COURT OF APPEALS OF VIRGINIA 

Present: Judge Annunziata, Senior Judges Duff and Hodges 

Argued at Alexandria, Virginia 

MAGCO OF MARYLAND, INC. 

 OPINION BY 

v. Record No. 2377-99-4 JUDGE ROSEMARIE ANNUNZIATA 

 AUGUST 1, 2000 

JOHN MILLS BARR, COMMISSIONER OF 

 DEPARTMENT OF LABOR AND INDUSTRY 

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

Joanne F. Alper, Judge 

Bruce M. Luchansky (Frank L. Kollman; 

Seth C. Berenzweig; Juliet D. Hiznay; 

Kollman & Sheehan, P.A.; Albo & Oblon, 

L.L.P., on briefs), for appellant. 

Ellen F. Brown, Assistant Attorney General 

(Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Magco of Maryland, Inc. ("Magco"), appeals from the 

decision of the Circuit Court of Arlington County, affirming 

Magco's citation by the Commissioner of Labor and Industry 

("Commissioner") for a serious violation of the safety standards 

promulgated by the Virginia Occupational and Safety Health 

Program ("VOSH"), 16 VAC §§ 25-175-1926.501(b)(4) and 

1926.502(i)(2), including a penalty of $7,000. Magco contends 

the trial court erred 1) in imputing to Magco its foreman's 

knowledge of hazardous conditions on the worksite as a basis 

for Magco's liability; and 2) in placing upon Magco the burden 

of proof to establish "unpreventable employee misconduct" as a 
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defense to Magco's liability. We find no error and affirm the 

decision of the trial court. 

BACKGROUND 

We view the facts in this case "in the light most favorable 

to sustaining the Commissioner's action and 'take due account of 

the presumption of official regularity, the experience and 

specialized competence of the Commissioner, and the purposes of 

the basic law under which the Commissioner has acted.'" Sentara 

Norfolk General Hosp. v. State Health Comm'r, 30 Va. App. 267, 

279, 516 S.E.2d 690, 696 (1999) (internal brackets omitted) 

(quoting Bio-Medical Applications of Arlington, Inc. v. Kenley, 

4 Va. App. 414, 427, 358 S.E.2d 722, 729 (1987)). In December, 

1996, Magco was engaged in roofing work on a building in 

Arlington, Virginia. Magco's foreman on the project, John 

Hataloski, was "solely responsible for this project" as Magco's 

on-site superintendent. His responsibility was, "inter alia, to 

make all field calls and to act as the safety officer 

responsible for project safety." Hataloski had extensive 

experience and training in safety issues associated with roof 

construction and repair and "was more familiar with the safety 

regulations than any of Magco's other foremen," being Magco's 

"most knowledgeable foreman" with respect to OSHA regulations. 

During the course of the project, Hataloski observed 

various holes in the roof of the building that were not properly 
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covered. On numerous occasions, Hataloski complained to the 

general contractor, Turner Construction ("Turner"), that the 

open holes constituted a hazardous condition for the workmen on 

the roof. Turner was responsible for attending to site safety, 

including covering holes on the roof. At Hataloski's direction, 

it covered all the roof openings with three-quarter inch 

plywood. Periodically, however, the mechanical contractor 

removed the covers to perform its ductwork and frequently failed 

to replace the covers. Despite Hataloski's safety concerns and 

Turner's generally inadequate response to Hataloski's 

complaints, Magco continued to have its employees work on the 

roof without wearing fall protection devices, properly covering 

the holes in the roof, or erecting guardrails around the holes. 

Magco employees Kevin Barnes and Frank Allen were working 

on the site with Hataloski on December 20, 1996. Barnes was "a 

relatively new employee," who was assigned to work with 

Hataloski on a section of the roof close to a hole "which opened 

to a seven to eight story shaft below." Hataloski was aware of 

the presence of the hole, and he knew that it lay in close 

proximity to the section of roof where he and Barnes would be 

working. Upon arriving at the site on the day in question, 

Hataloski noted that "a portion of the shaft . . . had been 

covered with a piece of plywood and another portion of the shaft 

had been covered with a wooden pallet or 'skid.' Neither the 
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plywood nor the wooden pallet entirely covered the opening." 

The uncovered surface area of the hole was approximately 1.2 

square feet. A metal beam had been laid across the pallet and 

rested on cinder blocks placed on either side of the shaft. 

Hataloski directed Barnes and Allen to move the beam so that 

they could better access the work area, which was located 

approximately two feet from the opening of the shaft. Hataloski 

did not check the pallet to ensure that it was secured. 

Hataloski testified that "he should have checked the pallet and 

that he probably knew the pallet was a risk to the safety of the 

employees that morning." 

Allen went to work on another area of the roof, while 

Hataloski and Barnes began to work near the shaft. They were 

not wearing fall protection equipment, and no guardrail had been 

erected around the opening in the roof. The two men squatted in 

an area between the wall of the building and the opening of the 

shaft, a space approximately two feet wide. Barnes' back was 

toward the shaft. As the men worked, Barnes leaned backward as 

if to sit upon the wooden pallet covering the shaft. When he 

placed his weight on the pallet, it gave way and Barnes fell 

through the opening. He landed approximately 71 feet below, 

suffering fatal injuries. 

David Cline, a compliance officer for VOSH, investigated 

the accident. Based upon his investigation, the Commissioner 
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issued Magco a citation for a "serious violation" of 

construction safety standards and assessed a penalty of $7,000, 

citing § 1926.501(b)(4)(i)1 of the VOSH regulations. The 

Commissioner found the violation based on the following: "[the 

wooden pallet] wasn't large enough to cover the hole . . . it 

wasn't secure . . . it had slits in it that an employee could 

actually step his feet through and break an ankle, sprain, or 

actually go through. It's not an adequately covered hole using 

that pallet." 

Magco contested the citation, and the Commissioner filed a 

Bill of Complaint in the Circuit Court of Arlington County, 

pursuant to Code § 40.1-49.4(E), to enforce the penalty. The 

circuit court heard the case on August 17, 1999, and issued an 

order enforcing the Commissioner's citation and penalty on 

September 7, 1999. This appeal followed. 

IMPUTATION OF SUPERVISOR'S KNOWLEDGE

Magco contends that the trial court erred in imputing to it 

its foreman's knowledge of hazardous conditions on the worksite. 

We disagree. 

 1

 The regulation provides: 

Each employee on walking/working surfaces 

shall be protected from falling through 

holes . . . more than 6 feet (1.8 m) above 

lower levels, by personal fall arrest 

systems, covers, or guardrail systems around 

such holes. 
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The construction of the specific statutory provisions 

implementing federal Occupational Safety and Health Act ("OSHA") 

regulations before us raises issues of first impression in the 

Commonwealth. OSHA regulates conditions in private industry 

workplaces which affect worker safety and health. The federal 

government assigned OSHA enforcement responsibilities in 

Virginia to VOSH. To maintain federal OSHA approval, Virginia 

is required to maintain an OSHA program standard that is "at 

least as effective as" the federal standard. See 29 C.F.R. 

§ 1902.37(b)(4). 

Under the Virginia OSHA plan, VOSH inspects the private 

industry workplace for compliance with the applicable standards. 

Upon "reasonable cause to believe" that a violation has 

occurred, VOSH will issue a citation to the employer. Code 

§ 40.1-49.4(A)(1). VOSH identifies a violation as "serious" if 

there is a substantial probability that 

death or serious physical harm could result 

from a condition which exists, or from one 

or more practices, means, methods, 

operations, or processes which have been 

adopted, or are in use, in such place of 

employment unless the employer did not, and 

could not with the exercise of reasonable 

diligence, know of the presence of the 

violations. 

Code § 40.1-49.3. 

Magco has not challenged the trial court's factual findings 

in this case. Those findings include: 1) that Hataloski was 

Magco's foreman on the project; 2) that he was the 
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"superintendent" of the project; 3) that he was responsible for 

project safety; 4) that he knew of the hazard presented by holes 

in the roof of the building in question; and 5) that he was 

specifically aware of the danger presented by the hole through 

which Barnes fell. Based on these findings, the trial court 

imputed Hataloski's knowledge of the safety hazard to Magco, a 

decision which Magco contends constitutes reversible error. 

Magco's position is not supported by applicable Virginia law. 

Although the proof required to show an employer's knowledge 

of violations under this statute has not been addressed by our 

appellate courts, whether knowledge of certain worksite 

conditions may be imputed to an employer is well settled in 

Virginia case law. Indeed, it is a longstanding principle in 

the Commonwealth that a foreman's knowledge of facts or events 

on a worksite is imputed to his employer. See Duke v. Luck, 150 

Va. 406, 409, 143 S.E. 692, 693 (1928) (foreman's knowledge that 

one of his crewmen had caused accident imputed to employer); 

Dept. of Game & Inland Fisheries v. Joyce, 147 Va. 89, 97, 136 

S.E. 651, 654 (1927) (notice to foreman of accident constituted 

notice to employer); Low Moor Iron Co. v. La Bianca's Adm'r, 106 

Va. 83, 91, 55 S.E. 532, 533 (1906) ("Ordinarily the foreman or 

boss of a gang of hands employed in executing the master's 

orders is a mere fellow servant with the other members of the 

gang, but if he is discharging a nonassignable duty of the 
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master, he is to that extent a vice principal. One of these 

nonassignable duties is to exercise ordinary care to provide a 

reasonably safe place in which the servant is to work."). 

Furthermore, the imputation of a supervisor's knowledge of 

safety hazards to his employer comports with federal law and 

policy. See Sec. of Labor v. Capform, Inc., 13 OSHC 2219 (1989) 

(where employer's supervisors were "continually present at the 

worksite," Secretary established prima facie case that employer 

knew of safety violations); Sec. of Labor v. Wright & Lopez, 

Inc., 8 OSHC 1261 (1980) (foreman's knowledge of conditions at 

construction site was imputable to employer, considering 

discretion given to the foreman in regard to safety procedures); 

Sec. of Labor v. Safeway Stores, Inc., 6 OSHC 1176 (1977) 

(grocery store's produce manager was a "supervisory employee" 

because he had personnel working under him whom he could 

discipline, was charged with ordering produce, and was charged 

with general maintenance of his department, and therefore his 

actions and knowledge were imputable to his employer). Magco 

concedes that Hataloski was aware of the danger posed by 

improperly covered holes on the worksite. Thus, Hataloski's 

knowledge is to be imputed to Magco, and we, therefore, affirm 

the trial court's decision. 

Moreover, the trial court's decision is fully supported on 

the ground that, under Code § 40.1-49.3, the Commissioner's 
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burden of proof may be met upon a showing that Magco should have 

known of the violation in the exercise of reasonable diligence. 

See, e.g., Kokosing Construction Co., 17 OSHC 1869 (1996) ("The 

conspicuous location, the readily observable nature of the 

violative condition, and the presence of Kokosing's crews in the 

area warrant a finding of constructive knowledge."). See also

Austin Building Co. v. OSHRC, 647 F.2d 1063, 1068 (10th Cir. 

1981) (evidence sufficient to prove that the company knew or 

should have known that hazardous practice existed, where "the 

employee welding in this precarious spot was easily observable. 

A diligent foreman checking the safety of his workers should 

have discovered the hazardous conduct."). 

Our review of the record establishes that Michael Gaulin, 

the company's operations manager and vice president, and Mark 

Gaulin, the company's president, had primary responsibility for 

inspecting the site and regularly did so. The record also 

establishes that the safety hazard posed by uncovered or 

incompletely covered holes in the roof at the site was open and 

obvious, and the Gaulins were informed about the absence of full 

coverings for the holes and the safety hazard they posed. In 

short, the record fully supports the court's conclusion that 

Magco knew or should have known of the problem on the worksite 

that resulted in Barnes' death. Therefore, because Hataloski's 

knowledge of the hazards on the site may be imputed to Magco, 
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and because the senior officers of Magco knew or should have 

known of those hazards, we affirm the trial court's decision. 

THE BURDEN OF PROVING EMPLOYER DEFENSES

In its defense, Magco argued that it did all it could do to 

ensure the safety of its employees and that it was not liable 

for the unforeseeable, idiosyncratic conduct of its foreman who 

failed to check and secure the pallet. It contends the court 

erred in placing on it the burden of proving unforeseeable and 

unpreventable employee misconduct, citing in support Ocean 

Electric Corp. v. Sec. of Labor, 594 F.2d 396 (4th Cir. 1979), 

and L. R. Willson & Sons, Inc. v. Occupational Safety and Health 

Review Comm'n, 134 F.3d 1235 (4th Cir.), cert. denied, 525 U.S. 

962 (1998). In these cases, the United States Court of Appeals 

for the Fourth Circuit has held that unpreventable employee 

misconduct was not an affirmative defense to a citation2 and 

that, although a supervisor's knowledge of a safety hazard could 

be imputed to the employer, employer liability is not strict 

liability. Accordingly, the Fourth Circuit has held that when a 

 2

 We note that the Fourth Circuit's holding is a minority 

view, with most of the federal circuits holding that employee 

misconduct is an affirmative defense, the burden of proof for 

which falls on the employer. See D. A. Collins Constr. Co. v.

Sec. of Labor, 117 F.3d 691, 695 (2d Cir. 1997); Brock v. L. E. 

Myers Co., High Voltage Div., 818 F.2d 1270, 1276 (6th Cir.), 

cert. denied, 484 U.S. 989 (1987); Daniel Internat'l Co. v. 

OSHRC, 683 F.2d 361, 364 (11th Cir. 1982); H. B. Zachry Co. v. 

OSHRC, 638 F.2d 812, 818 (5th Cir. 1981); General Dynamics Corp. 

v. OSHRC, 599 F.2d 453, 458-59 (1st Cir. 1979); Danco Constr. 

Co. v. OSHRC, 586 F.2d 1243, 1247 n.6 (8th Cir. 1978). 
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violation is the result of employee misconduct, i.e., where it 

is created by an isolated, idiosyncratic act of an employee, the 

Secretary of Labor3 must prove as part of his case-in-chief that 

the employee's conduct was "not unpreventable and not 

unforeseeable."4

The conclusions reached by the Fourth Circuit regarding the 

burden of proof on the issue of employee misconduct are not 

binding on this Court, see Maxey v. American Casualty Co. of 

Reading, Pa., 180 Va. 285, 290, 23 S.E.2d 221, 223 (1942), and 

we decline to follow its allocation of the burden of proof, 

because it is inconsistent with Virginia law. While we agree 

that employer liability based on worksite safety violations is 

not absolute, see Pike v. Dept. of Labor and Industry, 222 Va. 

317, 322-23, 281 S.E.2d 804, 807 (1981), the burden of proof in 

establishing employee misconduct as a limitation on employer 

 3

 Under Virginia law, the Commissioner is the counterpart of 

the Secretary of Labor. 

4

 In Ocean Electric, the specific element that the Secretary 

of Labor failed to prove was the "adequacy of the employer's 

safety policy." In Ocean Electric, as in Willson, the violation 

was created by an employee/supervisor's failure to adhere to a 

specific safety rule. In such instances, it must be determined 

whether the conduct was foreseeable, implicating the adequacy of 

the employer's safety regulations and program. See Ocean 

Electric, 594 F.2d at 402 (where it was stipulated that 

employee/supervisor's violation of safety regulation was 

"accidental, not intentional, and purely a human error," it was 

incumbent upon the Secretary to introduce evidence on the 

adequacy of the employer's safety program. Having failed to 

meet its burden of proof on this issue, liability could not be 

imposed on the employer.). 
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liability resides with the employer. VOSH has enacted 

regulations defining the parameters of the employee misconduct 

defense under Virginia law. These regulations are set forth in 

the VOSH Administrative Regulations Manual, codified at 16 VAC 

§ 25-60-260. According to the pertinent regulation, an employer 

may avoid liability for a safety violation due to employee 

misconduct if 

[the] employer demonstrates that: 

 1) employees of such employer have been 

 provided with the proper training and 

 equipment to prevent . . . a violation; 

 2) work rules designed to prevent such a 

 violation have been established and 

 adequately communicated to employees by 

 such employer and have been effectively 

 enforced when such a violation has been 

 discovered; 

 3) the failure of employees to observe work 

 rules led to the violation; and 

 4) reasonable steps have been taken by such 

 employer to discover any such violation. 

16 VAC § 25-60-260 (emphasis added). Thus, under Virginia law, 

the burden of proving any such defense to a citation, including 

unforeseeability, is on the employer. Cf. Ocean Electric, 594 

F.2d at 401-02 (Secretary has burden of proving inadequacy of 

safety regulations); cf. also Willson, 134 F.3d at 1241. 

Moreover, under the pertinent regulations, employers cannot 

claim the defense based on the misconduct of "any officer, 

management official or supervisor having direction, management 
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control or custody of any place of employment which was the 

subject of the violative condition cited." 16 VAC § 25-60-260. 

The regulation defines "employee" to exclude supervisory 

personnel.5 See id. Thus, under the regulations adopted 

pursuant to Code § 40.1-22(5), the defense of employee 

misconduct does not apply to the acts of supervisory personnel 

and does not insulate Magco from liability in this case. 

For the reasons stated, we affirm the decision of the trial 

court. 

 Affirmed. 

 5

 16 VAC § 25-60-260 provides: "[T]he term 'employee' shall 

not include any officer, management official or supervisor 

having direction, management control, or custody of any place of 

employment which was the subject of the violative condition."