United States of America 

 OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

1924 Building - Room 2R90, 100 Alabama Street, S.W.

Atlanta, Georgia 30303-3104

Appearances: 

Jaslyn W. Johnson, Esquire, U.S. Department of Labor, Office of the Solicitor, Atlanta, Georgia 

For the Secretary 

 McCord Wilson, Esquire, Rader & Campbell, P.C. 

 For the Respondent 

BEFORE: Administrative Law Judge Heather A. Joys 

DECISION AND ORDER

While returning to their office from an inspection, two Compliance Safety and Health 

Officers (CSHO) from the Atlanta West OSHA area office observed a group of men working on 

the roof of a Comfort Suites in Columbus, Georgia. The men did not appear to be using any type 

of fall protection. The CSHOs stopped and initiated an inspection, calling the men down off the 

roof. As they descended in an aerial lift, the men did not have on harnesses and were not tied off 

to the lift. The CSHOs later discovered the men worked for Empire Roofing Company of 

Georgia, Inc., (Empire) and had been applying a sealing material to the roof. During the course 

of their inspection, the CSHOs learned at least one Empire employee on site had not been trained 

on the hazards associated with the chemicals the men were using to repair the roof. 

Based on the inspection, the Secretary issued Empire a serious citation alleging two 

violations and an other than serious citation alleging one violation. Item 1, Citation 1, alleges a 

serious violation of 29 C.F.R. § 1926.453(b)(2)(v) for failing to ensure employees wore a 

personal fall arrest system while riding in the aerial lift. Item 2, Citation 1, alleges a serious 

violation of 29 C.F.R. § 1926.501(b)(1) for not ensuring employees were protected from falls 

Secretary of Labor,

 Complainant,

 v. OSHRC Docket No. 16-1984

Empire Roofing Company of Georgia, Inc., 

 Respondent.
2

while working on the roof of the building. The Secretary proposed penalties for the violations in 

the amount of $2,272.00 and $3,741.00, respectively, for a total proposed penalty of $6,013.00. 

Item 1, Citation 2, alleges an other than serious violation of 29 C.F.R. § 1910.1200(h)(1) for 

failing to train at least one employee on the chemicals used onsite. The Secretary proposed no 

penalty for the other than serious citation. Empire timely contested the citations bringing the 

matter before the Occupational Safety and Health Review Commission pursuant to § 10(c) of the 

Occupational Safety and Health Act of 1970, 29 U.S.C. § 651- 678 (the Act). 

 I held a hearing in this matter on March 16, 2017, in Atlanta, Georgia. The proceedings 

were conducted pursuant to the Commission’s Simplified Proceedings. 29 C.F.R. §§2200.200-

211. The parties filed post-hearing briefs in this matter on May 8, 2017. 

 For the reasons that follow, Items 1 and 2 of Citation 1 are affirmed and a total penalty of 

$6,013.00 is assessed. Citation 2 is affirmed with no penalty assessed. 

JURISDICTION 

At the hearing, the parties stipulated that jurisdiction of this action is conferred upon the 

Commission pursuant to § 10(c) of the Act (Tr. 10). Empire also admits that at all times relevant 

to this action, it was an employer engaged in a business affecting interstate commerce within the 

meaning of § 3(5) of the Act, 29 U.S.C. § 652(5) (Tr. 10). Based upon the parties’ stipulations 

and the record, I find the Commission has jurisdiction over this matter and Empire is an 

employer covered under the Act. 

BACKGROUND 

 Empire is a roofing company located in the Atlanta, Georgia, metropolitan area. It has a 

small workforce of approximately 20 employees (Tr. 295). It is organized into two divisions. 

The production division performs larger jobs involving installation of roofs. The service division 

performs smaller jobs including repairs (Tr. 247). The jobsite that was the subject of the 

inspection involved a roof repair and was being handled by the service division. 

 The job was being performed by a four-man crew. The crew consisted of two employees 

who held the title of foreman and two laborers. Foreman 1 had the most experience with the 

company and had been designated as the person in charge of the job. None of the workers had 

long tenures with Empire. Foreman 2 and Laborer 1 (both of whom testified at the hearing) had 

been with the company less than one year at the time of the inspection (Tr. 106, 156). 
3

The inspection occurred on Monday, June 20, 2016. In the morning of that day, the crew 

had attended a tool box talk meeting in which the use of a personal fall arrest system had been 

the topic (Tr. 138, 170; Exh. R-6). The men then drove to the worksite to begin their work. 

Empire had rented an aerial lift to access the roof. Empire had issued each man a bucket that 

contained their personal protective equipment, including a harness and lanyard, and one roof 

anchor (Tr. 190). Once at the worksite, the men donned their harnesses and rode the aerial lift to 

the roof. They worked on the roof, using their personal fall arrest systems, until lunch. At lunch, 

they descended from the roof. 

The job required the men to apply a coating material around pipes and the “coping laps” 

on the roof (Tr. 135). Coping laps are the overlapping pieces that form the seam of a metal roof 

(Tr. 47-48). The materials used for the process were Solargard 6083 Base Coat, Solargard 6083 

Finish Coat, and Solargard Fluoro-Prime (Exhs. C-8, C-9, C-10; Tr. 29-30, 135, 148). These 

materials were in 5-gallon buckets in the truck. The buckets were labeled to indicate their 

contents.

As the men were descending for lunch, Jumper Collins, Empire’s service manager, 

arrived at the site. Collins’s duties include oversight of the crews working on service division 

jobs. He observed the men descend from the roof on the aerial lift (Tr. 191). According to 

Collins, the men were tied off (Tr. 191). The record is unclear as to when Collins left the 

worksite, particularly as to whether the men had returned to the roof before or after he had left. 

Around 5:00 p.m., CSHO Kelly Young and CSHO Dion Baker were driving past the 

worksite when they observed the men on the roof appearing not to be tied off (Tr. 19). They 

drove to the next exit and pulled off the highway. They proceeded to a location some distance 

from the worksite and took photographs. They then proceeded to the worksite where CSHO 

Young went to meet the hotel manager and CSHO Baker called for the men to come down from 

the roof (Tr. 20). As they descended in the aerial lift, CSHO Baker took photographs of the men. 

None were tied off while in the lift (Tr. 22; Exhs. C-2 and C-3). CSHO Young then spoke with 

the two foremen while CSHO Baker spoke with the two laborers (Tr. 71).1 Both laborers told 

 

1

 I find Laborer 1’s testimony that CSHO Young required he sign a blank sheet of paper which she later filled in 

lacks credibility. It is clear from the record the only documents related to Laborer 1 are unsigned notes, taken by 

CSHO Baker (Tr. 84). I found Laborer 1’s demeanor on the stand to suggest a lack of credibility on this. He 

appeared uncomfortable and evasive. To the extent Empire relies on this testimony to suggest CSHO Young used 

“heavy handed” or inappropriate tactics, such allegation is rejected. 
4

CSHO Baker they had been tied off all day, except for when they were “finishing up.” (Tr. 31-

32). According to CSHO Young, the foremen told her they had been wearing fall protection all 

day, but had become tired of wearing it so they took it off (Tr. 72). Laborer 1 testified at the 

time the inspectors arrived they “had already taken off our harnesses and taken everything off the 

roof...” (Tr. 163). They chose to untie at the end of the day because, according to Laborer 1,

“we’re finished. And we’re thinking, hey, with the little stuff we’ve got, take five minutes and 

we’re off the roof. So we was just tired, it was hot. We were just ready to get off the roof.” 

(Tr. 175). Foreman 2 testified they had been working without fall protection about 10 to 15 

minutes when the CSHOs arrived (Tr. 109).2

Based on the inspection, CSHO Young recommended Empire be issued citations for 

violations of the standards at 29 C.F.R. §§ 1926.453(b)(2)(v) and 1926.501(b)(1) for failure to tie 

off while working on the aerial lift and the roof, respectively. Based upon Laborer 1’s 

statements to CSHO Baker, CSHO Young also recommended an other than serious citation be 

issued to Empire for failure to train Laborer 1 on the hazards associated with the chemicals the 

men were using on the roof, in violation of 29 C.F.R. § 1910.1200(h)(1) (Tr. 32). Empire timely 

contested the citations. Empire contends the employees’ failure to tie off was the result of 

unpreventable employee misconduct. In response to the other than serious violation of the 

hazard communication standard, Empire argues all employees were appropriately trained. 

DISCUSSION 

The Secretary has the burden of establishing the employer violated the cited standards. 

To prove a violation of an OSHA standard, the Secretary must show by a preponderance of the 

evidence that (1) the cited standard applies; (2) the employer failed to comply with the terms of 

the cited standard; (3) employees had access to the violative condition; and (4) the cited 

employer either knew or could have known with the exercise of reasonable diligence of the 

violative condition. JPC Group, Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009). 

Item 1, Citation 1: Alleged Violation of 29 C.F.R. § 1926.453(b)(2)(v) 

Section 1926.453(b)(2)(v) requires the use of a fall restraint system “attached to the 

 

2

 Empire dedicates a significant portion of its post-hearing brief to a discussion of the credibility of CSHO Baker 

and CSHO Young, particularly where their testimony differs from that of Foreman 2 and Laborer 1. Much of that 

discussion addresses immaterial factual disputes. With regard to disputes of material fact, I have relied on 

photographic evidence and the testimony of Foreman 2 and Laborer 1. 
5

boom or basket when working from an aerial lift.” Item 1, Citation 1, states Empire violated the 

standard when it “exposed two employees (roofers) to fall hazards while utilizing a JLG 

Industries, Inc., aerial lift (Model #450AJSII, Serial #0300108860) at a height of approximately 

40 feet above the lower level without fall protection.” The Secretary alleges the roofers’ failure 

to don their personal fall arrest equipment while being lowered to the ground in the aerial lift 

violated the cited standard. 

Applicability of 29 C.F.R. § 1926.453(b)(2)(v) 

There is no factual dispute the four Empire employees were using the aerial lift to access 

the roof. Empire contends the standard does not apply because traveling in the lift to and from 

the work location is not “working from an aerial lift.” The Commission has previously 

addressed this issue and held the standard applicable when an employee is being transported by 

an aerial lift to and from a work level. Salah & Pecci Construction Company, Inc., 6 BNA 

OSHC 1688, 1689 (No. 15769, 1978); see also Empire Roofing, No. 13-1034 (ALJ March 14, 

2014) aff’d on other grounds 25 BNA OSHC 2221 (2016). 

 Empire urges I ignore the Commission’s holding in Salah. It argues the Commission’s 

failure to “critically analyze the statutory language” calls the decision into question and “vitiates 

its power as a precedent.” (Respondent’s Post-Hearing Brief at p. 28). Whether I agree with 

Commission precedent or not, I am bound by it. The Commission’s holding in Salah is directly 

on point and the Commission has not overturned it, even when presented with the opportunity to 

do so. Empire Roofing, 25 BNA OSHC 2221 (No. 13-1034, 2016). The fact it is an older case 

does not negate or diminish its precedential value. “Judicial decisions, however, are not spoilable 

like milk. They do not have an expiration date and go bad merely with passage of time.” 

Comtran Group, Inc. v. DOL, 722 F.3d 1304, 1314 (11th Cir. 2013). The standard applies. 

Failure to Comply and Employee Exposure to the Hazard 

 There is also no factual dispute Empire’s employees were in violation of the cited 

standard and were exposed to a fall hazard. CSHO Young and CSHO Baker observed the 

employees descending in the aerial lift without tying off (Exhs. C-2 and C-3). Foreman 2 and 

Laborer 1 admitted they had not worn their harnesses while descending in the lift (Tr. 108, 118, 

130). The aerial lift was elevated approximately 40 feet in the air (Tr. 33). Empire’s employees 

were exposed to a fall of that distance. 
6

 Empire argues no violation of the standard can be found because CSHO Baker and 

CSHO Young induced its employees to violate the standard by calling them down from the roof 

in a manner that suggested such urgency they did not have time to put their harnesses back on 

and tie off to the lift. Empire relies on the Commission holdings in Inland Steel Co., 12 BNA 

OSHC 1968 (No. 79-3286, 1986) and RGM Construction Co., 17 BNA OSHC 1229 (No. 91-

2107, 1995). Inland Steel involved a general duty clause violation alleging, in part, failure to 

have an adequate safety program ensuring employees were protected from working with unsafe 

railcars. As part of the Secretary’s proof of the inadequacy of the company’s safety program, the 

Secretary presented evidence certain employees were required or permitted to step between 

railcars to manually open couplers because the cars were either missing, or had defective, 

coupling devices. In support of this allegation, the CSHO testified he observed an employee step 

between railcars to manually lift a coupling pin. The Commission found this could not form the 

basis for a violation because the employee had done so only upon request of the CSHO to 

demonstrate how an accident had occurred. The Commission held “Exposure to hazards due to 

complying with an OSHA inspector’s perceived request is not grounds for issuance of a 

citation.” Inland Steel, 12 BNA OSHC at 1983 (citations omitted). 

 In RGM, the Commission reached a different conclusion. The employer in RGM was 

engaged in a bridge construction project. On the day of the inspection, a foreman was in the 

process of attaching cables that would later be used as lifelines when his attention was caught by 

the CSHO calling to him from a completed portion of the bridge. The foreman believed the 

CSHO to be a motorist in need of assistance. He unhooked his lanyard and walked across a 

beam to the CSHO without using fall protection. The Commission held Inland Steel was not 

applicable in that instance because no inspection had begun and the foreman was not acting in 

compliance with a directive of what he believed to be a government official. Because the 

foreman “elected, however, to walk along the beam without fall protection, voluntarily causing 

his exposure to the hazard” the Commission found it was compelled to find a violation. RGM, 

17 BNA OSHC at 1233. 

 Similarly, here, the exposure to the violative conduct occurred before the inspection. 

When CSHO Baker and CSHO Young arrived, the crew was working 40 feet above the ground 

without any apparent form of fall protection. It was reasonable for CSHO Baker to call for the 

men he perceived to be exposed to a fall hazard to come down from the roof. The crew had no 
7

idea why they were being summoned down from the roof. Laborer 1 testified he remained on the 

roof while the other three crew members descended in the lift. He testified, the crew was about 

to don their harnesses, but didn’t because they were “rushed to the ground.” (Tr. 160). He later, 

somewhat inconsistently, testified Laborer 2 had his harness on both when descending and when 

returning to retrieve him in the lift (Tr. 161). If Laborer 2 had time to don his harness and tie off, 

Foreman 1 or Foreman 2 did as well. Laborer 1 provided no explanation as to why he could not 

have donned his harness while waiting to be retrieved. In choosing not to do so, Laborer 1 

voluntarily caused his own exposure. When asked why they did not have on their harnesses 

prior to being summoned down, Foreman 2 testified “Because we finish the job. It was the end 

of the day, so we take it off. We take it off and put it in the lift. We’re ready to come down. So 

we ready to come down, so we take it off on that other roof.” This testimony suggests the crew 

had taken off their harnesses in anticipation of riding down in the lift prior to the arrival of the 

inspectors. Under the circumstances, I am not persuaded Foreman 2, and Laborer 1 were 

induced to ride the aerial lift without fall protection. 

Employer Knowledge 

To establish employer knowledge of a violation the Secretary must show the employer 

knew, or with the exercise of reasonable diligence could have known of a hazardous condition. 

Dun Par Engineered Form Co., 12 BNA OSHC 1962, 1965-66 (No. 82-928, 1986). Because 

corporate employers can only obtain knowledge through their agents, the actions and knowledge 

of supervisory personnel are generally imputed to their employers, and the Secretary can make a 

prima facie showing of knowledge by proving a supervisory employee knew of or was 

responsible for the violation. Todd Shipyards Corp., 11 BNA OSHC 2177, 2179 (No. 77-1598, 

1984); see also Dun Par Engineered Form Co., 12 BNA OSHC 1962 (No. 82-928, 1986) (the 

actual or constructive knowledge of an employer’s foreman can be imputed to the employer). 

Actual knowledge refers to an awareness of the existence of the conditions allegedly in 

noncompliance. Omaha Paper Stock Co., 19 OSHC 2039 (No. 01-3968, 2002). An employer is 

chargeable with knowledge of conditions which are plainly visible to its supervisory personnel. 

A.L. Baumgartner Construction Inc., 16 BNA OSHC 1995, 1998 (No 92-1022, 1994). Both 

Foreman 1 and Foreman 2 were in violation of the requirement to tie off in an aerial lift and were 

in a position to observe Laborer 1 doing so as well. Foreman 2 testified foremen for Empire 

have the authority to direct the work on the job, correct employees, and issue safety violation 
8

warnings. Collins testified Foreman 1 was in charge of the worksite (Tr. 207). Foreman 1’s 

knowledge of his own violative conduct and that of his crew is imputed to Empire. Quinlan 

d/b/a Quinlan Enterprises v. Secretary of Labor, 812 F.3d 832 (11th Cir. 2016).

The Secretary has met her burden to establish a prima face case of a violation of 29 

C.F.R. § 1926.453(b)(2)(v) 

Item 2, Citation 1: Alleged Violation of 29 C.F.R. § 1926.501(b)(1) 

Section 1926.501(b)(1) requires 

Each employee on a walking/working surface (horizontal and vertical surface) 

with an unprotected side or edge which is 6 feet (1.8 m) or more above a lower 

level shall be protected from falling by the use of guardrail systems, safety net 

systems, or personal fall arrest systems. 

Item 2, Citation 1, states Empire violated the standard when it “exposed two employees (roofers) 

to fall hazards while sealing coping laps on the roof of the building at a height of approximately 

40 feet above the lower level without fall protection.” The Secretary alleges Empire employees 

were observed working on the roof of the Comfort Suites without any type of fall protection. 

 As with Item 1, Citation 1, there are few facts in dispute with regard to the alleged 

violation of 29 C.F.R. § 1926.501(b)(1). Empire employees were working on a working surface 

more than 6 feet from the ground (Tr. 33). There were no guardrails or other protection along 

the edge of the roof (Exhs C-4, C-6, and C-7). All four employees were working without any 

type of personal fall arrest system (Tr. 108 - 113). All were exposed to a fall of approximately 

40 feet. As shown in the photographs taken by CSHO Baker, the employees are working in 

proximity to the unprotected edge of the roof (Exhs. C- 4, C-6, and C-7). Foreman 1’s 

knowledge of his own violative conduct, as well as his three crew members is imputed to 

Empire. Id. 

 The Secretary has established a prima facie case of a violation of 29 C.F.R. § 

1926.501(b)(1). 

Unpreventable Employee Misconduct Defense 

 Empire contends Items 1 and 2, Citation 1, are the result of unpreventable employee 

misconduct. The Commission has recognized the affirmative defense of unpreventable 

employee misconduct when “the actions of the employee were a departure from a uniformly and 

effectively communicated and enforced work rule.” Archer-Western Contractors, Ltd., 15 BNA 
9

OSHC 1013, 1017 (No. 87-1067, 1991); see also Daniel Int’l Co. v. OSHRC, 683 F.2d 361, 364 

(11th Cir. 1982). To prevail on the affirmative defense of unpreventable employee misconduct, 

an employer must show that it has (1) established work rules designed to prevent the violation, 

(2) adequately communicated those rules to its employees, (3) taken steps to discover violations, 

and (4) effectively enforced the rules when violations have been discovered. See, e.g., Stark 

Excavating, Inc., 24 BNA OSHC 2218 (Nos. 09-0004 and 09-0005, 2014), citing Manganas 

Painting Co., 21 BNA OSHC 1964, 1997 (No. 94-0588, 2007). Where, as here, “a supervisory 

employee is involved, the proof of unpreventable employee misconduct is more rigorous and the 

defense is more difficult to establish since it is the supervisor's duty to protect the safety of 

employees under his supervision.” Archer-Western, 15 BNA OSHC at 1017. Based upon the 

record as a whole, I find Empire has not met its burden. 

 Empire established it had a rule addressing both the need for fall protection while 

working at heights above 6 feet, including when working in an aerial lift (Tr. 275-76; Exhs. R-1 

and R-6 p. 5). Empire’s written fall protection program requires a fall arrest system be used 

whenever “fall hazards cannot be eliminated through other means.” (Exh. R-1 p. 3). According 

to Laborer 1, Empire’s rule was to tie off in an aerial lift (Tr. 165). Empire provided employees 

with the equipment necessary to tie off. 

 Empire took steps to ensure their rules were communicated to its employees. Upon hire, 

employees attend an initial 3 -5 hour training covering a variety of topics (Tr. 165, 207). This 

training is provided by Engineering Safety Consultants (ESC) (Tr. 277). ESC is an independent 

consulting company that provides services such as safety training and worksite inspections (Tr. 

271). Empire hired ESC to perform the work of a fulltime safety manager because it was less 

costly (Tr. 296). ESC conducts the new hire or initial training in both English and Spanish (Tr. 

145, 219, 274). The training includes a live instructor, a written presentation (or slides), and a 

demonstration using a mock-up of a roof (Tr. 184-85, 207, 273-74). ESC conducts annual 

training sessions for all Empire employees (Tr. 187-88, 277). It also performs training “as 

needed.” (Tr. 277). Documentary evidence established ESC provided Empire employees 18 

training session from 2013 -2016, including two identified as new hire training (Exh. R-3).3 

Laborer 2 received his new hire training and a supplementary training in fall protection in 2015 

 

3

 The record contains no documentation of new hire training for Foreman 2 or Laborer 1. 
10

(Exh. R-3 pp. 13-15). Laborer 1 and Laborer 2 received training on leading edge work and 

skylights in March of 2016 (Exh. R-3 p. 4). Laborer 1 received training on fall protection again 

on May 3, 2016 (Exh. R-3 p. 17). Foreman 1 had attended six training sessions in three years 

specifically addressing fall hazards and fall protection (Exh. R-3 pp. 1, 4, 9, 10, 12, and 15). 

Records show Foreman 2 attended one session provided by ESC on fall protection in December 

of 2015 (Exh. R-3 p. 16).

 Collins routinely conducts tool box talks on Monday mornings with his crews (Tr. 170, 

181, 184). Collins conceded these were not conducted in Spanish as he does not speak Spanish 

(Tr. 220). The Monday of the inspection, the crew attended a weekly tool box talk in which the 

use of harnesses was the topic (Exh. R-6 pp. 3-4). Aerial lift safety had been the topic of the tool 

box talk two weeks prior (Exh. R-6 pp. 5-6).4

 Foreman 1 and Foreman 2 had attended both. 

Empire has established it had work rules designed to prevent the violation and it communicated 

those rules to employees. 

 Having established the first two elements of the unpreventable employee misconduct 

defense, Empire must show it took steps to ensure its rules were followed. Empire must 

establish it made adequate efforts to discover violations and, when violations were found, to 

correct them through discipline. Collins goes to each of the worksites over which he has 

supervisory authority at least three times per week (Tr. 131, 193). Collins had been to the 

worksite the day of the inspection and observed the crew using appropriate fall protection. 

Empire also uses ESC’s services to conduct random, unannounced, inspections of its worksites. 

ESC conducts 10 of these inspections per month of both Empire’s service and production 

divisions (Tr. 271). ESC produces a written report of these inspection for Empire (Tr. 272, 279; 

Exhs. C-12 and R-5). Empire has established it took reasonable steps to detect violations of its 

work rules. 

 It is not enough that Empire detected violations. Empire must also have taken steps to 

correct violations through effective enforcement of its rules. In assessing the effectiveness of 

Empire’s enforcement efforts, I have considered the fact the entire crew, including two 

employees with the title of foreman, were engaged in the violative conduct. The Commission 

 

4

 Empire’s Fall Protection Program (Exh. R-1) does not mention tying off in aerial lifts. The tool box talk Empire 

provided on June 6, 2016, states “It is a good idea to tie off.” (Exh. R-6 p. 5) The only written rule in the record 

does not contain a strict requirement. Nevertheless, I find the preponderance of the evidence establishes Empire had 

a requirement to tie off of which employees were aware. 
11

has held “the unanimity of such noncomplying conduct suggests ineffective enforcement of the 

work rule.” GEM Industries, Inc., 17 BNA OSHC 1861, 1965 (No. 93-1122, 1996). “A 

supervisor’s breach [of] a company safety policy is strong evidence that implementation of the 

policy is lax.” Jensen Construction Co., 7 BNA OSHC 1477, 1480 (No. 76-1538, 1979). 

Although Foreman 2 was not “in charge” of the worksite, in giving him the title of foreman, 

Empire entrusted him with authority. Foreman 2 testified he could have directed the two 

laborers on the worksite to don their harnesses (Tr. 107). Because Empire had two individuals 

on the worksite with the title and authority of foremen, the efficacy of its safety program, in 

particular its enforcement efforts, must be given heightened scrutiny. 

 Collins testified Empire has a progressive disciplinary policy (Tr. 195). First offenses 

receive a verbal warning; a second offense may receive a written warning; a third offense may 

result in termination. Collins testified there was some flexibility in the program. For example, 

an employee may receive more than one verbal warning depending on the severity of the offense 

(Tr. 195). He does not generally document verbal warnings. He stated he is able to keep track of 

employees who are repeat offenders because he has a small workforce under his supervision (Tr. 

200). He testified he addresses both those offenses he observes as well as those reported to him 

from the ESC inspectors (Tr. 201, 205). He testified he always administers some type of 

discipline if an ESC report indicates a safety violation (Tr. 222). An ESC inspector testified he 

raises any safety violations he observes with the foreman on site and had observed the foreman 

administering discipline, including written warnings (Tr. 286-87). 

 Collins broad description of Empire’s enforcement efforts suggests a robust program. 

The heighted scrutiny required in this case, however, requires I look to the details. In this case, 

the devil is in the details. 

 At the beginning of each work day, Empire requires its crews to complete a “job 

inspection check list.” (Tr. 138, Exh. R-4) According to Foreman 2, this is done to ensure the 

worksite is safe and to ensure the employees know what safety equipment is required (Tr. 138). 

The completed list for the day of the inspection contains inaccuracies. Foreman 1, who 

completed the sheet, checked “yes” for use of a safety monitor, although the testimony was 

consistent that the form of fall protection being used was a personal fall arrest system. Laborer 1 

signed the document indicating he understood the hazards of the chemicals in use. He admitted 

at the hearing that he is still unaware of those hazards. The form is written in English. Foreman 
12

2 testified he completes these forms when he is the foreman (Tr. 139). Empire contends 

Foreman 2 is not able to read English. Based on a careful review of these records, Empire’s job 

inspection check list appears to be nothing more than a paper requirement. 

 I find the evidence upon which Empire relied to establish it effectively enforced its 

program unconvincing. The record contains 12 records of written disciplinary warnings issued 

by Empire (Exh. R-8). One is from 2011; the remainder are from 2014 and 2015. Other than the 

disciplinary records for violations found at the June 20th inspection, there are none from 2016. 

The form itself allows for a notation whether it is a first, second, or final warning. Collins’s 

testimony about how the progressive discipline was administered was vague (Tr. 195-96). His 

testimony regarding the manner in which the disciplinary forms are completed was shifting. He 

testified with regard to Exhibit R-8: 

Q: The next page is a disciplinary notice for a person named [redacted]. Do you 

recall that? 

A: Yes. This says “safety protocol” but I’m not sure why. 

Q: This is from 2014, correct? 

A: 3/6/2014. This is before me, before I started. Again... 

Q: Well, that’s your signature down at the bottom, right? 

A: Right, uh huh. A lot of times, sometimes...I won’t say a lot but sometimes, 

I’ll end up signing the write up that somebody else wrote because they weren’t in 

the office or they seen it and they’ll call it in and put the write up on my desk for 

so and so. And I’ll just sign off on it because he’s not one of my guys. 

(Tr. 201). 

Collins does not document verbal warnings and signs off on written discipline for violations he 

did not witness and for employees he does not supervise (Tr. 196, 201). Empire’s haphazard 

method of documenting discipline undermines the effectiveness of its program. 

 Collins assertion that discipline is always administered for safety violations is belied by 

the record. ESC inspection reports for 2016 show violations of Empire’s fall protection program 

on eight dates (Exh. C-12 pp. 1, 3, 7, 9, 11, 13, 16, 18, and 33); failure of the monitor to wear a 

high visibility vest on three dates (Exh. C-12 pp. 1, 3, and 5); and failure to properly protect 

skylights or other holes on two dates (Exh. C-12 pp. 5 and 20). ESC reports from 2015 show 

improperly erected warning lines on three dates (Exh. C-12 pp. 22, 28, and 30). The record 

contains no documentary evidence establishing discipline was administered to any Empire 
13

employee for these infractions. Collins testified two of the crews cited in the reports are under 

his supervision (Tr. 251-61; Exh. C-12 pp. 3, 5, 11, and 24). 

 The same service division foreman oversaw worksites at which ESC found violations of 

Empire’s fall protection rules on four occasions from October 6, 2015, through April 19, 2016 

(Exh. C-12 pp. 3, 5, 24, and 33). The record contains one written disciplinary record for that 

foreman from December of 2015 (Exh. R-8), but none after, despite having repeatedly allowed 

unsafe work conditions at his worksites. This foreman was under Collins’s supervision. 

Collins’s testimony regarding the handling of this foreman’s discipline calls into question 

Empire’s claim it administers a progressive disciplinary policy. With regard to the March 29, 

2016, ESC report on the foreman, Collins testified as follows: 

Q: What did you ...what, if anything, did you do about that issue that ESC 

found? 

A: I would get with them the next morning and I would show them this report. 

And I would address it verbally with them. 

Q: Did you, in fact, do that on this occasion? 

A: Oh, yeah. 

Q: Did you issue [redacted] a verbal warning? 

A: Yes. 

Q: Did you issue him a written warning? 

A: I don’t think so. 

Q: Okay. Was it [redacted] first safety offense of any kind? 

A: Safety? No. I mean, I’m sure I could find something on him somewhere. 

Q: Had you issued a verbal safety warning to him before? 

A: Not in regard to the same exact thing I wouldn’t say. 

Q: Have you issued him a verbal warning for something else? 

A: Probably. 

(Tr. 251-52) 

ESC found similar violations of fall protection requirements at that same foreman’s worksite the 

following day (Exh. C-12 p. 5). When asked how those infractions were handled, Collins 

testified: 

Q: Now this is the day after the previous one, correct? 

A: Yes. 

Q: Did you discipline him two separate times or just the one time? 

A: Probably both separate times. 

Q: Okay. Why didn’t you go to a written warning or did you provide a written 

warning the second time? 

A: I may have. I don’t know. I don’t know if I did. If I had my write ups so I 

could find them to look for them. But if it’s two separate issues, it may be two 
14

separate verbals. He may not have gotten to a written just yet. 

Q: You can’t recall one way or the other. 

A: Right. 

(Tr. 253-54). 

When confronted with the most recent ESC report of violations at that same foreman’s worksite 

one month later, Collins attempted to explain away not having disciplined anyone by testifying 

the employees were in the beginning stages of work (Tr. 261). This assertion is disproved by the 

report itself (Exh. C- 12 p. 33-35). 

 Based on the record as a whole, I find Empire’s enforcement program lax. Collins 

testified he uses verbal warnings and corrective action, which he keeps track of in his head, but 

his recall of past discipline was wanting (Tr. 251-257). In Stark Excavating, Inc., 24 BNA 

OSHC 2215 (Nos. 09-0004 and 09-0005, 2014), the Commission recognized verbal warnings 

may be adequate in certain cases, but where the employer’s policy expressly required written 

warnings, “giving only oral warnings undermined the policy’s progressive nature.” Id. at 2221.

citing GEM Industrial, Inc., 17 BNA OSHC 1891 (No. 93-1122, 1996). Moreover, the 

Commission found the employer’s evidence lacking for failure to provide documentation of any 

verbal warnings. In so holding, the Commission relied on its prior holdings in Precast Services, 

Inc. 17 BNA OSHC 1454 (No. 93-2971, 1995) and Rawson Contractors, Inc., 20 BNA OSHC 

1078 (No. 99-0018, 2003), in which it found, although verbal warnings may suffice, it is the rare 

case and generally requires a showing of a long history of safe work practices despite frequent 

opportunities for violations and evidence of actually having administered the discipline. The 

record here establishes to the contrary. When notified of safety violations, Empire did little more 

than counsel and verbally warn employees, even for repeated infractions. 

 Empire contends many more documents exist than it submitted into the record. It argues 

it only submitted disciplinary records for the service division. This is inconsistent with Collins’s 

testimony at least one of the records was for an employee who was “not one of my guys.” (Tr. 

201). When asked whether the documents in Exhibits R-7 and R-8 constituted all the 

disciplinary documents he had issued, Collins testified they were not. Empire argues Exhibits R7 and R-8 are not “an exhaustive list” of all discipline ever issued by Empire and that it is not 

required to “burden the court with a three-inch stack of disciplinary documents.” Empire’s 

assertion in its brief that a three-inch stack of disciplinary records exists is not supported by 
15

record evidence. Crediting Collins’s testimony, Empire established there are more documents.5 

It did not establish how many records exist, the dates of those records, the nature of the 

discipline, or for what violations discipline was issued. Empire has the burden to produce 

evidence of enforcement of its safety rules. It chose to submit a sampling. It did so at its own 

peril. I have only the record before me and based on that record, I find Empire has failed to 

establish it followed its own progressive disciplinary policy when enforcing its safety rules. 

 Empire has failed to meet its burden to establish the violations alleged in Item 1 and Item 

2, Citation 1, were the result of unpreventable employee misconduct. 

Classification of Item 1 and Item 2, Citation 1 

The Secretary contends the violations alleged in Item 1 and Item 2, Citation 1, were 

serious. A violation is serious when “there is a substantial probability that death or serious 

physical harm could result” from the hazardous condition at issue. 29 U.S.C. § 666(k). The 

Secretary need not show that there was a substantial probability that an accident would occur; 

only that if an accident did occur, death or serious physical harm would result. As the Third 

Circuit has explained: 

It is well-settled that, pursuant to § 666(k), when the violation of a regulation 

makes the occurrence of an accident with a substantial probability of death or 

serious physical harm possible, the employer has committed a serious violation of 

the regulation. The “substantial probability” portion of the statute refers not to the 

probability that an accident will occur but to the probability that, an accident 

having occurred, death or serious injury could result, even in those cases in which 

an accident has not occurred or, in fact, is not likely to occur. 

Secretary of Labor v. Trinity Industries, 504 F.3d 397, 401 (3d Cir. 2007) (internal quotation 

marks and citations omitted); See also, Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237, 1240 (9th

Cir. 1984); Mosser Construction, 23 BNA OSHC 1044, 1046 (No. 08-0631, 2010); Dec-Tam 

Corp., 15 BNA OSHC 2072, 2087-2088 (No. 88-0523, 1993). The likelihood of an accident goes 

to the gravity of the violation, which is a factor in determining an appropriate penalty. J.A. Jones 

Constr. Co., 15 BNA OSHC at 2214.

 Both violations alleged in Item 1 and Item 2, Citation 1, exposed employees to a 40 foot 

 

5

 The Commission has recognized a party’s failure to submit documents under its control raises an inference those 

documents either do not exist or would not support its position. Capeway Roofing Systems, Inc., 20 BNA OSHC 

1331 (No. 00-1968, 2003) (citations omitted); see also Regina Contr. Co., 15 BNA OSHC 1044, 1049 ((No. 87-

1309, 1991). 
16

fall. It is undisputed a fall from such a height could result in death or other serious injury. Item 

1 and Item 2, Citation 1, are properly classified as serious violations. 

Item 1, Citation 2: Alleged Violation of 29 C.F.R. § 1910.1200(h)(1) 

 Section 1910.1200(h)(1) requires the employer to 

provide employees with effective information and training on hazardous 

chemicals in their work area at the time of their initial assignment, and whenever 

a new chemical hazard the employees have not previously been trained about is 

introduced into their work area. Information and training may be designed to 

cover categories of hazards (e.g., flammability, carcinogenicity) or specific 

chemicals. Chemical-specific information must always be available through labels 

and safety data sheets. 

Item 1, Citation 2, alleges the employer did not “provide training specific to the hazard of 

chemicals used at the establishment to all employees working with hazardous chemicals” 

including “Solargard Fluoro-Prime, Solargard 6083 Finish Coat, and Solargard 6083 Based 

Coat.” The Secretary alleges Laborer 1 and Foreman 2 were not trained on the hazards 

associated with working with the listed products. 

 Section 1910.1200, or the Hazard Communication standard, applies where chemicals are 

“present in the workplace in such a manner that employees may be exposed under normal 

conditions of use or in a foreseeable emergency.” It is undisputed the Empire crew was using the 

chemicals listed in the citation at the worksite (Tr. 162; Exhs. C-8, C-9, and C-10). Empire does 

not dispute that these chemicals were hazardous (Tr. 78; Exh. C-11). The standard applies. 

 The Secretary contends neither Foreman 2 nor Laborer 1 had not received hazard 

communication training. CSHO Young testified she requested training documentation during the 

inspection, but received none confirming Foreman 2 or Laborer 1 had received hazard 

communication training (Tr. 77). She conceded documentation of training for other employees 

was provided. The record contains no documentary evidence establishing Foreman 2 received 

hazard communication training. He testified he received new hire training, but there is also no 

documentary evidence to support that assertion. Foreman 2 testified he knew how to read an 

MSDS, but was never asked when he was trained to do so. Nor was he asked at the hearing 

whether he knew the hazards associated with the chemicals he was using. The Secretary has the 

burden to prove Foreman 2 also had not received hazard communication training. Based on this 

record, I find the Secretary has failed to do so. 

 Laborer 1 testified he did not know the hazards associated with the chemicals he was 
17

using (Tr. 102). Although he testified he had received new hire training, there is no documentary 

evidence corroborating he attended such training. Nor does the record contain any information 

about what that training covered with regard to Laborer 1 specifically. Laborer 1 further testified 

that although he had received some training on reading a material safety data sheet (MSDS), he 

could not recall whether it was before or after the inspection (Tr. 179). He testified Empire had a 

book containing MSDS’s, but did not know whether it existed prior to the inspection and 

conceded it was not present at the worksite (Tr. 181). The preponderance of the evidence 

establishes Laborer 1 was not trained on the hazards of the chemicals with which he was 

working. 

 Empire argues the standard does not require the employer provide chemical-specific 

information and training, citing to the Commission’s holding Cagle’s Inc., 21 BNA OSHC 1738 

(No. 98-0485, 2006). In Cagle’s, the Commission held under the plain language of the standard, 

“an employer complies ...by informing employees of the dangers posed by chemicals falling into 

the relevant ‘categories of hazard,’ identifying their location in the plant or the process in which 

they are used and training employees on those hazard categories.” 21 BNA OSHC at 1744. The 

record as a whole establishes Empire did not meet this standard. Empire produced records of 

training, including hazard communication training, but none indicate Laborer 1 received that 

training. Laborer 1 could not identify any of the hazards associated with the chemicals present at 

the worksite with which he was working. The record establishes not only that Empire failed to 

provide chemical-specific training to Laborer 1, it failed to provide him any training regarding 

the chemicals in use. The Secretary has met her burden. 

 Reasonable diligence required Empire be aware of the chemicals used by its employees at 

the worksite and ensure they were trained in those hazards. Empire had constructive knowledge 

of both the use of the chemicals by its employees and the fact they had failed to provide any type 

of training to at least one employee using those chemicals. 

 The Secretary alleged Item 1, Citation 2, was an other than serious violation. The Act 

does not define what constitutes an other than serious violation. It does provide definitions of 

both de minimis and serious violations. The Commission has recognized an other than serious 

violation falls somewhere between the two. Crescent Warf and Warehouse Co., 1 BNA OSHC 

1219, 1222 (No. 1, 1973). It has defined an other than serious violation as having “a direct and 

immediate relationship between the violative condition and occupational safety and health, but 
18

not of such relationship that a resultant injury or illness is death or serious physical harm.” Id. 

At least one of the chemicals in use at the worksite was a carcinogen and hazardous if inhaled 

(Tr. 78; Exh. C-11). Ensuring employees are aware of such hazard when working with 

chemicals has a relationship to worker safety and health. Item 1, Citation 2, is properly 

classified as an other than serious violation. 

PENALTY DETERMINATION 

The Commission is the final arbiter of penalties. Hern Iron Works, Inc., 16 BNA OSHC 

1619, 1622, (No. 88-1962, 1994), aff’d, 937 F.2d 612 (9th Cir. 1991) (table); see Valdak Corp., 

17 BNA OSHC 1135, 1138 (No. 93-0239, 1995) (“The [OSH] Act places limits for penalty 

amounts but places no restrictions on the Commission’s authority to raise or lower penalties 

within those limits.”), aff’d, 73 F.3d 1466 (8th Cir. 1996). In assessing a penalty, the 

Commission gives due consideration to all of the statutory factors with the gravity of the 

violation being the most significant. OSH Act § 17(j), 29 U.S.C. § 666(j); Capform Inc., 19 

BNA OSHC 1374, 1378 (No. 99-0322, 2001), aff’d, 34 F. App’x 152 (5th Cir. 2002) 

(unpublished). “Gravity is a principal factor in a penalty determination and is based on the 

number of employees exposed, duration of exposure, likelihood of injury, and precautions taken 

against injury.” Siemens Energy and Automation, Inc., 20 BNA OSHC 2196, 2201 (No. 00-

1052, 2005). Section 17(j) of the OSH Act, 29 U. S. C. § 666(j), requires the Commission to 

give due consideration to the gravity of the violation and the employer’s size, history of 

violation, and good faith.” Burkes Mechanical Inc., 21 BNA OSHC 2136, 2142 (No. 04-0475, 

2007). 

The gravity of Item 1, Citation 1, is moderate. The basket of the aerial lift provides some 

protection from falls and employees were exposed for a very short period of time. The 

likelihood of an injury is low, but if an accident were to occur, the injury could be death. Empire 

is a small employer with a variable workforce of 10 – 30 employees. There was no evidence of a 

history of violations and the company has taken steps toward protecting its workforce such as 

providing individual safety equipment and training. Empire is entitled to a reduction in the 

gravity based penalty. The Secretary’s proposed penalty of $2,272.00 is appropriate. 

The gravity of Item 2, Citation 1, is high. The crew was working on a sloped metal roof 

in proximity to the edge. The entire crew was exposed to the hazard, but, for only a short period 

of time. As Laborer 1 testified, it was the end of the day and the crew was hot and tired. That is 
19

exactly the time when they would be less vigilant. Under the circumstances, the likelihood of 

injury was high. I have considered the same reduction factors as with Item 1, Citation 1, in 

assessing a penalty for Item 2, Citation 1. The Secretary’s proposed penalty of $3,741.00 is 

appropriate. 

The Secretary has not proposed a penalty for Item 1, Citation 2. Although the chemicals 

in use were hazardous if inhaled, the risk of inhalation was reduced due to the employees 

working with the chemical outside where sufficient ventilation would have been provided (Tr. 

83). The Secretary established exposure for only one employee. No penalty is warranted. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

The foregoing decision constitutes the findings of fact and conclusions of law in 

accordance with Rule 52(a) of the Federal Rules of Civil Procedure. 

ORDER 

Based upon the foregoing decision, it is ORDERED that: 

1. Item 1, Citation 1, alleging a serious violation of 29 C.F.R. § 1926.453(b)(2)(v) is 

affirmed, and a penalty of $2,272.00, is assessed; 

2. Item 2, Citation 1, alleging a serious violation of 29 C.F.R. § 1926.501(b)(1) is 

affirmed, and a penalty of $3,741.00, is assessed; and 

1. Item 1, Citation 2 alleging an other than serious violation of 29 C.F.R. § 

1910.1200(h)(1) is affirmed, and no penalty is assessed. 

SO ORDERED. 

 /s/ 

Dated: May 18, 2017 HEATHER A. JOYS 

 Administrative Law Judge 

 Atlanta, Georgia