United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

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

Washington, DC 20036-3457

ON BRIEFS: 

Ashley A. Briefel, Senior Attorney; Charles F. James, Counsel for Appellate Litigation; Edmund 

C. Baird, Associate Solicitor for Occupational Safety and Health; Kate S. O’Scannlain, Solicitor of 

Labor; U.S. Department of Labor, Washington, D.C. 

For the Complainant 

Anthony D. Tilton, Esq.; Patrick S. Bickford, Esq.; Emily C. Burke, Esq.; Cotney Construction 

Law, LLP, Tallahassee, FL 

For the Respondent 

DECISION 

Before: ATTWOOD, Chairman; SULLIVAN and LAIHOW, Commissioners.

BY THE COMMISSION:

Following the inspection of a residential roofing project in West Jacksonville, Florida, the 

Occupational Safety and Health Administration issued StormForce of Jacksonville, LLC, a citation 

alleging a serious violation of 29 C.F.R. § 1926.501(b)(13), which requires employees “engaged 

in residential construction activities 6 feet (1.8 m) or more above lower levels” to be protected by 

specified fall protection measures. Administrative Law Judge Heather A. Joys affirmed the 

citation and assessed the proposed $10,210 penalty. For the reasons discussed below, we reverse 

the judge and vacate the citation. 

SECRETARY OF LABOR, 

STORMFORCE OF JACKSONVILLE, 

LLC, 

Complainant, 

Respondent. 

v. OSHRC Docket No. 19-0593 
2 

BACKGROUND 

An OSHA compliance officer inspected the roofing project’s worksite, a single-family 

home, on the second and final day of the job. The crew at the worksite was employed by Florida 

Roofing Experts, Inc. (FRE), which in turn was a subcontractor of StormForce, the roofing 

project’s general contractor. Since 2015, StormForce has exclusively used FRE (or FRE’s 

predecessor, Great White Construction) for all roofing jobs—approximately 600 to 700 per year. 

At the time of OSHA’s inspection, a five-member FRE crew was working on the house’s 

roof and no StormForce employee was present on site, though StormForce’s site foreman—the 

only StormForce employee to visit the worksite—had inspected the project that morning and the 

day before. After observing the crew’s work, the compliance officer concluded that the crew was 

not using any form of fall protection. OSHA subsequently issued StormForce a citation for that 

failure as a “controlling employer” under the Secretary’s multi-employer citation policy. 

DISCUSSION 

On review, StormForce challenges three aspects of the judge’s decision. First, StormForce 

claims the judge erred in finding that the cited provision is not preempted by a more specifically 

applicable provision. Second, the company argues the judge erred in finding that StormForce was 

properly cited as a controlling employer at the roofing worksite. Finally, the company maintains 

that even if it was a controlling employer, the judge erred in finding it violated the cited provision. 

I. Preemption 

StormForce argues that another provision of the fall protection standard, 29 C.F.R. 

§ 1926.501(b)(10), is more specifically applicable than the one cited by the Secretary here. See 

29 C.F.R. § 1926.20(d)(1) (“If a particular standard is specifically applicable to a condition, 

practice, means, method, operation, or process, it shall prevail over any different general standard 

which might otherwise be applicable to the same condition, practice, means, method, operation, or 

process.”); see also Vicon Corp., 10 BNA OSHC 1153, 1156 (No. 78-2923, 1981) (claim that 

general standard is preempted by more specific standard is affirmative defense), aff’d, 691 F.2d 

503 (8th Cir. 1982) (unpublished table decision). The judge rejected StormForce’s preemption 

defense, concluding that the two standards are “equally applicable” and, consequently, the 

Secretary has prosecutorial discretion to choose which one to enforce. We agree that the defense 

should be rejected, but for different reasons than the judge. 
3 

The citation alleges that, in violation of § 1926.501(b)(13), StormForce “failed to assure 

that five subcontracted employees conducting re-roofing work on a 3:12 pitch roof were protected 

from . . . 13-[foot], 6[-]inch fall hazards by the use of . . . personal fall arrest systems, or an 

alternative fall protection measure.” The cited provision expressly applies to “[r]esidential 

construction,” whereas § 1926.501(b)(10), the provision StormForce claims is more specifically 

applicable here, applies to “[r]oofing work on [l]ow-slope roofs.”1

 There is no dispute that FRE 

was engaged in residential construction activities that included “[r]oofing work” on a “[l]ow-slope 

roof,” as those phrases are defined in the fall protection standard. 29 C.F.R. § 1926.500(b) 

(definitions of “[l]ow-slope roof” and “[r]oofing work”). 

Paragraph (b)(13) provides, in part, that employees working “6 feet (1.8 m) or more above 

lower levels” must “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 

1

 These provisions state as follows: 

(10) Roofing work on Low-slope roofs. Except as otherwise provided in paragraph 

(b) of this section, each employee engaged in roofing activities on low-slope roofs, 

with unprotected sides and edges 6 feet (1.8 m) or more above lower levels shall be 

protected from falling by guardrail systems, safety net systems, personal fall arrest 

systems, or a combination of warning line system and guardrail system, warning 

line system and safety net system, or warning line system and personal fall arrest 

system, or warning line system and safety monitoring system. Or, on roofs 50-feet 

(15.25 m) or less in width (see appendix A to subpart M of this part), the use of a 

safety monitoring system alone [i.e. without the warning line system] is permitted. 

. . . . 

(13) 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. 

Exception: When the employer can demonstrate that it is infeasible or creates a 

greater hazard to use these systems, the employer shall develop and implement a 

fall protection plan which meets the requirements of paragraph (k) of §1926.502. 

NOTE: There 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. Accordingly, 

the employer has the burden of establishing that it is appropriate to implement a fall 

protection plan which complies with §1926.502(k) for a particular workplace 

situation, in lieu of implementing any of those systems. 

29 C.F.R. § 1926.501(b)(10), (13).
4 

protection measure.” 29 C.F.R. § 1926.501(b)(13) (emphasis added). Based on this language, the 

additional fall protection measures available for use on a low-slope roof under paragraph (b)(10) 

can also be used under paragraph (b)(13) when residential construction includes roofing work 

performed on a such a roof.2

 Id.; Safety Standards for Fall Protection in the Construction Industry, 

59 Fed. Reg. 40,672, 40,693 (Aug. 9, 1994) (final rule) (noting as to paragraph (b)(13) that “if 

another provision in paragraph (b) allows an alternative fall protection measure, such as covers 

over holes, those alternatives measures are also acceptable and do not need to be documented in a 

fall protection plan in order to be used”). In contrast, paragraph (b)(10), the provision StormForce 

claims is more specifically applicable, does not incorporate additional methods of compliance set 

forth in other provisions, such as paragraph (b)(13).3

 29 C.F.R. § 1926.501(b)(13) (“Exception: 

2

 StormForce notes that non-mandatory Appendix A to subpart M references paragraph (b)(10), 

but not paragraph (b)(13), when discussing the safety monitor option for roofs 50 feet or less in 

width (such as the roof at issue). According to StormForce, this shows that paragraph (b)(10) is 

more specifically applicable because the appendix “provides specific guidance for how employers, 

engaged solely in roofing work on low-slope[] roofs, can comply with [paragraph (b)(10’s] fall 

protection requirements.” As discussed above, however, the plain language of paragraph (b)(13) 

specifically allows for the use of “an alternative fall protection measure” set forth in another 

provision in paragraph (b) when applicable—such as the use of a safety monitoring system on a 

low-slope roof with a width 50 feet or less. Although Appendix A is titled “Non-Mandatory 

Guidelines for Complying With § 1926.501(b)(10),” there is nothing in the appendix that 

undermines paragraph (b)(13)’s plain language. 

StormForce also argues that the preamble to the fall protection standard explains that the 

“alternative fall protection measure language” in paragraph (b)(13) was “included to address 

situations where ‘infeasibility or greater hazard situations arise’ in residential construction.” This 

part of the preamble, however, specifically discusses the exception in paragraph (b)(13) and not 

the preceding sentence that references “an alternative fall protection measure.” Safety Standards 

for Fall Protection in the Construction Industry, 59 Fed. Reg. 40,672, 40,692-93 (Aug. 9, 1994) 

(final rule). Indeed, after addressing the exception, the preamble states in the next paragraph: “[I]f 

another provision in paragraph (b) allows an alternative fall protection measure, such as covers 

over holes, those alternatives measures are also acceptable and do not need to be documented in a 

fall protection plan in order to be used.” Id. at 40,693 (emphasis added). 

3

 We note that although the opening clause of paragraph (b)(10)—“Except as otherwise provided 

in paragraph (b) of this section”—could be considered ambiguous with regard to whether it 

incorporates the requirements of other provisions, the preamble makes clear that the purpose of 

this clause is to limit paragraph (b)(10)’s applicability: 

As with paragraph (b)(9), discussed above, the provisions of paragraph (b) which 

cover hoisting areas, holes, ramps and runways, and dangerous equipment apply 
5 

When the employer can demonstrate that it is infeasible or creates a greater hazard to use these 

systems, the employer shall develop and implement a fall protection plan which meets the 

requirements of paragraph (k) of §1926.502.”). 

Accordingly, only paragraph (b)(13) allows for the full complement of fall protection 

measures that could apply to the specific type of roofing work at issue here (work that is part of 

residential construction) as well as the type of roof on which the work was being performed (a 

low-slope roof). We therefore reject StormForce’s preemption defense. Compare Pa. Steel 

Foundry & Mach. Co., 12 BNA OSHC 2017, 2029 (No. 78-0638, 1986) (finding guarding standard 

that “fully addresses the matter of guarding a wheel of a swing frame grinder” is more specifically 

applicable than general guarding standard cited by Secretary), aff’d, 831 F.2d 1211 (3d Cir. 1987).

II. Controlling Employer 

The Secretary cited StormForce as a “controlling employer” under its multi-employer 

citation policy.4

 OSHA Instruction CPL 02-00-124, Multi-Employer Citation Policy ¶ X.E (Dec. 

10, 1999); see Summit Contractors, Inc., 22 BNA OSHC 1777, 1781 (No. 03-1622, 2009) (stating 

“[t]he Secretary’s multi-employer citation policy is to the same effect” as Commission precedent). 

notwithstanding the provisions of paragraph (b)(10). The rationale for these 

exceptions is the same as that provided in the discussion of paragraph (b)(9), above. 

Safety Standards for Fall Protection in the Construction Industry, 59 Fed. Reg. at 40,689; see Am. 

Sterilizer Co., 15 BNA OSHC 1476, 1478 (No. 86-1179, 1992) (standard’s preamble can be “ ‘best 

and most authoritative statement of the Secretary’s legislative intent’ ” (citation omitted)). The 

preamble’s “discussion of paragraph (b)(9)” referenced in the above passage is as follows: 

It is important to note that controlled access zones are not permitted to be used as 

protection for employees performing overhand bricklaying and related work who 

are exposed to fall hazards associated with hoist areas; holes; ramps, runways, and 

other walkways, and dangerous equipment. In these situations, fall protection must 

be provided by compliance with the paragraphs addressing the specific hazard, (i.e., 

paragraphs (b)(3), (4), (6), and (8)), as appropriate. 

59 Fed. Reg. at 40,688-89. Thus, rather than incorporating additional methods of compliance set 

forth in other paragraphs, paragraph (b)(10)’s opening clause limits that provision’s applicability. 

4

 According to the Secretary’s policy, a “controlling employer” is “[a]n employer who has general 

supervisory authority over the worksite, including the power to correct safety and health violations 

itself or require others to correct them”; “[c]ontrol can be established by contract or, in the absence 

of explicit contractual provisions, by the exercise of control in practice.” OSHA Instruction CPL 

02-00-124, Multi-Employer Citation Policy ¶ X.E (Dec. 10, 1999). 
6 

Under Commission precedent, “[a]n employer may be held responsible for the violations of other 

employers ‘where it could reasonably be expected to prevent or detect and abate the violations due 

to its supervisory authority and control over the worksite.’ ” Summit, 22 BNA OSHC at 1780 

(citing McDevitt Street Bovis, Inc., 19 BNA OSHC 1108, 1109 (No. 97-1918, 2000)); see Summit 

Contractors, Inc., 23 BNA OSHC 1196, 1200-01, 1203 (No. 05-0839, 2010) (noting that “[t]he 

Commission’s test of employer liability, which grew out of the reasoning in these early cases, held 

an employer ‘responsible for the violations of other employers where it could reasonably be 

expected to prevent or detect and abate the violations due to its supervisory authority and control 

over the worksite’ ”; overruling Summit Contractors, Inc., 21 BNA OSHC 2020 (No. 03-1622, 

2007), vacated, 558 F.3d 815 (8th Cir. 2009), and “restor[ing] the Commission’s well-settled 

precedent on multi-employer liability”), aff’d, 442 F. App’x 570 (D.C. Cir. 2011) (unpublished). 

Here, the judge concluded that the record evidence establishes StormForce’s “overall 

supervisory role on the worksite, including its control over scheduling, logistics, and quality of 

work,” and that StormForce “exercised sufficient supervisory control . . . such that it could have 

directed FRE to correct safety violations.”5

 Based on our review of this evidence, as discussed in 

detail below, we agree with the judge and conclude that the Secretary has proven StormForce was 

a controlling employer at the cited worksite. 

5

 Relying on Gil Haugan, 7 BNA OSHC 2004, 2006 (No. 76-1512, 1979) (consolidated), the judge 

concluded that StormForce’s role as the “general contractor” on the cited project created a 

rebuttable presumption that StormForce was a controlling employer. In the more than 40 years 

since the Haugan decision was issued, the Commission has never again recognized the existence 

of such a presumption. But see R.P. Carbone Constr. Co. v. OSHRC, 166 F.3d 815, 818 (6th Cir. 

1998) (citing Haugan for proposition that “[t]here is a presumption that a general contractor has 

sufficient control over its subcontractors to require them to comply with safety standards”). 

Moreover, the rebuttable presumption identified in Haugan is directly at odds with the 

Commission’s treatment of burdens when assessing an entity’s status as an employer in other 

contexts. Compare All Star Realty Co., 24 BNA OSHC 1356, 1358 (No. 12-1597, 2014) (“[T]he 

Secretary has the burden of proving that a cited respondent is the employer of the affected workers 

at the site.” (quoting Allstate Painting & Contracting Co., 21 BNA OSHC 1033, 1035 (No. 97-

1631, 2005) (consolidated))); Loretto-Oswego Residential Health Care Facility, 23 BNA OSHC 

1356, 1358 n.4 (No. 02-1164, 2011) (consolidated) (overruling Trinity Indus. Inc., 9 BNA OSHC 

1515 (No. 77-3909, 1981), to hold that Secretary bears burden of showing that “the cited entity is 

part of a single-employer relationship”), aff’d, 692 F.3d 65 (2d Cir. 2012). We thus overrule 

Haugan to the extent that its formulation of a “rebuttable presumption” is inconsistent with 

established precedent. 
7 

Master Subcontractor Agreement 

StormForce claims that its contract with FRE, titled “Master Subcontractor Agreement” 

and in place at the time of OSHA’s inspection, sets out “the framework for [its] limited supervisory 

authority at projects.” That contract specifies that StormForce “does not retain supervisory control 

of such joint use areas for purposes of liability for unsafe conditions” and that “StormForce shall 

not be able to ensure [FRE’s] adherence to safety standards and the [Occupational and Safety 

Health] Act because StormForce cannot reasonably be expected to prevent, detect or abate 

violative conditions by reason of its limited role on the project.” And, in the event StormForce 

does observe unsafe conduct by an FRE employee, the contract states that “StormForce’s sole 

remedy shall be to contact [FRE’s] management personnel and identify the breach of contract.” 

These contractual clauses, however, are undermined by the contract’s incorporation of a 

document—titled “Subcontractor Expectations”—that sets forth an extensive list of work conduct 

and practices StormForce requires FRE and its employees to follow on roofing projects. This 

detailed list, along with other evidence concerning StormForce’s inspection responsibilities, 

demonstrates that StormForce’s supervisory authority was far from limited. For example, the 

contract’s list requires FRE to call StormForce’s site foreman once FRE’s employees arrive on site 

or if they are going to be late, if there is a problem with the existing roof, if the homeowner 

becomes angry or upset, if its employees cause or discover damage to the home, if weather or 

darkness prevents completion of the job, and when the job is complete but before its employees 

leave the job site. Per the contract, FRE must also inform StormForce if there is a material 

shortage, and FRE can acquire additional materials only after obtaining written approval from 

StormForce’s site foreman. 

In addition, the contract prohibits FRE from (1) starting a new job until the pending one is 

complete; (2) communicating with the homeowner at any point during the job (only StormForce 

is allowed to do this), including rescheduling the work for any reason (e.g., weather); and (3) 

placing “any signage of their company or any other company on [the] jobsite,” or even mentioning 

any company name other than StormForce while working.6

 Finally, FRE employees are required 

6

 On the worksite at issue here, not only was FRE’s name absent from the worksite, but StormForce 

placed a magnet with its company name on a dumpster owned by FRE. 
8 

to wear certain clothing at the worksite and refrain from using any profanity while there.7 Given 

these comprehensive requirements, we find that StormForce’s actual supervisory authority under 

its contract with FRE is much more extensive than StormForce claims. 

Work and Safety Practices 

StormForce’s work and safety practices, particularly those required of the company’s site 

foremen, further demonstrate the extensive degree of control that StormForce maintains at its 

worksites.8

 Before a job begins, FRE notifies StormForce’s area installation manager (AIM) who 

FRE’s crew leader for that job will be, and the AIM assigns one of StormForce’s site foremen to 

the worksite. On the first morning of the job, StormForce’s site foreman arrives on site by 7 a.m. 

to introduce himself to the homeowner, takes preconstruction photos of various locations on and 

near the house, checks the accuracy of delivered materials, and then leads a crew “huddle.” During 

this huddle, StormForce’s site foreman identifies FRE’s crew leader and exchanges phone 

numbers, reviews the scope of work to be performed, reviews dress and language codes, 

emphasizes that homeowner contact be made through StormForce, and verifies that FRE has taken 

steps to adequately protect the homeowner’s property (such as air conditioning units and 

landscaping) in accordance with the contract. 

Once work commences, StormForce’s site foreman has extensive inspection 

responsibilities. After the FRE crew completes the removal of the roof’s shingles, the site foreman 

inspects the roof’s deck and takes photos to document the deck’s existing condition. He then 

“carefully” observes the next step of the roofing process, during which a felt layer is installed. 

Following this process, he observes the “roofing installation up on the roof” during “at least three 

intervals.”9

 Finally, he closes out the job by performing a final walkthrough with the homeowner, 

7

 StormForce’s area installation manager testified that one of the company’s site foremen has 

contacted his FRE counterpart about a crew member wearing a t-shirt that referenced a different 

contractor, and after talking to FRE’s site foreman, the crew member turned his shirt inside out. 

8

 These work and safety practices are set forth in materials that are used to train StormForce’s site 

foremen, including the one who was assigned to the worksite that OSHA inspected. 

9

 The AIM disputed whether this last requirement actually mandates three separate inspections by 

StormForce’s site foreman. The AIM explained that “at least three intervals” simply means that 

the foreman is there “before, during, and after” roofing installation—though this explanation is 

suspect since the inspection requirement explicitly concerns “roofing installation up on the roof.” 
9 

completing the roofing and additional materials checklists, and taking photos to ensure that there 

are no deficiencies that need to be corrected. 

As to safety practices, StormForce maintains that FRE, not StormForce, is responsible for 

providing the crew with fall protection equipment and correcting and/or disciplining crew 

members for any safety violations. The record shows, however, that StormForce monitors safety 

issues during its regular worksite inspections. Indeed, StormForce provides its site foreman with 

a written safety checklist that must “be completed on every job.” This checklist requires the site 

foreman to ensure that “all roofing materials [from] the supplier” are “placed so as not to obstruct 

safe access to the roof”; “[t]hat [FRE] provides a secure means for getting on and off the roof”; 

“[t]hat Good Housekeeping on the job is maintained to stop material from falling off the roof or 

tripping up workers”; and “[t]hat full consideration of weather conditions is taken in times of high 

wind, precipitation and icing.” 

Procedures accompanying the safety checklist also state that StormForce’s site foreman 

“should recognize when [an FRE] employee is engaged in work which is dangerous and could 

result in death or serious injury” and that if the “Site Foreman witnesses [an FRE] employee 

working in violation of OSHA rules, [he or she] will contact [FRE’s] home office and notify the 

company director of this conduct.” The AIM testified that when StormForce notifies FRE of a 

safety violation, FRE’s site foreman is expected to “come on-site or get on the phone with the 

crew” and “fix” the identified issue. And as to fall protection equipment in particular, the AIM 

testified that if StormForce’s site foreman notices that FRE either lacks the necessary equipment 

or sees that it is not being used, he or she will call FRE’s site foreman to “find out what’s going 

on.” According to the AIM, it has “always been the case” that reporting a violation in this manner 

results in FRE taking care of the issue, and that StormForce’s site foremen have never reported a 

problem with this procedure. See Summit, 22 BNA OSHC at 1781 (finding evidence of control 

where respondent’s employee “would only ‘suggest or recommend’ that [subcontractor] correct 

its fall protection violations,” and subcontractor would always comply). Although the AIM 

confirmed that StormForce has never trained or disciplined any FRE employee, he conceded that 

“if something is going wrong on a job,” StormForce has the authority to make FRE leave the 

worksite. 

In sum, we find that StormForce’s contract with FRE, as well as its actual inspection and 

monitoring practices at this worksite, establish that the company had supervisory authority and 
10 

control over conditions at the worksite. See Summit, 23 BNA OSHC at 1206 (finding evidence of 

control where respondent’s superintendent “observed the progress of the project and worksite 

conditions by walking the worksite twice each day” and, during weekly meetings, he “point[ed] 

out obvious hazards to the subcontractors”); McDevitt, 19 BNA OSHC at 1109-10 (finding 

evidence of control where general contractor had “overall authority at the worksite,” including 

authority to demand compliance with safety requirements, stop subcontractor’s work, and remove 

subcontractor from site). We therefore conclude that the Secretary has established that StormForce 

was a controlling employer.

III. Alleged Violation 

“On a multi-employer worksite, a controlling employer is liable for a contractor’s 

violations if the Secretary shows that [the controlling employer] has not taken reasonable measures 

to ‘prevent or detect and abate the violations due to its supervisory authority and control over the 

worksite.’ ” Suncor Energy (U.S.A.) Inc., No. 13-0900, 2019 WL 654129, at *4 (OSHRC Feb. 1, 

2019) (citing Centex-Rooney Constr. Co., 16 BNA OSHC 2127, 2130 (No. 92-0851, 1994)); see 

Am. Wrecking Corp., 19 BNA OSHC 1703, 1709 (No. 96-1330, 2001) (consolidated) (noting that 

general contractor at multi-employer worksite “was responsible for taking reasonable steps to 

protect the exposed employees of subcontractors”), aff’d in relevant part, 351 F.3d 1254 (D.C. 

Cir. 2003). If a controlling employer has actual knowledge of a subcontractor’s violation, the 

controlling employer has a duty to take reasonable measures to obtain abatement of that violation. 

See Summit, 22 BNA OSHC at 1782 (concluding controlling employer “failed to take the 

reasonable steps and measures necessary to obtain abatement,” where it stipulated to 

subcontractor’s noncompliance with fall protection standard and its knowledge of cited conditions, 

and it failed to notify subcontractor of violative conditions—a procedure that had resulted in 

abatement in the past); Century Communities of Ga., LLC, 771 F. App’x 14, 15-16 (D.C. Cir. 2019) 

(unpublished) (“Finding that Century had actual knowledge of the violative condition, the ALJ 

correctly concluded that Century’s general safety policies and procedures could not defeat liability 

under Commission precedent: Century had actual knowledge of the specific hazard and the 

authority to abate it but did nothing to correct it.” (emphasis added)). It is well-established that “a 

controlling employer’s duty to exercise reasonable care ‘is less than what is required of an 

employer with respect to protecting its own employees.’ ” Suncor, No. 13-0900, 2019 WL 654129, 
11 

at *4 (citing Summit, 22 BNA OSHC at 1781, which quotes OSHA Instruction CPL 02-00-124, 

Multi-Employer Citation Policy ¶ X.E.2). 

Here, the judge found noncompliance based on her finding that FRE failed to use any form 

of fall protection, and then concluded—based solely on photos taken by StormForce’s site foreman 

during his worksite inspections—that StormForce had actual knowledge of that failure.10 See 

Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1537 (No. 86-0360, 1992) (consolidated) (“The 

actual or constructive knowledge of a foreman or other supervisory employee can be imputed to 

the employer.”). In reaching these conclusions, however, the judge did not discuss StormForce’s 

lesser duty as a controlling employer or specify what StormForce should have done differently to 

fulfill its compliance obligations. See Suncor, No. 13-0900, 2019 WL 654129, at *4. For the 

reasons discussed below, we find the record evidence does not establish that StormForce had actual 

knowledge of the violative conditions, nor does the record establish that StormForce failed to meet 

its obligation as a controlling employer to “prevent or detect” these conditions. See id.

Actual Knowledge 

There is no dispute that during the two-day roofing project, FRE’s crew was not using a 

guardrail system, a safety net, personal fall arrest systems, or a warning line system while working 

on the roof, and there is no claim that StormForce’s site foreman believed otherwise. The 

remaining fall protection measure available to FRE’s crew was a safety monitoring system, which 

is a permissible form of fall protection when, as in this case, roofing work is performed on a lowslope roof with a width of 50 feet or less. 29 C.F.R. § 1926.500(b) (definitions of “[l]ow-slope 

roof” and “[r]oofing work”); 29 C.F.R. § 1926.501(b)(10) & (13) (fall protection requirements). 

The record supports the judge’s finding that, at the time of OSHA’s inspection, FRE’s fivemember crew could not have been using a safety monitoring system that complied with the fall 

protection standard, because the compliance officer’s testimony, as well as his photos and video 

of the worksite, establish that all five crew members onsite that day were engaged in roofing work, 

which precludes a finding that any of them were serving as a safety monitor. 29 C.F.R. 

§ 1926.502(h)(1)(v) (“The safety monitor shall not have other responsibilities which could take 

10 Although OSHA took a statement from StormForce’s site foreman about a month after the 

compliance officer’s inspection, this statement is not part of the record and neither party called 

him as a witness. In addition, OSHA took no statements from anyone associated with FRE—

including the crew that was working on the roof during OSHA’s inspection, and the company’s 

site foreman and owner—and neither party called any of these individuals as a witness. 
12 

the monitor’s attention from the monitoring function.”). But it is undisputed that StormForce’s 

site foreman was not present at the time of OSHA’s inspection. As such, he could not have had 

actual knowledge of the conditions observed by the compliance officer at that time. 

The judge concluded that StormForce’s site foreman nonetheless had actual knowledge of 

the violative conditions based exclusively on photos he had taken during his inspections of the 

roofing project, both on the morning of OSHA’s inspection and the preceding day. Having 

reviewed these same photos, we find that none of them establish that a safety monitoring system 

was not being used by FRE during the site foreman’s inspections. Indeed, all but one of the photos 

show fewer than five crew members on the roof, making it possible that there was a worker serving 

as a safety monitor who is simply not shown in the photos.11 As for the only photo taken by 

StormForce’s site foreman depicting five crew members, a close review shows that the crew 

member closest to the camera is simply standing on the roof with his arms near his head—he is 

not working on the roof, unlike his fellow crew members depicted in the photo, and therefore may 

have been serving as a safety monitor.12 There is no credible evidence in the record, such as 

testimony from an FRE employee or the site foreman himself, that establishes or eliminates this 

11 According to the judge, one of the site foreman’s photos depicting fewer than five crew members 

“shows a crew member working at the roof’s edge with no monitor on the same working level.” 

We cannot discern the judge’s basis for this conclusion since the roof’s entire working level is not 

depicted and there were other FRE crew members at the site not included in the photo. 

12 There is no evidence in the record suggesting that “other responsibilities” may have taken this 

crew member’s “attention [away] from the monitoring function.” 29 C.F.R. § 1926.502(h)(1)(v). 

In addition, contrary to the judge’s finding, the four other crew members shown in the photo are 

“within visual sighting distance” of this employee—who appears to be “close enough to 

communicate orally” with them—and we disagree with the judge that being on slightly different 

slopes means that they are on different “walking/working surface[s].” 29 C.F.R. 

§ 1926.502(h)(1)(iii), (iv); see 29 C.F.R. § 1926.500(b) (defining “[w]alking/working surface” as 

“any surface, whether horizontal or vertical on which an employee walks or works, including, but 

not limited to, floors, roofs, ramps, bridges, runways, formwork and concrete reinforcing steel but 

not including ladders, vehicles, or trailers, on which employees must be located in order to perform 

their job duties”); compare Pete Miller, Inc., 19 BNA OSHC 1257, 1258 (No. 99-0947, 2000) 

(finding that use of safety monitor did not comply with requirements of § 1926.502(h), because 

“monitor was on the upper roof six feet above [worker]”). Finally, as to the remaining 

requirements in § 1926.502(h)—which pertain to the competency of the safety monitor as well as 

his duty to “warn the employee when it appears that the employee is unaware of a fall hazard or is 

acting in an unsafe manner”—this photo does not show whether, based on his observations, the 

site foreman would have been able to recognize any obvious deficiency. 
13 

possibility.13 29 C.F.R. § 1926.502(h)(1)(i), (ii). Finally, the record does not preclude the 

possibility that another crew member, not shown in the photo, was acting as a safety monitor—

although the compliance officer observed a five-member crew when he conducted his inspection 

on September 28, the only photo depicting five crew members shows the worksite as the site 

foreman observed it on September 27, the day before OSHA’s inspection.14 

Given the lack of evidence in the record concerning what StormForce’s site foreman 

actually observed during his inspections of the worksite, we find the Secretary has failed to 

establish that StormForce had actual knowledge of the violative conditions. 

Reasonable Care 

In the absence of actual knowledge of the violative conditions, we turn to whether 

StormForce met its obligation as a controlling employer to “exercise reasonable care,” i.e., to take 

“reasonable measures” to “prevent or detect” the violative conditions. Suncor, No. 13-0900, 2019 

WL 654129, at *4 (internal quotation marks omitted). The Secretary does not dispute that 

StormForce’s monitoring and inspection procedures satisfied the company’s “secondary role as a 

controlling employer in light of objective factors—the nature of the work, the scale of the project, 

and the safety history and experience of the contractors involved.” Id. at *7. Indeed, although the 

judge found that StormForce’s AIM was aware FRE had a history of OSHA violations, the 

Secretary has not challenged the appropriateness of StormForce’s procedures in light of that 

history. See OSHA Instruction CPL 02-00-124, Multi-Employer Citation Policy ¶ X.E.3.d (“More 

frequent inspections are normally needed if the controlling employer knows that the other 

13 The compliance officer testified that he was aware based on “third-party knowledge” from his 

OSHA office that FRE’s owner had provided sworn testimony in “other cases” that FRE does not 

use safety monitors on its roofing projects. Although no objection was made to this testimony, we 

find it is entitled to no weight. The Secretary neither called FRE’s owner as a witness to explain 

his purported testimony in “other cases” nor attempted to admit any such testimony as evidence in 

the instant proceeding. Even if the owner’s prior testimony were otherwise admissible, the 

compliance officer’s vague description concerning the source of this information—“third-party 

knowledge” that was “from [his] office”—makes it impossible to assess the credibility of that 

source. FED. R. EVID. 802 (Rule Against Hearsay), 805 (“Hearsay within hearsay is not excluded 

by the rule against hearsay if each part of the combined statements conforms with an exception to 

the rule.”). 

14 The day on which the site foreman’s photos were taken—September 27 or September 28, the 

day of OSHA’s inspection—can be determined based on the crew’s clothing. Although the record 

shows that there were five crew members on site during the compliance officer’s inspection, there 

is no evidence concerning the size of FRE’s work crew on September 27.
14 

employer has a history of non-compliance.”). And the Secretary does not question the frequency 

of the StormForce site foreman’s inspections at this worksite or argue that, under the company’s 

procedures, the site foreman should have been at the worksite at the time of OSHA’s inspection. 

With respect to StormForce’s exercise of reasonable care, the Secretary simply asserts that 

the site foreman should have observed the FRE crew’s failure to use fall protection—including the 

purported lack of a safety monitor—and then, pursuant to StormForce’s procedures, sought 

abatement of these conditions by reporting them to FRE’s site foreman. According to the 

Secretary, “[t]he hazardous conditions were open and obvious and would have been easily 

discovered by StormForce, had StormForce exercised reasonable care to discover hazards.” In 

support, the Secretary claims that (1) StormForce’s site foreman was required under the company’s 

procedures to visit the worksite multiple times and photograph the work in progress; and (2) the 

judge found that some of the work depicted in the site foreman’s photos occurred “shortly before” 

the compliance officer arrived and involved the same employees observed by the compliance 

officer, showing that the site foreman “was in the position and had ample opportunity to notice the 

lack of fall protection if he acted with due diligence . . . .” 

As to the Secretary’s first point, the record shows that this is exactly what StormForce’s 

site foreman did here. There is no dispute that prior to OSHA’s inspection, the site foreman both 

visited and photographed the worksite as required by StormForce’s procedures. And as we have 

already found, none of the foreman’s photos depict “open and obvious” fall protection violations. 

The Secretary’s second claim is equally baseless—contrary to the Secretary’s characterization of 

the judge’s finding, the judge simply acknowledged the AIM’s testimony that the site foreman 

photographed the worksite “likely the morning” of September 28, the same day the compliance 

officer conducted his inspection of the worksite. Given that the compliance officer did not 

commence his inspection and observe the fall protection hazards until around 12:30 p.m. and the 

site foreman’s photos show the roofing project at an earlier stage, we find that more than a “short[]” 

period of time passed between the site foreman’s and the compliance officer’s inspections.15 

15 The compliance officer testified that he arrived on site at 12:21 p.m. and the timestamps for his 

photos of the worksite, which he confirmed are accurate, show that they were taken around 12:30 

p.m. In addition, a comparison of the two sets of photos from September 28 shows that the 

compliance officer took his photos near the end of the roofing job, after the new shingles had been 

installed, whereas the site foreman took his photos before installation was complete. In fact, the 
15 

In any event, it is not clear whether FRE’s use of a safety monitoring system was only 

deficient at the time of OSHA’s inspection or whether FRE was not using a safety monitoring 

system at all that day. Absent clarity on this point, the amount of time that elapsed between the 

foreman’s and the compliance officer’s inspections is largely irrelevant. See Suncor, No. 13-0900, 

2019 WL 654129, at *5 (finding no constructive knowledge because, among other things, violative 

condition existed where controlling employer’s employees did not work, meaning that condition 

“was not in plain view of [controlling employer’s] own personnel”); David Weekley Homes, 19 

BNA OSHC 1116, 1119 (No. 96-0898, 2000) (“in concluding that the violations ‘surely were in 

view’ of Weekley’s representatives since they were seen by compliance officer Nelson, the judge 

failed to consider the nature, location, and duration of these conditions,” particularly since 

“Weekley can only be held responsible for those violations ‘which it could reasonably be expected 

to prevent or detect’ ”). 

Finally, the Secretary points out that StormForce’s procedures require the site foreman to 

call his FRE counterpart if a traditional form of fall protection, such as personal fall arrest systems, 

is not observed in use during a worksite inspection. The record, however, does not preclude the 

possibility that such a conversation took place in this instance. In fact, the compliance officer 

testified that he recalled the site foreman talking about how he had met with FRE’s site foreman 

for this project “as many as two times,” and StormForce’s AIM testified it was his understanding 

that the two companies’ site foremen had communicated with one another on the day of OSHA’s 

inspection, but he did not know the content of any of their communications. 

In light of this record evidence, we find the Secretary has not established that StormForce, 

as a controlling employer, failed to take reasonable measures to “detect or prevent and abate” the 

violative conditions at issue. Suncor, No. 13-0900, 2019 WL 654129, at *4. 

 

shadows depicted in each set of photos suggest that the site foreman’s photos were taken well 

before the compliance officer’s photos. 
16 

Accordingly, we reverse the judge and vacate the citation. 

SO ORDERED. 

/s/ 

Cynthia L. Attwood 

Chairman 

/s/ 

James J. Sullivan, Jr. 

Commissioner 

/s/ 

Amanda Wood Laihow 

Dated: March 8, 2021 Commissioner 
United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., 9th Floor 

Washington, DC 20036-3457

Secretary of Labor,

Complainant, 

v. 

 OSHRC Docket No. 19-0593

StormForce of Jacksonville, LLC, 

 

Respondent. 

Appearances: 

Dane L. Steffenson, Esq., U.S. Department of Labor, Office of the Solicitor, Atlanta, Georgia, 

for Complainant 

Andrew M. Fredrickson, Esq. and Anthony D. Tilton, Esq., Cotney Construction Law, LLP, for 

Respondent 

JUDGE: Administrative Law Judge Heather A. Joys 

DECISION AND ORDER 

After receiving an anonymous complaint about hazardous working conditions, the 

Jacksonville Area Office of the Occupational Safety and Health Administration initiated an 

inspection of a roofing job at a house in West Jacksonville, Florida. Compliance Safety and 

Health Officer Nolan Houser conducted the inspection. At the worksite, he found five roofers on 

a 13 1⁄2 foot high, low-sloped, residential roof, none of whom appeared to be using any form of 

fall protection. The crew consisted of employees of Florida Roofing Experts, Inc. (FRE). From 

information he obtained on the site, CSHO Houser discovered StormForce of Jacksonville, LLC, 

(StormForce) was the general contractor for the job. Based upon these findings, the Secretary 

issued StormForce a single item citation alleging a serious violation of 29 C.F.R. § 

1926.501(b)(13) for failure to provide fall protection. The Secretary issued the citation to 

StormForce under the multi-employer worksite doctrine. The Secretary proposes a penalty of 

$10,210.00 for the citation. 
2

There is little doubt the roofing crew observed by CSHO Houser was not protected from 

a fall hazard. The question is: Was StormForce properly cited for the exposure of FRE’s roofing 

crew? To answer that question, the court must interpret and apply the Commission’s multiemployer worksite doctrine to the unique facts of this case. 

 The undersigned held a hearing in this matter on December 9 and 10, 2019, in 

Jacksonville, Florida. The parties filed post-hearing briefs on March 13, 2020.1

 

For the reasons discussed below, the citation is affirmed and a penalty of $10,210.00 is 

assessed. 

JURSIDICTION 

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

Commission pursuant to § 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 

651. The parties also stipulated at the hearing that at all times relevant to this action, StormForce 

was an employer engaged in a business affecting interstate commerce within the meaning of § 

3(5) of the Act (Tr. 12). Based on the parties’ stipulations and the facts presented, StormForce is 

an employer covered under the Act and the Commission has jurisdiction over this proceeding. 

BACKGROUND 

Stipulated Facts 

The parties stipulated to the following facts: 

Respondent retained Florida Roofing Experts, Inc., as a subcontractor at a 

work site located at 3502 Lenczyk Drive, West Jacksonville, Florida 32277. 

 Respondent’s employees were not exposed to any alleged hazard at the 

inspection site. 

 The citation at issue is not based on any alleged exposure of Respondent’s 

foreman, which is the only employee it had at the inspection site. 

 OSHA’s compliance safety and health officer entered the inspection site 

on September 28, 2018. 

 Respondent’s employees were not present at the inspection site on 

September 28, 2018, during OSHA’s inspection. 

 And OSHA issued one serious citation to the Respondent for an alleged 

violation of 29 CFR 1926.501(b)(13) as a result of this inspection. 

(Tr. 11-12) 

1

 To the extent either party failed to raise any other arguments in its post-hearing brief, such arguments are deemed 

abandoned. 
3

During the course of the hearing, the parties further stipulated the pitch of roof at the 

worksite was less than 4 in 12 and met the definition of a low-slope roof found at 29 C.F.R. § 

1926.500(b) (Tr. 321-22). The parties agreed the width of the roof was less than 50 feet (Tr. 

321). The Secretary also stipulated he did not contend StormForce was the correcting employer 

as that term is used in his multi-employer worksite policy (Tr. 355). 

StormForce’s Operations 

StormForce is a family-owned roofing contractor doing business in Jacksonville, Florida, 

since 2012 (Tr. 45). It is owned by Rebecca Manderson and her husband (Tr. 219). Thomas 

Ashley is the company president (Tr. 221-21). For the past seven years, the Manderson’s son, 

Jacob, has been the company’s Area Installation Manager (AIM) and holds the company’s 

roofing license for the State of Florida (Tr. 41, 44). StormForce contracts directly with 

homeowners to perform roofing work on their homes. At the time of the inspection, StormForce 

had 31 employees (Tr. 46). 

None of StormForce’s employees perform roofing work. Rather, it subcontracts for all 

its labor. Since 2017, StormForce exclusively used Florida Roofing Experts (FRE) for its labor 

needs. Prior to that, StormForce used Great White Construction. Travis Slaughter is the owner 

of FRE and its predecessor, Great White Construction. In the last three years, AIM Manderson 

estimated it had completed 600 to 700 roofing jobs using labor supplied by company’s owned by 

Travis Slaughter. 

For each of its roofing jobs, StormForce was responsible for scheduling with the 

homeowner, ordering and coordinating delivery of the materials, overseeing logistics, inspecting 

the work performed, and obtaining and distributing payment (Tr. 41, 81, 175). AIM Manderson 

is responsible for oversight of these aspects of the job. StormForce employs roofing inspectors 

and site foremen who report directly to AIM Manderson (Tr. 42). It assigns a single site foreman 

for each of its roofing jobs. AIM Manderson trains StormForce’s site foremen (Tr. 186). 

The Site Foreman 

The site foreman’s duties are spelled out in StormForce’s Job Summary2

 and training 

materials (Exhs. C-2 and R-27). According to the Job Summary, the “Site Foreman is 

2

 AIM Manderson testified StormForce had a newer version of the Job Summary for the site foreman position (Tr. 

116). He had testified similarly in his deposition (Tr. 113-14). AIM Manderson’s testimony appeared heavily 

coached. Certain responses were repeated nearly verbatim. Although his position with the company involved 

significant responsibility, he claimed ignorance of basic operations. He repeatedly refused to confirm the authenticity 
4

responsible for managing the subcontractor’s crew while replacement roofs are being installed.” 

(Exh. C-2) He serves as the point of contact with the homeowner, verifies the job is being done 

according to “technical specifications,” manages material needs, and obtains homeowner sign off 

and payment (Exh. C-2). 

The site foreman’s procedures for any given worksite are outlined in the training 

materials (Exh. R-27 pp. 14-15; Tr. 99). The site foreman is assigned his jobs for the week on 

Sunday evening. He is responsible for putting together the “installation package” which includes 

various paperwork. The site foreman is to arrive at the worksite by 7:00 a.m., when he is to 

introduce himself to the homeowner, let the homeowner know he is the point of contact, and 

place StormForce’s sign in the yard. He checks the materials for accuracy. Once the crew 

arrives, the site foreman holds a “crew huddle.” During the crew huddle, the site foreman 

identifies the subcontractor’s crew leader and exchanges contact information; he reminds the 

crew he is the only point of contact for the homeowner; and he reviews the scope of work, the 

dress and language codes, and the HVAC and home protection protocols with the subcontractor’s 

crew (Tr. 100-01). The site foreman has responsibility to inspect the work at several stages of 

the roofing process and is required to take pictures (Tr. 100-03). The site foreman is to take 

pictures that cover 31 items enumerated in the training materials and upload the pictures to 

StormForce’s customer relations manager (CRM) (Exh. R-17 p. 18; Tr. 121). He conducts the 

final inspection with the homeowner, completes the final paperwork, and uploads the 

information to the CRM. 

 According to AIM Manderson, a site foreman would typically be assigned five to seven 

jobs per week or two per day (Tr. 176, 272). At the time of the inspection, StormForce was only 

contracting with homeowners for residential roofing work (Tr. 292). StormForce’s residential 

roofing jobs take one to two days to complete (Tr. 273). In order to complete his job 

assignments, the site foreman would need to be on the worksite at least three times (Tr. 104). 

of company documents produced to the Secretary in discovery. In addition to appearing coached, AIM Manderson 

testified in a halting manner, seeming to consider what answer would be most beneficial, rather than providing candid 

responses. Based upon his demeanor and manner of testifying, the undersigned did not find AIM Manderson a credible 

witness. StormForce did not produce the newer version of the job description in discovery. Nor did it submit a 

different version at hearing. Failure to submit evidence within a party’s possession and control raises an inference the 

evidence does not exist or would be unfavorable to it. 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). 
5

 To ensure the work of the subcontractor was done properly, according to code, and in 

conformance with the subcontract, the site foreman did not interact directly with the 

subcontractor’s employees. Rather, the site foreman was to notify the subcontractor’s 

management of any infractions (Tr. 93, 118, 290-91). StormForce had found this the most 

effective way to address any concerns with the work or conduct of subcontractor employees 

because they “listen to their own supervisors.” (Tr. 118, 270-71) AIM Manderson testified this 

was an effective method of ensuring compliance with all the terms of the subcontract (Tr. 71-72, 

110, 167, 290-91). 

The training materials contain a page titled: “Site Foreman Safety and Check Lists and 

Procedures” delineating the site foreman’s responsibilities with regard to safety (Exh. R-27 p. 

13) Tr. 107-08). The Site foreman’s responsibilities are 

1) Overseeing job progress and ensuring that work is carried out in conformance 

with the Subcontract Agreement between StormForce and its Subcontractor; 

2) Managing, ordering, and attending to the building material needs for the 

project; 

3) Maintaining the job schedule and project timelines; 

4) Performing estimates and cost analysis for the purposes of meeting customer 

expectations; and 

5) Examining the installation in order to ensure that work meets or exceeds all 

applicable building codes. 

(Exh. R-27 p. 13) It specified the site foreman was not responsible for training, monitoring, or 

disciplining the subcontractor’s employees for safety and health compliance; for inspecting or 

monitoring the worksite for subcontractor employee safety and health compliance; or for 

providing the subcontractor’s employees with safety equipment. Id. The document contained a 

caveat which stated: 

***Please note that Site Foreman should recognize when a Subcontractor’s 

employee is engaged in work which is dangerous and could result in death or 

serious injury. It is certainly not StormForce’s policy to ignore this type of 

behavior. If a Site Foreman witnesses a Subcontractor’s employee working in 

violation of OSHA rules, the Site Foreman will contact Subcontractor’s home 

office and notify the company director of this conduct.*** 

Id. AIM Manderson testified the expectation is that the site foreman will ensure the 

subcontractor has fall protection equipment and that they are using it (Tr. 109). If it is not being 

used, the site foreman is to report it to the subcontractor’s foreman. (Tr. 69-72; 110). The 
6

checklist addressed this requirement with a space to check whether the site foreman has notified 

the subcontractor of an observed safety infraction. 

The Subcontract for Labor 

For the job at issue, StormForce and FRE had a written master subcontractor agreement 

(Exh. R-26).3

 Under the terms of the agreement signed by Travis Slaughter, FRE supplied all 

“equipment, labor and services” required to complete each roofing job (Exh. R-26 p. 1). The 

equipment supplied by the subcontractor was the nail guns and compressor, ladders, and fall 

protection equipment (Tr. 177). FRE was responsible for securing all necessary permits (Exh. R26 p. 3; Tr. 177). The agreement specifically prohibits FRE from placing any sign on the 

worksite that shows its name (Exh. R-26 p. 9). Attached to the master agreement is a standard 

fee agreement specifying the price for services “per square” and the payment terms (Exh. R-26 p. 

12-13). 

Jobs performed under the master subcontract are done so pursuant to a specific work or 

labor order. A sample work order is attached to the master agreement with spaces for, among 

other things, the start and end dates, location, and a description of what was to be provided (Exh. 

R-26 p. 14).4

 In the description section, StormForce provided the subcontractor with the size and 

pitch of the roof, and the number of pre-existing layers to be torn off (Tr. 276; Exh. R-29). Other 

items the subcontractor might provide, such as a dumpster, would also be included in this section 

(Exh. R-29). Prior to commencement of a job, StormForce provides FRE with a calendar invite 

specifying the date the job was to commence, the work order, and the notice of commencement 

from the homeowner (Tr. 281). FRE selects which of its crews will perform a job without input 

from StormForce (Tr. 183). 

Also attached to the master agreement was a document titled “Subcontractor 

Expectations.” (Exh. R-26 p. 16-20). Included in this document are guidelines for scheduling, 

communications, storage of materials, billing, and the procedures on the job beginning with 

“pulling up to the job site.” (Exh. R-26 pp. 16-20). The first general guideline in the document 

states 

3 Although the effective date of the contract is October 6, 2017, the date at the bottom of each page of the document 

is March 1, 2013, suggesting the form had been used in the past. This, along with AIM Manderson’s testimony 

StormForce did nothing to change their procedures after receiving a citation in 2016 (Tr. 69) makes suspect 

StormForce’s contention it changed its policy regarding direct supervision of FRE’s employees sometime between 

2016 and the inspection. 

4

 Exhibit R-29 is the work order for the worksite. 
7

During the performance of your work at the Project, the actions and behavior or 

(sic) your employees reflect upon the reputation of “StormForce of Jacksonville 

LLC (StormForce). Do not take any actions or conduct yourself in a way that 

would be interpreted unfavorably upon StormForce and do not mention any other 

company names while working. 

(Exh. R-26 p. 16, emphasis in the original) Subcontractor crews are prohibited from wearing 

garments with other contractor’s names, or obscene or vulgar pictures or phrases. The 

subcontractor must do the job when scheduled and a crew may not begin a new job until the 

current job is complete. All rescheduling of jobs is to be done by the AIM. The subcontractor 

must communicate with the StormForce site foreman regarding arrival and departure times. The 

subcontractor decides when it will begin work, as long as work begins before 9:00 a.m., and sets 

the lunch and departure schedule for its crew (Tr. 178). It is to communicate any issues with 

material shortages or other problems related to the work to StormForce’s site foreman. The 

document contains additional provisions addressing quality of work, protection of the 

homeowner’s property, housekeeping, and cleanup. 

The master subcontract between StormForce and FRE contained provisions addressing 

safety at the worksite, including StormForce’s obligations to FRE’s employees (Exh. R-26 pp. 7-

8). Under the contract, the subcontractor’s employees were “required to follow the safety rules, 

regulations and procedures instituted by [FRE], StormForce or any other contractor on the 

project and shall comply with all safety requirements identified in the Occupational Safety and 

Health Act of 1970” (Exh. R-26 p. 7). The master subcontract specified StormForce had no 

responsibility for training or disciplining FRE’s employees with regard to safety infractions. It 

contains an acknowledgement by FRE that it 

shall control and implement all required safety procedures, and that StormForce 

shall only perform site visits for the purposes of determining conformance with 

the plans and specifications for the project. As a result, StormForce shall not be 

able to ensure Subcontractor (while working for Subcontractor) adherence to 

safety standards and the OSHA Act because StormForce cannot reasonably be 

expected to prevent, detect or abate violative conditions by reason of its limited 

role on the project. Therefore, Subcontractor shall be solely responsible for 

controlling safety on the jobsite as it related to Subcontractor. 

Id. Should StormForce observe a safety infraction, the contract states “StormForce’s sole 

remedy shall be to contact [FRE’s] management personnel and identify the breach of contract.” 

Id. 
8

The Worksite and the Inspection 

In 2018, StormForce contracted with the homeowner of 3502 Lenczyk Drive, in West 

Jacksonville, Florida, to replace the home’s roof. FRE provided a five-man crew to perform the 

work (Tr. 50, 230).5

 The job took two days to complete (Tr. 128). It began, September 27, 

2018, and was completed by September 28, 2018. David Nosal6 was StormForce’s site foreman 

for the job (Tr. 49). 

The worksite consisted of a single-story home with a low-slope roof (Exhs. C-13 and C15). The height of the roof was 9 feet, 6 inches at the eave and 13 feet, 6 inches at the gable (Tr. 

235). Photographs of the worksite taken by Site Foreman Nosal show the crew was required to 

tear off the existing roof and replace it with a new asphalt shingle roof (Exh. C-14). 

On September 28, 2018, the Jacksonville Area OSHA Office received a complaint 

regarding worksite conditions at 3502 Lenczyk Drive. CSHO Houser was assigned to 

investigate the complaint (Tr. 227). As he drove up to the home, CSHO Houser observed five 

individuals working on the roof without the use of fall protection (Tr. 230, 233). He took video 

and photographs from the public street prior to entering the site (Tr. 229-31). Upon CSHO 

Houser’s entering the worksite and identifying himself, the crew began to pack up their gear (Tr. 

235-36). CSHO Houser was able to determine the individual in charge of the worksite was 

named Alfredo. Alfredo spoke little English. CSHO Houser obtained minimal information from 

the crew in the short time they remained onsite after he arrived. He observed fall protection 

equipment in the crew’s van (Tr. 244). 

Based upon information he obtained from Alfredo’s phone and the permit posted at the 

worksite, CSHO Houser identified FRE as the employer of the roofing crew. He unsuccessfully 

attempted to contact FRE (Tr. 241).7

 The dumpster on site had a magnetic sign with 

5

 FRE also provided, and separately billed for, the dumpster. 

6

 Site Foreman Nosal left StormForce’s employ three months after the inspection (Tr. 49). He was not called to 

testify by either party. As a former employee, he was equally available to either party via subpoena. 

7

 Travis Slaughter, the owner of FRE and its predecessor company with whom StormForce subcontracted for labor, 

was well-known to the Jacksonville Area Office having been inspected and cited many times and having a 

reputation for a “disregard for safety.” (Tr. 238-39) The undersigned takes judicial notice the Eleventh Circuit has 

issued orders of summary enforcement and contempt against Florida Roofing Experts, Great White Construction, 

and Travis Slaughter for failure to comply with final orders of the Commission. See Secretary of Labor v. Great 

White Construction, Inc., Docket No. 17-13711-D, Order for Summary Enforcement (11th Cir. October 2, 2017); 

Secretary of Labor v. Great White Construction, Inc., Docket No. 17-15760-E, Order of Summary Enforcement 

(11th Cir. June 5, 2018); Secretary of Labor v. Great White Construction, Inc., Travis Slaughter, and Florida 

Roofing Experts, Inc., Docket No. 19-13261-J, Order of Civil Contempt (11th Cir. September 26, 2019). 

Photographs of multiple worksites taken by StormForce site foremen and maintained by StormForce show roofing 
9

StormForce’s name and number on it and Alfredo identified the job site as belonging to 

StormForce (Tr. 237-38, 241). CSHO Houser called the number and was able to speak with 

AIM Manderson (Tr. 242). No one from StormForce was available to come to the worksite. The 

following Monday, CSHO Houser met with StormForce’s company president, AIM Manderson, 

and Site Foreman Nosal (Tr. 244). During his meeting with StormForce personnel, CSHO 

Houser requested, and StormForce provided, the photographs maintained in the company’s CRM 

for the worksite (Tr. 245-46). CSHO House interviewed Site Foreman Nosal who could not 

recall whether FRE employees were using any fall protection (Tr. 246). 

Based upon his investigation, CSHO Houser recommended a citation alleging a single 

serious violation of § 1926.501(b)(13) be issued to StormForce. CSHO Houser based his 

recommendation on his conclusion StormForce was the controlling employer onsite due to its 

overall oversight of the job. The Secretary issued StormForce the citation March 25, 2019. 

StormForce timely filed its notice of contest. 

DISCUSSION 

The Citation 

The Secretary has the burden of establishing the employer violated the cited standard. 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., No. 05-1907, 2009 WL 2567337 (OSHRC August 11, 

2009). 

 Item 1, Citation 1, alleges a violation of 29 C.F.R. § 1926.501(b)(13). The standard 

requires 

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. Exception: When 

the employer can demonstrate that it is infeasible or creates a greater hazard to use 

these systems, the employer shall develop and implement a fall protection plan 

which meets the requirements of paragraph (k) of 1926.502. 

crews exposed to fall hazards (Exhs. C-11 and C-12; Tr. 140-43, 203, 251-52). The undersigned finds AIM 

Manderson’s testimony he was unaware of FRE’s history of noncompliance less than credible. 
10

The citation alleges 

On or about September [28], 2018,8 the employer failed to assure that five 

subcontracted employees conducting re-roofing work on a 3:12 pitch roof were 

protected from a 13-foot, 6 inch fall hazards by the use of a personal fall arrest 

systems, or any alternative fall protection measure.

The Secretary contends StormForce’s failure to provide a safe workplace to FRE’s employees 

exposed to fall hazards at the West Jacksonville, Florida, worksite constituted a violation of the 

cited standard. 

Applicability of the Standard 

There is no dispute the work being performed at the cited worksite was construction work 

as that term is defined in 29 C.F.R. § 1910.12(b) and that the construction standards apply. The 

cited standard more narrowly applies only to residential construction. Residential construction is 

not defined in the standards. The structure at the worksite was a residence. The Commission 

and the Secretary have historically applied residential construction standards to residences and 

other structures built using traditional residential construction techniques. Capeway Roofing 

Systems, Inc., No. 00-1968, 2003 WL 22020485, at *10 (OSHRC August 26, 2003), aff’d, 

Capeway Roofing Systems, Inc. v. Chao, 391 F.3d 56 (1st. Cir 2004).9 The standards applicable 

to residential construction apply. 

 In addition to being residential construction, the work being performed was roofing work 

on a low-slope roof as that term is defined in 29 C.F.R. § 1926.500(b). Fall protection 

requirements for such work is addressed in 29 C.F.R. § 1926.501(b)(10). The residential 

construction standard limits acceptable forms of fall protection to guardrails, safety nets, or 

personal fall arrest systems “unless another provision in paragraph (b) of this section provides for 

an alternative fall protection measure.” Under the unique circumstances of this case § 

1926.501(b)(10) is one such “provision of paragraph (b)” that “provides for an alternative fall 

protection measure.” Consequently, compliance with § 1926.501(b)(13) was not limited to the 

8

 Testimony was adduced at hearing the date input by CSHO Houser was inaccurate and should have reflected the 

date of his inspection or September 28, 2018. StormForce did not argue the citation should be vacated, or that it 

suffered any prejudice, on the basis of this discrepancy. The undersigned amends the citation to allege a violation 

on or about September 28, 2018, to conform to the evidence. 

9

 OSHA’s directive on residential construction, which the Commission referenced in Capeway Roofing Systems, 

states residential construction is characterized by wood framing and using traditional wood frame construction 

techniques. OSHA Instruction STD 3-0.1A (June 18, 1999). 
11

three forms of traditional fall protection enumerated in that standard, but also included any 

alternative fall protection permitted in § 1926.501(b)(10). 

 StormForce’s argument the Secretary should have cited § 1926.501(b)(10) creates a false 

dichotomy between the two standards. Section 1926.500(b)(10) applies broadly to all roofing 

work on low-slope roofs, whether commercial or residential. Likewise, § 1926.501(b)(13) 

applies to all residential construction work, not only roofing work. The overlap of the two 

standards, where roofing work is being performed on a low-slope residential roof is addressed in 

the plain language of § 1926.501(b)(13) which allows for alternative protective measures where 

another provision of paragraph (b) also applies.10 It is within the Secretary’s prosecutorial 

discretion to choose which of two equally applicable standards to cite. The issue in dispute is 

whether StormForce provided any of the permissible forms of fall protection. 

Violation of the Standard 

 The evidence is undisputed, on the day of the inspection, no guardrails or safety nets 

were in use at the worksite. The documentary evidence establishes the roofing crew was not 

using any type of personal fall arrest system (Exhs. C-13 and C-15). Under § 1926.501(b)(10), 

the roofing crew could have used a safety monitoring system as fall protection. The 

preponderance of the credible evidence establishes they did not. 

 The requirements of a safety monitoring system are enumerated in 29 C.F.R. § 

1926.502(h).11 Important among those requirements is that the safety monitor have no other 

responsibilities while performing his monitoring functions. CSHO Houser observed all five 

crew members performing roofing work (Tr. 258-59).12 CSHO Houser’s testimony is 

corroborated by the video he took of the worksite (Exh. C-15). The video depicts all five crew 

members engaged in some type of work, none acting solely as a safety monitor. CSHO Houser’s 

testimony is also corroborated by the photographs he took showing working surfaces on which 

crew members are all performing roofing work and no other individual on that working surface 

10 There is no dispute the roof was over 6 feet above the lower level necessitating some form of fall protection under 

either standard. 

11 StormForce incorrectly contends a safety monitoring system contains “no tangible, visible components.” A safety 

monitoring system requires designation of a person to serve as a safety monitor. 29 C.F.R. § 1926.502(h)(1). A 

person is both tangible and visible. 

12 CSHO Houser’s testimony was candid, straightforward, and consistent. His demeanor was calm and confidant. 

Based on the consistency of his testimony and his demeanor, the undersigned finds him a credible witness and gives 

his testimony significant weight. StormForce’s characterization of CSHO Houser’s testimony regarding the use of a 

safety monitor as opinion testimony is wrong. CSHO Houser testified to his observations. 
12

monitoring their work (Exh. C-13). Photographs of the worksite taken by Site Foreman Nosal 

and maintained by StormForce in its business records show the same (Exh. C-14; Tr. 246). 

StormForce presented no credible evidence regarding the worksite conditions to contradict the 

Secretary’s evidence. 

 Section 1926.501(b)(13) provides an exception where “the employer can demonstrate 

that it is infeasible or creates a greater hazard to use these systems” it may “develop and 

implement a fall protection plan which meets the requirements of paragraph (k) of 1926.502.” It 

is well settled the party seeking the benefit of an exception to a legal requirement has the burden 

of proof to show that it qualifies for that exception C.J. Hughes Construction, Inc., No. 93-3177, 

1996 WL 514965, at *4 (OSHRC September 6, 1996). StormForce presented no evidence of 

infeasibility or greater hazard, nor did not present evidence either it or FRE had a fall protection 

plan. 

 The credible evidence establishes the roofing crew was working at heights in excess of 6 

feet without the benefit of any form of fall protection. The standard was violated and FRE’s 

employees were exposed to a fall hazard. 

Employer Knowledge

[T]he Secretary can prove employer knowledge of the violation in one of two 

ways. First, where the Secretary shows that a supervisor had either actual or 

constructive knowledge of the violation, such knowledge is generally imputed to 

the employer. See Georgia Elec. Co. v. Marshall, 595 F.2d 309, 321 (5th 

Cir.1979); New York State Elec. & Gas Corp., 88 F.3d at 105; see also Secretary 

of Labor v. Access Equip. Sys., Inc., 18 O.S.H. Cas. (BNA) 1718, at *9 (1999). 

An example of actual knowledge is where a supervisor directly sees a 

subordinate's misconduct. See, e.g., Secretary of Labor v. Kansas Power & Light 

Co., 5 O.S.H. Cas. (BNA) 1202, at *3 (1977) (holding that because the supervisor 

directly saw the violative conduct without stating any objection, “his knowledge 

and approval of the work methods employed will be imputed to respondent”). 

ComTran Grp., Inc. v. U.S. Dep't of Labor, 722 F.3d 1304, 1307–08 (11th Cir. 2013). 

 The Secretary has met his burden to establish StormForce had actual knowledge of the 

violative condition. Under StormForce’s procedures, Site Foreman Nosal would have visited the 

worksite on at least two occasions prior to the inspection, including an initial meeting with the 

crew. He visited and took photographs both days of the two-day project. Among StormForce’s 

business records are photographs of the progress of the roofing job at issue taken by Site 

Foreman Nosal (Tr. 246). Those photographs show the worksite at various stages of the job. 
13

(Exh. C-14). In none is the roofing crew using any type of fall protection. In Exhibit C-14, page 

1, all five crew members are performing work on various working levels without anyone serving 

as safety monitor.13 Pages 4 – 11 of Exhibit C-14 show the stage of roofing just prior to the 

stage at which CSHO Houser arrived on site. Exhibit C-14 at page 5 shows a crew member 

working at the roof’s edge with no monitor on the same working level. In none of the 

photographs maintained by StormForce is any crew member using fall protection. 

 The documentary evidence establishes StormForce’s site foreman observed and 

photographed the worksite conditions that constituted the violation.14 Site Foreman Nosal was 

the sole representative at the worksite for StormForce. He was responsible for contact with the 

homeowner and ensuring FRE carried out the job in accordance with its contractual obligations. 

His photographs depicting the violative conditions are maintained by StormForce. Site Foreman 

Nosal’s actual knowledge of the violative conditions is imputed to StormForce. 

 StormForce contends the evidence is insufficient to establish actual knowledge because 

photographs are undated and because Site Foreman Nosal was not called to testify that he took 

the photographs. AIM Manderson testified the photographs in Exhibit C-14 were of the worksite 

StormForce produced during the inspection (Tr. 119-20). The photographs were taken from 

StormForce’s CRM system, having been filed under the customer’s account number (Tr. 123). 

AIM Manderson testified Site Foreman Nosal was the representative for StormForce at the 

worksite. CSHO Houser testified Site Foreman Nosal confirmed the photographs were taken by 

him (Tr. 246). He testified, based on his experience, the photographs on pages 4 – 11 of Exhibit 

C-14 show work done at the end of the project, likely the morning before he arrived. All of the 

crew members are wearing the same shirts, pants, and headgear in both these and CSHO 

Houser’s photographs. A reasonable inference can be drawn that the photographs were all taken 

the same day as, and at the site of, the inspection. 

13 The individual in the foreground does not appear to be performing roofing work when the photograph was taken. 

He is not on the same working surface as at least two other employees engaged in roofing work, nor does he have a 

clear view of the entire working surface on which one employee is working. Under § 1926.501(h)(1)(iii), a safety 

monitor must be on the same working surface and within visual sighting distance of the person being monitored. 

14 StormForce trained Site Foreman Nosal on fall protection requirements prior to the inspection (Exh. R-6). In that 

training, StormForce instructed Site Foreman Nosal about the specific duties of a safety monitor, most of which he 

could have observed were lacking at the worksite. It further trained Site Foreman Nosal that a safety monitoring 

system on a low slope roof, less than 50 feet in width, required a safety monitor “in conjunction with a warning line 

system.” (Exh. R-6 at p. 11; Tr. 145-57). If, as StormForce contends, Site Foreman Nosal might have believed FRE 

was using a safety monitor system, that belief would have been contrary to his training. 
14

 The Secretary established StormForce had actual knowledge of the worksite conditions 

constituting the violation. 

Employee Exposure and the Multi-employer Worksite Doctrine 

The parties stipulated no employees of StormForce were exposed to the fall hazard at the 

worksite. StormForce’s liability for any violations at the worksite is premised on the 

Commission’s multi-employer worksite doctrine. Under the Commission’s multi-employer 

worksite doctrine, “an employer owes a duty under § 5(a)(2) of the Act not only to its own 

employees but to other employees at the worksite when the employer creates and/or controls the 

cited condition.” Summit Contractors, Inc., No. 05-0839, 2010 WL 3341872, at *8 (OSHRC 

August 19, 2010). The Commission has also found an employer is liable “for violations of other 

employers where it could be reasonably expected to prevent or detect and abate the violation due 

to its supervisory authority and control over the worksite.” Red Lobster Inns of America, Inc., 

No. 76-4754, 1980 WL 10629, at *2 (OSHRC July 18, 1980) citing Gil Haugan, d/b/a Haugan 

Construction Co., Nos. 76-1512 and 1513, 1979 WL 8537, at *3 (OSHRC December 20, 1979); 

and Knutson Construction Co., No. 765, 1976 WL 6122 (OSHRC October 12, 1976). In Red 

Lobster, the Commission went on to hold this theory of liability does not require a finding the 

employer created the hazard or “has the manpower or expertise to itself abate the hazard.” 1980 

WL 10629, at *2. 

Applicability in the Eleventh Circuit 

 As an initial matter, StormForce argues the Commission may not apply its multiemployer worksite doctrine to cases arising in the Eleventh Circuit. StormForce argues, because 

the Commission is bound by the law of the circuit to which a case is likely to be appealed, the 

Commission is bound by Eleventh Circuit precedent. The Eleventh Circuit has adopted the case 

law of the former Fifth Circuit that predates the September 30, 1981, split of the circuits. 

Holdings in those Fifth Circuit cases apply unless and until the Eleventh Circuit overrules them. 

Prior to issuing its decision in Acosta v. Hensel Phelps, 909 F.3d 723, 733 (5th Cir. 2018), 

overturning its prior case law, the Fifth Circuit had declined to apply the Commission’s multiemployer worksite theory of liability. See Melerine v. Avondale Shipyards, Inc., 659 F.2d 706 

(5th Cir. Unit A 1981). Because the Eleventh Circuit has not specifically overturned the prior 

Fifth Circuit precedent, StormForce argues, the Commission remains bound by it in cases arising 

out of the Eleventh Circuit. 
15

StormForce raised this issue for the first time in its post-hearing brief. It did not raise this 

argument in its Answer or identify it as a legal issue in dispute in the Joint Prehearing Statement. 

In his opening statement, counsel for StormForce stated StormForce did not seek to overturn 

Commission precedent with regard to the multi-employer worksite doctrine, but to ensure its 

proper application to the facts of this case (Tr. 19). In failing to timely raise the defense, 

StormForce has waived it. Even if not waived, the argument has no merit. 

 A similar argument was raised and rejected by the Commission in McDevitt Street Bovis, 

Inc., No. 97-1918, 2000 WL 35559662, at *2-5 (OSHRC September 28, 2000). The undersigned 

is bound by the holding in McDevitt. Neither subsequent Eleventh Circuit unpublished, nonbinding, decision cited by StormForce requires a contrary finding. In Southern Pan Services v. 

U.S. Department of Labor, 685 F. App’x 692, 695 (11th Cir. 2017), the Eleventh Circuit found 

the multi-employer worksite doctrine applicable. In Calloway v. PPG Industries, Inc., 155 F. 

App’x 450 (11th Cir 2005), the Eleventh Circuit addressed the applicability of the multiemployer worksite doctrine in a negligence case involving a property owner who did not 

function as a general contractor. Even if binding authority, the holding is inapposite. The 

Commission’s multi-employer worksite doctrine may be the basis for citation in this case. 

Applicability to StormForce 

The Secretary contends as the general contractor, StormForce owed a duty to FRE’s 

employees to ensure they were protected from fall hazards. StormForce’s oversight of the job 

was sufficient such that it is liable under the multi-employer worksite doctrine as a controlling 

employer for exposure of FRE’s employees. StormForce contends it did not exercise sufficient 

control over FRE’s employees for purposes of ensuring compliance with safety standards such 

that it can be found liable under the multi-employer worksite doctrine. 

The Commission has consistently recognized a general contractor’s role on a worksite as 

a controlling employer by virtue of its overall supervisory capacity for the construction project. 

Anning-Johnson Co., Nos. 3694 and 4409, 1976 WL 5967, at *6 (OSHRC May 12, 1976)(“we 

note that typically a general contractor on a multi-employer project possesses sufficient control 

over the entire worksite to give rise to a duty under section 5(a)(2) of the Act either to comply 

fully with the standard or to take the necessary steps to assure compliance”); Grossman Steel & 

Aluminum Corp., No. 12775, 1976 WL 5968, at *4 (OSHRC May 12, 1076)(“The general 

contractor is well situated to obtain abatement of hazards, either through its own resources or 
16

through its supervisory role with respect to other contractors...Thus, we will hold the general 

contractor responsible for violations it could reasonably have been expected to prevent or abate 

by reason of its supervisory capacity.”); Red Lobster Inns, 1980 WL 10629, at *2; and CentexRooney Construction Co., No. 92-0851, 1994 WL 682931 (OSHRC December 2, 1994). In so 

holding, the Commission has created a 

presumption that, by virtue of its supervisory capacity over the entire worksite, 

the general contractor on the site has sufficient control over its subcontractors to 

require them to comply with occupational safety and health standards to abate 

violations. The burden of rebutting this presumption is on the general contractor. 

Gil Haugan, 1979 WL 8537, at *3. 

The Commission has not undertaken to define the term “general contractor.” Black’s 

Law Dictionary defines a general contractor as 

One who contracts for the construction of an entire building or project, rather than 

a portion of the work. The general contractor hires subcontractors (e.g. plumbing, 

electrical, etc.), coordinates all work, and is responsible for payment to 

subcontractors. 

StormForce’s role on its roofing jobs is consistent with that definition. 

 StormForce contracts directly with property owners for completion of roofing projects. It 

coordinates all scheduling, including rescheduling of work due to weather. StormForce orders 

aerial views and drawings of the roof (Tr. 279-80). It determines the size and pitch of the roof, 

as well as the number of layers of old roof to be removed. It determines the amount of materials 

necessary for the job then orders those materials from a supplier. It coordinates delivery of those 

materials. It has a subcontract with FRE for supply of labor. It orders a dumpster from FRE the 

cost of which is separately billed to StormForce (Tr. 278-79). FRE supplies a crew to the 

worksite on the day designated by StormForce. StormForce requires FRE to commence the job 

on the day specified and the supplied crew to complete the job before moving on to another one. 

StormForce’s site foreman arrives at the job prior to FRE’s crew. He meets first with the 

homeowner and, upon their arrival, with FRE’s crew. He checks the materials for accuracy of 

the delivery and takes photographs of the property before work commences. He ensures FRE’s 

crew is familiar with general rules of behavior and protection of the homeowner’s property via a 

group huddle. Under the master subcontract between StormForce and FRE, FRE must give 

StormForce access to the worksite (Exh. R-26 p. 8). During the course of work, StormForce’s 
17

site foreman inspects the worksite at various stages of the job and documents the progress. Site 

Foreman Nosal told CSHO Houser he met with an FRE representative for the job (Tr. 253-54). 

He took photographs on both days during which the job at issue was underway (Exh. C-14).15 

FRE is obligated under the master subcontract to perform all clean up to the satisfaction of 

StormForce’s site foreman (Exh. R-26 p. 6). At the completion of the work, StormForce’s site 

foreman conducts the final walkthrough with the homeowner and obtains payment. 

At all times, StormForce holds itself out as the company performing the job. It places its 

own sign at the worksite. It prohibits any other signs or attire depicting any other contractor on 

the site. FRE reports problems with, or shortages of, materials to StormForce who deals directly 

with the supplier. FRE reports issues that affect its ability to complete the job, such as problems 

with the house, to StormForce. FRE reports any problems with the homeowner to StormForce. 

StormForce is the sole contact with the homeowner. StormForce held itself out as, and acted in 

the capacity of, the general contractor for the worksite. 

The master subcontract requires FRE employees to follow all safety and health related 

laws, rules, and regulations (Exh. R-16 p. 7). StormForce had no contractual obligation to train, 

monitor, or discipline FRE’s employees with regard to safety. In the absence of contractual 

obligations, the Commission requires the controlling employer have the ability to require others 

to correct safety violations or otherwise control matters that might affect safety. AIM 

Manderson testified the method by which StormForce ensures all aspects of its contract with 

FRE are met, including proper installation of the roof, is to report issues to FRE management 

(Tr. 290-91). StormForce can require FRE to leave a worksite if StormForce discovers a 

problem (Tr. 89). This has not been necessary, as AIM Manderson testified StormForce’s 

method of addressing quality of work issues and safety issues was effective (Tr. 61, 70-72, 110, 

167, 290-91). “From my history, that’s always been the case, is we report it and they take care 

of it.” (Tr. 72) StormForce expects its site foremen to report a lack of fall protection equipment 

or FRE’s failure to use fall protection to FRE (Tr. 109-10, 133; Exh. R-27 p. 13). StormForce 

expects FRE to come into compliance upon such notification. The record as a whole establishes 

15 Exhibit C-14 contains photographs of the worksite produced from StormForce’s business records. The 

photographs show different stages of the project, including tear off of the original roof. In those photographs, the 

crew is wearing different clothing than in those that show work at later stages. A reasonable inference can be drawn 

that the photographs were taken on different days. 
18

StormForce exercised sufficient supervisory control over the worksite such that it could have 

directed FRE to correct safety violations. 

The D.C. Circuit’s decision in IBP, Inc. v. Herman, 144 F. 3d 861 (D.C. Cir. 1998), 

relied upon by StormForce, does not necessitate a different result. IBP involved a contract to 

perform equipment cleaning between a factory owner and an independent contractor which 

required the D.C. Circuit to expand the multi-employer worksite doctrine to the general industry 

setting. Applicability of the multi-employer worksite doctrine in the construction context, as in 

the instant case, is well-settled. Century Communities, Inc. d/b/a Century Communities of 

Georgia, LLC v. Secretary of Labor, 771 F. Appx. 14 (D.C. Cir. 2019). In holding the factory 

owner was not a controlling employer, the D.C. Circuit relied on the inability of the factory 

owner’s supervisors to obtain compliance. To the contrary here, according to AIM Manderson, 

addressing quality of work or safety concerns with FRE management resulted in immediate 

correction or compliance on the part of FRE. The holding in IBP is inapposite. 

StormForce contends the Secretary must establish its control over the worksite was 

“consistent and pervasive.” See Respondent’s Post-Hearing Brief at pp. 17, 19, and 23. This is a 

criteria formulated by StormForce, as it appears nowhere in Commission precedent. Nor must 

the Secretary establish, as StormForce contends, direct control over the subcontractor’s 

employees. While evidence of direct supervisory control may be sufficient, it is not necessary 

and StormForce points to no Commission precedent so holding. To the contrary, the 

Commission has found liability of a general contractor with no supervisory authority over 

employees. See Red Lobster Inns, 1980 WL 10629, at *2. In Red Lobster Inns, the Commission 

held 

Although he did not supervise other employees, [the jobsite superintendent] held a 

highly responsible position and was invested by Respondent with substantial 

authority. It was [the jobsite superintendent]’s responsibility as Respondent’s 

representative on the worksite to see that the construction work was completed 

successfully. Indeed, it was only through [the jobsite superintendent] that 

Respondent had knowledge of the status of a major corporate project. 

Respondent cannot divest itself of such knowledge simply by not assigning [the 

jobsite superintendent] supervisory status over other employees. 

 Based on its overall supervisory role on the worksite, including its control over 

scheduling, logistics, and quality of work, StormForce is liable for exposure of FRE’s employees 

to the fall hazard present at the worksite. Where a controlling employer has actual knowledge of 
19

the hazardous condition and its “precautions were inadequate to ensure compliance...[t]he 

subcontractor employees’ access to the violative conditions...[give] rise to [the controlling 

employer’s] liability.” Century Communities, 771 F.Appx. at 15. The citation issued to 

StormForce is affirmed.

Characterization 

 The Secretary has characterized the violation as 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, No. 08-0631, 2010 WL 711322 (OSHRC February 23, 2010); DecTam Corp., No. 88-0523, 1993 WL 27401 (OSHRC January 19, 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., 87-2059, 1993 WL 61950, at *14 (OSHRC February 19, 1993). 

 There can little dispute a fall from a 9-foot roof could result in serious injury, including 

death. StormForce’s own training materials recognize the serious nature of fall hazards (Exh. C6). The violation is properly characterized as serious. 

Penalty Determination

The Secretary proposes a penalty of $10,210.00. The Commission, in assessing an 

appropriate penalty, must give due consideration to the gravity of the violation and to the size, 

history and good faith of the employer. The Commission is the final arbiter of penalties. Hern 

Iron Works, Inc., No. 88-1962, 1994 WL 53780 (OSHRC February 18, 1994), aff’d, 937 F.2d 

612 (9th Cir. 1991) (table); see Valdak Corp., No. 93-0239, 1995 WL 139505, at *3 (OSHRC 

March 29, 1995)(“The [OSH] Act places limits for penalty amounts but places no restrictions on 
20

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. Capform Inc., No. 

99-0322, 2001 WL 300582 (OSHRC March 26, 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., No. 00-1052, 2005 WL 696568, at *3 

(OSHRC February 25, 2005). 

 Five crew members were exposed to a 9-foot fall hazard for the entire two-day project. 

Photographs show crew members working on the edge of the roof with no fall protection, 

increasing the likelihood of a fall. Despite having harnesses in FRE’s van, none of the crew used 

any type of fall protection. The gravity of the violation is high. 

 StormForce is entitled to a small reduction for size, history, and good faith. StormForce 

is a small employer and employs no construction laborers. It has received only one citation in 

the past as the general contractor at a construction worksite in 2016. The record contains little 

evidence of StormForce’s good faith efforts toward employee safety. The record contains no 

evidence of StormForce’s safety manual applicable to its own employees. It has taken no steps 

to obtain its subcontractor’s safety rules (Tr. 217). The Secretary’s proposed penalty of 

$10,210.00 is appropriate. 

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: 

Item 1, Citation 1 is affirmed as a serious violation of 29 C.F.R. § 1926.501(b)(13) and a 

penalty of $10,210.00 is assessed. 

SO ORDERED. 

 

 /s/___________________________ 

 Heather A. Joys 

Dated: April 30, 2020 Administrative Law Judge, OSHRC 

 Washington, DC