Premier Roofing LLC, d/b/a Premier Roofing Co.

Plain-English summary

Premier Roofing served as the general contractor for residential roofing work at the Summerfield Villas in Colorado. An OSHA compliance officer observed about 20 subcontractor employees working on roofs more than six feet above the ground without fall protection, and Premier's own employees also inspected active roofing work without fall protection. On the Secretary's second summary judgment motion, the judge found no genuine dispute that Premier failed to maintain a program of frequent safety inspections by a competent person. Premier controlled the worksite and could have prevented or detected hazards affecting its own employees and its subcontractors, but its project staff performed quality-control inspections rather than safety inspections. The judge also found that the residential fall-protection standard applied, that Premier had actual and constructive knowledge, and that two substantially similar final violations supported a repeat classification. The serious inspection-program item was affirmed with a $13,260 penalty, and the repeat fall-protection item was affirmed with a $132,598 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.20(b)(2) and 1926.501(b)(13).
• Outcome: Serious inspection-program item and repeat residential fall-protection item affirmed; total penalties of $145,858 assessed.
• Key point: A general contractor that controls worksite safety must use reasonable diligence to inspect for hazards affecting its own employees and subcontractor employees.

Full text (OSHRC public release)


Document

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR ,

Complainan t,

v.

PREMIER ROOFING LLC, d/b/a PREMIER ROOFING CO. ,

Respondent.

OSHRC Docket No .
19-1 689

Appearances:

Timothy S. Williams, Esq., Department of Labor, Office of the Solicitor, Denver, Colorado

For Complainant

Barry A. Cole, Non-Attorney Representative, Cole Preferred Safety Consulting, Inc.

F or Respondent   

Be fore: Judge
Peggy S. Ball
– U. S. Administrative Law Judge

DECISION AND ORDER

This matter comes before the Court
regardin g
Complainant’s
Second Motion for Summary Judgment
(MSJ

2).

As indicated in its
Order Regarding Complainant’s Motion for Summary Judgment ,
the Court found there were
two disputes of material fact
that remained unresolved after its consideration of the parties’ respective briefs and evidence.
Complainant
has filed
the present motion
in an attempt
to
resolve those disputes and has
incorporated by reference ,
but
also supplemented,
the evidence
filed with the
previous
Motion for Summary Judgment
(MSJ #1)
to
address
those matters
found to be
genuinely disputed
in
the Court’s
Order
on MSJ #1.
Because
the Court found there were disputes of material fact on the issue s
of exposure and control, it reserved ruling on “ancillary issues such as whether the proposed penalty was excessive and whether Respondent had actual or constructive knowledge of the presence of the hazards.”
Order
Regarding Complainant’s Motion for Summary Judgment
at 19. Having reviewed the
new evidence submitted by Complainant , the
related
filings submitted by Respondent , and
all of
the documents associa ted with the first and second motions for summary judgment , the Court finds there are no longer any disputes as to any material fact and Complainant is entitled to judgment as a matter of law
as to each of the
violations alleged in the Citation and Notification of Penalty.

I. P ROCEDURAL HISTORY

On April 26, 2019,
C ompliance Safety and Health Officer Aimee L. Stark
initiated
an inspection of Respondent
in response to
the filing of a complaint.
(Ex. C-1). 1
When she arrived at the worksite ,
known as the Summerfield Villas ,
she observed
twenty
workers
on
top of multiple
residential roofs
without any form of fall protection.
(Ex. C-1, C-2).
Each of these roofs was more than six feet above the ground. (Ex. C-1). CSHO Stark
met with Michael Comstock, Respondent’s
Project Coordinator , and was accompanied on her inspection by Barry Cole, Respondent’s non-lawyer representative, and Matthew Byrd, Respondent’s
Production Manager. (Ex. C-1).
Over the next couple of months, CSHO Stark
also
conducted interviews with
multiple employees of Respondent, as well as representatives of M&M Roofing, who was the subcontractor on the project.
(Ex. C-1).
   Complainant
served Respondent with a Citation and Notification of Penalty alleging one serious and one repeat violation of the Occupational Safety and Health Act (“the Act”)
and proposing
a total
penalty of
$148, 858. Respondent filed a timely notice of contest, bringing this matter before the Commission.

As noted above, Complainant filed MSJ #1 arguing there were no disputes of material fact and that he was entitled to judgment as a matter of law.
Ultimately, the Court found
the standards
applied and were violated; however, the Court also determined there were two disputes of material fact that
prevented the entry of summary judgment in favor of Complainant.
Complainant filed MSJ #2
in an attempt to
resolve those lingering disputes of material fact.
To ensure all matters addressed in MSJ #1 were
included , Complainant has also incorporated MSJ #1 by reference . 2
Respondent has filed responses to both MSJ #1 and MSJ #2 .
Because
Complainant has incorporated
by reference
his original motion ,
the Court has also considered all the arguments
and supporting documentation
Respondent has submitted
with respect to both motions.
Trial in this matter is currently scheduled for August 10, 2021, in
Denver, Colorado.
Because the Court finds Complainant established it is entitled to judgment as a matter of law , the trial date is hereby VACATED.

II. JURISDICTION

T he Court finds the Commission has jurisdiction over this matter under section 10(c) of the Act .
See
29 U.S.C. § 659(c) . According to section 10(c), the Commission obtained jurisdiction
upon Respondent’s timely filing of a notice of contest.
Id.
The Court also finds Respondent was an employer engaged in a business and industry affecting interstate commerce within the meaning of sections 3(3) and 3(5) of the Act .
See
29 U.S.C. §§ 652(3), (5).
According to CSHO Stark’s affidavit
and Respondent’s own marketing materials , Respondent purchased products in interstate commerce , performs work
in several states,
and had employees at the Summerfield Villas worksite.
(Ex. C-1 ). 3
Respondent does not dispute any of the facts supporting these conclusions.

III. SUMMARY JUDGMENT
STANDARD

Summary judgment is appropriate if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. See
Fed. R. Civ. P. 56. A
party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion and demonstrating the absence of a genuine issue of material fact as to the issue(s) raised. Celotex Corp. v.
Catrett , 477 U.S. 317, 323 (1986). A fact is material only if it might affect the outcome of the case, and thus precludes the entry of summary judgment. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986).

In deciding a motion for summary judgment, the Court is required to resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the nonmoving party. Id . at 255. If there is any evidence in the record from which a reasonable inference in favor of the nonmoving party can be drawn
as to a material fact , summary judgment is improper. Celotex , 477 U.S. 317. Conversely, if a review of the entire record could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial and summary judgment is appropriate. Matsushita Elec. Ind. Co. Ltd. v. Zenith Radio Corp ., 475 U.S. 574, 586 (1986). The judge’s function in summary judgment cases is to determine whether there are genuine, material, disputed issues for trial; it is not to weigh the evidence. Anderson , 477 U.S. at 249 .

The rule 4
itself
establishes the proper procedure for both supporting
and disputing
the existence of
a
“ fact ”, for the purposes of the motion .
See
29 C.F.R. § 2200.40(j) ( “The provisions of Federal Rule of Civil Procedure 56 apply to motions for summary judgment.” );
Fed. R. Civ. P. 56(c)(1) ( entitled “Supporting Factual Positions”).
To establish the existence of an undisputed fact,
Complainant must
“ cit [e] to particular parts of materials in the record
including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials
. . . . ”
Id.
56(c)(1)(A).
In response
to Complainant’s recitation of undisputed material facts, supported by
the material listed in FRCP 56(c)(1)(A),
Respondent cannot simply rely on blanket denials .
Celotex Corp. v.
Catrett , 477 U.S. 317, 324 (1986)
(“ Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves, and it is from this list that one would normally expect the nonmoving party to make the showing to which we have referred. ”).
Instead, Respondent
must illustrate
the existence of
a dispute over material facts by
either submitting evidence of the kind discussed in Rul e
56(c)(1)(A)
“ showing that the materials cited do not establish the absence
[]
of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.”
Fed. R. Civ. P.
56(c)(1)(B).

If the Court finds
a party has failed to properly support its assertion of facts, or the non-moving party has failed to properly respond to that position, it is empowered to
take any action listed under FRCP 56(e), including granting summary judgment if the
law and facts show
Complainant
is entitled to it.
Id.
56(e).

IV. UNDISPUTED FACTS

With respect to Rule 56 discussed above, Respondent has
asserted
multiple lines of
contention
against Complainant’s motion for summary judgment , each of which is discussed more fully below . First, Respondent contends Complainant failed to
establish
several facts asserted to be undisputed . Second, Respondent contends Complainant has failed to submit admissible evidence in support of his motion s . Most of Mr. Cole’s
defense , however, takes the form of a
personal screed against Complainant’s counsel, including unfounded and unsupported allegations of misconduct and abusive behavior, for what appears to be nothing more than Complainant’s counsel using the tools and resources available to him to pursue his client’s interests competently and appropriately ,
which
bears little relation to
materi al facts at issue.

A. Material
Facts

Complainant
asserts
Respondent is a “ full-service
roofing and general contractor ” that handles every step of the process of replacing
and/or repairing
roofs on single- and multi-family
homes.
See
www.premier-roofing.com ;
see also
(Ex. C-17) .
The evidence shows Respondent employs project coordinators, project support managers, and production managers to oversee the work performed by the roofing subcontractors. (Ex. C-14, C-15).

In this case, LCM Management Company hired Respondent to
re-roof 34 apartment buildings in Aurora, Colorado , known as the Summerfield Villas .
(Ex. C-1,
C-17 ).
Respondent,
in turn, hired M&M General Construction LLC to perform the roofing work including removing and replacing roofing materials and skylights. (Ex. C-1, C-17).
Respondent had three people responsible for the Summerfield project . Mike
Thiede
and Michael Comstock were Respondent’s onsite coordinators, whose
responsibilities include d :
conducting inspections, overseeing project builds daily , and coordinating projects onsite. (Ex. C-14).
Thiede
and Comstock were overseen by Tosh Maddox , the Project Manager, whose job is to
oversee the coordinators and providing “direct support and oversight of
roofing crews, and providing them with detailed instructions pertaining to each project
. . . . ” (Ex. C-15).

As noted above, CSHO Stark was sent to the Summerfield Villas
because OSHA received an anonymous complaint that roofers were working without fall protection
on April 26, 2019. (Ex. C-1). When CSHO Stark arrived, she saw 20 roofers on the rooftops
of the Summerfield Villas
apartments without
appropriate
fall protection. (Ex. C-1).
According to her account, some had
harnesses on that were not attached to anything; some had ropes attached to their harness , but not attached to anything else ; and some
were
not wearing harnesses at all. (Ex. C-1 , C-2).
There were no guardrails, net systems, or line systems with an accompanying safety monitor. (Ex. C-1, C-2 C-5). When CSHO Stark asked who the supervisor was, the roofers pointed in the direction of Michael Comstock, Respondent’s project coordinator for the Summerfield project. (Ex. C-1).
Comstock identified himself as the supervisor and said he worked for Premier Roofing. (Ex. C-1).
Comstock asked CSHO Stark to delay the start of the inspection until Premier’s
manager , Matthew Byrd, and safety consultant, Mr. Cole
could come to the site .
Upon his arrival, Mr. Cole
said he represented
both Respondent and M&M
and made various representations to CSHO Stark, including that
Respondent and M&M did not have a written contract,
and
that Respondent provided all supplies, materials, and
heavy equipment
for the project . (Ex. C-1).

During this portion of the inspection, CSHO Stark also spoke with
LCM’s community association manager , Sara Peck, who
told CSHO Stark the
owners
had hired Respondent to be the general contractor for the roof replacement job at Summerfield. (Ex. C- 1).

Respondent , in its marketing literature , its contract,
and in its representations to
LCM,
holds itself out as
a general contractor. (Ex. C-1,
C- 17 ).
Though Respondent
protests that such representations are mere puffery
for its marketing materials, it is clear
Respondent’s
actions on th is
worksite and the policies
governing such work illustrate it
exercises
control over
both the manner and means of completing the work. 5
Among other things ,
Respondent determined the scope of work ;
provided materials and equipment ;
set the timeframe for completion ;
provided written guidance on PPE ; established minimum safety requirements, including fall protection
training and plans;
required M&M to
sign a Safety Acceptance Agreement and
an OSHA Safety Orientation Form;
established a schedule of fines if Respondent discovered contractors violating
safety rules;
and
required the performance of a job safety analysis
and safety toolbox talks.
(Ex. C-1, C-3,
C-12,
C-15, C-16,
C-18, C-19).
This was echoed
by the statements of Mr. Byrd, whom CSHO Stark interviewed later during her inspection. (Ex. C-1 at ¶4 ).
In addition to the foregoing, Mr. Byrd
told CSHO Stark that
Respondent , through its coordinators and managers,
has the responsibility
and
authority
to ensure safety regulations are being followed at
its many
worksite s . 6
Id.
Indeed, Respondent assumed responsibility for such in its contract with LCM, which states, “ All work shall be done in a safe and workmanlike manner . . . .
[Respondent]
shall provide an onsite project manager to ensure the safety of all workers and residents.” (Ex. C-17).

Unfortunately,
according to Comstock,
Thiede , and Maddox, while these may be the stated policies
of the Respondent ,
none of them performed safety-based inspections
to assess its subcontractor’s compliance with those policies .
Id.
Respondent employs project coordinators, project support managers, and production managers to oversee the work performed by the roofing subcontractors. (Ex. C-14, C-15).

While there is documentation indicating Respondent has
safety
policies for its subcontractors,
there are no
documented
policies
for Respondent’s own employees. According to
Thiede , Comstock, and Maddox, the only training they
had
received
wa s the OSHA-10 training class, which briefly touches on
multiple
safety
topics
but does not focus specifically on fall protection.
O therwise,
Comstock,
Thiede , and Maddox all told
CSHO Stark
Respondent
had
not provide d
them with fall protection training
or equipment , nor did
it require them to wear fall
protection when performing inspections throughout the
construction process. 7
(Ex.
C-1 ,
C-4 , C-9 at 6-7,
C-10 at 8-9 ).

Further,
neither Comstock,
Thiede , nor Maddox
performed safety-based inspections
of the subcontractors
at the worksite. (Ex.
C-1 ).

Indeed, Respondent
disclaims it has the responsibility to do so, arguing that duty belonged to M&M Construction
alone as subcontracto r.

Finally, as part of the Citation and Notification of Penalty, Complainant alleges Citation
2 , Item
1
is a repeat violation.
According to the documentation submitted by Complainant , Respondent has been cited for the exact same standard
three
times in the previous
eight
years. (Ex.
C-6 ). In each of those instances, Respondent was cited for failing to ensure employees on its worksites had adequate fall protection.
Id . The previous two violations were, themselves, characterized as repeat.
Respondent argues there is no
“recognizable re semblance ”
to the prior case s
but fails to provide any evidence
or specificity
contradicting
Complainant’s allegation of substantial similarity.
The definitive nature of Complainant’s evidence and
the lack of any supporting evidence to the contrary leads the Court to find there is no genuine dispute as to the facts regarding the characterization of Citation
2 , Item
1
as repeat.

1. Respondent’s Asserted Disputes
   of Material Fact

Respondent claims many of the facts alleged to be undisputed by Complainant are, in fact, in dispute.
Mr. Cole’s unorthodox
method
of disputing particular facts
by way of redlining the
pleadings
of
the
Complainant
and inserting handwritten notes in the margins ,
has made
analysis
complicated; however, the Court believe s the following represents
Respondent’s
“factual”
disputes
to the fullest extent they can be
de ciphered .
After a review of these purported disputes of
material fact , the Court finds Respondent’s
contrary “facts”
are
either unsupported
by any
admissible evidence ,
are
legal
conclusions , or
are
otherwise
not material to the outcome of the case.

“To create a question of fact,
an adverse party responding to a properly made and supported summary judgment motion must set forth specific facts showing that there is a genuine issue for trial. ”
See Posey v.
Skyline Corp. ,
702 F.2d
102 (7th Cir.
1983) (citing
Macklin v. Butler,
553 F.2d 525, 528 (7th Cir.1977) ;
Fed. R. Civ. P.
56(e )) .
“ A party may not rest on mere allegations or denials of his pleadings; similarly, a bare contention that an issue of fact exists is insufficient to raise a factual issue. ”
Id.
(citations omitted).
Some alleged factual dispute is not sufficient to prevent the entry of summary judgment ; there must be a
genuine
dispute of
material
fact.
In other words, “ [t] he
dispute
must be genuine and the facts must be such that if they were proven at trial, a reasonable jury could return a verdict in favor for the nonmoving party. If the disputed evidence
‘ is merely colorable or is not significantly probative, summary judgment may be granted. ’ ”
Damron
v.
Norfolk & Western Ry. Co. ,
925 F. Supp.
520,
522 ( N.D. Ohio , 1995)
(citations omitted) .

Respondent contends the slope of the roof s
is a
genuine dispute of material fact. Specifically, Respondent contends the roof slope was less than 4 : 12 and
therefore
exempt from fall protection requirements.
Complainant, on the other hand, does not address the specific slope of the roof, instead contending the slope is irrelevant
because Respondent failed to provide any form of fall protection whatsoever.
While the question of slope is a factual one, the Court finds that (1) it is immaterial ; and (2)
the conclusion Respondent seeks is legal
conclusion . As to (1), the slope of the roof is immaterial
because there was simply no fall protection in use by either Respondent’s own employees or the subcontractor employees.
Respondent contends the slope of
the roof is material because of the exception found at
29 C.F.R. § 1926.501(b)(10) . 8 Section 1926.501(b)(10), however, does not provide
carte blanche
authority for employers
to
eschew
fall protection on low-sloped roofs. Instead, it provides alternative s
to the traditional forms of fall protection
applicable to
a limited set of conditions . However,
none of
the su gg ested alternative forms
of fall protection
were in use or
provided by Respondent or its subcontractor
for t h is project . (Ex.
C-5 at 54).

Respondent’s arguments are immaterial and
were
legal conclusions reserved to the finder of fact
which
do not illustrate
a genuine issue of material fact.

Respondent argues
the question of knowledge
also
is a dispute of material fact; however, like the question of whether an exception applies, this is primarily a legal question
as presented here .
From a factual perspective, there does not appear to be a genuine dispute.
Respondent contends
neither it nor M&M
had a representative
or worker
at the worksite
at the specific moment
CSHO Stark arrived and saw the
fall protection violations. It argues a “clerk” was
the only employee of the Respondent at
the worksite
at the time of the Inspection ,
doing inventory and checking
work
progress. 9
( Resp’t
Binder 1, Affidavit of Barry Cole ).
However,
Comstock was
in the area of
the worksite .
Respondent has not
tendered
any
evidence to establish
Comstock was a “clerk” rather than a roofer or project manager , or that he was employed by anyone other than the Respondent .
T he
dispute
asserted
is not
a
genuine
dispute of fact so much as
dis parate characterizations of facts
which
are not inconsistent with one another.

Further , even if the dispute were genuine, the Court does not find it material. Complainant can prove
awareness of the hazard
either through actual or constructive knowledge.
See
A.P.
O’Horo
Co., Inc., 14 BNA OSHC 2004, 2007
(No. 85-369, 1991) .
This is problematic for Respondent for two reasons.
First, it doesn’t matter whether Comstock was there in the morning, at the time CSHO Stark arrived , or
not
until later that day.
As shown in explicit detail above,
Complainant provided ample evidence to
show
(discussed in more detail,
infra )
Respondent had constructive knowledge
of the violations.
Respondent has submitted no contrary evidence, by way of policy, training, or rules, to
establish
a material , factual dispute justifying the denial of summary judgment on t he issue of constructive knowledge
either with respect to its own employees or M&M’s . Second,
there is photographic evidence and sworn statements
establishing Respondent’s own employees
failed to wear fall protection
and that Respondent failed to provide training
or even a documented fall protection plan.
Thus, there are multiple avenues through which Complainant can
prove a violation of the standard that do not require the presence of one of Respondent’s employees on the worksite at the exact
mom ent
of the inspection.
N ot only is Respondent’s representative
making a legal argument, but any perceived factual dispute
as to Comstock’s presence at the worksite is immaterial because it does not prevent the entry of summary judgment.

Respondent also contends the evidence and photographs collected by CSHO Stark
are
inadmissible because
such evidence
“ was improperly collected by
trespassing on private property”
prior to conducting an opening conference.
Resp’t
Response
and Objections to
Motion for Summary Judgment
at
9.
In other words, Respondent suggests summary judgment should be defeated consistent ly
with the procedure indicated in FRCP 56 (c)(2) . This
argument
fails for two reasons: (1) most of the photographs taken by CSHO Stark prior to the formal beginning of the inspection were taken , or at least visible, from a public right-of-way; and (2) for any pictures or evidence not acquired from the public right-of-way , the question of improper collection of evidence does not apply.
Because most of the images were present from a public sidewalk or street,
their collection falls under the plain view doctrine.
See   Lewis v. United States, 385 US 206 ,
210
( what a person knowingly exposes to the public, even his own home or office, is not a subject of Fourth Amendment protection ) . A nd,
more importantly, because the property does not belong to Respondent or M&M,
Respondent
has no standing to assert a Fourth Amendment claim against Complainant for conducting an inspection
on private property.
“ A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed. ”
Rakas
v. Illinois , 439 U.S. 128, 134, 99 S. Ct. 421, 425, 58 L. Ed. 2d 387 (1978)
(citing
Alderman v. United States, 394 U.S. 165, 174, 89
S.Ct . 961, 966, 22 L.Ed.2d 176 (1969) ).
Only the management company or property owner has standing to assert
Fourth Amendment rights under this set of facts. Respondent has not provided any evidence to suggest LCM
objected to Complainant’s inspection of the premises.
For that matter, there is no evidence Respondent objected to
CSHO Starks’ entry onto the premises at the time of the inspection.
Thus, the Court finds no dispute of material fact as to admissibility.

Respondent argues many of the
roofers identified by CSHO Stark
as
employees of
either
Respondent or of M&M were, in fact,
“ interloper ”
contractors who struck separate agreements with
M&M and/or other subcontractors to split the work
in order to
complete it faster and move along to more jobs.
Respondent argues these interlopers were “impossible to control” and “broke rules” , presumably attempting to undercut Complainant’s claim
Respondent
controlled the worksite as the general contractor and was thus responsible for
all employees working on the roofs of the Summerfield Villas.
This is, perhaps, the closest Respondent comes to identifying a
genuine, material dispute of fact; however, it still falls short.
As far as the Court can tell, Complainant
is unconcerned with who, specifically, these interloper roofers
were
and with good reason.
Respondent, regardless of how it wishes to
characterize
itself or
M&M, 10
assumed the mantle of general contractor
through
its puffery, its contract language,
its oversight,
and its policies,
all of which illustrate a substantial level of control
assumed and (for the most part) exercised . Simply having the authority to control the worksite, along with the stated and assumed responsibility for “ ensur [ ing ]
the safety of
all workers and residents ”,
is sufficient to render Respondent
liable for the failures occurring on that worksite ,
unless there was no possible way
it
could know
of them.
See  Centex-Rooney Constr. Co. , 16 BNA OSHC 2127, 2129 – 2130 (No. 92-0851 , 1994)
( controlling   employer  liable if it could reasonably be
expected to prevent or detect and abate the violative condition by reason of its supervisory capacity and control over the worksite) .
As illustrated above,
the failure to have and/or execute any semblance of a safety policy
with respect to its own employees and subcontractors renders that scenario unlikely.
In other words, given the level of control asserted by
(or at least available to)
Respondent, the
idea of some group of
rogue , uncontrollable roofers
overtaking a worksite where Comstock was admittedly present
at least
three
times per
day
is unlikely.
(Ex. C- 9 at 5).
Further, whether the
employees are
emp loyed
directly
by M&M or subcontracted by them, Respondent is obligated to
provide
a safe workplace
for them just as it would its own employees .
See Summit Contractors , Inc. , 23 BNA OSHC
1196,
2010 WL 3341872
at *7
(No.
05-0839,
2010) ( discussing the statutory basis for imposing liability upon a non-exposing, controlling employer) .

Along similar lines, Respondent
claims the defense of unpreventable employee misconduct
is a sufficient defense to the present motion.
A lleging a
claim of
unpreventable employee misconduct, however, is much different than providing facts in support of that claim.
Respondent
makes vague claims about an unidentified, singular employee
who allegedly committed employee misconduct
by failing to
wear fall protection
and was terminated shortly thereafter.
See
Resp’t
Response to MSJ #1
at
11.
This case, however, does not concern the actions of a single employee
who
failed to
put on a harness and tether to an anchor point;
rather
the Court is confronted with an allegation that
(1)
20 roofers
were not wearing appropriate fall protection while working
on roofs
under the supervision of Respondent ; and (2)
at least three of Respondent’s own workers admitted to performing inspections on rooftops under construction
without appropriate fall protection.
Notwithstanding the undisputed facts showing Respondent
lacked any semblance of a fall protection program, even if the Court were to accept
an allegation of employee misconduct as to one individual, that dispute is neither material
nor genuine given the overwhelming number of people
not wearing fall protection on either the day of the inspection or, as discussed next, in any of the photos
submitted by Respondent from its project managers’ inspections .
(Ex. C- 4).

Respondent also appears to suggest the fall protection violations were not as widespread as alleged by CSHO Stark. In particular, there are notations on photographs
in Respondent’s submitted exhibits where Respondent notes “Great Safety!” and
“Shows tie-off” ; however, when you look closer at many of these photos (as better illustrated in the color versions submitted by Complainant in
Exhibit C-4) most of the roofers have the tethers haphazardly tied to
the side of the harness as opposed to the D-ring positioned at the center of the wearer’s back , rendering them
purely for show .
(Ex. C-4,
Resp’t
Binder 1).
Not only do the photos illustrate a lack of any material dispute ,
they
also highlight the breadth of
Respondent’s
failure in the arena of fall protection , as
some
were taken by Respondent’s own project coordinator
just days after the
inspection. ( Ex. C-1 at ¶ 9, C-4 ).
No reasonable
factfinder
could view these photos to support the proposition
suggested by Respondent.

Respondent also
argues
the repeat characterization as to Citation
2 , Item
1 , as well as the fines
associated with each, are both material facts in dispute. First,
the determination of whether a citation is repeated is a legal one, not one of material fact .
Second,
the appropriateness of the fine, while certainly the subject of debate, is nonetheless predicated on the
facts of the violation. Insofar as the facts supporting the violation
are not in
dispute and,
considering Respondent has not submitted
anything
in addition to what the Court has already discussed above, the Court finds Respondent has failed to
illustrate a dispute as to any of the facts material to making a penalty determination .
As noted above with respect to many of the other purported disputes,
simply denying or disputing Complainant’s characterization of the facts is insufficient
when evidence
has been
submitted in support of those facts.
See
Damron ,
925 F. Supp. at
522
(“ Nevertheless, in the face of a summary judgment motion, the nonmoving party cannot rest on its pleadings but must come forward with some probative evidence to support its claim . ”).
Nevertheless, the Court shall consider Respondent’s legal arguments regarding the appropriateness of the penalty
based on
these facts
when making its determination
de novo .

Finally, Respondent also attempts to argue the use of personal fall protection constituted a greater hazard ; however, Respondent failed to allege the affirmative defense of greater hazard when it filed its Answer
and, at no time
during the pendency of this litigation , did it ever seek to amend its
Answer to plead such a defense.

See
29 C.F.R. § 2200.34(b) .
An amendment
at t his point in time , only a week before trial and long after the close of discovery, would be unduly prejudicial , and the Court will not allow it. Notwithstanding that fact, Respondent, as with many of the foregoing disputes, has failed to introduce any evidence to
illustrate the purported dispute is either genuine or material.

2. Respondent’s Allegations of
   Opposing Counsel
   Misconduct and Mr. Cole’s
   Status as a Professional “Lay” Representative

Although Respondent ’s lengthy tirade against Complainant’s counsel would not ordinarily warrant consideration in a discussion about
whether
there is a genuine dispute as to any material fact, the Court
finds it is important to address the matter in this case.
A substantial portion
of the
30 pages of argument submitted by Respondent
is
dedicated to
lobbing unprofessional, unfounded
ad hominem
aspersions at
the
S olicitor
for doing his job .
Presumably such
unfounded allegations are designed t o sway the Court with emotional pleas and conspiracy theories
in the absence of any legitimate dispute over facts material to the determination of this case , but they fail to do so.

Mr. Cole, who runs his own private safety consulting firm, is not an employee of Respondent, but was instead hired by Respondent to
perform safety consulting and represent it in the present proceeding. Indeed, Mr. Cole holds himself out as
“ a safety and health professional consultant, and
an expert in OSHA matters, law, interpretations ,
. . . and preventing OSHA fines for alleged noncompliance , and assisting
them in contesting or
minimizing
through settlements citations that may have been issued to them.” (Binder 1, Affidavit of Barry A. Cole)
(emphasis added) .

Mr. Cole a ttempts
to wield his status as a lay representative as both sword and shield.
On the one hand, the Court, without any documentation in support,
is urged to
defer to the judgment and assessment of
Mr. Cole
as to
legal questions upon which he
is purportedly
an
expert. On the other, Mr. Cole claims he is being mistreated and unfairly targeted
because he is not a lawyer and
thus
can be manipulated with
legal chicanery only available to classically trained lawyers.

Mr. Cole holds himself out as someone capable of providing representation before the Commission
and, as such, should be competent in the procedures and strategies accompanying such a practice.
This is not a situation where a
pro se
litigant, with no previous experience in a legal proceeding,
is being run roughshod by the Solicitor .
Mr. Cole
is a paid professional with experience
practicing before the Commission .
The Court sees no reason why Mr. Cole should be
treated much differently than any other paid professional appearing before this Court .
See
29 C.F.R. § 2200. 32
(“ A signature by a party representative constitutes a representation by the representative that the representative understands that the rules and orders of the Commission and its Judges apply equally to attorney and non-attorney representatives ”);
see also
Imageries , 15 BNA OSHC 1545 (No.
90-378 , 1992) (noting Commission precedent to hold lay people
representing themselves
to the standard of “reasonable diligence”);
see also id.
( citing
Collex , Inc. v. Walsh,  69 F.R.D. 20, 24 (E.D.
Pa.1975) (stating a “litigant may choose to proceed  pro se , but he does not have the untrammeled right to totally disregard the procedures mandated by the court.”).
C omplainant
has proceeded as provided under
Commission Rule 40 (j), which directs parties to FRCP 56
and its explicit procedure for both seeking and defending
against summary judgment.
See
Fed. R. Civ. P. 56(c).

In light of
this expectation, the Court note s
an additional
problem with the current state of Mr. Cole’s representation : his insistence on making himself a witness to the
case. Again, while this is typical of
pro se
litigants appearing before the Commission , it is unusual for a paid, professional representative to do so.
Attorneys are bound by the professional rules of the
state in which they are licensed to practice. As it pertains to this case,
the
Colorado Code of Professional
Conduct
prohibits an attorney from testifying as a fact witness in a matter in which he is also counsel of record .
See
C.R.P.C Rule 3.7, Lawyer as Witness . In a case entitled
North Shore Strapping Co. ,
an employer only called one witness, its attorney.
See N. Shore Strapping Co. ,
2019 WL 4565522 ( Docket No. 18-1529,
2019)
(ALJ Joys) . Over the objections of
the Solicitor, the
J udge permitted
such
testimony ,
noting Commission Rule 22 permits
a party to “appear in person, through an attorney, or through any non-attorney representative” and
also
noted “ it is not uncommon in Commission proceedings for company management to serve as both representative
and fact witness. ”
Id.
The
ALJ
found fundamental fairness permitted the attorney to testify because he was also
a management official with the company .
Id.
This
is not one of those
situation s. Mr. Cole is a paid advocate.
Although
Mr. Cole
was present during CSHO Stark’s inspection,
the Court notes he was accompanied by a corporate representative
who
is equally capable of
swearing
to the facts
observed by all
parties involved without inserting Mr. Cole .
Unbiased roofers, project managers,
contract signatories, and others directly involved
in the work at issue are much
more persuasive witnesses to material facts.
Because
he is closer to an attorney than a self-represented party , the Court would
ordinarily
find
inadmissible most statements by Mr. Cole as it related to the inspection . Additionally,
because the statements and evidence submitted by Mr. Cole in his personal affidavit do not rise to the level of creating a genuine issue of material fact,
it is unnecessary to do so.

V. LEGAL
ANALYSIS

To establish a
prima facie
violation of a specific standard promulgated under section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651,
et seq . (“Act”), the Secretary must prove by a preponderance of the evidence that: (1) the standard applies to the cited condition; (2) the terms of the standard were violated; (3) one or more of the employer’s employees had access to the cited conditions; and (4) the employer knew, or with the exercise of reasonable diligence could have known, of the violative conditions.
Ormet
Corporation , 14 BNA OSHC 2134 (No. 85-0531, 1991).

A.
Citation 1, Item
1

Complainant alleged a serious violation of the Act in Citation
1,
Item
1
as follows:

29 CFR
19 26 .20(b)(2) :
The employer does not initiate and maintain a safety program which provides for frequent and regular inspections of jobsites, materials, and equipment to be made by a competent person.

a) Premier Roofing LLC DBA Premier Roofing Company as a controlling and exposing employer, is failing
to ensure that its employees and employees of its subcontractors are
protected
from jobsite hazards including falls greater than 6 feet during roofing work, lack of the use of eye protection and unsafe ladder use due to
0074 he
lack
of effective frequent and regular inspections being conducted by a competent person. This violation was recently observed on April 26,
2019
at 1310-1326 N. Sable Blvd, Aurora CO
80011 when Premier failed to ensure that frequent and regular inspections took place at this jobsite.

See
Citation and Notification of Penalty
at
6 .

1. The Standard Applied
   and its Terms Were Violated

The Court has already determined the standard applied to Respondent
and that its terms were violated. Indeed,
the cited standard requires Respondent to
initiate and maintain a program
to “ provide for frequent and regular inspections of the job sites, materials, and equipment to be made by competent persons designated by the employers. ” 29 C.F.R. § 1926.20(b)(2) . As the undisputed facts recounted above indicate,
Respondent had neither a program providing for frequent and regular inspections of the worksite, materials, and equipment , nor did it have a person competent to perform such a job.
Comstock,
Thiede , and Maddox all told CSHO Stark they only received
minimal training on fall protection and only conducted inspections for the purposes of quality control, not safety.
Thus, Respondent neither designated nor prepared any employee to serve as a competent person in the arena of fall protection, let alone safety as a general concern , nor did it establish or implement any semblance of a program
to ensure the requisite inspections were taking place.

2. Respondent’s Employees Were Exposed to the Hazard

The foregoing
un disputed facts show Respondent’s own employees were exposed to the hazard.
Respondent does not have a program of inspection, nor does it have a designated competent person to
ensure frequent and effective inspections are taking place.
According to the statements they gave to CSHO Stark, Comstock,
Thiede , and Maddox all frequently performed inspections
on the roofs of residential construction sites but never wore appropriate fall protection
nor were they required to do so , never received adequate training on the topic of fall
protection ,
and
w ere never themselves inspected for anything other than progress to the end
goal .
Without a competent person capable of performing frequent and effective inspections, hazards, including those identified by CSHO Stark
either go uncovered or
are
left unobserved out in the open.
Because Respondent
did not
perform
regular safety inspections, establish a program of inspection,
or ensure the assignment of a competent person , its employees were exposed to hazards, including, as is relevant to this case, fall hazards.

i. Respondent Was a Controlling Employer

While Respondent proffered many objections to
the facts indicating it is a controlling employer, none were material or genuine disputes.
The
Commission’s
test for controlling employer liability
held
an employer “responsible for the violations of other employers ‘where it could reasonably be expected to prevent or detect and abate the violations due to its supervisory authority and control over the worksite.”’
Summit Contractors ,
2010 WL
3341872 at * 4 (citing
McDevitt Street
Bovis , Inc. , 19 BNA OSHC 1108, 1109
(No. 97-1918, 2000) (citation omitted);
Grossman Steel , 4 BNA OSHC at 1188
(noting that general contractors are “well situated to obtain abatement of hazards,” and thus it is “reasonable to expect the general
contractor to assure compliance with the standards insofar as all employees on the site are affected”) ) . The facts recounted above
establish
it is reasonable to expect Respondent to prevent or detect and abate violations ,
based upon
its
level of
supervisory authority and control.

As a general rule , Respondent holds itself
out
to be a general contractor. Whether in its marketing materials or in the representations it makes to its customers, Respondent claims to be a general contractor.
However,
Respondent’s status is not solely determined by the representations
it makes, but also by the power and control it reserves to itself.
LCM hired Respondent
to be the general contractor who would, in turn, be authorized to hire additional contractors to perform the work . (Ex. C-17 ). In its contract with LCM, Respondent
agreed to perform all work in a “safe and workmanlike manner”
and committed to “ provid [ ing ] an onsite manager to
ensur e
the safety of all workers and all residents.”
Id.
As part of this assumed obligation, Respondent
set forth safety and health requirements for
M&M and its employees or subcontractors , which Respondent required M&M’s representative to sign .
(Ex. C-3). Of
particular note
in this
set of requirements was Respondent’s assumed authority to fine subcontractors for
violating OSHA Safety Rules.
Id.
In addition, Respondent also had the authority to remove
a contractor from a worksite for safety violations
and other reasons. 11
See McDevitt ,
19 BNA OSHC at 1109-10 (finding evidence of control where general contractor had “overall authority at the worksite,” including authority to demand compliance with safety requirements, stop subcontractor’s work, and remove subcontractor from site).

Respondent’s control was not limited to the authority it reserved to itself regarding safety matters
(indeed it was a power not exercised), but also extended to the manner and means by which the work was accomplished.
Respondent provided the materials
and equipment
and ensured the work was being performed according to specifications and the agreed-upon timeline.
Respondent not only promised to provide an onsite manager, but
actually provided
project coordinators like
Thiede
and Comstock and managers like Maddox
to oversee the execution of the project .
See Summit , 23 BNA OSHC at 1206 (finding evidence of control where respondent’s superintendent
“observed the progress of the project and worksite conditions by walking the worksite twice each day” and, during weekly meetings, he “point[ed] out obvious hazards to the subcontractors”) .

While a written contract between Respondent and M&M was never provided,
Ir vin
Menjivar
from M&M testified he had reached an agreement with Respondent .
This is not fatal, however,
so long as the record evidence establishes authority and control.
See, e.g.,
StormForce
of Jacksonville LLC , Docket No. 19-0593, slip. op. at
6 ( March 8, 2021) . Indeed, much like the employer in
StormForce , what Respondent represents
about its business and how it its
actually carried
out are two different things.
Like
StormForce , Respondent argues it provides the limited service of coordination between the customer, the insurance company, and the roofing subcontractors .
Also
like
StormForce , however, what Respondent
argues it is responsible for and w hat it is actually responsible for are two different things.
See id.
( holding
disclaimer of supervisor control and liability for unsafe conditions
inconsistent with assumption of control over the manner and means of production).

Due to the level of control discussed
both in the section on undisputed facts and the foregoing, the Court finds it is
reasonabl e to
expect
Respondent
to prevent or detect and abate the violations due to its supervisory authority
over both production- and safety-related matters
and its project managers’ frequent
quality control inspections of the worksite. Accordingly, the Court finds Respondent is a controlling employer with respect to all subcontractors present on the site.

3. Respondent Knew or Could Have Known of the Hazardous Condition

To prove this element, Complainant must show Respondent knew or, with the exercise of reasonable diligence, could have known of the violation.
Dun-Par Engineered Form Co. , 12 BNA OSHC 1962, 1965 (No. 82-928, 1986). The key is whether Respondent was aware of the
conditions constituting a violation, not whether it understood the conditions violated the Act.
Phoenix Roofing, Inc. , 17 BNA OSHC 1076, 1079–80 (No. 90-2148, 1995). Complainant can prove knowledge of an employer through the knowledge, actual or constructive, of its supervisory employees.
Dover Elevator Co. , 16 BNA OSHC 1281, 1286 (No. 91-862, 1993).

Alternatively , Complainant can show constructive knowledge through a lack of any policy or
procedure designed to uncover hazards.
“[A]n employer has a general obligation to inspect its workplace for hazards.”
Hamilton Fixture , 16 BNA OSHC 1073, 1993 WL 127949 at *16 (No. 88-1720, 1993) (citing
Automatic Sprinkler Corp. of America , 8 BNA OSHC 1384, 1387 (No. 76-5089, 1980)). The scope of that obligation “requires a
careful and critical examination
and is not satisfied by a mere opportunity to view equipment.”
Austin Comm. v. OSHRC , 610 F.2d 200, 202 (5th Cir. 1979)
(emphasis added) . Some factors to assess whether an employer has exercised reasonable diligence include an employer’s “obligation to inspect the work area, to anticipate hazards to which employees may be exposed, and to take measures to prevent the occurrence.”
Frank
Swidzinski
Co. , 9 BNA OSHC 1230, 1233 (No. 76-4627, 1981 ).

Respondent had its own employees at the worksite
who were
exposed to hazard s, and, thus,
it had an obligation to inspect the work area
to
anticipate hazards
they might be exposed to
and take measures to prevent them.
Id.
Due to its
authority and control, however, that obligation extended beyond its own employees to the
workplace as a whole .
See Summit ,
2010 WL 3341872
at
*9-10 .
Respondent, however,
had no identified policy requiring its employees or managers to conduct
safety -based
inspections of the workplace, no training
requirements for its own or subcontractor employees , and no designated competent person, as required by the standard.
These issues are squarely within the knowledge of Respondent —while
the job descriptions of Comstock,
Thiede , and Maddox all indicate some
oversight function, there is no policy or set of rules
indicating what that means
outside of ensuring the work is performed according to specifications.
In practice, none of Respondent’s project employees
were aware they had safety-related inspection obligations , or at least never practiced them
until after the OSHA inspection . (Ex.
C-1,
C-10, C-11 ).
Although Matt Byrd seemed to indicate
an awareness that such safety-related inspections were required ,
the undisputed evidence shows Respondent should have been aware : (1) it was obligated to perform
safety-based
inspections; and (2)
it s employees were
not conducting safety-based inspections.
Respondent receives reports
from its coordinators
about the state of
its
projects
at nearly every stage
in the process , but never received nor requested reports about the safet y of its worksites. Further, there is no evidence
the project coordinators and managers were ever required to perform safety-based inspections as required by 29 C.F.R. § 1926.20 (b)(2) .

Without a policy specifically requiring
your employees to conduct
safety-based inspections , it is reasonable to expect they will not be done.
Without specifically designating a competent person to perform such inspections,
Respondent cannot comply with the cited standard.
These are all issues that are squarely within the
institutional
knowledge of Respondent
and require no imputation
in order to
establish such knowledge. Accordingly, the Court finds Complainant established
a violation of 29 C.F.R. § 1926.20(b)(2).

The Court also finds the violation was serious.
Complainant argues,
Respondent does not dispute,
and the case law supports
the proposition that
a fall from over six feet
can result in serious injuries
or death.
Accordingly, the violation shall be affirmed as serious. 12

B.
Citation
2 , Item
1

Complainant alleged a serious violation of the Act in Citation
2 ,
Item
1
as follows:

29 CFR
1926. 501 (b)( 13 ) :
Each employee engaged in residential construction activities 6 feet (1.8m) or more above lower levels is not protected by
guardrail
systems, safety net system, or personal fall arrest system, nor are employee(s) provided with an alternative fall protection measure under another provision of paragraph 1926.501(b).

b) Premier Roofing LLC DBA Premier Roofing Company as a controlling and exposing employer, is failing to ensure that its employees and employees of its subcontractors are protected from
fall hazards during roofing material removal and installation,
as well as other
residential constructi on
work including removal and installation of wood roof decking and construction of skylights. This violation was recently
observed on April 26,
2019
at 1310-1326 N. Sable Blvd, Aurora CO 80011 when employees of M&M General Construction LLC, subcontractor, were reroofing multi-family
residential buildings without fall protection at heights greater than 6 feet. Employees of Premier Roofing Company also routinely went on the roofs of this project during active construction work while not being protected from falls .

See
Citation and Notification of Penalty
at 7 .

1. The Standard Applied and its Terms Were Violated

As with Citation 1, Item 1, the Court previously found
Complainant established the cited standard applied and was violated.
See
Order Regarding Complainant’s Motion for Summary Judgment at
19.
The Court in corporates all such findings by reference, as they are part of the record.
Nevertheless, the Court would like to revisit the applicability of the exception s
Respondent seeks to apply.

The
exception
to the requirement
of using fall protection while
conducting inspections and assessments
is limited
to two distinct points in time:
“prior to the actual start of construction work or after all construction work has been completed.” 29 C.F.R. § 1926.50 0 (a)(1).
Respondent contends it was not obligated to provide fall protection or mandate its use because of this exception. The problem, however,
is
the plain language of the exception
specifies
limited times during which it applies: prior to the start of construction or after
construction
is complete. As stated by Comstock,
Thiede , and Maddox,
employees
were required to provide frequent and regular inspection reports, including photos of progress, which required gaining access to the roof while construction was ongoing. (Ex. C-4). These same photos show Comstock and
Thiede
on the roof
during construction work, thus any claim they only accessed the roof at the beginning and end
of construction
is not
a material fact genuinely
in
dispute
and the standard applies.
Comstock,
Thiede , and Maddox admitted
they did not wear
fall protection during their inspections , and CSHO Stark presented evidence, without
contradiction , of 20 subcontractor employees performing work on the roofs without
fall protection .

The exception for low-sloped roofs is not so much an exception as an expansion of available alternatives to the standard
guardrail, PFS,
and
safety net combination of protective options .
See
29 C.F.R. § 1926.501 (b)(10).
In those limited instances where the roof qualifies as low-slope,
section
1926.501(b)(10)
allows an employer to utilize safety lines and safety monitors as an alternative, but it does not permit the utter lack of protective measures
suggested by Respondent. There is no evidence to indicate
alternatives such as safety monitors or warning lines were installed on any of the roofs of Summerfield Villas.
Accordingly,
the exception does not
apply
and
the terms of the standard were violated.

2. Respondent’s Employees Were Exposed to a Hazard

As has been stated repeatedly throughout this decision and order, Respondent’s own employees, as well as
the 20
subcontractor employees
observed by CSHO Stark ,
were exposed to falls
of six feet or more when they worked on the roofs of the Summerfield Villas without adequate fall protection.
The photos not only illustrate a lack of fall protection, but also show
roofers standing near the edge of the roof and next to holes
in the wood decking underneath. (Ex. C- 2, C-4).
Respondent’s employees and subcontractors were all working
on residential roofs more than six feet above the ground with no fall protection. The Court finds they were all exposed to the hazard of falling .

3. Respondent
   Knew or Could Have Known of the Hazardous Condition

The analysis regarding whether Respondent knew or could have known of the hazardous condition caused by the violation of 29 C.F.R. § 1926. 501(b)(13) is
similar to
the analysis with respect to Citation 1, Item 1.
Based on the facts stated above,
the Court
does not find
Respondent
had
actual knowledge of the violation as it relates to the 20
unprotected roofers observed by CSHO Stark on April 26, 2019. Viewed in a light most favorable to Respondent,
Comstock was not directly on site when CSHO Stark saw the unprotected roofers, and there is no evidence to suggest he was aware.
Further, for the purposes of this motion
only , the Court accepts that neither Comstock nor
Thiede
were
supervisors
for the purposes of establishing knowledge.

However, as
regards the
conduct of Comstock and
Thiede , the Court finds Respondent
was actually and constructively
aware
of their failure to wear fall protection.
Respondent did not have a fall protection plan or work rule preventing Comstock or
Thiede
from
inspecting a roof under construction without fall protection.
Comstock stated he had not been provided with fall protection, and
Thiede
told CSHO Stark he never wore
fall protection. (Ex. C-1 at ¶¶ 6-7).
Their supervisor, Maddox, neither wore fall protection herself, nor required
Thiede
or Comstock to do so. This is because
there was no
safety
rule.
(Ex. C-1 at
¶
7)

Maddox’s
knowledge (and lack thereof)
illustrates how
Respondent was both actually and constructively aware
of the hazard. Maddox, as Comstock and
Thiede’s
supervisor,
was aware her subordinates did not wear fall protection.
As supervisor, her knowledge
is imputable to Respondent .
See
N & N Contractors., 18 BNA OSHC
2121,
2123
(No. 96-0606, 2000),
aff’d ,
255 F.3d 122 (4th Cir. 2001)
(“The actual or constructive knowledge of a foreman or supervisor can be imputed to the employer.”).
Respondent has not provided any indication as to why such imputation would be improper or disputed that Maddox was Comstock and
Thiede’s
supervisor.
Relatedly, because there was no rule to enforce , no
program of inspections in place,
nor a competent person to
carry
out such a program,
Respondent cannot
plausibly
claim it was reasonably diligent in attempting to uncover
workplace violations.
See
Frank
Swidzinski
Co. , 9 BNA OSHC 1230, 1233 (No. 76-4627, 1981) ( court’s assessment of
reasonable diligence include s consideration of
an employer’s “obligation to inspect the work area, to anticipate hazards to which employees may be exposed, and to take measures to prevent the occurrence” ).
By virtue of its
authority and control , Respondent had an obligation to inspect the worksite
for hazards , but it failed to anticipate or even
perceive a need to uncover hazards —i nstead
improperly deferring that responsibility to its subcontracto r —a nd
it
certainly did not take affirmative measures to prevent the occurrence of violations at its worksite.

As regards the
20 subcontractor employees CSHO Stark observed during her inspection, the Court finds Respondent was constructively aware
of the violation for much the same reason s it was aware of its failure to have an inspection program carried out by a competent person
or
to have any semblance of a safety program whatsoever. While
Respondent’s
“safety program” vis-à-vis its subcontractors is arguably s afer than its failure to have a ny
safety program at all for its own employees , it is a program in name only.
Respondent set forth safety requirements for its subcontractors—and even went so far as to create a penalty scheme
for violations of it —but took
absolutely no steps to ensure the safety program was followed.
It did not train its own employees, whose job description requires
“overs[ eeing ]
project builds daily onsite” in fall protection for themselves, let alone
for
the people the
coordinators were charged with overseeing.
(Ex. C-14).
The only plausible reason Respondent could
assert for not
having
known of the widespread violations
was because you cannot find what you do not look for.
Reasonable diligence requires, at the very least,
taking action . Respondent
asserted c ontrol over how the work was
performed but
disclaimed any responsibility
for the workplace it controlled.
Because
Respondent took no action
to identify, anticipate, or address hazards to which its own , as well as subcontractor, employees were exposed, the Court finds it was both actually and constructively aware of the hazard.

4. The Violation Was Properly Characterized as Repeat

T o establish a  repeat  violation, the Secretary must also show that “at the time of the alleged repeated violation, there was a Commission final order
. . .
for a substantially similar violation.”  Potlatch Corp., 7 BNA OSHC
1061,
1063
(No. 16183, 1979) . “[P]roof that
an employer has committed a prior violation of the same standard constitutes
a prima facie
showing by the Secretary of substantially similar violations.”  FMC Corp., 7 BNA OSHC 1419, 1421 (No. 12311 , 1979).
A
“ prima facie showing
. . .
may be rebutted by evidence of the disparate conditions and hazards associated with these violations
of the same standard. ”
Angelica Textile Servs., Inc. , 27 BNA OSHC 1246, 1255 (No. 08-1774, 2018) (emphasis in original) (citations omitted),  appeal
dismissed as moot , No. 18-2831 (2d Cir. Sept. 21, 2018).

Complainant submitted evidence of
three
prior violations of 1926.501(b)(13) ,
two
of which
were originally characterized as
repeat
violations and related to
Respondent’s failure to ensure subcontractors on residential roofing projects were
protecting
their employees.
The oldest of the three indicates a prior violation of the cited standard, but there is no other
information indicating the facts surrounding the violation. The Court will not consider it, nor does it need to,
because
Respondent had two
prior violations of the cited standard
for substantially similar conduct
that were final orders of the Commission at the time of the alleged violation currently before the Court . (Ex. C- 6) .

Respondent
has presented no evidence to rebut
C o mplainant’s case of substantial similarity
or
even
present a colorable issue of fact regarding the issue of substantial similarity . Accordingly ,
the Court finds
the undisputed facts establish, and the law compels,
a
determination that the repeat
characterization
is proper.

VI. Penalty

Under the Act, the Secretary has the authority to propose a penalty according to Section 17 of the Act.
See
29 U.S.C. §§ 659(a), 666. The amount proposed, however, merely becomes
advisory when an employer timely contests the matter. Brennan v. OSHRC , 487 F.2d 438, 441 – 42 (8th Cir. 1973);
Revoli
Constr. Co. , 19 BNA OSHC 1682, 1686 n. 5 (No. 00-0315, 2001).
Ultimately, it is the province of the Commission to “assess all civil penalties provided in [Section 17]”, which it determines
de novo . 29 U.S.C. § 666(j);
see also
Valdak
Corp. , 17 BNA OSHC 1135 (No. 93-0239, 1995).

“Regarding penalty, the Act requires that “due consideration” be given to the employer ’ s size, the gravity of the violation, the good faith of the employer, and any prior history of violations.”
Briones Util. Co. , 26 BNA OSHC 1218, 1222 (No. 10-1372, 2016) ( citing
29 U.S.C. § 666(j) .
These factors are not necessarily accorded equal weight.
J.A. Jones Constr. , 15 BNA OSHC 2201, 2216 (No. 87-2059, 1993) ( citation omitted ).
Rather, the Commission assigns the weight that is reasonable under the circumstances. Eric K. Ho,
20 BNA OSHC 1361, 1379 (No. 98-1645, 2003) (Consol.),
aff'd sub nom. ,
Chao v. OSHRC , 401 F.3d 355 (5th Cir. 2005).
It is the Secretary ’ s burden to introduce evidence bearing on the factors and explain how he arrived at the penalty he proposed. Valdak
Corp ., 17 BNA OSHC at 1138 . “The gravity of the violation is the ‘principal factor in a penalty determination .
Assessing gravity involves considering: (1) the number of employees exposed to the hazard; (2) the duration of exposure; (3) whether any precautions have been taken against injury; (4) the degree of probability that an accident would occur; and (5) the likelihood of injury. See ,
e.g. ,
Capform , Inc. , 19 BNA OSHC 1374, 1378 (No. 99-0322, 2001),
aff’d , 34 F. Appx. 152 (5th Cir. 2002) (unpublished).

The evidence introduced by Complainant and, for the most part, uncontested by Respondent , provides the basis for the Court’s penalty assessment.
Complainant proposed a penalty of
$13,260 for item 1 ,
and $132,598 for item 2
based on its assessment of gravity. Although
Respondent contends the penalty is excessive , it has provided no evidence to
undermine the basis of Complainant’s assessment. There were roughly 20 to 23 individuals exposed to a hazard if you take into consideration
all
the subcontractor employees observed by
CSHO Stark, as well as Respondent’s own employees, who admitted to never wearing fall protection.
Whether with respect to Item 1 or Item 2, employees were exposed to a hazard based on their failure to have fall protection or Respondent’s failure to uncover that fact.
While there is no definitive evidence on the duration of
the exposure,
it is sufficient to say Respondent’s employees have been repeatedly exposed to a hazard throughout their employment with R e spondent . As for the subcontractor employees, the Court cannot say with any degree of certainty how long
they went without fall protection; however, given the widespread nature of the violation, photographs taken after the fact illustrating
continued failure to properly use fall protection equipment,
and
Respondent’s
repeated
failure to inspect its workplace to uncover such violations,
the only reasonable inference is that
people under the employ of Respondent or its subcontractors have been exposed for a long time.
Further, because the problem was so widespread during CSHO Stark’s visit, the likelihood an accident would occur was substantial. When coupled with the
cluttered nature of the roofs under construction and the fact that work occurred near leading edges and holes in the roof , that likelihood only increased.
And if, indeed, one of those employees were to fall, the evidence and long line of case law indicates fall from heights over six feet can lead to serious injury and even death.

As with the other elements of Complainant’s case, Respondent does not provide much in the way of substantive argument with respect to the issue of penalty.
It claims, without evidentiary support that it is a small employer, notwithstanding locations in 9 U.S. states, with plans to open locations in three more.
See
www.premier-roofing.com .
Even giving Respondent the benefit of the doubt regarding its size , the Court finds the record, as it stands, is more than sufficient to justify the penalty proposed by the Secretary. With respect to Citation 1, Item 1 , though it was not characterized as
repeat , Respondent has been cited pursuant to this standard before. Further,
as regards both cited standards, Respondent
literally made no attempt whatsoever at compliance .
Instead, it sought to pass off its responsibility to its subcontractors, but even
then
it still failed to ensure its subcontractors were complying with their obligations under the safety agreements required by Respondent.
With respect to Citation
2 , Item
1 , Respondent has been cited pursuant to this standard for the same reasons
at least three times over the previous 7 to 8 years and appears to
have changed nothing in response. Accordingly, the Court finds the undisputed facts establish the penalties proposed by Complainant are appropriate.   

VII. Conclusion

It is an unusual matter for a Court to grant
a motion for summary judgment as to an entire case; however, when a non-moving party fails to
properly illustrate a genuine issue of material fact, the entry of judgment is appropriate if the law compels it.
See, e.g.,
Manua’s , Inc. , 2018 WL 4861362 (No. 17-1208, 2018).
In
this case, Respondent appears to have done everything in its power to avoid taking responsibility for the
worksites
on which it contracted to perform roofing services . Unlike
Stormforce , which is
similar to
this case in many way s , Respondent
made no attempt whatsoever to comply with its obligations under the Act.
See, e.g.,
StormForce ,
Docket No. 19-0593, slip. op. at
13-15.

Indeed,
given Respondent’s violation history, this appears to be a
recurring theme .
Regardless of whether
Respondent
believes so or not, it is obligated to ensure the safety of both its own employees, as well as
the employees of subcontractors on the worksites it controls.

O RDER

The foregoing Decision constitutes the Findings of Fact and Conclusions of Law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Based upon the foregoing Findings of Fact and Conclus ions of Law, it is ORDERED that:

1. Citation 1, Item
   1 is AFFIRMED
   as serious , and a penalty of $13,260 is ASSESSED.

2. Citation
   2 , Item
   1
   is AFFIRMED as
   repeat, and a penalty of $132,598 is ASSESSED .

SO
ORDERED

/s/ Peggy S. Ball   

Peggy S. Ball          Judge, OSHRC

Date:
August 1 9 , 2021

Denver, Colorado      

"

1 .
The Court will refer to the exhibits submitted in support of both motions for summary judgment based on the labels applied to them by the parties.
Complainant’s exhibits are labeled sequentially C-1 through C-19, and Respondent’s have been identified by Binder Number.

2 . Again, as noted above, this was necessary because the Court, in addition to finding the
aforementioned disputes
of material fact,
reserved ruling on some elements of the 5(a)(2)
violations.

3 .
According to Respondent’s website,
Premier Roofing performs work
throughout the
Midwest and Mountain West.
See
www.premier-roofing.com.

4 . As noted in the Commission’s own rules, “The provisions of Federal Rule of Civil Procedure 56 apply to motions for summary judgment.”
29 C.F.R. § 2200.40(j).

5 . Though, as will be discussed later, there was a stark difference between
what Respondent’s paperwork and policies represented and what Respondent
actually
did
at the worksite.

6 . The job descriptions of project managers and project coordinators reflect this understanding of oversight and control. (Ex. C-14, C-15).

7 . According to Respondent,
it did not need to provide fall protection while Thiede, Comstock, and Maddox were performing inspections of the roofs due to the exception provided for in
29 C.F.R. § 1926.500(a)(1). As will be discussed later, this is a misreading of the exception.

8 . Respondent’s representative also claims Respondent’s representation to CSHO Stark that the roofs were less than 4:12, and CSHO Stark’s continued inspection, somehow
render CSHO Stark’s subsequent inspection invalid. This argument makes no sense, as CSHO Stark is under no obligation to accept Respondent’s representations at face value, especially when their safety consultant has improperly interpreted the governing regulation.

9 .
Presumably, Respondent means
Michael
Comstock,
the project coordinator CSHO Stark
was directed to by the roofers,
though it never specifically identifies him as such.

10 . Respondent interchangeably refers to itself and to M&M as the “Prime Contractor”, as if such a title carries legal significance. The Court is only concerned with whether Respondent had the authority to control the worksite and whether, in the context of safety, it exercised that control.
Whether it is the prime, general, or just plain old contractor, the key question is control.

11 . Though Respondent claims it could not control the interloper contractors,
its
assumption of authority over worksite safety and the execution of the job indicates
otherwise. Further,
Respondent’s safety documents
repeatedly use the work “crews” in the plural, as if to indicate its recognition that multiple subcontractors may participate in the construction of the roof. (Ex. C-3).

12 . The Court sees no need to
re-address Respondent’s affirmative defense
at this point since the Court dealt with in the section above discussing
Respondent’s disputes.