United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, DC 20036-3457

 

SECRETARY OF LABOR,

Complainant,

v. OSHRC DOCKET NO. 16-0094

3-D BUILDERS, LLP,

 

 Respondent. 

Appearances:

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

Regional Solicitor, Philadelphia, PA

For the Complainant

Shawn Davis, pro se

3-D Builders, LLP, Morgantown, WV 26508

For the Respondent

Before: Carol A. Baumerich

Administrative Law Judge

DECISION AND ORDER

Respondent 3-D Builders, LLP (Respondent or 3-D Builders) is a business engaged in 

construction activities. Following an anonymous complaint, the Occupational Safety and Health 

Administration (OSHA) inspected Respondent’s residential construction worksite in Morgantown, 

West Virginia. The result of the inspection was a one-item serious citation, with subparts, a oneitem willful citation, and a notification of penalty (citation), alleging violations of the OSHA’s 

construction standards regarding ladders, 29 C.F.R. § 1926.1053(b)(1), and fall protection required

for employees engaged in residential construction activities, 29 C.F.R. § 1926.501(b)(13). 

Respondent 3-D Builders timely contested the citation, bringing the matter before the 

Occupational Safety and Health Review Commission (Commission) pursuant to section 10(c) of 
2

the Occupational Safety and Health Act of 1970, 29 U.S.C. § 659(c) (the Act). A hearing1 was 

held in Pittsburgh, PA on January 25, 2017.

2 The Secretary was represented by counsel at the 

hearing. No Respondent representative attended or participated in the hearing. (Tr. 4-6). The 

Secretary filed a post-hearing brief. Respondent did not file a post-hearing brief. 

For the following reasons, the serious citation 1, item 1(a)3and willful citation 2, item 1

are affirmed and a total penalty of $16,000 is assessed.

BACKGROUND

The OSHA Inspection.

On Wednesday, November 18, 2015, the OSHA Charleston, West Virginia, Area Office 

received an anonymous complaint about possible hazardous conditions at a worksite in 

Morgantown, West Virginia. OSHA Compliance Safety and Health Officer (CO) Anthony Milam 

was assigned to travel to the worksite and conduct an inspection. The CO arrived at the worksite, 

located at 709 McKinley Avenue, Morgantown, West Virginia, around 12:00 p.m. (noon). Upon 

arrival, before leaving his vehicle, the CO took several photographs of the construction worksite, 

a two-story house, and the two workers located on the front porch roof. The residential construction 

job in progress was the removal of an old shingle roof and installation of a new roof, on the porch 

and main house. (Tr. 22-23, 25-33, 46-48, 61-62, 75-76; Exs. C-2, C-3, C-4, C-5).

After parking his vehicle, the CO approached a man standing on the worksite grounds. The 

CO presented his credentials and explained that OSHA had received a complaint regarding

possible hazards at the worksite. The man identified himself as Shawn Davis, the company owner.4 

Mr. Davis said the company’s name was 3-D Builders. A copy of the complaint OSHA received 

was provided to Mr. Davis. The CO took additional photographs, including a photo of two workers 

on the house back roof. (Tr. 34-38, 40-41; Exs. C-1, C-6, C-7, C-8). 

 

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

2 Several prehearing Notices and Orders, issued in this proceeding, were received in evidence as 

hearing exhibits. In this decision, they are designated Ex. ALJ-1 though Ex. ALJ-7(a). (Tr. 7-9).

3 At the hearing, the Secretary withdrew serious citation 1, item 1(b), alleging a violation of 29 

C.F.R. § 1926.1060(a), training requirements for employees using ladders. (Tr. 61). Accordingly, 

serious citation 1, item 1(b) is vacated. 

4 Shawn Davis is identified in the decision as Mr. Davis, Respondent owner, 3-D Builders’ owner, 

or Respondent’s representative. 
3

The CO asked Mr. Davis to have his employees come down off the roof, so he could speak 

with them. At approximately 12:45 – 1:00 p.m., the CO observed three workers use the ladder,

located at the right front corner of the house, to come down from the roof.5 (Tr. 34-35, 65, 79-80). 

Two of the workers who came down from the roof were the workers the CO had photographed on 

the back roof. (Tr. 41). The CO briefly spoke to the three workers: Jacob Davis, Timothy Dalton, 

and Casey Barnett. (Tr. 38-39). 

The CO interviewed 3-D Builders’ owner while they stood on the residence driveway. 

During the interview, the CO recorded the information Mr. Davis provided on a witness statement 

form.

6

During the interview Mr. Davis stated that the job began on Monday. The job involved 

removing the shingle roof from the residence. They worked Monday, all day Tuesday, and that 

day, Wednesday, beginning at 7:00 a.m. They finished the main roof on Tuesday. Respondent

owner Davis estimated that the “porch roof is about 3/12 and the main roof is about 10/12.”7 Mr. 

Davis said the “porch roof is 11-13 feet high and the main roof is about 20-22 feet high.” Mr. 

Davis told the CO that 3-D Builders was subbing for Lynn Wood Company; and that Mr. Lynn

Wood didn’t say anything about fall protection. Mr. Davis said he had never been inspected by 

OSHA. Mr. Davis said that he knows that fall protection is required for any work over six feet. 

He stated that they were not wearing fall protection on this worksite. Mr. Davis confirmed that 

the only way to access the roof was to use the extension ladder, which was located at the right 

front corner of the house. (Tr. 39, 44-45, 48, 57, 65, 78-79; Ex. C-1). 

 

5 The Secretary contends that the evidence supports a finding that on the day of the inspection, 

Respondent’s owner Mr. Davis also worked on the roof. And further, that the evidence discloses

that there were four 3-D Builders workers on the inspected worksite, including Mr. Davis, exposed 

to the hazards alleged. (Sec’y Br. at 2-3). I agree. Photographs taken during the inspection, within 

a short time-frame, disclose four workers on the roof. (Tr. 80). 

6 Great weight is given to the admissions recorded in Mr. Davis’ signed OSHA interview 

statement. See Fed.R.Evid. 801(d)(2)(D). While interviewing Mr. Davis at the inspection 

worksite, the CO recorded his statements contemporaneously. Mr. Davis reviewed, signed, and 

dated the statement. (Tr. 41-44, 79; Ex. C-1). The accuracy of the statement is unrebutted. 

7 The CO testified that Mr. Davis’ statement that the “porch roof is about 3/12 and the main roof 

is about 10/12,” was an estimate of the roof slope. In comparison, a 12/12 sloped roof would be 

almost vertical, a 1/12 sloped roof would be flat. On this residential worksite, the main roof of the 

house had a steeper slope. (Tr. 45-46; Ex. C-4). The slope of the back roof, where employees 

were photographed using the scraper, was approximately 3/12. (Tr. 67). 
4

During the inspection, the CO measured the height of the porch roof to the ground to be 

approximately ten feet high. He measured the height of the main roof, from the roof peak to the 

ground, to be approximately twenty to twenty-two (20 to 22) feet high. (Tr. 52-53, 63; Ex. C-4).

Prehearing Pleadings and Discovery

The Secretary filed the complaint in this case, attaching as exhibits the citation and 

Respondent’s January 5, 2016 notice of contest. Respondent’s answer, filed on May 27, 2016, 

was a copy of Respondent’s notice of contest, with several attached exhibits. As instructed by the

undersigned judge, Respondent’s representative Mr. Davis filed a more specific answer on July 

12, 2016. 8

Respondent’s notice of contest generally contests the violations alleged in the citation and 

the penalties proposed. Respondent’s notice of contest and answers specifically contend that 3-D 

Builders is not an LLP, rather it is a general partnership with no employees.

9

(Tr. 13). In 

Respondent’s more specific answer, Mr. Davis added that 3-D Builders Partnership was a 

subcontractor of Lynn Wood Company of Morgantown, on this worksite.10

 

8 Respondent’s notice of contest, answer, and more specific answer are set forth in the October 26, 

2016 Order granting the Secretary’s Motion to Compel discovery responses (Order compelling

discovery). (Ex. ALJ-5). The Order compelling discovery, at pages 2 – 4, describes the exhibits

attached to Respondent’s answer. 

The exhibits attached to Respondent’s answer are a part of the answer for all purposes. See 

Commission Rule 30(d); 29 C.F.R. § 2200.30(d). While a part of the Respondent’s answer, setting 

forth Respondent’s defenses, these exhibits have not been considered in this decision. These 

pleading exhibits are accorded no weight. As stated in the Order compelling discovery, at page 4, 

many questions are raised by Respondent’s notice of contest, answers, and attached exhibits. (Ex. 

ALJ-5). As Respondent did not comply with the Order compelling discovery, the questions raised 

remain unanswered.

9 Respondent contends in its notice of contest and answers that Shawn Davis, Jacob Davis, 

Timothy Dalton, and Casey Barnett have a written partnership agreement, they are registered 

through the State of West Virginia as a general partnership, they are exempt from workers’ 

compensation because they are a partnership with no employees, and they file a general partnership 

tax return. In Respondent’s more specific answer, Mr. Davis reiterated Respondent’s contention 

that 3-D Builders Partnership is not an LLP. Respondent contends that OSHA has no regulations 

on a partnership. Respondent contends that every 3-D Builders partner is self-employed and that 

3-D Builders has no employees.

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

Throughout this proceeding, Respondent owner Mr. Davis has self-represented

Respondent.

11 During prehearing conference calls and in prehearing Notices and Orders, Mr. 

Davis was reminded that, as Respondent’s representative, he must comply with all requirements 

relating to these proceedings, including participating in telephone conference calls, filing and 

serving appropriate papers, and timely responding to discovery requests. The importance of active 

participation in the prehearing discovery process, including the importance of timely serving and 

responding to discovery requests, was emphasized. Mr. Davis was advised that if Respondent did 

not respond to the Secretary’s discovery requests by either answering each request, providing the 

document(s) requested, or stating an objection to each request or document, the Commission Rules 

provide that discovery sanctions may be ordered. Mr. Davis was firmly cautioned that 

Respondent’s failure to cooperate in the prehearing discovery process may result in Respondent 

being sanctioned. 12 (Tr. 13-14). 

In August 2016, counsel for the Secretary served two discovery requests on Respondent: 

Complainant’s first set of Requests for Admissions and Complainant’s first set of Requests for 

Production of Documents. Respondent answered the requests with handwritten discovery 

responses that were summary, incomplete, and without affirmation. Respondent provided no 

documents in response to the Secretary’s request for documents.13 Following receipt of

 

11 See July 29, 2016 Notice of Hearing, Scheduling Order and Special Notices (Ex. ALJ-1) (Tr. 

12-13). During prehearing conference calls and in prehearing Notices and Orders, Mr. Davis was 

advised that the Commission Rules provide that in proceedings before the Commission any party 

may appear in person (self-represented), through an attorney, or through another representative 

who is not an attorney. See Commission Rule 22; 29 C.F.R. § 2200.22. (Tr. 14).

12 See July 29, 2016 Notice of Hearing, Scheduling Order and Special Notices (Ex. ALJ-1); 

September 22, 2016 Order (Ex. ALJ-2); October 26, 2016 Order compelling discovery (Ex. ALJ5); November 14, 2016 Notice of Rescheduled Hearing, and Notice of Prehearing Conference 

Calls, and Revised Scheduling Order (Ex. ALJ-4); and November 17, 2016 Notice of Rescheduled 

Hearing and Order (Ex. ALJ-3).

13 Respondent’s handwritten responses to the Secretary’s Requests for Admissions were without 

affirmation and incomplete. Respondent’s handwritten, summary, responses to the Secretary’s 

Requests for the Production of Documents were also incomplete. Respondent provided no 

documents in response to the Secretary’s discovery request. Respondent referenced the documents 

Respondent attached to its answer. Respondent did not state a legal objection to providing the 

documents requested. Respondent specifically stated its refusal to provide certain documents, 

including bank account statements, complete federal and state tax returns, and documents 

regarding vehicle ownership. See Order compelling discovery, pp. 6-12 (Ex. ALJ-5). (Tr. 16-17). 
6

Respondent’s incomplete discovery responses, counsel for the Secretary filed a Motion to Compel. 

(Tr. 14-15). 

On October 26, 2016, an Order issued granting the Secretary’s Motion to Compel (Order 

compelling discovery). (Ex. ALJ-5). Respondent was directed to provide the responsive 

documents requested by the Secretary and supplement Respondent’s answers and responses to the 

Secretary’s discovery requests. The actions Mr. Davis needed to take, as Respondent’s 

representative, to comply with the Order compelling discovery, were outlined in specific detail. 

A conference call was held on November 16, 2016, during which the actions Respondent 

needed to take to comply with the Order compelling discovery were explained to Mr. Davis. 

Respondent was granted an extension of time to provide the discovery documents and responses 

to counsel for the Secretary as ordered. During the call, the parties agreed to the rescheduled 

January 2017 hearing dates. 14 (Tr. 15). 

Thereafter, Respondent failed to comply with the Order compelling discovery. Respondent 

did not provide the supplemental discovery responses as ordered. Respondent did not provide the 

requested discovery documents as ordered.15 (Tr. 15). 

Discovery Sanctions Motion and Order to Show Cause

Pursuant to Commission Rule 52(f), on December 1, 2016, the Secretary filed a Motion 

requesting discovery sanctions as Respondent failed to comply with the Order compelling 

discovery (Motion for sanctions). The Secretary’s Motion requested narrowly tailored sanctions 

directed to Respondent’s failure to comply. Respondent did not file a written response to the 

Secretary’s Motion. 

An Order to show cause issued, directing Respondent to file a written Response to the 

Secretary’s Motion for sanctions, on or before January 6, 2017.16 Respondent did not file a written 

Response. (Tr. 10-11).

Discovery Sanctions Discussion

Well established Commission policy is to decide cases based on their merits, rather than 

on procedural flaws. The Commission consistently has held that dismissal of a party’s case is too 

 

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

15 See Order to show cause. (Ex. ALJ–5). 

16 See December 19, 2016 Order to show cause. (Exs. ALJ-5, 5(a)).
7

harsh a sanction for failure to comply with certain prehearing orders, absent evidence of prejudice 

to the opposing party, contumacious conduct by the noncomplying party, and/or a pattern of 

disregard for Commission Rules by the noncompliant party. See Stone & Webster Constr., Inc., 

23 BNA OSHC 1939, 1943-44 (No. 10-0130, 2012)(consolidated); Sealtite Corp., 15 BNA OSHC 

1130, 1133 (No. 88-1431, 1991); Duquesne Light Co., 8 BNA OSHC 1218, 1222-23 (No. 78-

5034, 1980)(consolidated). 

The Commission Rules provide for prehearing discovery by the parties, including requests 

for document production and requests for admissions. See Commission Rules 52, 53 and 54; 29 

C.F.R. §§ 2200.52, 2200.53, 2200.54. Cooperation by the parties during the prehearing discovery 

process is anticipated. Commission Rule 52(f) provides for the imposition of sanctions when a 

party refuses or obstructs discovery.

17

 

A Commission hearing judge may impose any sanction stated in Fed.R.Civ.P. 37 for failing 

to comply with a discovery order; however, the sanction imposed must not be “too harsh under the 

circumstances of the case.” St. Lawrence Food Corp., 21 BNA OSHC 1467, 1472 (No. 04-1734, 

2006)(consolidated). 

The Commission has held that the “extreme sanction” of the “exclusion of critical 

evidence” to a party’s case, may be appropriate where a party has “willfully deceived” the 

 

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

Failure to cooperate; Sanctions. A party may apply for an order compelling 

discovery when another party refuses or obstructs discovery. For purposes of this 

paragraph, an evasive or incomplete answer is to be treated as a failure to answer. 

If a Judge enters an order compelling discovery and there is a failure to comply 

with that order, the Judge may make such orders with regard to the failure as are 

just. The orders may issue upon the initiative of a Judge, after affording an 

opportunity to show cause why the order should not be entered, or upon the motion 

of a party. The orders may include any sanction stated in Federal Rule of Civil 

Procedure 37, including the following:

(1) An order that designated facts shall be taken to be established for purposes of 

the case in accordance with the claim of the party obtaining that order;

(2) An order refusing to permit the disobedient party to support or to oppose 

designated claims or defenses, or prohibiting it from introducing designated 

matters in evidence;

(3) An order striking out pleadings or parts thereof, or staying further proceedings 

until the order is obeyed; and

(4) An order dismissing the action or proceeding or any part thereof, or rendering 

a judgment by default against the disobedient party. 
8

Commission or “flagrantly disregarded” a Commission order. Jersey Steel Erectors, 16 BNA 

OSHC 1162, 1166 (No. 90-1307, 1993). See Architectural Glass & Metal Co., 19 BNA OSHC 

1546, 1547 (No. 00-0389, 2001). When reviewing a sanction order regarding the exclusion of 

evidence, the Commission considers whether the party against whom the evidence is being offered 

has been prejudiced in preparing or presenting its case by the conduct of the noncomplying party 

and whether the noncomplying party’s conduct was contumacious. Jersey Steel Erectors, 16 BNA 

OSHC at 1166-67. See also Duquesne Light Co., 8 BNA OSHC at 1222-23; Sealtite Corp., 15 

BNA OSHC at 1134 (A consistent pattern of failure to comply with Commission Rules and with 

judge’s orders, delaying a proceeding, constitutes contumacious conduct.). 

The Commission has an obligation to provide all parties to a case with an opportunity to 

for a “full, fair, and equal opportunity to be heard.” Choice Elec. Corp., 14 BNA OSHC 1899, 

1900-01 (No. 88-1393, 1990). The Commission recognizes that employers who participate in 

proceedings before the Commission self-represented, without an attorney, may require additional 

consideration as they may not be knowledgeable about the Commission’s procedural requirements 

and legal procedures. Id.; Sealtite Corp., 15 BNA OSHC at 1133-34.

The Commission hearing judge has broad discretion to decide whether sanctions should be 

ordered. See Architectural Glass & Metal Co., 19 BNA OSHC at 1547 Jersey Steel Erectors, 16 

BNA OSHC at 1165; Sealtite Corp., 15 BNA OSHC at 1134; Duquesne Light Co., 8 BNA OSHC 

at 1222. 

The Commission Rules and Federal Rules of Civil Procedure provide an opportunity for 

all parties to engage in prehearing discovery. Prehearing discovery enables the parties to a 

proceeding to gather the information and evidence on which the Secretary’s citations and 

Respondent’s defenses are based. With the information received in discovery each party’s 

understanding of the case increases, enabling each party to evaluate the relative strengths and 

challenges of their case and of their opponent’s case. In many cases, this increased understanding 

facilitates settlements. Unfortunately, in this case, the opportunity for prehearing discovery to 

increase the Secretary’s understanding of Respondent’s defenses was lost. Respondent failed to 

fully respond to the Secretary’s discovery requests in a meaningful manner and Respondent

refused to comply with the undersigned judge’s Order compelling discovery. 

In this case, I find Respondent’s consistent pattern of failing to comply with the 

undersigned’s Orders constitutes contumacious conduct. These Orders include the Order 
9

compelling discovery, the Order to show cause, the Notice of Rescheduled Hearing and Order 

directing the parties to file a prehearing statement, participate in a prehearing conference call, and 

attend the scheduled hearing.18 (Tr. 19-21).

A party is prejudiced if the opposing party’s failure to fully respond to discovery requests 

impairs the requesting party’s ability to determine the facts and merits of the opposing party’s 

claims or defenses. I find that Respondent’s conduct, in refusing to comply with the Order 

compelling discovery, prejudiced the Secretary in the preparation of the Secretary’s case to address 

and rebut the defenses raised by Respondent. 

Respondent contends that it is a partnership in which every partner is self-employed, that 

Respondent has no employees, and that OSHA has no regulations on a partnership.19 These 

defenses are raised by Respondent in its notice of contest and answers. Therefore, an issue in this 

proceeding is the employment status of the individuals working with Respondent at the inspected

worksite. As stated in the Order compelling discovery, several of the documents requested by the 

Secretary are relevant to the employment status of the individuals working with Respondent, 

including bank account statements, completed federal and state tax returns, documents regarding 

vehicle ownership, training programs, payroll records, and work hours, among others. Respondent

refused to produce to the Secretary documents regarding the employment indicia of the individuals

working with Respondent at the time of the OSHA inspection. (Tr. 16-17). Respondent has not 

articulated a legal basis for its refusal to produce the documents.20 

 

18 Respondent’s representative Mr. Davis participated in prehearing conference calls on July 1, 

July 25, August 26, September 20, and November 16, 2016. During these calls, Mr. Davis’ 

questions were answered. The importance of participation and cooperation with the prehearing 

discovery process was explained to Mr. Davis. Mr. Davis was advised that sanctions may be 

ordered, if Respondent did not comply with the Order compelling discovery. (Tr. 14). 

Importantly, despite receiving courtesy reminders, no one from Respondent joined scheduled

conference calls on November 8 and 10, 2016 and on January 13, 2017. If Respondent’s 

representative Mr. Davis had unanswered questions regarding Commission procedures, the

undersigned judge’s Orders, or the upcoming hearing, his failure to participate in the scheduled 

conference calls were missed opportunities. (Tr. 20). 

19 See Note 9 above.

20 See Order to show cause, Order compelling discovery (Ex. ALJ 5, 5(a)). 
10

Whether an individual is an employee is a case specific, fact-based analysis. All incidents 

of the employment relationship are considered. One employment factor alone is not decisive. See

Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 448-451 (2003). As the 

Supreme Court stated in Clackamas, “[t]he mere fact that a person has a particular title – such as 

partner . . . should not necessarily be used to determine whether he or she is an employee or a 

proprietor.” Id at 450. See generally, Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992).

Respondent’s refusal to comply with the Order compelling discovery, despite having been 

granted time extensions and second chances to comply, prejudiced the Secretary in the preparation 

of the Secretary’s case. In this case, I find the narrowly tailored sanctions requested by the 

Secretary in the Motion for sanctions warranted and appropriate. 

Discovery Sanctions Order

As stated on the record, at the beginning of the hearing, the Secretary’s Motion for 

sanctions was granted as follows.

It is Ordered that the following designated facts shall be taken to be established for 

purposes of the case in accordance with the claims of the Secretary.

a. First, as alleged in the complaint and in the citations issued in this case, 

that Respondent’s workers at the worksite inspected by OSHA, 709 

McKinley Avenue, Morgantown, WV 26506, on or about November 18, 

2015, were “employees” of Respondent 3-D Builders, LLP, within the 

meaning of section 3(6) of the Act. “Employee” means an “employee 

of an employer who is employed in a business of his employer which 

affects commerce.” 

b. Second, as alleged in the complaint and in the citations issued in this 

case, that Respondent 3-D Builders, LLP, is an “employer” within the 

meaning of section 3(5) of the Act. “Employer” means a “person 

engaged in a business affecting commerce21 who has employees ....”

It is further Ordered, that Respondent not be permitted to dispute the facts 

designated above, in paragraphs (a) and (b), that the workers were employees of 

Respondent 3-D Builders and that Respondent 3-D Builders is an employer. It is 

Ordered that Respondent not be permitted to dispute these issues or present any 

evidence at the hearing, through witness testimony, documents, or exhibits, to 

dispute these designated facts. 

 

21 Section 3(3) of the Act defines commerce as “trade, traffic, commerce, transportation, or 

communication among the several States, or between a State and any place outside thereof, or 

within the District of Columbia, or a possession of the United States, or between points in the same 

State but through a point outside thereof.” 
11

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

§ 2200.52(f). 

The Hearing

Respondent had full knowledge of the hearing date, time, and location. A Notice of 

Rescheduled Hearing and Order issued in this case.22 This Notice and Order set forth the agreed 

hearing dates, the final prehearing conference call date and time, and the due date for the parties 

to file a joint prehearing statement.23 A Notice of Hearing Location issued stating the specific 

courthouse location, in Pittsburgh, Pennsylvania, for the hearing scheduled to begin on January 

25, 2017.

24

 Prior to the final prehearing conference call, the judge’s legal assistant called and 

spoke to Respondent’s representative Mr. Davis to remind him of the scheduled call and to remind 

him to file Respondent’s prehearing statement. Mr. Davis did not join the scheduled call. No

prehearing statement was received from Respondent. (Tr. 6-9, 11). 

During the final prehearing conference call, counsel for the Secretary was advised that the 

Secretary’s Motion for sanctions would be granted, with the decision granting the Motion stated 

on the record when the hearing opened. Notice that the Secretary’s Motion for sanctions would 

be granted also was stated prior to the hearing, in an email exchange between the judge’s legal 

assistant and the parties. (Tr. 9-10).

Approximately one week before the hearing and again early on the morning of the hearing, 

counsel for the Secretary spoke to Respondent’s representative Mr. Davis. During both 

conversations, Mr. Davis stated his intention to attend the scheduled hearing. Counsel for the 

Secretary attended the hearing and presented evidence through witness testimony and exhibits. 

Respondent did not attend the hearing or present a defense. (Tr. 4-6). At the beginning of the 

 

22 The hearing in this case originally was scheduled to begin on December 6, 2016. See July 29, 

2016 Notice of Hearing, Scheduling Order and Special Notices. (Ex. ALJ-1).

23 See November 17, 2016 Notice of Rescheduled Hearing and Order. (Exs. ALJ-3, 3(a); ALJ-4). 

The parties were reminded that the scheduled January 2017 hearing was not an informal 

conference. Rather the hearing would be a formal hearing on the record transcribed by a court 

reporter. At the hearing, both parties must have their necessary witnesses present to give sworn 

testimony and the documents and exhibits that they intend to offer into evidence to support their 

positions. The parties were specifically cautioned that failure to be present at the hearing when 

the case was called may result in summary dismissal of claims or defenses. 

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

Notice of Hearing Location. (Exs. ALJ-7, 7(a)).
12

hearing, the decision granting the Secretary’s Motion for sanctions was stated on the record. (Tr. 

10-21).

Counsel for the Secretary’s post-hearing brief was filed with the undersigned Commission 

judge and served on Respondent. Respondent did not file a post-hearing brief. Respondent has 

not offered any explanation for Respondent’s failure to participate in the hearing.25

JURISDICTION

As discussed above, designated facts are taken to be established, for purposes of the case, 

as alleged in the complaint and in the citation, (a) that Respondent’s workers at the worksite 

inspected by OSHA, in Morgantown, West Virginia, on or about November 18, 2015, were 

“employees” of Respondent 3-D Builders, LLP, within the meaning of section 3(6) of the Act, and 

(b) that Respondent 3-D Builders, LLP, is an “employer” engaged in a business affecting 

commerce within the meaning of section 3(5) of the Act. 

Further, the evidence establishes, at the time of the OSHA inspection, Respondent’s 

employees were engaged in roofing activities, at a construction worksite, located in Morgantown, 

West Virginia. The roofing work performed was the removal of an old shingle roof and the 

installation of a new roof, on the porch roof and main roof of a two-story house. The construction 

industry affects commerce. Even a small employer, whose activities and purchases are purely 

local, when aggregated with others engaged in similar activities, has a substantial effect on

interstate commerce. See Slingluff v. OSHRC, 425 F.3d 861, 867 (10th Cir. 2005); Clarence M. 

Jones, 11 BNA OSHC 1529, 1531 (No. 77-3676, 1983) (“There is an interstate market in 

construction materials and services and therefore construction work affects interstate commerce.”). 

Based on the record evidence, I find that Respondent 3-D Builders, LLP, at all relevant 

times, was in a business affecting commerce and was an employer within the meaning of sections 

3(3) and 3(5) of the Act. Accordingly, the Commission has jurisdiction over the parties and the 

subject matter. 

 

25 Commission Rule 64 states that “failure of a party to appear at a hearing may result in a decision 

against that party.” Upon a showing of good cause, the Commission or the Judge may excuse the 

failure to appear. However, absent extraordinary circumstances, requests to reinstate the hearing 

must be made within five days after the scheduled hearing date. 29 C.F.R. § 2200.64. Respondent 

did not request reinstatement of the hearing. 
13

DISCUSSION REGARDING CITATION

To establish a violation of an OSHA standard, the Secretary must prove that: (1) the cited 

standard applies; (2) its terms were violated; (3) employees were exposed to the violative condition 

and (4) the employer knew of could have known with the exercise of reasonable diligence of the 

violative condition. See Astra Pharm. Prods. Inc., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981) 

aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982)

Respondent does not contest the applicability of the cited standards, violation of the 

standards’ terms, employee exposure to the hazardous, violative, conditions, or Respondent 

owner’s actual knowledge of the violative conditions. Respondent contends that Respondent is a 

partnership in which every partner is self-employed, that Respondent had no employees, and that 

OSHA has no regulations on a partnership.26 In other words, Respondent contends that OSHA 

and the Commission do not have jurisdiction over Respondent. Respondent’s assertions have been 

considered and rejected above. 

Alleged Violations

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

The Secretary alleges that 3-D Builders violated 29 C.F.R. § 1926.1053(b)(1),

27 on or about 

November 18, 2015, when the portable extension ladder,

28 used by the workers to access the roof 

above the front porch, was not extended at least three feet above the landing surface.

The CO testified that when employees, at this worksite, used the portable extension ladder 

to access the roof, the standard requires that the side rails of the extension ladder extend at least

three feet above the landing surface. When the side rails are properly extended an employee can 

 

26 See Note 9 above. 

27 Section 1926.1053(b)(1) states:

When portable ladders are used for access to an upper landing surface, the ladder 

side rails shall extend at least 3 feet (.9 m) above the upper landing surface to which 

the ladder is used to gain access; or, when such an extension is not possible because 

of the ladder’s length, then the ladder shall be secured at its top to a rigid support 

that will not deflect, and a grasping device, such as a grabrail, shall be provided to 

assist employees in mounting and dismounting the ladder. In no case shall the 

extension be such that ladder deflection under a load would, by itself, cause the 

ladder to slip off its support.

28 A portable ladder is defined as “a ladder that can be readily moved or carried.” 29 C.F.R. 

§ 1926.1050(b), Definitions.
14

easily step on and off the roof holding onto the top of the ladder side rail. If the ladder is not 

properly extended when an employee steps on or off the ladder they may become off balance and 

fall. (Tr. 53-54).

The CO, upon arrival at the worksite, observed and photographed a ladder placed at the 

front right corner of the house.29 It was a portable, aluminum, extension ladder, manufactured by 

Werner. He also photographed two men working on the front porch roof. (Tr. 30-33, 38, 54-55; 

Ex. C-2, C-3, C-4, C-5).

When the CO approached the worksite, he spoke to the 3-D Builders’ owner Mr. Davis and 

asked that the employees come down from the roof to speak with him. The CO observed three 

workers use the ladder located at the right front corner of the house to come down from the roof. 

(Tr. 34-35, 55). The CO took additional photographs that show the house front, the porch roof 

where the employees worked, and the ladder the employees used to access the roof. (Tr. 35-38; 

Ex. C-6, C-7). He also photographed employees working on the house back roof using a scraper 

to remove the old shingle roof. (Tr. 40-41; Ex. C-8). 

Regarding the portable extension ladder, used by the employees to access the roof, the CO

determined that the side rails extended approximately two feet, six inches, above the roof surface. 

The CO reached this conclusion by confirming that the distance between Werner ladder rungs is

twelve inches and the length of the side rails that extend above the top ladder rung is six inches. 

The CO counted the number of ladder rungs above the roof surface. At the time of the inspection, 

the third rung down from the top of the cited ladder was even with the roof surface. The CO’s 

calculation that the side rails extended approximately two feet, six inches, above the roof surface, 

was less than the three feet extension required by the cited standard. (Tr. 55-57; Ex. C-7). 

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

I know the OSHA requirement from studying for my contractor’s test. The 

extension ladder is the only way to access the roof. I used a ladder stabilizer to 

secure it. . . . . I don’t think it needs to be extended with the stabilizer.30 

 

29 The photographs taken by the CO during the inspection also show a second ladder at the 

worksite, located at the back, left corner, of the house. (Tr. 32, 73-74; C-4). This second ladder 

was not cited. (Sec’y Br. at 2 n.4, 5-6 n.8). There is no evidence that this second ladder was used 

by employees, in the position or location, where it was photographed. There is no evidence of 

employee exposure regarding this second ladder. 

30 The CO understood Mr. Davis’ mention of a “ladder stabilizer” to reference the “bracket,” 

attached to the extension ladder used by the workers to access the roof. The CO testified that this 

“bracket” allows the ladder to be placed against the house, without putting weight and pressure on 
15

(Tr. 45; Ex. C-1). 

Citation Evidence Summary and Findings

The evidence establishes that the cited construction standard regarding portable ladders 

applied to this construction worksite, where 3-D Builders’ workers were engaged in roofing 

activities. The CO’s testimony and inspection photographs reveal that the cited standard was 

violated, as the side rails of the extension ladder did not extend at least three feet above the roof 

landing surface. 

The evidence must also show that the employer knew, or with the exercise of reasonable 

diligence could have known, of the violative condition. See e.g., Revoli Constr. Co., 19 BNA 

OSHC 1682, 1684 (No. 00-0315, 2001). The hazards identified in this ladder citation were plainly 

visible to Respondent owner Mr. Davis, who was present on the worksite. This is sufficient to 

show actual or constructive knowledge of the violative condition. See A.L. Baumgartner Constr.,

Inc., 16 BNA OSHC 1995, 1998 (No. 92-1022, 1994) (finding employer had constructive 

knowledge when the cited condition was plainly visible to employer’s foreman); Clarence M. 

Jones, 11 BNA OSHC at 1531 (constructive knowledge found where the ladders were in plain 

view and the foreman was present at the worksite at all times); MCC of Fla., Inc., 9 BNA OSHC 

1895, 1898 (No. 15757, 1981) (finding constructive knowledge when the violative condition was

in plain view and foremen were in the area). 

The Secretary does not need to show that the employer was aware that a condition 

violates the cited standard. Phoenix Roofing, Inc., 17 BNA OSHC 1076, 1079-80 (No. 90-2148, 

1995), aff’d, 79 F.3d 1146 (5th Cir. 1996) (unpublished). Awareness of the condition itself 

satisfies the test. Id. 

Respondent’s owner Mr. Davis had actual knowledge of the violative condition, as he was 

present at the worksite when he, along with 3-D Builders’ workers, used the noncompliant ladder 

to access the roof.31 In his signed, inspection statement, Mr. Davis acknowledged that the cited 

extension ladder was the only way to access the roof. 

 

the gutters, so workers climbing up and down the ladder will not damage the gutters. The primary 

purpose of this “bracket” is to protect the gutters from damage, not to stabilize the ladder. (Tr. 48-

50, 57-58). The inspection photograph of the ladder does not show a grasping device such as a 

grabrail. (Ex. C-7).

31 See Note 5 above. (Tr. 80). 
16

Further, the evidence establishes that Respondent’s workers were exposed to the violative 

condition created by the noncompliant extension ladder. The CO observed the workers descend 

from the roof to speak with him during the inspection using the cited ladder. 

Classification and Penalty Amount

Serious

The Secretary characterizes this citation item as serious. A violation is “serious” if there 

was a substantial probability that death or serious physical harm could have resulted from the 

violative condition. 29 U.S.C. § 666(k). The CO testified that there was a likelihood of serious 

harm and that four workers, including Mr. Davis, were exposed to the violative condition. If an 

employee were to fall ten feet, the CO testified that likely injuries could include permanent 

disability or death. The cited extension ladder, located at the right front corner of the house, was 

positioned on the residence driveway. An employee falling from the cited ladder would land on 

the hard surface of the driveway, made of concrete or asphalt. (Tr. 58; Ex. C-3). The citation is 

properly classified as serious. 

Penalty

Section 17(j) of the Act provides that the Commission shall have the authority to assess all 

civil penalties. When determining the appropriateness of a penalty, the Commission must give 

due consideration to four criteria: (1) the size of the employer’s business, (1) the gravity of the 

violation, (3) the good faith of the employer, and (4) the history of previous violations. 

The gravity of the violation is the most important factor in the penalty assessment. 

Determination of the gravity of a violation requires a consideration of the number of exposed 

employees, the precautions taken to protect employees, the duration of employee exposure, and 

the probability that an accident will occur. See J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2214 

(No. 87-2059, 1993), and cases cited therein. 

The CO determined the severity of the ladder violation to be high based on the fall risk 

from ten feet to the ground. He determined the probability to be lesser based on the duration of 

employee exposure to the hazard created by the noncompliant ladder.32 The time of employee 

 

32 The record does not specifically disclose the length of time the cited ladder, located at the right 

front corner of the house, was positioned at this location, with side rails extended less than three 

feet above the roof surface. The Secretary infers that Mr. Davis’ reference to a ladder “stabilizer,” 

is a broad reference to the way the ladder was set up at the worksite for several days. (Tr. 57-58). 

The inspection photographs disclose that ladders were moved and repositioned during this roofing 
17

exposure climbing on and off the ladder typically would be short. Concluding that the severity is 

high, and the probability is lesser, the gravity-based penalty would be calculated as $5,000. 3-D 

Builders has no OSHA history. There is no evidence of past inspections. Therefore, Respondent’s 

history warrants neither an increase nor a decrease in the penalty amount. See M.V.P. Piping Co., 

Inc., 24 BNA OSHC 1350, 1352 (No. 12-1233, 2014) (finding that history factor did not support 

a low penalty when the employer had not been inspected within the past five years). OSHA did 

not consider a good faith penalty reduction, as the citation includes a willful violation. As 3-D 

Builders is a small employer, the Secretary proposed a sixty percent penalty reduction for size. 

Therefore, the Secretary proposed a penalty for this citation item of $2,000. (Tr. 58-60; Sec’y Br. 

at 8). I agree. 

Therefore, a penalty of $ 2,000 is assessed for the serious violation of § 1926.1053(b)(1) 

set forth in citation 1, item 1(a).

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

The Secretary alleges that 3-D Builders violated 29 C.F.R. § 1926.501(b)(13),33 on or about 

November 18, 2015, as employees were exposed to a fall of approximately ten to twenty feet to 

the ground while installing shingles to a residential roof. Respondent’s workers were not protected 

by guardrail systems, safety net system, personal fall arrest system, or any alternative fall 

protection measure under another provision of paragraph § 1926.501(b).34 (Tr. 65, 72).

The CO testified that OSHA standard 1926.501(b)(13) applies to residential construction 

roofing work, the work performed by 3-D Builders at the inspected worksite. The standard 

 

job. Compare Ex. C-4 with Ex. C-5. I decline to draw the broad inference that the cited right front 

corner ladder, noncompliant at the time of the OSHA inspection, was positioned and used in a 

noncompliant manner during the workdays prior to the Wednesday OSHA inspection. 

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

construction. “Each employee engaged in residential construction activities 6 feet (1.8 m) or more 

above lower levels shall be protected by guardrail systems, safety net system, or personal fall arrest 

system unless another provision in paragraph (b) of this section provides for an alternative fall 

protection measure.” 

34 The Note to Section 1926.501(b)(13) provides that “[t]here is a presumption that it is feasible 

and will not create a greater hazard to implement at least one of the above-listed fall protection 

systems.” Therefore, it is the employer’s burden to establish that it is infeasible or creates a greater 

hazard to use conventional fall protection equipment. In this case, Respondent failed to present a 

defense and clearly did not meet this burden.
18

requires that when employees are working six feet or greater above the ground, they shall be 

provided with fall protection. (Tr. 61). 

During the inspection, the CO measured the height of the porch roof to the ground to be 

approximately ten feet high. He measured the height of the main roof, from the roof peak to the 

ground, to be approximately twenty to twenty-two (20 to 22) feet high. Therefore, employees 

working on any area of this house roof were required by the standard to be protected from falling. 

(Tr. 52-53, 63; Ex. C-4). 

During the inspection, the CO photographed two workers on the front porch roof and two 

workers on the house back roof using a scraper to remove the old shingle roof.35 Had the workers 

on the back roof fallen they would have fallen to onto the hard surface driveway, made of concrete 

or asphalt. On this worksite, 3-D Builders’ workers were not protected from falling by using a 

personal fall arrest system. On this worksite, there was no evidence of a guardrail system or safety 

net system. (Tr. 33, 38, 40-41, 62-64; Ex. C-5, C-8). 

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

We started the roof on Monday. We are removing the shingle roof. The porch roof 

is about 3/12 and the main roof is about 10/12. We have been on the roof since 

7:00 a.m. this morning. We have two harnesses. 36 We have worn them before on 

the beauty college downtown. I have been doing construction for 20 some years. I 

know fall protection is required. I know the requirement anything over six feet 

need to have fall protection. We weren’t wearing it because it’s a pain in the ass. 

The ropes get tangled around hoses and feet. If I was doing this job by the book I 

would have had fall protection. I have fallen off roofs before, so I know the hazard. 

We do a lot of roofs. Most of the jobs we don’t wear fall protection. I have never 

been inspected by OSHA. We are subbing for Lynn Wood Company. He didn’t 

say anything about fall protection. I know the OSHA requirement from studying 

for my contractor’s test. . . . The porch roof is 11-13 feet high and the main roof 

is about 20-22 feet high. The guys finished the main roof yesterday.37 We didn’t 

wear fall protection for that roof either. 

 

35 The old shingles were nailed to the roof. The workers slide the scraper under the shingle and 

jostle the shingle, to remove the nail and pry the shingle off the roof. The scraper was used like a 

crowbar. (Tr. 66-67). 

36 The CO did not know if Mr. Davis meant that 3-D Builders had two harnesses on this jobsite or,

generally, that the company had two harnesses at the shop. (Tr. 69, 75).

37 Mr. Davis specifically admits knowledge that the employees did not wear fall protection on 

Tuesday when working on the main roof of the house. (Tr. 78-79; Ex. C-1).
19

(Tr. 44-45; Ex. C-1). 

The CO understood Mr. Davis’ statement that “[t]he ropes get tangled around hoses and 

feet,” to reference “rope vests” used in fall protection systems, 38 and air “hoses” used in roofing 

to connect pneumatic nail guns to air compressors. He testified that most employers use pneumatic 

nail guns to secure shingles to the roof. Air hoses were used on this roofing worksite. They are

visible in the inspection photographs. (Tr. 47-48, 68, 75; Exs. C-6, C-8).

Citation Evidence Summary and Findings

The evidence establishes that the cited construction standard applied to this residential 

construction worksite, where 3-D Builders’ workers were engaged in roofing activities on a twostory house. The CO’s testimony, Respondent owner Mr. Davis’ admissions, and the inspection 

photographs reveal that the cited fall protection standard was violated. On this worksite, 

Respondent’s workers were not protected by guardrail systems, safety net system, personal fall 

arrest system, or any alternative fall protection measure.

As discussed in greater detail above, the record evidence must establish that the employer 

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

See e.g., Revoli Constr. Co., 19 BNA OSHC at 1684.

In this case, Respondent owner Mr. Davis had actual knowledge of the OSHA fall 

protection requirement, the violative condition at this worksite, and the fall hazard. Mr. Davis was 

present working on this jobsite.39 The fall protection violation was obvious, in plain view. This is 

sufficient to show actual or constructive knowledge of the violative condition. In fact, when

interviewed, Respondent owner Mr. Davis boldly admitted that, during this entire roofing job, 

3-D Builders’ workers had not used fall protection. Mr. Davis stated he thought using fall 

protection was “a pain in the ass.” The evidence establishes that Mr. Davis had knowledge of the 

OSHA fall protection standard cited. Mr. Davis acknowledged knowing that fall protection is 

required for any work performed “over six feet.” He told the CO if he “was doing this job by the 

book [he] would have had fall protection.” Mr. Davis told the CO he knew the OSHA requirement 

 

38 Based on the record, I find the CO’s statement regarding “rope vests used in fall protection 

systems,” to reference lanyards and body harnesses, components of a personal fall arrest system. 

29 C.F.R. §§ 1926.502(d)(Personal fall arrest systems); 1926.500(b)(Definitions: Lanyard). When 

interviewed by the CO, Mr. Davis mentioned fall protection “harnesses.” (Ex. C-1). 

39 See Note 5 above. 
20

from studying for his contractor’s test. In addition, Mr. Davis stated that he had personal 

knowledge of the fall hazards roofing presented, as he had fallen off roofs before. (Tr. 45, 64; Ex. 

C-1).

The evidence establishes that Respondent’s workers were exposed to the violative 

condition created by Respondent’s failure to protect the workers from the fall hazard. The CO 

observed and photographed four workers at this worksite without fall protection: two workers on 

the front porch roof and two workers on the house back roof. 

Characterization and Penalty Amount

Serious 

The Secretary characterizes this citation item as serious and willful. See Complaint ¶ 6. A 

violation is “serious” if there was a substantial probability that death or serious physical harm 

could have resulted from the violative condition. 29 U.S.C. § 666(k). The CO testified that there 

was a likelihood of serious harm and that four workers, including Mr. Davis, were exposed to the 

violative condition. The fall protection violation exposed employees to a fall risk from ten feet to 

the ground from the front porch roof and a fall risk from approximately twenty feet to the ground 

from the main roof. The CO testified that a fall injury from those heights could result in permanent 

disability or death. (Tr. 65, 72). The citation is properly classified as serious. 

Willful 

“The hallmark of a willful violation is the employer's state of mind at the time of the 

violation—an ‘intentional, knowing, or voluntary disregard for the requirements of the Act or ... 

plain indifference to employee safety.”’ Kaspar Wire Works, Inc., 18 BNA OSHC 2178, 2181 

(No. 90-2775, 2000) (citation omitted), aff'd, 268 F.3d 1123 (D.C. Cir. 2001).

[I]t is not enough for the Secretary to show that an employer was aware of conduct 

or conditions constituting the alleged violation; such evidence is already necessary 

to establish any violation .... A willful violation is differentiated by heightened 

awareness of the illegality of the conduct or conditions and by a state of mind of 

conscious disregard or plain indifference .... 

Hern Iron Works, Inc., 16 BNA OSHC 1206, 1214 (No. 89-433, 1993); see also Bianchi Trison 

Corp. v. Chao, 409 F.3d 196, 208 (3d Cir. 2005) (A willful violation of the OSH Act “constitutes 

an act done voluntarily with either an intentional disregard of, or plain indifference to, the OSH 

Act's requirements.”). 
21

There must be evidence that an employer knew of an applicable standard or 

provision prohibiting the conduct or condition and consciously disregarded the 

standard. Without such evidence of familiarity with the standard's terms, there must 

be evidence of such reckless disregard for employee safety or the requirements of 

the law generally that one can infer that if the employer had known of the standard 

or provision, the employer would not have cared that the conduct or conditions

violated it. 

Williams Enterps., Inc., 13 BNA OSHC 1249, 1257 (No. 85-355, 1987). See MJP Constr. Co., 

Inc., 19 BNA OSHC 1638, 1648 (No. 98-0502, 2001),aff’d, 56 F. App'x 1 (D.C. Cir. 2003) 

(unpublished) (an employer with knowledge of the standards’ requirements and knowledge of the 

conditions that violate the standard, who fails to correct the violation, demonstrates knowing, 

conscious disregard of the standard). 

At the time of the inspection, 3-D Builder’s owner Mr. Davis had a heightened awareness 

of the OSHA fall protection requirements. Mr. Davis also had a heightened awareness of roofing 

work hazards when fall protection is not used. (Sec’y Br. at 10).

Several statements made by Mr. Davis, during his OSHA inspection interview, disclose his 

heightened awareness. Mr. Davis stated that he had been in business for over twenty years, he 

knew that OSHA required fall protection for any work over six feet, and that OSHA required fall 

protection when working on a roof. He knew of OSHA’sfall protection requirement from studying 

for his contractor’s test. Also, Mr. Davis said that the company had two harnesses, they just didn’t 

wear them. Mr. Davis knew of the fall hazard, as he had fallen off roofs in the past. Mr. Davis 

said that they weren’t wearing fall protection on this worksite because it was “a pain in the ass,” 

and the ropes get tangled around hoses and feet. Mr. Davis admitted that on most jobs they do not 

wear fall protection. In fact, the day before the OSHA inspection, when the employees were 

working on the very steep main roof of this house, the employees did not wear fall protection. Mr. 

Davis had actual knowledge that he and the other 3-D Builders’ roofers, on this jobsite, worked 

without fall protection. (Tr. 68-71; Ex. C-1). Mr. Davis’ bold admissions in his OSHA interview 

statement are unrebutted. 

Respondent owner Mr. Davis consciously disregarded the OSHA fall protection 

requirements. Recklessly, Mr. Davis had the 3-D Builders’ roofers work at heights, without any 

fall protection, exposing them to disabling injuries and potentially death from falls. Mr. Davis’ 

interview statements disclose plain indifference to the fall hazards to which the roofers were 

exposed. The citation is properly classified as willful. 
22

Penalty

The Secretary contends that the willful fall protection violation warrants a finding of high 

severity and greater probability. (Tr. 76; Sec’y Br. at 11). The CO determined the severity of the 

fall protection violation to be high based on the fall risk from ten feet to the ground from the front 

porch roof and the fall risk from approximately twenty feet to the ground from the main roof. A 

fall injury from those heights could result in permanent disability or death. (Tr. 65, 72). 

At the hearing and in its post-hearing brief, the Secretary contends that this violation 

warrants a finding of greater probability.

40

 The record evidence establishes that there were four

employees on the roof, they had been on this roofing worksite for two and a half days at the time 

of the inspection, there was no fall protection system used, and the work task the CO observed of 

employees using a scraper to remove the shingles, potentially could have resulted in an employee 

losing his balance and falling. When using the scraper to remove the shingles, the workers leaned

forward toward the back-roof edge and exerted bodily force. (Tr. 64-68, 71-72, 80; Ex. C-8). 

Further, the presence of air hoses on the roof increased the probability of an employee tripping on

an air hose and falling to the ground. (Tr. 68). The roofers worked for approximately six hours 

on the inspection day.

41 Mr. Davis admitted that the workers had not used fall protection, on the 

day before the inspection, when working on the very steep main roof. 42 The record establishes 

that employees were exposed to a fall hazard for approximately two days. (Tr. 71; Exs. C-1; C4).

The gravity-based penalty for a willful violation of high severity and greater probability 

would be calculated as $ 70,000. 3-D Builders has no OSHA history. OSHA did not consider a 

good faith penalty reduction, as the citation classification is willful. 3-D Builders is a small 

employer, with fewer than ten employees; therefore, the Secretary proposed an eighty percent size

reduction regarding the willful violation penalty. Therefore, at the hearing and in its post hearing

 

40 Initially, at the time the citation issued, the CO determined the probability to be lesser. 

Therefore, as issued, the proposed penalty for the willful violation was $11,000. (Tr. 65, 76). 

41 On Wednesday, the day of the OSHA inspection, the employees started work at approximately 

7:00 a.m. and came down from the roof at approximately 12:45 – 1:00 p.m. (Tr. 65; Ex. C-1). 

42 “We didn’t wear fall protection for that roof either.” (Tr. 45; Ex. C-1). I find that Mr. Davis’ 

use of the pronoun “we,” during his statement to the CO, reveals that on Tuesday more than one 

employee worked on the main roof without fall protection.
23

brief, the Secretary proposed a penalty of $14,000 for this willful citation item. (Tr. 72-73, 76; 

Sec’y Br. at 11). I agree. 

Therefore, a penalty of $ 14,000 is assessed for the willful violation of § 1926.501(b)(13) set 

forth in citation 2, item 1.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The forgoing decision constitutes the findings of fact and conclusions of law in accordance 

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

ORDER

Based on the foregoing decision, it is hereby ORDERED:

Item 1(a) of Citation No. 1, alleging a serious violation of 29 C.F.R. § 1926.1053(b)(1) is 

AFFIRMED, and a penalty of $ 2,000 is assessed. 

Item 1(b) of Citation No. 1, alleging a serious violation of 29 C.F.R. § 1926.1060(a) is 

VACATED; the request to withdraw this citation item is approved.

Item 1 of Citation No. 2, alleging a willful violation of 29 C.F.R. § 1926.501(b)(13) is 

AFFIRMED, and a penalty of $14,000 is assessed.

/s/

Carol A. Baumerich

Judge, OSHRC

Dated: February 23, 2018
24

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

The transcript is amended to reflect the following corrections.

Page Line(s) Stated in transcript As corrected 

10 16 54(f) 52(f)

15 15 compliance compliant

18 12 credible critical

19 1 ordered offered

45 11 Lynnwood Lynn Wood

48 8, 11, 19 Lynnwood Lynn Wood

57 7 that being six inches? that being two feet six inches?

60 24 unless issued

64 8 works workers

68 12 probably probability