United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1924 Building – Room 2R90, 100 Alabama Street SW

Atlanta, Georgia 30303-3104

Secretary of Labor,

 Complainant,

 v. OSHRC Docket No. 14-0264

Tim Graboski Roofing, Inc., 

 Respondent.

Appearances:

Uche N. Egemonye, Esquire, U.S. Department of Labor, Atlanta, Georgia, 

For the Complainant

 Angelo M. Filippi, and Ilanit Sisso, Esquire, Kelley Kronenberg, Fort Lauderdale, Florida, 

For the Respondent

Before: Administrative Law Judge Sharon D. Calhoun

 DECISION AND ORDER

Tim Graboski Roofing, Inc. (Graboski), is a roofing contractor whose principal office is 

in Delray Beach, Florida. On July 23, 2013, a compliance safety and health officer (CSHO) 

from the Occupational Safety and Health Administration (OSHA) inspected a worksite where

one of Graboski’s crews was working in Cooper City, Florida. As a result of the inspection, the 

Secretary issued a Citation and Notification of Penalty to Graboski on December 12, 2013.1

Item 1 of Citation No. 1 alleges a willful violation of 29 C.F.R. § 1926.501(b)(10) for 

failing to ensure employees used fall protection when engaged in roofing activities on a lowslope roof with unprotected sides and edges 6 feet or more above the lower level. The Secretary 

proposes a penalty of $70,000.00 for Item 1.

The parties stipulate the Commission has jurisdiction and that Graboski is a covered 

employer (Tr. 8-9). Based on the record and the stipulations, the Court finds the Commission 

has jurisdiction over this proceeding under § 10(c) of the Occupational Safety and Health Act of 

 

1 The Secretary also issued a separate Citation and Notification of Penalty to Graboski on December 12, 2013, for 

alleged OSHA violations at a different worksite. The Court held a hearing in that matter (Docket No. 14-0263) on 

October 29 and 30, 2014, immediately preceding the start of the hearing in the instant proceeding. The Court issued 

a separate Decision and Order in that case, which became a Final Order on April 3, 2015.
2

1970, 29 U.S.C. §§ 651--678 (2014) (Act), and that Graboski is a covered employer under § 3(5) 

of the Act. The Court held a hearing in this matter on October 30, 2014, in Fort Lauderdale, 

Florida. The parties filed simultaneous post-hearing briefs on December 8, 2014. 

Graboski contends the Secretary failed to meet his burden of proof for noncompliance 

and exposure. Should the Court find the Secretary established a violation, Graboski contends the 

violations were the result of unpreventable employee misconduct. Graboski also argues that, in 

the event the Court finds the Secretary established a violation, the Secretary failed to prove the 

violation is willful. 

For the reasons that follow, the Court AFFIRMS Item 1 of Citation No. 1. The Court 

assesses a penalty of $70,000.00 for Item 1.

BACKGROUND

Graboski is a roofing company that provides reroofing and new roofing services for 

residential and commercial properties. The roofing process occurs in several stages, with a 

different crew working each stage. Roofing requires a dry-in crew, a hot mop crew, and a tile 

crew (Exh. G-11, p. 3). 

On July 22, 2013, CSHO Reginald Benson stopped at a gas station on his way home from 

work. As he was filling the tank of his vehicle, he observed some workers on the roof of a 

structure approximately half a mile away. It appeared to the CSHO that the workers were not 

tied off. He took several photographs with his cell phone. Because his office was closed for the 

day, CSHO Benson took no further action at that time (Tr. 19-20).

The next day, CSHO Benson discussed his observations with the assistant area director 

for his office, Jaime Lopez, who authorized the CSHO to open an inspection at the worksite. 

CSHO Benson drove to the worksite, which turned out to be on Solano Avenue in Cooper City, 

Florida, and parked his car. The worksite was a multi-unit town house. The section of the roof 

he had observed workers on the day before had been completed and he observed workers on a 

different section of the roof. CSHO Benson noted that the workers were not tied off (Tr. 21, 23). 

He took several photographs and approached the site. He saw a Graboski employee on the 

ground floor whom he recognized from a previous inspection at another Graboski worksite. As 

CSHO Benson approached, the Graboski employee turned and yelled in Spanish to the workers 

on the roof. CSHO Benson, who speaks Spanish, understood that the employee had yelled to his 

co-workers to tie off because “OSHA’s here.” (Tr. 21.)
3

The CSHO held an opening conference, inspected the worksite, and interviewed the 

employees present. The workers on the site were members of a hot mop crew. This crew cuts 

and places 30-pound paper (also called underlayment) and then uses a mop to apply hot tar to the 

paper to adhere it to the roof. The Crew Chief, who was on the roof when the CSHO arrived, 

supervised four members of the hot mopping crew, including the Crew Leader, the employee the 

CSHO recognized from a previous inspection. The hot mop crew consisted of two teams of two 

workers each and the fifth crew member who carried the tar bucket. The Crew Chief and the 

Crew Leader cut and placed the paper and also supervised the employees who performed the hot 

mopping (Tr. 23, 155-156).

The height of the roof at its edge was 29 feet (Tr. 23-24). The slope of the roof was 4:12 

(Tr. 23). When CSHO Benson arrived at the site, the hot mop crew members were wearing 

safety harnesses but were not attached to safety lines or anchor points on the roof (Tr. 24-25, 29). 

As a result of the CSHO’s inspection, the Secretary issued the instant Citation to Graboski on 

December 12, 2013.

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., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009).

Item 1: Alleged Willful Violation of § 1926.501(b)(10)

Alleged Violation Description

Item 1 of Citation No. 1 states,

29 CFR 1926.501(b)(10): Each employee engaged in roofing activities on lowslope roofs with unprotected sides and edges 6 feet or more above lower levels 

and 50-feet (15.25 m) wide or less, was not protected from falling by guardrail 

systems, safety net: 

a. On or about 7/23/2013, at the above addressed jobsite, employees installing 

roofing paper and performing hot mopping on a residential roof with a roof slope 

of 4:12 were not protected from falling with a means of conventional fall 

protection system and were exposed to a fall of approximately 30 feet.
4

§ 1926.501(b)(10)

Section 1926.501(b)(10) provides:

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.

Applicability of the Cited Standard

Section 1926.501(b)(10) appears in Subpart M—Fall Protection of OSHA’s Safety and 

Health Regulations for Construction. Section 1926.500(a) provides Subpart M sets forth 

“requirements and criteria for fall prevention in construction workplaces covered under 29 CFR 

part 1926.” The cited subsection is captioned “Roofing work on Low-sloped roofs.” Section 

1926.500(b) defines roofing work as “the hoisting, storage, application, and removal of roofing 

materials and equipment, including related insulation, sheet metal, and vapor barrier work, but 

not including the construction of the roof deck.” A low-slope roof is defined as “a roof having a 

slope less than or equal to 4 in 12 (vertical to horizontal).”

Here, Graboski’s crew was hoisting and applying roofing material, in the form of 30-

pound paper and hot tar, to the roof. The slope of the roof was 4:12. The Court determines (and 

Graboski does not dispute) § 1926.501(b)(10) applies to the cited conditions.

Noncompliance with the Terms of the Standard

It is undisputed Graboski’s employees were not tied off or using any other means of fall 

protection when CSHO Benson arrived at the worksite. Exhibits G-1, G-2, G-3, and G-4 are 

copies of photographs taken by CSHO Benson showing the employees working on the roof while 

unattached to safety lines. The Crew Chief and the other employees admitted to the CSHO that 

they were not using fall protection.

Graboski contends “the employees unhooked in order to descend from the roof to avoid a 

weather-related hazard. . . . The Act does not require employees to be attached when descending 

from the roof. Therefore, it cannot be said that employees were exposed to a hazard.” 

(Graboski’s brief, p. 18.) Graboski’s argument flies in the face of the record evidence. 

Graboski’s crew members were not descending from the roof when CSHO Benson arrived and 
5

they informed the CSHO, in signed statements, that they routinely work on roofs without fall 

protection.

First, there are the photographs. Exhibits G-1 through G-4 show the Crew Chief and his 

crew members working on the roof. Exhibit G-1 is photographed from a distance. Four workers 

are discernable on the roof near the peak. None of them is descending from the roof. Exhibit G2 shows the Crew Chief standing and watching his team member hot mop. The crew member 

doing the mopping is intent on his work, while the Crew Chief is standing in a relaxed posture 

observing him. Again, neither of them is descending from the roof. Exhibit G-3 shows the Crew 

Chief bending over as he cuts a sheet of 30-pound paper to size. Exhibit G-4 is another shot of 

the Crew Chief with his back to the unprotected edge of the roof as he bends over his work. In 

neither of these photographs is the Crew Chief in the act of descending from the roof. In all of 

the photographs, the employees appear calmly focused on their work. There is no sense of 

urgency or frantic activity. These four photographs alone belie Graboski’s claim that the 

employees had “unhooked in order to descend from the roof.”2 

Second, there are the employee statements taken by CSHO Benson. The Crew Chief, 

who no longer worked for Graboski at the time of the hearing, told the CSHO, 

Yesterday, late afternoon the same crew that’s here today. We were not tied off 

while conducting hot mopping. I have no reason why I allowed them to not use 

the fall protection. They are grown men and they know they need to wear the 

PPE [personal protective equipment]. . . . The [employees] don’t like wearing the 

ropes because it gets in the way while they are hot mopping.

 

2 Graboski’s claim of a “weather-related hazard” is not credited. Counsel for Graboski stated, “The employees were 

frantically trying to get rid of some tar which would have, potentially, exploded if the rain hit in windy conditions.” 

(Tr. 13.) CSHO Benson, however, stated that none of the employees told him they failed to tie off because they 

were concerned about the weather. CSHO Benson testified, “On that day that I did the inspection, it was partly 

cloudy. And during the operation of the underlayment, there was no rain. Rain came a little bit after I was already 

there. Probably, probably like an hour after I was there.” (Tr. 68.) The Crew Leader was the only other witness who 

was on site the day of the inspection. The Court found his testimony (translated from Spanish by an interpreter) to 

be evasive. When asked about his signed statement taken by CSHO Benson, the Crew Leader claimed he did not 

remember telling him that the crew member he was supervising was not tied off and that he himself did not like to 

tie off because the lanyard gets in his way (Tr. 157-158, 163.) With regard to the weather, when the Crew Leader 

was asked if the crew member he was supervising was supposed to be tied off when working on the roof, he replied, 

“It was going to rain and they wanted to finish because it was with the hot tar.” (Tr. 156.) Even if his claim that 

Graboski’s crew believed it was going to rain is credited, it does not establish the crew members were in the process 

of descending from the roof when CSHO Bensons arrived. The Crew Leader’s statement is not that the crew 

members failed to tie off because they were descending from the roof, but because they wanted to finish. The Court 

credits CSHO Benson’s testimony that it did not start raining until approximately one hour after his arrival at the 

worksite. The Court determines the employees were not descending from the roof at the time CSHO observed them 

working without fall protection. 
6

(Exh. G-5, emphasis in original.) The Crew Chief signed and dated his statement. 

George Marino is Graboski’s supervisor of safety and quality control. In a statement 

taken by CSHO Benson on September 25, 2013, regarding the July 23 inspection at issue, 

Marino stated,

I think the [employees] were working unsafely because the penalties are not 

enforced prior to my employment w/Tim Graboski. I’ve given out violations, but 

there were no penalties. I tell them about my brother’s death from falling off a 

roof while pressure cleaning and he fell only 8’ to the ground. The [employees] 

get paid by piece work, which the [employees] get paid per roll. I’ve seen the 

work orders with the amount of rolls the job is using. This is my opinion. . . . I 

believe this affects safety because they are going to work fast. . . I don’t have the 

authority to send someone home if they commit unsafe acts, nor does the 

[supervisor] or crew chief have that authority. The company would not allow it 

because the job won’t get done.

(Exh. G-10.) Marino signed his statement and initialed each of the five pages.

The Crew Chief told CSHO Benson the crew members usually waited until Marino 

completed his morning visit to a worksite and then unhooked from the safety lines once Marino 

left. The day of the inspection, Marino left the site at approximately 10:00 a.m. (Tr. 35.). CSHO 

Benson testified the employees told him “they kind of have a general idea of when Mr. George 

Marino shows up at the site, which is very early in the morning. And what I also learned is that 

they do not like to wear fall protection because it gets in the way.” (Tr. 40.).

The Crew Leader told the CSHO he does not like to wear fall protection equipment 

(FPE). He stated “he works faster and quicker and makes more money if he does not use fall 

protection equipment.”(Tr. 57.). The third crew member told the CSHO he was not tied off 

because “it gets in the way. The line, the safety line gets in the way.”(Tr. 68.). The fourth crew 

member told CSHO Benson he did not use fall protection because the line gets in his way (Tr. 

69). The fifth crew member confirmed to CSHO Benson that he did not tie off because he did 

not like being attached to the safety line (Tr. 71).

The record evidence abundantly establishes all five members of Graboski’s work crew 

failed to use fall protection while engaged in roofing activities at the worksite the day of the 

CSHO’s inspection. 
7

Employee Access to Violative Condition

The record evidence also establishes Graboski’s crew members were exposed to a fall of 

29 feet (Exhs. G-1 through G-4). All five employees acknowledged to CSHO Benson that they 

were working on the roof without the use of fall protection.

Employer Knowledge

Graboski does not dispute it had knowledge of its employees’ failure to use fall 

protection. Graboski had two supervisors, the Crew Chief and the Crew Leader, working onsite 

the day of the OSHA inspection. An employee who has been delegated authority over another 

employee, even if only temporarily, is considered to be a supervisor for purposes of imputing 

knowledge to an employer. American Engineering & Development Corp., 23 BNA OSHC 2093, 

2012 (No. 10-0359, 2012); Diamond Installations, Inc., 21 BNA OSHC 1688 (Nos. 02-2080 & 

02-2081, 2006); Tampa Shipyards, Inc., 15 BNA OSHC 1533 (Nos. 86-360 and 86-469, 1992).3

The supervisors were aware the crew members were not tied off. They worked side-byside with the crew members and participated in the violative conduct. The actual knowledge of 

the Crew Chief and the Crew Leader is imputed to Graboski. 

The Secretary has established Graboski violated § 1926.501(b)(10).

Employee Misconduct Defense

Graboski contends that any violation of the cited standard is the result of employee 

misconduct. “To establish the unpreventable employee misconduct defense, an employer must 

show that it established a work rule to prevent the violation; adequately communicated the rule 

to its employees, including supervisors; took reasonable steps to discover violations of the rule; 

and effectively enforced the rule.” Schuler-Haas Electric Corp., 21 BNA OSHC 1489, 1494 

(No. 03-0322, 2006).

It is evident Graboski met the first two elements of its defense. The company has a 

written Fall Protection Plan for Residential Roofing Construction, issued in both English and 

Spanish. It states in part, “[A]ll Tim Graboski Roofing employees working on a roof must use a 

 

3

In the Fifth Circuit, where this case arises, a supervisor’s knowledge of his or her own misconduct is not imputed 

to the supervisor’s employer unless the Secretary establishes such misconduct was foreseeable. “[A] supervisor's 

knowledge of his own malfeasance is not imputable to the employer where the employer's safety policy, training, 

and discipline are sufficient to make the supervisor's conduct in violation of the policy unforeseeable.” W.G. Yates & 

Sons Const. Co. Inc. v. Occupational Safety & Health Review Comm'n, 459 F.3d 604, 608-09 (5th Cir. 2006) 

(emphasis in original). This case does not present a Yates situation. Here, the supervisors were aware of the 

violative conduct of the subordinate employees as well as their own misconduct. 
8

personal fall arrest system.” (Exh. R-2.). This rule is communicated to the employees through 

video safety training upon hiring, weekly toolbox talks, and annual company-wide training. The 

employees were aware they were supposed to tie off when working on a roof. 

Graboski adduced some evidence showing it took steps to discover violations of the rule. 

Safety supervisor Marino hands out safety equipment to the crew chiefs every morning at 

Graboski’s office at 7:00 a.m. He conducts field visits every day. Marino also calls the crew 

leaders during the day to ask if they are working safely (Exh. G-10). The crew members in the 

instant case, however, stated they knew approximately when Marino would show up in the 

morning and they unhooked from the safety line and continued their work unprotected once he 

left the site. General manager Tom Potter told CSHO Benson that crew leaders are responsible, 

as supervisors, for the crew members’ safety. He stated, “Crew leaders have the authority to 

‘stop’ any work if there is an unsafe condition.” (Exh. G-11.) At the worksite at issue, the two 

supervisors took no steps to discover violations—in fact, they were complicit in them. An 

employer cannot be said to be taking steps to discover violations when the supervisory 

employees charged with such a task condone the misconduct. The Court determines the steps 

Graboski took to discover violations were not reasonable given the well-known, widespread 

employee reluctance to use fall protection.

Graboski also failed to establish it effectively enforced its fall protection work rule. 

“Where all the employees participating in a particular activity violate an employer’s work rule, 

the unanimity of such noncomplying conduct suggests ineffective enforcement of the work rule.” 

Gem Industrial Inc., 17 BNA OSHC 1861, 1865 (No. 93-1122, 1996) aff’d, 149 F.3d 1183 (6th 

Cir. 1998). Here, Graboski’s entire crew at the worksite-- two supervisors and three employees--

-failed to use fall protection. Although Graboski adduced evidence of some disciplinary notices 

given to employees, the company failed to follow through with its program. 

CSHO Benson testified he reviewed Graboski’s employee disciplinary record and 

“noticed that the same employee was disciplined and it says next time this is what’s going to 

happen to you. Well the next time came and that didn’t happen to him. Then a next time came 

and then a next time came and he was working at that site with no disciplinary action taken 

against him[.]” (Tr. 149). Graboski’s employees told the CSHO that they had not been 

disciplined for past safety infractions and had not seen anyone else being disciplined. (Tr. 150). 
9

The Crew Leader testified Graboski did not inform its employees about any discipline 

meted out to other employees for not being tied off and he was not aware that anyone had been 

disciplined for not following safety rules (Tr. 165). The Crew Leader had been involved in an 

OSHA inspection in April 2013, a few months before the instant one, which also resulted in a 

citation for lack of fall protection. The Crew Leader told CSHO Benson that one of Graboski’s 

supervisors informed the Crew Leader that he would be fired if he failed to tie off after the April 

2013 inspection. (Tr. 143-144). The Crew Leader admitted he worked at another worksite on 

June 15, 2013, and was not tied off. (Tr. 159-160). On July 22 and 23, 2013, the Crew Leader 

again failed to tie off, but Graboski did not fire him. Instead, the Crew Leader received a $25 

fine (Exh. R-13, p. 18; Tr. 164).

Graboski’s disciplinary program was not uniformly and consistently enforced and 

Graboski did not discourage violations of its safety rules. Propellex Corp., 18 BNA OSHC 1677, 

1682 (No. 96-0265, 1999) (holding that effective implementation of a safety program requires “a 

diligent effort to discover and discourage violations of safety rules by employees.”). Safety 

supervisor Marino and general manger Potter admitted that they and Graboski’s supervisors were 

not authorized to fire employees and that the company was more concerned about losing 

employees than about safety enforcement. The participation of the Crew Chief and the Crew 

Leader in the violative conduct underscores the ineffectiveness of Graboski’s enforcement 

program. “Where a supervisory employee is involved the proof of unpreventable employee 

misconduct is more rigorous and the defense is more difficult to establish since it is the 

supervisor’s duty to protect the safety of his employees under his supervision . . . A supervisor’s 

involvement in the misconduct is strong evidence that the employer’s safety program was lax.” 

Archer-Western Contractors, Ltd., 15 BNA OSHC 1013, 1017 (No. 87-1076, 1991).

Despite having a disciplinary policy in theory, in practice Graboski imposes no actual 

accountability for violations. Graboski has a responsibility to take steps to overcome its 

employees’ known resistance to using fall protection. When an employer continually overlooks 

its employees' violative conduct, it emboldens the employees to disregard their safety training. 

Here, Graboski’s Crew Chief and Crew Leader’s complicity in failing to tie off signaled to the 

subordinate employees that Graboski’s disciplinary policy could be ignored.
10

The Court determines Graboski has failed to establish its defense of unpreventable 

employee misconduct.

Willful Classification

The Secretary classifies the violation of Item 1 of Citation No. 1 as willful. 

A willful violation is one “committed with intentional, knowing or voluntary 

disregard for the requirements of the Act, or with plain indifference to employee 

safety.” Falcon Steel Co., 16 BNA OSHC 1179, 1181, 1993-95 CCH OSHA 

¶30,059, p. 41, 330 (No. 89-2883, 1993) (consolidated); A.P. O’Horo Co., 14 

BNA OSHC 2004, 2012, 1991-93 C.H. OSHA ¶ 29,223, p. 39,133 (No. 85-0369, 

1991). A showing of evil or malicious intent is not necessary to establish 

willfulness. Anderson Excavating and Wrecking Co., 17 BNA OSHC 1890, 1891, 

n.3, 1995-97 C.H. OSHA ¶ 31,228, p. 43,788, n.3 (No. 92-3684, 1997), aff’d 131 

F.3d 1254 (8th Cir. 1997). A willful violation is differentiated from a nonwillful 

violation by an employer’s heightened awareness of the illegality of the conduct

or conditions and by a state of mind, i.e., conscious disregard or plain indifference 

for the safety and health of employees. General Motors Corp., Electro-Motive 

Div., 14 BNA OSHC 2064, 2068, 1991-93 C.H. OSHA ¶ 29,240, p. 39,168 (No. 

82-630, 1991)(consolidated). 

A.E. Staley Manufacturing Co., 19 BNA OSHC 1199, 1202 (Nos. 91-0637 & 91-0638, 2000). 

The Secretary had previously cited Graboski for OSHA violations, including a repeat 

violation issued June 26, 2013, (one month prior to the instant inspection) for failing to ensure its 

employees use fall protection. The June 26, 2013, citation became a final order of the 

Commission (Exh. G-12; Tr. 86-87). The Commission has held that a history of previous 

violations may establish a heightened awareness of the requirements of the cited standards. E.R. 

Zeiler Excavating, Inc., 2014 WL 4745565, at *2 (No. 10-0610, 2014) (“We agree with the 

Secretary that Zeiler had a heightened awareness of the cited standards' requirements given its 

prior OSHA citation history.”).

Graboski contends the cited violation should not be classified as willful because it “has 

demonstrated good faith efforts to comply with OSHA regulations by having a comprehensive 

safety program that is communicated to all employees through continuous training opportunities; 

establishing control measures which included monitoring and worksite inspections; and 

enforcing safety rules through a progressive disciplinary policy.” (Graboski’s brief, pp. 23-24.) 

Graboski also cites three unreviewed ALJ decisions4in which the ALJs declined to classify the 

affirmed violations as willful. These cases are not Commission precedent and are 

 

4 Graboski cites Elgin Roofing Co., 19 BNA OSHC 1394 (No. 99-1477, 2001); M&M Roofing, Inc., 19 BNA OSHC 

(No. 00-1655, 2001); and D.W. Caldwell, 24 BNA OSHC 1658 (No. 12-1056, 2013).
11

distinguishable from the present case. As discussed above in the section addressing Graboski’s

employee misconduct defense, Graboski failed to enforce its disciplinary policy. 

“[E]ven ‘a good safety program’ is ‘insufficient to negate willfulness’ where there 

is an ‘absence of any evidence that [the employer] enforced [its] safety rules.’

Rawson Contractors, Inc., 20 BNA OSHC 1078, 1082, 2002-2004 CCH OSHD ¶ 

32,657, p. 51,327 (No. 99-0018, 2003). Here, the record is devoid of evidence that 

the company ever enforced its rules by disciplining those who violated them. 

Elliot Constr. Corp., 23 BNA OSHC (No. 07-1578, 2012). Although Graboski adduced 

evidence of some verbal warnings and minor fines, the record establishes Graboski avoided 

enforcing its 100 percent tie-off rule in order to maintain workers (Exh. R-13).

The parties agreed that the exhibits “entered into evidence or referenced during [general 

manager] Potter’s testimony” in Docket No. 14-0263 “will be stipulated to as a part of the record 

in OSHRC Docket No. 14-0264. And with the same status that they had in the previous case.” 

(Tr. 171.) During the cross-examination of Potter, counsel for the Secretary asked about the 

written interview statement, signed and initialed by Potter, given by him to CSHO Tiesi. In his 

statement to OSHA taken on July 17, 2013, Potter stated,

The employees do not want to wear fall protection, so are apt to quit if we take 

enforcement of them. Also we have a shortage of qualified workers in this area, 

due to the increase in construction, we are losing jobs, because we don’t have 

enough qualified employees to do the work, after we are awarded the bid. . . . The 

main reason that we are not able to enforce fall protection use, is not due to 

economics or loss of the bid, but because the employees will quit and just go work 

for another roofing company the next day that does not enforce fall protection or 

use safety standards.

(Docket No. 14-0264, Exh. G-9.)

Marino stated,

I don’t have the authority to send someone home if they commit unsafe acts, nor 

does the [supervisor] or crew chief have that authority. The company would not 

allow it because the job won’t get done.

(Exh. G-10.)

These statements, given by Graboski’s general manager and safety supervisor, 

respectively, establish Graboski had the state of mind (“conscious disregard or plain indifference 

for the safety and health of employees”) required for a finding of willfulness. Graboski withheld 

from its supervisors the authority to effectively discipline employees who refused to use fall 

protection. The crew’s momentary use of fall protection while Marino was onsite was a farce, 

perpetrated on a routine basis with the acquiescence of not one, but two, supervisors. 
12

The message communicated to the employees was that speed, not safety, was the quality 

most valued by the company. Graboski overlooked safety infractions and declined to enforce 

discipline because, in Potter’s words, “the employees will quit and just go work for another 

roofing company the next day that does not enforce fall protection or use safety standards.” See 

E. Smalis Painting Co., 22 BNA OSHC 1553, 1577 (No. 94-1979, 2009) (finding that employer 

would not have complied with standard “even had it known of its obligations” because of 

owner's “economic concerns” and “emphasis on productivity over employee safety”). Graboski 

and its employees had a tacit agreement that the company would not enforce its fall protection 

rule in exchange for the employees’ continued presence at the worksite. Graboski consciously 

made a business decision to minimally enforce discipline in order to retain workers because, as 

Potter stated, the employees “are apt to quit if we take enforcement of them.” The failure to 

ensure its employees used fall protection when engaged in roofing activities was committed with 

intentional, knowing, and voluntary disregard for the requirements of § 1926.501(b)(10).

The Court determines the Secretary has properly classified the violation of § 

1926.501(b)(10) as willful.

PENALTY DETERMINATION

Under § 17(j) of the Act, the Commission must give “due consideration to the 

appropriateness of the penalty with respect to the size of the business of the employer being 

charged, the gravity of the violation, the good faith of the employer, and the history of previous 

violations.” The principal factor in a penalty determination is gravity, which “is based on the 

number of employees exposed, duration of exposure, likelihood of injuries, and precautions 

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

1052, 2005).

The record does not reflect the number of workers Graboski employs (Tr. 85-86). 

Graboski has a history of previous violations, including a repeat violation issued June 26, 2013, 

(one month prior to the instant inspection) for failing to ensure its employees use fall protection. 

The June 26, 2013, citation became a final order of the Commission (Exh. G-12; Tr. 86-87).

The Court does not credit Graboski for good faith based on the awareness of the general 

manager, the safety supervisor, and the onsite supervisors that the employees routinely worked 

without fall protection. Gen. Motors Corp., CPCG Okla. City Plant, 22 BNA OSHC 1019, 1048 
13

(No. 91-2834E, 2007) (consolidated) (giving no credit for good faith when management tolerated 

and encouraged hazardous work practices).

The gravity of the violation is high. Graboski’s five crew members worked without fall 

protection at a height of 29 feet over a two day period. Although the Crew Leader minimized the 

time the employees worked without fall protection at the hearing (Tr. 161-163), the Court credits 

the CSHO’s testimony that the crew members told him they would unhook from the safety lines 

once Marino left the site.5 CSHO Benson testified the employees worked at the site for two days 

and were without fall protection for four to six hours each day (Tr. 84). A fall from a height of 

29 feet would likely result in death or serious injuries. Graboski’s crew took no other 

precautions to prevent or minimize injuries. The Court determines the highest penalty is 

appropriate in this case. 

Upon due consideration of the statutory factors under § 17(j) of the Act, the Court 

assesses a penalty of $70,000.00 for Item 1 of Citation No. 1. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

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

accordance with Fed. R. Civ. P. 52(a).

ORDER

Based upon the foregoing decision, it is hereby ORDERED:

Item 1 of Citation No. 1, alleging a willful violation of § 1926.501(b)(10), is AFFIRMED 

and a penalty of $70,000.00 is assessed.

Date: April 21, 2015 /s/ Sharon D. Calhoun

Sharon D. Calhoun

Judge

 

5 Graboski focused at the hearing and in its brief on a preliminary document CSHO Benson drafted while preparing 

his file in this case (Exh. R-9). CSHO Benson testified he used a preexisting document to type in some information 

related to the instant case as a sort of placeholder. (“[D]uring the course of the investigation whenever it's a repeat 

or whenever it's the same violation, what we do is we go back to a previous inspection or a previous violation of a 

different inspection and go in our system and, and what we call it is, the OIS allows us to duplicate. So, basically, 

information from this document came from a previous document which was the repeat document. . . . [S]o we don't 

have to keep manually typing in, we just take, make a duplicate and it stays in the system until we actually start 

working on the case.” (Tr. 97.)) Graboski seeks to hold the Secretary to the portion of CSHO’s document stating, 

“Employees were on the roof for a short period of time minimizing the probability of having an accident.” (Exh. R15, p. 1). The Court credits the CSHO’s testimony that the quoted sentence is a carryover from a previous document 

and does not refer to the duration of exposure in the instant case. There is sufficient evidence to find all five of 

Graboski’s crew members failed to tie off while on the roof on both July 22 and 23, 2013.