053(b)(1) set forth in citation 1, item 1(a).

b.      
� Serious, willful citation 2, item 1 � alleged
fall protection violation.

The Secretary alleges that
3-D Builders violated 29 C.F.R. � 1926.501(b)(13), [33]
on or about November 18, 2015, as employees were exposed to a fall of
approximately ten to twenty feet to the ground while installing shingles to a
residential roof. � Respondent�s workers
were not protected by guardrail systems, safety net system, personal fall
arrest system, or any alternative fall protection measure under another
provision of paragraph � 1926.501(b). [34] (Tr.
65, 72).

The CO testified that OSHA
standard 1926.501(b)(13) applies to residential construction roofing work, the
work performed by 3-D Builders at the inspected worksite. � The standard requires that when employees are
working six feet or greater above the ground, they shall be provided with fall
protection. (Tr. 61). �

During the
inspection, the CO measured the height of the porch roof to the ground to be
approximately ten feet high. � He measured
the height of the main roof, from the roof peak to the ground, to be
approximately twenty to twenty-two (20 to 22) feet high. � Therefore, employees working on any area of
this house roof were required by the standard to be protected from
falling. � (Tr. 52-53, 63; Ex. C-4). �

During the inspection, the CO
photographed two workers on the front porch roof and two workers on the house back
roof using a scraper to remove the old shingle roof. [35] � Had the workers on the back roof fallen they
would have fallen to onto the hard surface driveway, made of concrete or
asphalt. � On this worksite, 3-D Builders�
workers were not protected from falling by using a personal fall arrest system. � On this worksite, there was no evidence of a
guardrail system or safety net system. � (Tr.
33, 38, 40-41, 62-64; Ex. C-5, C-8). �

Respondent owner Mr. Davis�
interview statement reads, in part:

We started the roof
on Monday. � We are removing the shingle
roof. � The porch roof is about 3/12 and
the main roof is about 10/12. � We have
been on the roof since 7:00 a.m. this morning. �
We have two harnesses. [36] � We have worn them before on the beauty
college downtown. � I have been doing
construction for 20 some years. � I know
fall protection is required. � I know the
requirement anything over six feet need to have fall protection. � We weren�t wearing it because it�s a pain in
the ass. � The ropes get tangled around
hoses and feet. � If I was doing this job
by the book I would have had fall protection. �
I have fallen off roofs before, so I know the hazard. � We do a lot of roofs. � Most of the jobs we don�t wear fall protection. � I have never been inspected by OSHA. � We are subbing for Lynn Wood Company. � He didn�t say anything about fall
protection. � I know the OSHA requirement
from studying for my contractor�s test. � .
. . � The porch roof is 11-13 feet high
and the main roof is about 20-22 feet high. �
The guys finished the main roof yesterday. [37] � We didn�t wear fall protection for that roof
either. �

(Tr. 44-45; Ex. C-1). � ��

The CO understood Mr. Davis�
statement that �[t ]he ropes get tangled around hoses and feet,� to
reference �rope vests� used in fall protection systems, [38]
and air �hoses� used in roofing to connect pneumatic nail guns to air
compressors. � He testified that most
employers use pneumatic nail guns to secure shingles to the roof. � Air hoses were used on this roofing worksite.
They are visible in the inspection photographs. �
(Tr. 47-48, 68, 75; Exs. C-6, C-8).

Citation
Evidence Summary and Findings

The evidence establishes
that the cited construction standard applied to this residential construction
worksite, where 3-D Builders� workers were engaged in roofing activities on a
two-story house. � The CO�s testimony,
Respondent owner Mr. Davis� admissions, and the inspection photographs reveal
that the cited fall protection standard was violated. � On this worksite, Respondent�s workers were
not protected by guardrail systems, safety net system, personal fall arrest
system, or any alternative fall protection measure.

As discussed in
greater detail above, the record evidence must establish that the employer
knew, or with the exercise of reasonable diligence could have known, of the
violative condition. � See e.g., Revoli Constr. Co., 19 BNA
OSHC at 1684.

In this case, Respondent
owner Mr. Davis had actual knowledge of the OSHA fall protection requirement,
the violative condition at this worksite, and the fall hazard. � Mr. Davis was present working on this
jobsite. [39] � The fall protection violation was obvious, in
plain view. This is sufficient to show actual or constructive knowledge
of the violative condition. In fact, when interviewed, Respondent owner Mr. Davis boldly admitted
that, during this entire roofing job, ������ 3-D Builders� workers had not used fall
protection. � Mr. Davis stated he thought using
fall protection was �a pain in the ass.� �
The evidence establishes that Mr. Davis had knowledge of the OSHA fall
protection standard cited. � Mr. Davis
acknowledged knowing that fall protection is required for any work
performed �over six feet.� � He told the
CO if he �was doing this job by the book [he] would have had fall protection.� � Mr. Davis told the CO he knew the OSHA
requirement from studying for his contractor�s test. � In addition, Mr. Davis stated that he had
personal knowledge of the fall hazards roofing presented, as he had fallen off
roofs before. � � (Tr. 45, 64;
Ex. C-1).

The evidence establishes
that Respondent�s workers were exposed to the violative condition created by
Respondent�s failure to protect the workers from the fall hazard. �� The CO observed and photographed four
workers at this worksite without fall protection: two workers on the front
porch roof and two workers on the house back roof. � ��

Characterization
and Penalty Amount

Serious

The Secretary characterizes
this citation item as serious and willful. See
Complaint � 6. � A violation is �serious�
if there was a substantial probability that death or serious physical harm
could have resulted from the violative condition. � 29 U.S.C. � 666(k).  The CO testified
that there was a likelihood of serious harm and that four workers, including
Mr. Davis, were exposed to the violative condition. � The fall protection violation exposed
employees to a fall risk from ten feet to the ground from the front porch roof
and a fall risk from approximately twenty feet to the ground from the main
roof. � The CO testified that a fall
injury from those heights could result in permanent disability or death. (Tr.
65, 72). � The citation is properly
classified as serious.

Willful

����������� �The hallmark of a willful violation
is the employer's state of mind at the time of the violation�an �intentional,
knowing, or voluntary disregard for the requirements of the Act or ... plain
indifference to employee safety.�� � Kaspar Wire Works, Inc. , 18 BNA OSHC
2178, 2181 (No. 90-2775, 2000) (citation omitted), aff'd , 268 F.3d 1123 (D.C. Cir. 2001).

[I]t is not enough for the Secretary to show that an
employer was aware of conduct or conditions constituting the alleged violation;
such evidence is already necessary to establish any violation .... A willful
violation is differentiated by heightened awareness of the illegality of the
conduct or conditions and by a state of mind of conscious disregard or plain
indifference ....

Hern
Iron Works, Inc. , 16 BNA OSHC 1206, 1214 (No.
89-433, 1993 ); see also Bianchi
Trison Corp. v. Chao, 409 F.3d 196, 208 (3d Cir. 2005) ( A willful violation of the OSH Act �constitutes
an act done voluntarily with either an intentional disregard of, or plain
indifference to, the OSH Act's requirements.�).

There must be evidence that an employer
knew of an applicable standard or provision prohibiting the conduct or
condition and consciously disregarded the standard. Without such evidence of
familiarity with the standard's terms, there must be evidence of such reckless
disregard for employee safety or the requirements of the law generally that one
can infer that if the employer had known of the standard or provision, the
employer would not have cared that the conduct or conditions violated it.

Williams Enterps., Inc .,
1 3 BNA OSHC 1249, 1257
(No. 85-355, 1987). � See MJP Constr. Co., Inc. ,
19 BNA OSHC 1638, 1648 (No. 98-0502, 2001), aff�d , 56 F. App'x 1 (D.C.
Cir. 2003) (unpublished) (an employer with knowledge of the standards� requirements
and knowledge of the conditions that violate the standard, who fails to correct
the violation, demonstrates knowing, conscious disregard of the standard). ���

At the time of the inspection, 3-D Builder�s
owner Mr. Davis had a heightened awareness of the OSHA fall protection
requirements. Mr. Davis also had a heightened awareness of roofing work hazards
when fall protection is not used. � (Sec�y
Br. at 10).

Several statements
made by Mr. Davis, during his OSHA inspection interview, disclose his
heightened awareness. Mr. Davis stated that he had been in business for over twenty
years, he knew that OSHA required fall protection for any work over six feet, and
that OSHA required fall protection when working on a roof. � He knew of OSHA�s fall protection requirement
from studying for his contractor�s test. �
Also, Mr. Davis said that the company had two harnesses, they just
didn�t wear them. �� Mr. Davis knew of the
fall hazard, as he had fallen off roofs in the past. � Mr. Davis said that they weren�t wearing fall
protection on this worksite because it was �a pain in the ass,� and the ropes
get tangled around hoses and feet. � Mr.
Davis admitted that on most jobs they do not wear fall protection. � In fact, the day before the OSHA inspection,
when the employees were working on the very steep main roof of this house, the
employees did not wear fall protection. � Mr. Davis had actual knowledge that he and the
other 3-D Builders� roofers, on this jobsite, worked without fall protection. � (Tr. 68-71; Ex. C-1). � Mr. Davis� bold admissions in his OSHA
interview statement are unrebutted.

Respondent owner
Mr. Davis consciously disregarded the OSHA fall protection requirements. � Recklessly, Mr. Davis had the 3-D Builders�
roofers work at heights, without any fall protection, exposing them to
disabling injuries and potentially death from falls. � Mr. Davis� interview statements disclose
plain indifference to the fall hazards to which the roofers were exposed. � The citation is properly classified as
willful.

Penalty

The Secretary
contends that the willful fall protection violation warrants a finding of high
severity and greater probability. � (Tr.
76; Sec�y Br. at 11). � The CO determined
the severity of the fall protection violation to be high based on the fall risk
from ten feet to the ground from the front porch roof and the fall risk from
approximately twenty feet to the ground from the main roof. � A fall injury from those heights could result
in permanent disability or death. (Tr. 65, 72). �

At the hearing and
in its post-hearing brief, the Secretary contends that this violation warrants
a finding of greater probability. [40] � The record evidence establishes that there
were four employees on the roof, they had been on this roofing worksite for two
and a half days at the time of the inspection, there was no fall protection system
used, and the work task the CO observed of employees using a scraper to remove
the shingles, potentially could have resulted in an employee losing his balance
and falling. � When using the scraper to
remove the shingles, the workers leaned forward toward the back-roof edge and
exerted bodily force. (Tr. 64-68, 71-72, 80; Ex. C-8). � Further, the presence of air hoses on the roof
increased the probability of an employee tripping on an air hose and falling to
the ground. � (Tr. 68). � The roofers worked for approximately six
hours on the inspection day. [41]
Mr. Davis admitted that the workers had not used fall protection, on the day
before the inspection, when working on the very steep main roof. [42]
�� The record establishes that employees were
exposed to a fall hazard for approximately two days. � (Tr. 71; Exs. C-1; C-4).

The gravity-based
penalty for a willful violation of high severity and greater probability would be
calculated as $ 70,000. � 3-D Builders has
no OSHA history. � OSHA did not consider a
good faith penalty reduction, as the citation classification is willful. � 3-D Builders is a small employer, with fewer
than ten employees; therefore, the Secretary proposed an eighty percent size reduction
regarding the willful violation penalty. Therefore, at the hearing and in its
post hearing brief, the Secretary proposed a penalty of $14,000 for this
willful citation item. (Tr. 72-73, 76; Sec�y Br. at 11). � I agree. �

Therefore, a penalty of $ 14,000 is assessed for the willful violation of �
1926.501(b)(13) set forth in citation 2, item 1.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The forgoing
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 on the
foregoing decision, it is hereby ORDERED:

Item 1(a) of
Citation No. 1, alleging a serious violation of 29 C.F.R. � 1926.1053(b)(1) is
AFFIRMED, and a penalty of $ 2,000 is assessed.

Item 1(b) of
Citation No. 1, alleging a serious violation of 29 C.F.R. � 1926.1060(a) is
VACATED; the request to withdraw this citation item is approved.

Item 1 of Citation
No. 2, alleging a willful violation of 29 C.F.R. � 1926.501(b)(13) is AFFIRMED,
and a penalty of $14,000 is assessed.

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

����������������������������������������������������������� /s/ ��������������������������������������������������������

����������������������������������������������������������� Carol A. Baumerich

Judge, OSHRC

Dated: February 23, 2018

Transcript Errata
Sheet. � 3-D Builders, LLC #16-0094

The transcript is
amended to reflect the following corrections.

Page

Line(s)

Stated in transcript

As corrected

10

16

54(f)

52(f)

15

15

compliance

compliant

18

12

credible

critical

19

1

ordered

offered

45

11

Lynnwood

Lynn Wood

48

8, 11, 19

Lynnwood

Lynn Wood

57

7

that being six inches?

that being two feet six inches?

60

24

unless

issued

64

8

works

workers

68

12

probably

probability

[1] The
transcript is amended to reflect the corrections listed on the attached errata
sheet.

[2] Several
prehearing Notices and Orders, issued in this proceeding, were received in
evidence as hearing exhibits. � In this
decision, they are designated Ex. ALJ-1 though Ex. ALJ-7(a). (Tr. 7-9).

[3] At the
hearing, the Secretary withdrew serious citation 1, item 1(b), alleging a
violation of 29 C.F.R. � 1926.1060(a), training requirements for employees
using ladders. (Tr. 61). � Accordingly, serious
citation 1, item 1(b) is vacated. ���

[4] Shawn
Davis is identified in the decision as Mr. Davis, Respondent owner, 3-D
Builders� owner, or Respondent�s representative.

[5] The
Secretary contends that the evidence supports a finding that on the day of the
inspection, Respondent�s owner Mr. Davis also worked on the roof. � And further, that the evidence discloses that
there were four 3-D Builders workers on the inspected worksite, including Mr.
Davis, exposed to the hazards alleged. �
(Sec�y Br. at 2-3). I agree. Photographs taken during the inspection,
within a short time-frame, disclose four workers on the roof. (Tr. 80). �

[6] Great
weight is given to the admissions recorded in Mr. Davis� signed OSHA interview
statement. See Fed.R.Evid.
801(d)(2)(D). � While interviewing Mr.
Davis at the inspection worksite, the CO recorded his statements
contemporaneously. Mr. Davis reviewed, signed, and dated the statement. � (Tr. 41-44, 79; Ex. C-1). � The accuracy of the statement is
unrebutted. ��

[7]
The CO testified that Mr. Davis� statement that the �porch roof is about 3/12
and the main roof is about 10/12,� was an estimate of the roof slope. � In comparison, a 12/12 sloped roof would be
almost vertical, a 1/12 sloped roof would be flat. � On this residential worksite, the main roof
of the house had a steeper slope. � (Tr.
45-46; Ex. C-4). � The slope of the back
roof, where employees were photographed using the scraper, was approximately
3/12. (Tr. 67).

[8] Respondent�s notice of contest, answer, and
more specific answer are set forth in the October 26, 2016 Order granting
the Secretary�s Motion to Compel discovery responses (Order compelling discovery). � (Ex. ALJ-5). The Order compelling discovery,
at pages 2 � 4, describes the exhibits attached to Respondent�s answer.

The exhibits attached to
Respondent�s answer are a part of the answer for all purposes. � See Commission
Rule 30(d); 29 C.F.R. � 2200.30(d). �
While a part of the Respondent�s answer, setting forth Respondent�s
defenses, these exhibits have not been considered in this decision. � These pleading exhibits are accorded no
weight. � As stated in the Order
compelling discovery, at page 4, many questions are raised by Respondent�s
notice of contest, answers, and attached exhibits. � (Ex. ALJ-5). �
As Respondent did not comply with the Order compelling discovery, the
questions raised remain unanswered.

[9]
Respondent contends in its notice of contest and answers that Shawn Davis,
Jacob Davis, Timothy Dalton, and Casey Barnett have a written partnership
agreement, they are registered through the State of West Virginia as a general
partnership, they are exempt from workers� compensation because they are a
partnership with no employees, and they file a general partnership tax return.
In Respondent�s more specific answer, Mr. Davis reiterated Respondent�s
contention that 3-D Builders Partnership is not an LLP. � Respondent contends that OSHA has no
regulations on a partnership. � Respondent
contends that every 3-D Builders partner is self-employed and that 3-D Builders
has no employees.

[10] See Order compelling discovery. (Ex.
ALJ-5).

[11] See July 29, 2016 Notice of Hearing,
Scheduling Order and Special Notices (Ex. ALJ-1) (Tr. 12-13). � During prehearing conference calls and in
prehearing Notices and Orders, Mr.
Davis was advised that t he Commission Rules provide that in proceedings
before the Commission any party may appear in person (self-represented),
through an attorney, or through another representative who is not an attorney. � See Commission
Rule 22; 29 C.F.R. � 2200.22. (Tr. 14).

[12] See July 29, 2016 Notice of Hearing,
Scheduling Order and Special Notices (Ex. ALJ-1); September 22, 2016 Order (Ex.
ALJ-2); October 26, 2016 Order compelling discovery (Ex. ALJ-5); November 14,
2016 Notice of Rescheduled Hearing, and Notice of Prehearing Conference Calls,
and Revised Scheduling Order (Ex. ALJ-4); and November 17, 2016 Notice of
Rescheduled Hearing and Order (Ex. ALJ-3).

[13] Respondent�s handwritten
responses to the Secretary�s Requests for Admissions were without affirmation
and incomplete. � Respondent�s
handwritten, summary, responses to the Secretary�s Requests for the Production
of Documents were also incomplete. �
Respondent provided no documents in response to the Secretary�s
discovery request. � Respondent referenced
the documents Respondent attached to its answer. � Respondent did not state a legal objection to
providing the documents requested. � Respondent
specifically stated its refusal to provide certain documents, including bank
account statements, complete federal and state tax returns, and documents
regarding vehicle ownership. See
Order compelling discovery, pp. 6-12 (Ex. ALJ-5). (Tr. 16-17). �� �

[14] See November 17, 2016 Notice of
Rescheduled Hearing and Order. (Ex. ALJ-3).

[15] See Order to show cause. (Ex. ALJ�5).

[16] See December 19, 2016 Order to show cause.
(Exs. ALJ-5, 5(a)).

[17]
Commission Rule 52(f), 29
C.F.R. � 2200.52(f), states:

Failure to cooperate; Sanctions . � A party may apply for an order compelling
discovery when another party refuses or obstructs discovery. � For purposes of this paragraph, an evasive or
incomplete answer is to be treated as a failure to answer. � If a Judge enters an order compelling
discovery and there is a failure to comply with that order, the Judge may make
such orders with regard to the failure as are just. � The orders may issue upon the initiative of a
Judge, after affording an opportunity to show cause why the order should not be
entered, or upon the motion of a party. �
The orders may include any sanction stated in Federal Rule of Civil
Procedure 37, including the following:

(1)   
An
order that designated facts shall be taken to be established for purposes of
the case in accordance with the claim of the party obtaining that order;

(2)   
An
order refusing to permit the disobedient party to support or to oppose
designated claims or defenses, or prohibiting it from introducing designated
matters in evidence;

(3)   
An
order striking out pleadings or parts thereof, or staying further proceedings
until the order is obeyed; and

(4)   
An
order dismissing the action or proceeding or any part thereof, or rendering a
judgment by default against the disobedient party.

[18]
Respondent�s
representative Mr. Davis participated in prehearing conference calls on July 1,
July 25, August 26, September 20, and November 16, 2016. � During these calls, Mr. Davis� questions were
answered. � The importance of
participation and cooperation with the prehearing discovery process was
explained to Mr. Davis. � Mr. Davis was
advised that sanctions may be ordered, if Respondent did not comply with the
Order compelling discovery. (Tr. 14).

Importantly, despite receiving
courtesy reminders, no one from Respondent joined scheduled conference calls on
November 8 and 10, 2016 and on January 13, 2017. If Respondent�s representative
Mr. Davis had unanswered questions regarding Commission procedures, the
undersigned judge�s Orders, or the upcoming hearing, his failure to participate
in the scheduled conference calls were missed opportunities. � (Tr. 20).

[19] See Note 9 above.

[20]
See Order to show cause, Order
compelling discovery (Ex. ALJ 5, 5(a)). ���

[21] Section
3(3) of the Act 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, or between points in the same State but through a point outside
thereof.�

[22] The
hearing in this case originally was scheduled to begin on December 6,
2016. � See July 29, 2016 Notice of Hearing, Scheduling Order and Special
Notices. (Ex. ALJ-1).

[23]
See November 17, 2016 Notice of
Rescheduled Hearing and Order. � (Exs.
ALJ-3, 3(a); ALJ-4). � The
parties were reminded that the scheduled January 2017 hearing was not an
informal conference. � Rather the hearing
would be a formal hearing on the record transcribed by a court reporter. � At the hearing, both parties must have their
necessary witnesses present to give sworn testimony and the documents and
exhibits that they intend to offer into evidence to support their positions. � The parties were specifically cautioned that
failure to be present at the hearing when the case was called may result in
summary dismissal of claims or defenses. �
��

[24] (Tr.
4). See January 4, 2017 Notice of
Hearing Location. (Exs. ALJ-6, 6(a)); January 13, 2017 Notice of Hearing
Location. (Exs. ALJ-7, 7(a)).

[25]
Commission Rule 64 states that �failure of a party to appear at a hearing may
result in a decision against that party.� �
Upon a showing of good cause, the Commission or the Judge may excuse the
failure to appear. � However, absent
extraordinary circumstances, requests to reinstate the hearing must be made
within five days after the scheduled hearing date. � 29 C.F.R. � 2200.64. � Respondent did not request reinstatement of
the hearing.

[26] See Note 9 above.

[27] Section
1926.1053(b)(1) states:

When portable ladders are used for access to an upper
landing surface, the ladder side rails shall extend at least 3 feet (.9 m)
above the upper landing surface to which the ladder is used to gain access; or,
when such an extension is not possible because of the ladder�s length, then the
ladder shall be secured at its top to a rigid support that will not deflect,
and a grasping device, such as a grabrail, shall be provided to assist
employees in mounting and dismounting the ladder. � In no case shall the extension be such that
ladder deflection under a load would, by itself, cause the ladder to slip off
its support.

[28] A
portable ladder is defined as �a ladder that can be readily moved or
carried.� � 29 C.F.R. � 1926.1050(b),
Definitions .

[29] The
photographs taken by the CO during the inspection also show a second ladder at
the worksite, located at the back, left corner, of the house. � (Tr. 32, 73-74; C-4). � This second ladder was not cited. � (Sec�y Br. at 2 n.4, 5-6 n.8). � There is no evidence that this second ladder
was used by employees, in the position or location, where it was photographed.
There is no evidence of employee exposure regarding this second ladder. ��

[30] The CO
understood Mr. Davis� mention of a �ladder stabilizer� to reference the
�bracket,� attached to the extension ladder used by the workers to access the roof. The CO testified that this
�bracket� allows the ladder to be placed against the house, without putting
weight and pressure on the gutters, so workers climbing up and down the ladder
will not damage the gutters. � The primary
purpose of this �bracket� is to protect the gutters from damage, not to
stabilize the ladder. (Tr. 48-50, 57-58). �
The inspection photograph of the ladder does not show a grasping device
such as a grabrail. � (Ex. C-7).

[31]
See Note 5 above. (Tr. 80).

[32] The
record does not specifically disclose the length of time the cited ladder,
located at the right front corner of the house, was positioned at this
location, with side rails extended less than three feet above the roof
surface. � The Secretary infers that Mr. Davis�
reference to a ladder �stabilizer,� is a broad reference to the way the ladder
was set up at the worksite for several days. �
(Tr. 57-58). � The inspection
photographs disclose that ladders were moved and repositioned during this
roofing job. Compare Ex. C-4 with Ex. C-5. � I decline to draw the broad inference that
the cited right front corner ladder, noncompliant at the time of the OSHA
inspection, was positioned and used in a noncompliant manner during the
workdays prior to the Wednesday OSHA inspection. ���

[33] Section
1926.501(b)(13), in pertinent part, states: Duty to have fall protection. 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.� �

[34] The
Note to Section 1926.501(b)(13) provides that �[t]here is a presumption that it
is feasible and will not create a greater hazard to implement at least one of
the above-listed fall protection systems.� �
Therefore, it is the employer�s burden to establish that it is
infeasible or creates a greater hazard to use conventional fall protection
equipment. � In this case, Respondent
failed to present a defense and clearly did not meet this burden.

[35] The old
shingles were nailed to the roof. � The
workers slide the scraper under the shingle and jostle the shingle, to remove
the nail and pry the shingle off the roof. �
The scraper was used like a crowbar. �
(Tr. 66-67). ��

[36] The CO
did not know if Mr. Davis meant that 3-D Builders had two harnesses on this
jobsite or, generally, that the company had two harnesses at the shop. � (Tr. 69, 75).

[37] Mr.
Davis specifically admits knowledge that the employees did not wear fall
protection on Tuesday when working on the main roof of the house. (Tr. 78-79;
Ex. C-1).

[38] Based
on the record, I find the CO�s statement regarding �rope vests used in fall
protection systems,� to reference lanyards and body harnesses, components of a
personal fall arrest system. � 29 C.F.R.
�� 1926.502(d)(Personal fall arrest systems); 1926.500(b)(Definitions:
Lanyard). � When interviewed by the CO,
Mr. Davis mentioned fall protection �harnesses.� (Ex. C-1).

[39] See Note 5 above.

[40]
Initially, at the time the citation issued, the CO determined the probability
to be lesser. � Therefore, as issued, the
proposed penalty for the willful violation was $11,000. � (Tr. 65, 76).

[41]
On Wednesday, the day of the OSHA inspection, the employees started work at
approximately 7:00 a.m. and came down from the roof at approximately 12:45 �
1:00 p.m. (Tr. 65; Ex. C-1).

[42] �We didn�t
wear fall protection for that roof either.� (Tr. 45; Ex. C-1). � I find that Mr. Davis� use of the pronoun
�we,� during his statement to the CO, reveals that on Tuesday more than one
employee worked on the main roof without fall protection.