Payton Roofing, Inc.

Read the official release (oshrc.gov)

Plain-English summary

OSHA inspected Payton Roofing crews at two residential buildings and cited several fall-protection conditions. After multiple items were withdrawn, the judge addressed an unguarded roof opening, two employees connected to a single-user anchorage, and a damaged lifeline that had not been removed from service. Payton Roofing did not appear at trial, and the Secretary’s evidence on the remaining items was uncontested. The judge affirmed all three items as serious. He reduced each penalty because a prior citation was not yet final when these inspections occurred, resulting in $14,700 in total penalties.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(4)(i); 29 C.F.R. § 1926.502(d)(15); 29 C.F.R. § 1926.502(d)(21)
• Outcome: Three serious fall-protection items affirmed, other items withdrawn; $14,700 total penalty assessed.
• Key point: Roof holes need protective systems, each anchorage must support its permitted load, and damaged fall-arrest equipment must be removed from service.

Full text (OSHRC public release)


Document

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, D.C. 20036-3457

Secretary of Labor,

Complainant,

v.

OSHRC Docket Nos. 16-1161 and 16-1162

Payton Roofing, Inc.,

Consolidated for Trial and Discovery Purposes

Respondent.

Appearances:    Melanie Stratton, Attorney

Melanie Paul, Associate Counsel

U.S. Department of Labor, Office of the Solicitor, Atlanta, Georgia

For the Secretary

Tim Payton

Payton Roofing, Inc., Coral Springs, Florida

For the Respondent

Before:       Dennis L. Phillips

Administrative Law Judge

DECISION AND ORDER

This proceeding is before the Occupational Safety and Health Review Commission (Commission) pursuant to the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (OSH Act).

This proceeding arises from two separate investigations, Nos.
1128469
and
1128473 ,
conducted by the
Occupational Safety and Health Administration
( OSHA ).

From March 2, 2016 through May 11, 2016,
OSHA conducted
i nspection No. 1128469 of
Payton Roofing, Inc.’s ( Respondent
or Payton Roofing)
worksite at 4160 NW 21 st
St., Building B, Lauderhill, F lorida
33313 (Building B).

On May 11, 2016,
OSHA issued a
one item repeat
citation and a
two
item
serious
citation
to
Respondent
alleging a violation of OSHA’s construction standards and proposing a total penalty of $ 2 1 , 56 0
for the two citations .

(Tr. 12-15;
Exs .
1 8-20). Respondent filed a notice of contest (NOC). The Commission docketed the case as Docket No. 16-116 1
on July 22, 2016. The Secretary filed his complaint in Docket No. 16-1161 on July 15, 2016.

From
February
2 9 , 2016 through May 11, 2016,
OSHA conducted
i nspection No. 11284 73
of Respondent ’ s worksite at 4160 NW 21 st
St., Building
D , Lauderhill, F lorida
33313 (Building
D ).

On May 11, 2016,
OSHA issued
a
two
item
repeat citation
and
a
two
item
serious
citation
to Respondent
alleging a violation of OSHA’s construction standards and proposing a total penalty of $ 32,340 for the two citations .

(Tr. 12-15;
Exs . 1- 3 ). Respondent filed a NOC. The Commission docketed the case as Docket No. 16-1162 on July 22, 2016. The Secretary filed his complaint in Docket No. 16-1162 on July 15, 2016.

Respondent then failed to file a timely answer to the Secretary’s complaints for either case leading to
the Chief Judge issuing
Order s
of Default in
Docket No. 16-1161
on
May 12 , 2017
and in Docket No. 16-1162 on May 16, 2017 .

Shortly thereafter ,
Respondent filed a letter disputing
all
the
allegations.

The Chief Judge
construed
Respondent’s
letter as answers and
Motion s
to Set Aside Sanctions of Default
in both cases . On May 22, 2017,
the Chief Judge
granted Respondent’s Motions to Set Aside Sanctions and rescinded her Orders of Default in both cases.

On
May 23, 2017 , the two cases were assigned to the Court for trial.

On June 8, 2017, during the pre- trial
scheduling conference, the Court ordered, without objection, Docket Nos. 16-1161 and 16-1162 to be consolidated for discovery and trial purposes. 1

On July 6, 2017, Complainant filed its Motion to Withdraw Citation 1, Items 1 a , 1 b , 1 d , Citation 2, Items 1 and 2,
[ in Docket No. 16-1162 ];
Citation 1, Items 2 b , 2 c , and Citation 2, Item 1
[ in Docket No. 16- 1161 ] [ Motion to Withdraw Citation Items] . 2

The Court granted Complainant’s Motion to Withdraw Citation Items at the start of the trial, without objection. (Tr. 12).
A
trial
was held in Fort Lauderdale, Florida on July 13, 2017.

At the start of the trial, Complainant also withdrew Citation 1, Item
2 ,
without objection
in Docket No. 16-1162
with the Court’s permission . 3 (Tr. 11 -12 ).

Respondent did not appear at the
trial . 4
(Tr. 9). The Secretary filed a post- trial
brief. Respondent did not file a post- trial
brief. For the reasons set forth below, the Court
affirms Citation
1, Item 1, which alleged a serious violation of 29 C.F.R. §
1926. 501(b)(4)( i ) and
assesses
a
penalty of $ 4 ,9 0 0 ;
Citation 1, Item 2a, which alleged a serious violation of 29 C.F.R. §
1926. 502(d )( 15) and
assesses
a
penalty of
$4,900
in Docket No. 16-1161 ;
and Citation 1, Item 1 c , which alleged a serious violation of 29 C.F.R. §
1926. 502(d)(21) ,
and
assesses
a penalty of $ 4 , 90 0 in Docket No. 16-1162.

JURISDICTION

The evidence establishes that, at the time of the OSHA inspection s , Respondent was performing roofing work on two residential construction sites in Lauder hill , Florida.

( Tr.
13 ) .
Roof repair qualifies as “construction work” which is defined as “work for construction, alteration, and/or repair, including painting and decorating.”

29 C.F.R. § 1926.32(g).

The construction industry
affects
commerce, and even small employers within that industry are engaged in commerce. Slingluff
v. OSHRC , 425 F.3d 861, 866-67 (10th Cir. 2005);
Clarence M. Jones, d/b/a C. Jones Co ., 11 BNA OSHC 1529, 1531 (No. 77-3676, 1983) . The record also establishes that Respondent had at least one employee who was working as a roofer
on
each of
Respondent’s worksite s .

( Tr. 31;
Exs . 1 at p. 2, 2 at pp. 2-3 ) .

Based upon the record, the Court finds that at all relevant times Respondent was engaged in a business affecting commerce and was an employer within the meaning of sections 3(3) and 3(5) of the OSH Act. The Court concludes that the Commission has jurisdiction over the parties and subject matter in this case, and Respondent is covered under the OSH Act.

BACKGROUND

OSHA Inspection s

1. Docket No. 16-1162, Inspection No. 1128473 , Building D

On February 29, 2016 ,
an anonymous caller reported to OSHA an alleged fall protection violation
at
Respondent ’ s worksite at Building D in Lauderhill, Florida. OSHA registered the complaint and dispatched Compliance Officer (CO) Gregory Rodgers to inspect the worksite located at
Building D . 5 Upon arrival, CO Rodgers observed employees working on the roof of a
multi- residential building appearing to be without any form of fall protection. The building was two stories high and the roofers were about 18 - 22 feet above the ground. 6

( Tr. 17 - 19, 27-31; Ex . 11 ) .
CO Rodgers
also took photographs
of the worksite.

He then
presented his credentials
to
Respondent’s employees
and motioned for
those
employees
on the roof
to descend.

CO Rodgers spoke briefly with Max Rodriguez
who said he was the supervisor
(foreman)
at that time .

Mr. Rodriguez
was in charge of
directing the employees and their activities while the supervisor
of record , Ronald Brown, was away
from the job site .

Following the brief discussion, CO Rodgers continued his investigation.

He went up to the roof and took additional photographs. He
also
took the names of employees
and interviewed
them
for bas ic information .

( Tr.
34-40;
Exs . 1, 3, 9-10, 18 at p. 2).

Re spondent ’ s employees, including Mr. Rodriguez, returned to their work on the roof.

( Tr. 25,
31-3 5 ) .
CO Rodgers observed Respondent ’ s employee,
Jose
Ocana , in a personal fall arrest system with
two
lifeline s joined by a knot
that
was undersized
and
frayed
with
various knots
and abrasions.

After completing
his inspection, CO Rodgers discussed his findings with Mr. Rodriguez.

CO Rodgers testified that Mr. Rodriguez signed a statement claiming he knew the lifeline was defective
and that Mr.
Ocana
had used it
for the past two days.

Regarding
training, CO Rodgers testified that both Mr. Rodriguez and Respondent ’ s employees stated they had received a video training, at company offices, on fall arre st systems.

(Tr. 44-49;
Ex s .
1, at p. 3,
40) .

2. Docket No. 16-116 1 , Inspection No. 11284 69, Building B

On March 2, 2016 ,
CO Rodgers
returned to Respondent’s worksite at Lauderhill, Florida
in order to
conclude his investigation of inspection no. 1128473 that he had started three days earlier.

( Tr. 53 ) . U pon arriv ing at
Building B
of the worksite , CO Rodgers observed Respondent ’ s employees
working
on the roof.

They appeared to be using harnesses and lifelines while placing a tape barrier around the perimeter
of the roof .

Building s
B
and
D
had the same
architecture ,
design,
style,
structure and
dimensions as to
size
and
height .

( Tr.
53, 82 ) .

CO Rodgers went up to
Building B’s
roof and photographed the area while
M essrs . Rodriguez
and Brown
were present.

CO Rodgers observed two areas with holes in the roof.

The first was a large hole, approximately 16 f ee t by 8 f ee t .

The hole was created by Respondent ’ s employees when the y
removed the roof ’ s old
plywood
sheathing.

The second area was
a deteriorated
portion
that was caving in, which according to CO Rodgers, “constituted a hole . ” N either of the
areas surrounding the holes had been
covered or
surrounded by guardrails .

CO Ro d gers saw workers using shovels to strip the old layered roof. He also saw one
of Respondent ’ s employees,
Carlos
Montes, standing within 6 f ee t of the large hole
without
us ing
any fall protection.

The two areas exposed employees to a fall of 12 f ee t as they moved debris near the open and unguarded holes.

( Tr. 53- 60;
Ex s .
18, 28 - 29 ,
33 ) .

While
Mr. Montes
failed to use
a ny
fall protection system,
CO Ro d gers observed
two oth er
employee s, Messrs.
Ocana
and
Hipolitan
Tobia , use
a fall protection
system
that was non-compliant with OSHA standards
wh ile
working on the perimeter of the roof.

CO Rodgers testified that
their fall protection
system was faulty
because Messrs.
Ocana
and
Tobia
had improperly attached
their
two lifelines to a single anchorage . 7

The single anchorage was only intended to be used by one person.

( Tr. 14,
75 -79 , 103 ;
Ex s .
18,
25 - 26 ) .

Following the investigation, CO Rodgers discussed his findings with supervisor
Brown. CO Rodgers testified that Mr. Brown acknowledged the existence of the holes, that they had been there for a few days ,
and employees had worked around the holes without any form of fall protection.

Additionally,
the
user’s manual
was on the roof which set out the permitted uses of harnesses and anchorages.

The
anchor
used by
R espondent’s employees
was designed and
approved for
only
a single user.

Furthermore,
CO Rodgers testified that Mr. Brown’s 30 years of roofing experience should have made him aware that his employees ’
use of two lifelines
attached
to a single anchor was against OSHA standards.

( Tr. 68 - 76,
84 - 89;
Exs . 29, 34, 36 ) .

Based on
both of
these
inspections, OSHA issued the citations in these
two
cases to Payton Roofing on May 11, 2016.

OSHA Citations

OSHA issued Respondent two citations:

u nder Docket No. 16-1162, a one-item serious
   citation proposing a penalty of $5,390;
u nder Docket No. 16-1161, a two-item serious citation

proposing a penalty of $10,780 for a total prop osed penalty of $16,170.

( Exs .
44-45, 47 ) .

1. Docket No. 16-1162

Citation 1, Item 1c, the uninspected fall arrest system violation, alleged a serious violation of 29 C.F.R. § 1926.502(d )( 21) and proposed a penalty of $5,390.

Section
1926.502(d )( 21) states:

Personal fall arrest systems were not inspected prior to each use for wear, damage, and other deterioration, and/or defective components were not removed from service.

29 C.F.R. § 1926.502(d )( 21).

The Secretary alleged that an employee was “exposed to a fall hazard of approximately 18 feet while using a defective undersized lifeline that had knots and abrasions” wh ile conducting roof repairs.

( Ex . 44; Sec’y Br. at 5) .

2. Docket No. 16-1161

Citation 1, Item 1, the
unguarded
floor
hole violation, alleged a serious violation of 29 C.F.R. § 1926.501(b)(4)( i ) and proposed a penalty of $5,390. Section 1926.501(b)(4)( i ) states:

Each employee on walking/working surfaces was not protected from falling through holes (including skylights) more than 6 feet (1.8m) above lower levels, by personal fall arrest systems, covers, or guardrail systems erected around such holes.

29 C.F.R. § 1926.501(b)(4)( i ) .

The Secretary alleged that Respondent’s “employees were exposed to a fall hazard of approximately 12 feet while exposed to unguarded holes in the roof sheathing while performing roof repairs without means of co nventional fall protection.”

(Ex . 45; Sec’y Br. at 5 ) .

Citation 1, Item 2 a , the anchorage violation,
a lleged
a
serious violation of 29 C.F.R. § 1926.502(d )( 15) and proposed a penalty of $5,390. Section § 1926.502(d )( 15) states:

Anchorages used for attachment of personal fall arrest equipment shall be independent of any anchorage being used to support or suspend platforms and capable of supporting at least 5,000 pounds (22.2
kN ) per employee attached, or shall be designed, installed, and used as follows :

( i ) as part of a complete personal fall arrest system which maintains a safety factor of at least two; and (ii) under the supervision of a qualified person.

29 C.F.R. § 1926.502(d )( 15) .

The Secretary alleged that two of Respondent’s employees, Messrs.
Ocana
and
Tobia , were “exposed to a fall hazard of approximately 18 feet while both being attached to the same anchorage that w as intended for one person . ”

(Ex. 47; Sec’y Br. at 6) .

DISCUSSION

To establish a violation of an
OSH Act
standard, the Secretary must prove by a preponderance of the evidence that : “ (1) the cited standard applies; (2) the employer failed to comply with the standard; (3) the employees had access to the hazardous condition; and (4) the employer had actual or constructive knowledge of the violation.” P.
Gioioso
& Sons, Inc. v. Occupational Safety and Health Review Comm’n , 675 F.3d 66, 72 (1st Cir. 2012) (citation
omitted);
see also
Astra Pharm. Prods ., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981),
aff’d in relevant part , 681 F.2d 69 (1st Cir. 1982).

Exposure to the hazard requires the Secretary to show whether
it is “reasonably predictable”
that
empl oyees,
during the course of
their
duties, “will be, are or have been in a ‘zone of danger’.”

Con Agra Flour Milling Co. , 16 BNA OSHC 1137 , 1150
(No. 88-1250, 1993) ,
rev’d . in irrelevant part,
25 F.3d 653 (8 th
Cir. 1994).

To establish employer knowledge of a violation, the
S ecretary is required to show that the employer knew, or could have known, of a hazardous condition.

Knowledge can be proven through actual knowledge of the hazard or constructive knowledge.

Constructive knowledge requires the hazard to be “readily apparent” at the time of the violation.

Hamilton Fixture , 16 BNA OSHC 1073, 1091 (No. 88-1720, 1993).

Further, constructive knowledge can be imputed to an employer through the employer’s supervisor.

Id.
at 109 ;
s ee also
P.
Gioioso
& Sons, Inc. , 675 F.3d at
72.

If the supervisor was
in close proximity to
the hazard at the time the violation occurred, constructive knowledge can be imputed.

N Y
State Elec. & Gas Corp . ,
No. 91-2897 ,
2000 WL 35301892 ,
at

• 12 ( O.S.H.R.C.A.L.J., Oct. 17,
  2000). Even if an employee has been
  temporarily
  designated as a supervisor, the
  employee may
  still
  be
  a supervisor
  for the purpose of
  imputing knowledge.

Tampa Shipyards, Inc. , 15 BNA OSHC 1533, 1539 (No. 86-360, 1992)
(consolidated) .

1.
A lleged Violations

a. Serious Citation 1, Item 1c – uninspected fall arrest system (No. 16-1162)

The Secretary claims that Respondent violated 29 C.F.R. § 1926.502(d )( 21) when its employee failed to remove a defective lifeline from use.

(Sec’y Br. at 7 ; Ex. 44 ).

The recor d establishes that Respondent ’ s e mployee, Mr.
Ocana , was using a
defective
fall arrest system while performing roofing work on Building D.

Such use exposed him to the possible danger of falling
18 feet
to the ground.

Mr.
Ocana
was using the lifeline as interim
foreman , Max Rodriguez, was present on the roof. ( Tr. 42- 48;
Ex . 44 ) .

The cited standard applies.

The record establishes that the lifeline was
damaged and therefor e
defective
for several reasons.

First, the
life line had various visible abrasions.

According to CO Rodgers, these abrasions could impact the “tensile strength” of the ropes and cause the lifeline to fail.

( Tr.
38 - 43 ;
Ex s .
1, 9 ).

Second, the lifeline was comprised of two pieces of rope tied together by a knot.

CO Rodgers testified that the knot
compr omises
the lifeline by reducing the strength of the rope by 50% in the event of a fall.

( Tr. 34 - 43;
Exs .1, 9 ) .

Third, one of the
lifeline
ropes was undersized.

CO Ro d gers
said,
“a regulation compliant lifeline should be five-eighths in diameter, and this line clearly was under five-eighths.” CO Ro d gers believed that the lifeline was
only
a half-inch in diameter. He testified that any competent, qualified person would have determined that the anchorage was not capable of supporting at least 5,000 pounds per employee attached. CO Ro d gers said the lifeline should have been a single, continuous lifeline that was neither damaged
n or frayed
and
affixed to an anchorage rated at 5,000 pounds with either a snap hook or a termination plate. ( Tr.
34-40;
Exs . 1, 9-10, 18 at p. 2). These portions of the lifelines were defective ,
but they were not removed fr om
service as Mr.
Ocana
had used the lifelines for two days.

(Tr. 45 -48; Ex. 1, at p. 3 ).

CO Ro d gers testified that 29 C.F.R. § 1926.502(d )( 21) required “that personal fall arrest systems be inspected prior to each use for wear, damage, deterioration, and those items identified as defective be removed from service.” (Tr. 42). This was not done. The
standard was violated.

With regards to knowledge, CO Rodgers testified that
Foreman
Rodri g uez
told him on February 29, 2016
that he knew Mr.
Ocana’s
lifelines were
defective and
“faulty . ”

Mr. Rodriguez
also told CO Ro d gers that he had observed
Mr.
Ocana
use the faulty lifelines
on the roof
for two days ,
i.e . February 28 and February 29, 2016 .

( Tr. 45 - 48 ; Ex s .1 , 40 ) .

As stated in the Secretary’s post- trial
brief,
“[w]here a cited condition is “readily apparent to anyone who looked” employers have been found to have constructive knowledge.”

Hamilton Fixture , 16 BNA OSHC at 1091 . Constructive knowledge has been found where the hazard is in plain view.

See Kokosing Constr. Co., Inc.,
17 BNA OSHC 1869 , 1871
(No. 92-2596, 1996) (“The conspicuous location, the readily observable nature of the violative condition and the presence of the [employer’s] crews in the area warrant a finding of constructive knowledge.”).

See also MCC of Fla . , Inc. , 9 BNA OSHC
1895, 1898
(No. 15757, 1981) (finding constructive knowledge when the hazard is in plain view). (Sec’y Br. at 8).

Here, Respondent had actual and constructive knowledge that its employee, Mr.
Ocana , was using a defective personal fall arrest system.

First, Respondent had actual knowledge of the hazard because acting foreman Max Rodriguez identified the lifeline as “faulty.” ( Ex.
4 0, p. 4 ) .

Next, Respondent had constructive knowledge of the violative condition given the obvious defects of the lifeline .

Mr. Rodriguez was on the roof with Mr.
Ocana , and the fact that the defective lifeline was in use and plain view for two days
demonstrates constructive knowledge .

( Tr. 48 ) .

See Kokosing Constr. Co., Inc.,
17 BNA OSHC
at
18 71 .

Knowledge has been established.

The citation is affirmed.

The
S ecretary characterized this citation as serious.

A violation is “serious” if there was a substantial probability that death or serious physical harm could have resulted from the hazardous condition. 29 U.S.C. § 666(k). The Secretary is only required to show that “‘an accident is possible and there is a substantial probability that death or serious physical harm could result from the accident.’”

Flintco , Inc. ,
16 BNA OSHC 1404, 1405-06 (No. 92-1396, 1993) (citation omitted).

CO Rodgers
also
testified that the
d efective lifeline
used at the worksite
could
fail
and expose the employee to a fall hazard of 18

• 20 fee t
  to the mostly concrete surface below ,
  result ing
  in
  injury . 8

( Tr.
42-44) . He further testified that
the probability of a failure was greater because the employee had been using the defective equipment for two days .

( Tr.
49 - 50 ; Ex . 1 ) .

Based on the record, the court finds that a fall due to
defective
lifelines
was
possible on Respondent ’ s worksite.

The court further finds that a fall from a height of 18
feet
could result in
a
fatalit y ,
severe injuries,
or
disability.

( Tr.
26,
49 ) .

The citation item is properly characterized as serious.

b. Serious Citation 1, Item 1 – alleged hole violation (No. 16-1161)

The Secretary
alleges
Respondent violated 29 C.F.R. § 1926.501(b)(4)( i ) when its employees were working in “close proximity to unguarded hole[s],” without the
means of
conventional
fall protection, as they “removed debris from the roof of Building B . ” 9

( Tr. 68-69;
Ex. 45;
Sec’y Br. at 11 ) .

The evidence establishes that Respondent ’ s employees had created a large hole on the roof of Building B by removing the roof ’ s sheathing.

CO Rodgers photographed the large hole
(Ex. 33, at “A”) 10 , and
the
deteriorated portion of the roof
(Ex. 28, at “A”) , 11
which w ere
uncovered and without guardrails erected around them to protect the employees from falling through.

Further, CO Rodgers photographed employees within
close proximity
to the holes without proper fall protection systems. The cited standard app lies.

( Tr. 54 -61 ;
Ex s .
28,
33,
45 ) .

CO Rodgers testified that during his investigation seven employees were on the roof ,
inc luding M essrs .
Rodriguez
and
Brown , working around the large hole without wearing any fall protection . 12

The photograph at Ex. 33 shows five of the seven employees pictured on the roof not wearing any personal fall arrest systems. CO Rodgers
also
testified that he observed
Respondent’s
employee, Mr. Montes,
only
about six feet away from the
unguarded “ hole ” at Ex. 28, at “A”,
without
wearing
any form of personal fall arrest system.

Two other
employees, Messrs.
Ocana
and
Tobia , were
also observed near the
“ hole ” at Ex. 28, at
“A”,
using
personal fall arrest system s .

But
the use of
such system s
w as
faulty because
they had improperly attached
their
two lifelines to a single anchorage.

( Tr.
59 -6 8 ;
Ex s .
28 -29 ,
33,
40; Sec’y Br. at 11 ) .

Respondent violated the standard.

The Court finds that
employees were exposed to the hazard.

Employees working and walking on the roof had access to the unguarded holes.

First, CO Rodgers testified that he personally observed an employee walking by an unguarded hole.

( Tr. 60 ) .

Second,
Mr.
Montes was standing approximately six feet away from an unguarded section of
the
deteriorated roof without wearing fall protection.

( Tr. 62 - 65 ;
Ex. 28 ) .

He
was working within the “zone of danger” of the hazardous condition.

Con Agra Flour Milling Co.,
16 BNA OSHC
at
11 50 .
Third, the employees
on the roof
had access to the unguarded holes because they were working directly beside and around the unguarded hole and deteriorated roof
section .

CO Rodgers testified that the workers were walking around the roof
as they
remov ed
portions of old roof, including the plywood sheathing and roof membrane, and piling the debris on the roof.

( Tr. 56–5 8) .

He also said
that he observed portions of the removed roof piled beside the unguarded hole.

( Ex. 33,
at
“ C ”
and
“ D ”) .

The Court finds that i t is “reasonably predictable” that the workers walked past the unguarded hole and deteriorated roof
section
to
have placed the debris and trash directly beside the unguarded hole.

Id.
(Sec’y Br. at 12).

Respondent’s f ailure to use
proper personal fall arrest system s
near uncovered and unguarded holes exposed employees to a fall of 12 feet
to the floor below .

The decayed portion of the roof had a diameter of at least 4 feet, with two openings estimated to be one to two feet long by four to six inches wide and two feet long by two to three inches wide. Together, the Court finds that the decayed portion of the roof and the two openings constituted a hole, 13
or holes, within the meaning of 29 C.F.R. § 1926.501(b)(4)( i ). The Court further finds that the hole at Ex. 28, at “A”, constituted a hole that was required to be guarded and protected from falling under the OSHA standard at 29 C.F.R. § 1926.501(b)(4)( i ). The Court
also
finds that one of Respondent’s employees could have fallen through these holes. These holes presented a hazard to Respondent’s employees. R espondent’s employees were exposed to the hazard.

In
Monahan & Loughlin, Inc.,
15 BNA OSHC 1086 (No. 89-1524, 1991), a serious violation of 29 C.F.R. § 1926.500(b)(1) was established when an employee was injured after falling through a hole that was
“ estimated
to be
1 ½ feet by 1 ½ feet. ”
Id.

Similarly, in
Ultra Commercial Interiors, Inc. ,

23
BNA OSHC 1826 (No. 10-1645, 2011),
serious violations of 29 C.F.R. § §
1926.502( i )(3) and 502( i )(4) were affirmed when
an employee fell 16 feet through a hole approximately
2 feet wide by 6 feet long. Id.,
at 1827-30. ( Tr.
59-6 4 , 96-98; Ex. 28 ) .

With regards to knowledge, CO Rodgers testified that
S upervisor
Brown had been on the roof while employees move d debris near the
large
hole.

CO Rodgers testified that Mr. Brown admitted that the “workers worked around the holes” for the past two days, “without any form of fall protection . ”

Mr. Brown also told CO Rodgers that both he (Mr. Brown) and Mr. Rodri g uez had observed Respondent’s employees on the roof
working
around and
in
close
proximity
t o
the holes without any means of fall protection. The large r
hole was approximately 16 f ee t by 8 f ee t meaning it was
large enough where Mr. Brown should have been aware of the hazard it presented .

Knowledge has been established.

( Tr.
67 - 74;
Ex s . 18 , 29 ) .

The citation is affirmed.

The
S ecretary characterized this citation as serious.

A violation is “serious” if there was a substantial probability that death or serious physical harm could have resulted from the hazardous condition. 29 U.S.C. § 666(k). The Secretary is only required to show that
“
‘ an
accident is possible and there is a substantial probability that death or serious physical harm could result from the accident.’
”

Flintco , Inc. , 16 BNA OSHC at 1405-06 .

Based on the record, the
C ourt finds that a fall through holes, that were not covered or guarded,
wa s possible on Respondent ’ s worksite.

The court further finds that an unprotected fall through a hole, 12 feet above the ground, could result in severe injuries, temporary or permanent disability, or death. 14

The citation item is properly characterized as serious.

c. Serious Citation 1, Item 2 a – alleged anchorage violation (No. 16-1161)

The Secretary claims the Respondent violated 29 C.F.R. § 1926.502(d )( 15) when two of Respondent ’ s employees, wearing personal fall arrest systems, had
improperly
attached two lifeline s
to a single anchorage. 15

( Tr. 88;
Ex.
47;
Sec’y Br. ,
at 13 ) .

The evidence shows that Respondent’s employees implemented a personal fall arrest system with
an
anchor.

The
system was used under the supervision of a qualified person, supervisor Brown.

The cited standard applies.

CO Rodgers testified that he observe d
two of Respondent ’ s employe es, Messrs.
Ocana
and
Tobia , using two lifelines attached to a single anchorage. 16

According to
CO Rodgers , the employees had been using this method for two days.

CO Rodgers
further observed a user manual
entitled “Full Body Harness User Instructions”
at
Respondent ’ s worksite.

The manual specified the appropriate usages of body harnesses and anchorages for personal fall arrest
systems.

The manual permitted only one user per anchorage ;
otherwise the anchor would not comply with the OSHA standard. 17

The “Performance” section of the manual also required the maintenance of a safety factor of two. 18
B ecause two lifelines were improperly attached to a single anchor, the anchorage was not
“ ‘ installed’ and ‘used’ as ‘designed . ’
” 19

Wil liam
Trahant , Jr., Constr., Inc. ,
No. 15-0489 ,
2017 WL 3399778, at *8 ( O.S.H.R.C.A.L.J. June 26,
2017) (finding that the employer violated 29 C.F.R. § 1926.502(d )( 15) where the CO observed that the roof anchorage “was not ‘installed’ and ‘used’ as ‘designed.’
”).

The standard was violated.

( Tr.
75 - 81 , 89 - 90 , 103 ;
E x s .
25 - 26 , 34 - 35, 47 ) .

CO Rodgers testified
that Respondent’s employees “were exposed to a hazard of a fall of up to 22 feet from that edge of the roof, and if they indeed had fallen, naturally the possibility of a fatality, of a death, if they had used that anchorage and exceeded its limitations and capability and it had failed and did not arrest their fall.” He said that
the improper use of an anchorage could cause the anchorage to fail and
the
employees
to
fall
about 18-22
f ee t to the ground .

Exposure to the hazard has been established.

( Tr. 81 - 82 , 88 ) .

Both
M ess r s .
Brown and
Rodriguez
were on the roo f while Messrs.
Ocana
and
Tobia
were attach ed to a single anchorage.

Further CO Rodgers testified that, upon request, he was given a copy of the
manufacturer’s manual
for the body harnesses and anchorage use.

The manual was present on the roof
when
the
two
employees
were
us ing
the
lone
anchor
point .

Respondent should have known,
through
the
manufacturer’s instructions,
the
employees ’
use
of the anchorage was improper .

CO Rodgers further testified Respondent ’ s employees , including Mr. Rodriguez,
had been t rained in fall arrest systems.

CO
Rodgers concluded that based on Mr. Brown ’ s 30 years of experience in roofing, Mr. Rodriguez’s training in fall arrest systems and the manual that was on the roof of the worksite, Respondent should have been informed on how to properly use the anchor.

Knowledge has been established.

( Tr.
49,
71,
8 2 - 85,
107 ) .

The citation is affirmed.

The
Se cretary characterized this citation as serious.

A violation is “serious” if there was a substantial probability that death or serious physical harm could have resulted from the hazardous condition. 29 U.S.C. § 666(k). The Secretary is only required to show that
“
‘ an accident is possible and there is a substantial probability that death or serious physical harm could result from the accident.’
”

Flintco , Inc. ,
16 BNA OSHC at 1405-06.

The
C ourt finds, based on the record, that an anchorage failure was possible on Respondent’s worksite.

The Court further finds that a fall of
18
f ee t, due to a failed anchorage, could result in severe injuries , including broken bones,
or death.

(Tr. 82 , 88 ). See
Daniel Crowe Roof Repair ,
23 BNA OSHC
2001,
2017
(No. 10-2090, 2011)
(roofing an inherently dangerous activity).

The citation item is properly characterized as serious.

2. Penalties

“Section 17(j) of the [OSH] Act, 29 U.S.C. § 666(j), requires that when assessing penalties, the Commission must give ‘due consideration’ to four criteria: the size of the employer's business, gravity of the violation, good faith, and prior history of violations.” Hern Iron Works, Inc. , 16 BNA OSHC
1619,
1624
(No. 88-1962, 1994) . When determining gravity,
typically the most important factor, the Commission considers the number of exposed employees, the duration of their exposure, whether precautions could have been taken against injury, and the likelihood of injury. Id. When evaluating good faith:

[T]he Commission focuses on a number of factors relating to the employer's actions, ‘including the employer's safety and health program and its commitment to assuring safe and healthful working
conditions[ ,]’ in determining whether an employer's overall efforts to comply with the OSH Act and minimize any harm from the violations merit a penalty reduction.

Monroe Drywall Constr., Inc. , 24 BNA OSHC 1209, 1211 (No. 12-0379, 2013) (citations omitted). The Commission is the “final arbiter” of penalties. Hern Iron Works,
16 BNA OSHC at 1622 (citation omitted).

Regarding Docket No. 16-1162,
serious Citation 1, Item 1c, the uninspected fall arrest system violation, the Secretary proposed a penalty of $5,390. For
Docket No. 16-1161,
serious Citation 1, Item 1, the
unguarded
hole violation, the Secretary proposed a penalty of $5,390. For serious Citation 1, Item 2a, the anchorage violation, the Secretary proposed a penalty of $5,390.

For each of these penalty calculations, the Secretary initially issued a penalty amount of $7,000.

But the Secretary applied a 30% reduction to account for Respondent’s small
business
size, a 10% increase due to Respondent’s prior history of
an
OSHA violation, 20
and no reduction for good faith .

(Tr. 50).

CO
Rodgers
did not recommend a good faith reduction
for Citation 1, Item 1 c , in Docket No. 16-1162 because
the
severity of the item
w as
deemed to be high
because a failure
of the lifeline could result in a fatality . T he assigned probability for the item was
greater
because Mr.
Ocana
had been using the defective lifeline for two days, about 8 hours each day . (Tr. 37-40, 49-51, 55-56, 68-70, 78-79, 83-86, 94-96; Sec’y Br. at 1).

CO Rodgers also testified that
the
severity of the Citation 1, Item 1, in Docket No. 16-1161,
w as
deemed to be high
because a fall of 12 feet could result in a disabling ,
permanent injury or death .

T he assigned probability for the item was
greater
because employees had been working around the holes for
two
day s .
(Tr. 70-7 2; Ex. 18, at p. 4 ). He further said that
the
severity of the Citation 1, Item 2a, in Docket No. 16-1161,
w as
deemed to be high
because a fall could result in injuries ranging from temporary to permanent disability, broken bones and death . T he assigned probability for the item was
greater
because employees had been using this anchorage for the past two days, about eight hours a day.
(Tr. 90).
The Court also agrees that the gravity of these violations is high. All of
the safety hazards here had a high likelihood of injury and could have been readily mitigated, but Respondent chose
not to
take simple precautions in order to complete the job.

The Court agrees with the Secretary’s approach to these factors
with one exception . The Court disagrees with the Secretary’s imposition of a 10% increase for Respondent’s prior history.

The Court is unwilling to consider,
for the purpose of
imposing a 10% increase in the penalty, a prior citation that became a final order of the Commission well after the inspections were conducted and the citations issued in this matter.

The Commission is not bound by the Secretary’s proposed penalties. Hern Iron Works, Inc. , 16 BNA OSHC at 1621 -22 . Once a citation is contested, the Secretary’s proposed penalties become advisory and the penalty amount is left to the discretion of the
C ommission.
Id .
at 1622;
s ee also
Brennan v. OSHRC , 487 F.2d 438, 442 (8 th
Cir. 1973) (“Congress gave
the OSHRC the authority to assess penalties.... The Secretary's proposed penalty is effective only if not contested; once contested, the OSHRC can affirm the proposed penalty, modify it, vacate it, or direct other appropriate relief.”). Further, when
considering an employer’s history of previous violations when
determining the appropriate penalty amount , the
history of prior violations
should not include
a judge’s
decision that ,
at the time of the inspections and issuance of citations at issue, was
pending before the Commission.

Gen. Steel Fabricators, Inc. , 5 BNA OSHC 1837, 1838 (No. 76-710, 1977) ( Inasmuch as
the earlier penalty order was not final, the Judge erred by taking cognizance of it in determining the penalty.) .

The Court finds that because the previous citation w as
not final order at the time the citations here were issued,
it
cannot be used
by the Secretary
to impose a
10%
increase for the penalty amount.

The 10% increase for history is therefore excluded, reducing the penalties for each citation as follows: regarding Docket No. 16-1162, the penalty in Citation 1, item 1c is reduced to $4,900; for Docket No. 16-1161, the penalty for Citation 1, item 1 is reduced to $4,900 and the penalty in Citation 1, item 2a, is reduced to $4,900. The total
Court
assessed
penalty
for these affirmed citation items
is $14,700.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

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

ORDER

Based on these findings of fact and conclusions of law, it is
ORDERED
that:

1) For Docket No. 16-1162: Item 1 c
of Citation 1, alleging a serious violation of 29 C.F.R. § 1926.502(d )( 21), is
AFFIRMED
and a penalty of $ 4 , 90 0 is
ASSESSED .

2) For Docket No. 16-1161: Item 1 of Citation 1, alleging a serious violation of 29 C.F.R. § 1926.501(b)(4)( i ), is
AFFIRMED
and a penalty of $ 4 , 900
is
ASSESSED ,
and

Item 2 a
of Citation 1, alleging a serious violation of 29 C.F.R. § 1926.502(d )( 15), is
AFFIRMED
and a penalty of $ 4 , 90 0 is
ASSESSED .

SO
ORDERED.

/s/Dennis L. Phillips

---

The Honorable Dennis L. Phillips

U.S. OSHRC Judge

Date:    October 30, 2017

Washington, D.C.

"

1
Respondent failed to participate in the June 8, 2017 telephone conference. Respondent also did not participate in the final pre-trial
conference conducted on July 6, 2017.   

2
The remaining citation items in Docket No. 16-1161 for trial were Citation 1, Item 1, which alleged a serious violation of 29 C.F.R. §
1926.501(b)(4)(i) with a proposed penalty of $5,390 and Citation 1, Item 2a, which alleged a serious violation of 29 C.F.R. §
1926.502(d)(15) with a proposed penalty of 5,390. Both alleged violations occurred at Building B on March 2, 2016. (Tr. 13-14).

3
The remaining citation item in Docket No. 16-1162 for trial was Citation 1, Item 1c, which alleged a serious violation of 29 C.F.R. §
1926.502(d)(21) with a proposed penalty of $5,390. The alleged violation occurred at Building D on February 29, 2016. (Tr. 11-15).

4
Commission Rule 64 states that the failure of a party to appear at a
trial
“may result in a decision against that

party.” 29 C.F.R. § 2200.64(a). A failure to appear may be excused where good cause is shown, but a request for

reinstatement must be made within five days of the
trial . 29 C.F.R. § 2200.64(b). Respondent has made no

such request. The evidence produced by the Secretary is uncontested since Respondent failed to appear at the

trial , proffer any trial exhibits, or file any post- trial
brief.

5
CO Rodgers has been familiar with OSHA’s construction safety regulations for more than 20 years, initially as a safety manager and later
as an OSHA CO
beginning in 2009. He has performed approximately 200 OSHA investigations, a third of which involved fall protection. He has an Associate of Science degree in environmental hazardous materials management. (Tr. 20-26). The Court had the opportunity to observe CO Rodgers’ demeanor while testifying at trial. The Court found CO Rodgers to be entirely credible and truthful in his testimony.

6
CO Rodgers used an electrical rod to make the measurements.

He measured the height of the roof to be approximately 18 feet.

(Tr.
29-31; Ex. 11).

7
Messrs. Brown and Rodriguez were still on the roof at this point. (Tr. 84).

8
Specifically, CO Rodgers testified:

Q. Okay. And
so
when you say that the equipment could fail, what do you mean?

A. Well, when we examine the exhibit [9], we see that this lifeline is compromised with knots and abrasions and being undersized. [Extraneous material
omitted] And
– if that system had been used to arrest a fall, it is questionable that it would be -- have been effective in preventing a fall, in arresting a fall and being exposed to the anticipated forces of a fall. It could have very well failed and resulted in a fatality. (Tr. 43).

9
CO Rodgers testified that 29 C.F.R. § 1926.501(b)(4)(i) required “[t]hat each employee on a walking/working surface be protected from falling through holes, including skylights, when there’s a fall of more than six feet be protected with either a personal fall arrest system, covers or guardrail system around each hole.” (Tr. 69-70).

10
CO Rodgers testified that the large hole could also be considered separate holes because
the
roof joists
actually separated
the hole into multiple holes. (Tr. 95;
Exs. 28, 3-34).

11
CO Rodgers testified that the diameter of the “hole” at Ex. 28, at “A”, was roughly 4 feet. He said the plywood there was “[d]ecayed
and its structural integrity is such that it would not support the weight of an employee.” He also said that the area “appears to be deteriorated and caving in in the roof sheeting area, which would constitute the hole.” (Tr. 61-62, 96-97; Ex. 28, at “A”).

12
Other employees seen on the roof included Messrs. Tobias,
Ocana, Montes, and
Tobia. (Tr. 92-93; Ex. 18).

13
29 C.F.R. § 1926.500(b) defines a “hole” and
says “it means a gap or void 2 inches (5.1 cm) or more in its least dimension, in a floor, roof, or other walking/working surface.”

14
CO Rodgers testified that “fatalities, disabling injuries, [and] permanent disability” often occur
as a result of
unguarded holes. (Tr. 27, 70).

15
CO Rodgers testified that the standard at 29 C.F.R. § 1926.502(d)(15) “requires that anchorages that are used for attachment for fall arrest systems be capable of supporting at least 5,000 pounds per employee attached and designed and installed with a safety factor of at least 2.” He further said that the standard “protects against falls that an employee could experience if the anchorage is not rated and approved and used in accordance with manufacturer’s instructions and the application of the standard. In the event of a failed anchorage, it would not arrest the fall of the employee and could result in a death.” (Tr. 88).

16
The photographs at
Exs. 25 and 26 show a nail-on type anchorage with two snap hooks and lifelines running from Messrs.
Ocana
and
Tobia
attached to one anchor point. (Tr. 75-79; Ex. 25-26).

17
The “Use Limitations” section of the manual stated:

1. Permanent Roof Anchors are designed for a single user (including clothing, tools, etc.) with a capacity
   up to 310 pounds (140 kg).

(Tr.79-80; Ex. 36).

18
CO Rodgers testified that the anchorage could not maintain a safety factor of two and comply with the manual and OSHA standard if two employees were attached to the anchor point. (Tr. 89).

19
CO Rodgers testified that most roof anchorages are not designed to carry a capacity of two individual loads per employee. (Tr. 83-84). He testified that “in order for that anchorage to be used in compliance with the OSHA standard, it cannot have more than one user attached to it.” (Tr. 84).

On January 19, 2016,
20 less than two
month s
before the inspections at issue here, OSHA inspected a different Payton Roofing
Inc.
worksite and issued a citation alleging a serious violation of 29 C.F.R. § 1926.502(h)(1)(iii) . Respondent filed a timely notice of contest, but failed to appear at
the
trial. A fter hearing the Secretary’s case and viewing the evidence put forth,
the judge
affirmed the citation and assessed a civil penalty against Payton
Roofing Inc.
in the amount of $2,800 . The judge’s decision became the final order of the Commission on
January 4, 2017 , well after the inspections were conducted and the citations issued in this matter.

Payton Roofing, Inc. ,
26
BNA
OSHC 1445 ,
1449

( No. 16-1163, 2017)(ALJ).