UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

 

 DOCKET NO. 15-0586 

 

 

Appearances:

Sheryl Vieyra, Esq., Office of the Solicitor, U.S. Dept. of Labor, Dallas, Texas 

For Complainant

Pete Perez, Bracketville, Texas

 For Respondent

Before: Administrative Law Judge Brian A. Duncan

DECISION AND ORDER

Procedural History

This matter is before the United States Occupational Safety and Health Review 

Commission (“Commission”) pursuant to Section 10(c) of the Occupational Safety and Health 

Act of 1970, 29 U.S.C. § 651 et seq. (“the Act”). On October 8, 2014, the Occupational Safety 

and Health Administration (“OSHA”) inspected a worksite located at 5701 Starboard, in 

Midland, Texas. (Tr. 23, 27; Exs. C-1, C-2). As a result of that inspection, OSHA issued a 

Citation and Notification of Penalty (“Citation”) to Respondent. The Citation alleges one serious 

violation of the Act, with a proposed penalty of $1,600.00. Respondent timely contested the 

Citation. A trial was conducted in San Antonio, Texas on December 15, 2015. The parties each 

submitted post-trial briefs for consideration. 

SECRETARY OF LABOR, 

 

 Complainant,

 

 v. 

AAA Roofing, 

 

 Respondent.
2

Two witnesses testified at trial: (1) Dan Hobelman, OSHA Compliance Safety and 

Health Officer (“CSHO”); and (2) Pete Perez, Respondent’s owner; 

Jurisdiction

No stipulations were agreed upon prior to trial. The Court finds that Respondent was 

engaged in commercial construction, as the jobsite involved the construction of a small shopping 

mall, and that Respondent employed at least three individuals involved in the project. (Tr. 37-38, 

43-44, 54). Accordingly, Respondent was an employer engaged in a business and industry 

affecting interstate commerce within the meaning of Sections 3(3) and 3(5) of the Act, 29 U.S.C. 

§ 652(5), and the Commission has jurisdiction over this proceeding pursuant to Section 10(c) of 

the Act. Slingluff v. OSHRC, 425 F.3d 861 (10th Cir. 2005). 

Background 

On October 8, 2014, OSHA CSHO Daniel Hobelman initiated an inspection of a 

commercial construction worksite in Midland, Texas because he observed suspected safety 

violations from a nearby public road. (Tr. 23-24). As CSHO Hobelman approached the General 

Contractor’s trailer to begin his inspection, he observed and photographed two workers sitting 

and working on an incomplete steel beam awning sticking out from a wall, several feet above a 

scaffold. (Tr. 24-27; Ex. C-3). CSHO Hobelman stopped to ask the two workers to come down 

from the awning, and requested their names and employer’s name. (Tr. 25). They complied and 

stated their names were Francisco Maltos and Orlando Esquival, and that they were employed by 

AAA Roofing (Respondent). (Tr. 25-26). CSHO Hobelman then proceeded to the General 

Contractor’s trailer to identify himself and explain the purposes for his visit to the site. He then 

inspected the work area of two other subcontractors at the location.

1 (Tr. 29).

 

1 The safety concerns which CSHO Hobelman observed from the road involved two different subcontractors at this 

location, not the Respondent. (Tr. 24, 29). 
3

When CSHO Hobelman returned to Mr. Maltos’ and Mr. Esquival’s work location, a 

third person was there, who identified himself as Ricky Flores, a AAA Roofing supervisor. (Tr. 

30-31). Mr. Flores told CSHO Hobelman that Respondent employed 8 individuals, 5 of which 

were working on this project, and also provided AAA Roofing’s address and telephone 

information. (Tr. 30-31, 43-44, 54). During OSHA’s discussion with these three individuals, Mr. 

Esquival acknowledged that he had been sitting on a board laid across the elevated steel awning 

while working on flashing, that Ricky Flores was his supervisor, that he had been employed by 

AAA Roofing for approximately 1 month as a Laborer, and that he was paid weekly in cash. (Tr. 

32-33, 59-60; Exs. C-3, C-6). Mr. Malto told CSHO Hobelman that he was a Helper with AAA 

Roofing, that Ricky Flores was his supervisor, and that he did not have a safety harness for fall 

protection. (Tr. 35-36; Ex. C-7). 

As a result of his investigation at this location of the worksite, CSHO Hobelman 

recommended the issuance of one serious violation of the Act. 

Citation 1, Item 1

 Complainant alleged a serious violation of the Act in Citation 1, Item 1 as 

follows: 

29 C.F.R. § 1926.501(b)(1): Each employee on a walking/working surface with 

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

was not protected from falling by the use of guardrail systems, safety net systems, 

or personal fall arrest systems:

On or about October 8, 2014 at the jobsite employees were exposed to fall 

hazards in excess of 6 ft. while working from the awning on the west side of the 

structure.

 The cited standard provides: 

29 C.F.R. § 1926.501(b)(1) Unprotected sides and edges. Each employee on 

walking/working surface (horizontal and vertical surface) with an unprotected 

side or edge which is 6 feet (1.8m) or more above a lower level shall be protected 

from falling by the use of guardrail systems, safety net systems, or personal fall 

arrest systems. 
4

Applicable Law

To prove a violation of an OSHA standard, Complainant must prove, by a 

preponderance of the evidence, that: (1) the cited standard applied to the facts; (2) the employer 

failed to comply with the terms of the cited standard; (3) employees were exposed or had access 

to the hazard covered by the standard, and (4) the employer had actual or constructive 

knowledge of the violative condition (i.e., the employer knew, or with the exercise of 

reasonable diligence could have known). Atlantic Battery Co., 16 BNA OSHC 2131 (No. 90-

1747, 1994). 

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

physical harm could have resulted from the violative condition. 29 U.S.C. § 666(k). 

Complainant need not show that there was a substantial probability that an accident would

actually occur; he need only show that if an accident occurred, serious physical harm could 

result. Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237, 1240 (9th Cir. 1984). If the possible 

injury addressed by a regulation is death or serious physical harm, a violation of the regulation is 

serious. Mosser Construction, 23 BNA OSHC 1044 (No. 08-0631, 2010); Dec-Tam Corp., 15 

BNA OSHC 2072 (No. 88-0523, 1993). 

Discussion

The Cited Standard Applies

The cited standard applies to walking or working surfaces six feet or more above a lower 

level. CSHO Hobelman testified, without contradiction, that Mr. Esquival and Mr. Malto were 

working on flashing approximately 13 feet above the ground. (Tr. 39-40, 44). Mr. Esquival, who 
5

was photographed sitting on top of a board on the steel awning, was 7 feet above the top level of 

scaffolding. (Tr. 39-40, 59). 2

 Accordingly, the cited standard applies. 

The Terms of the Standard were Violated 

Mr. Esquival was sitting on the steel awning, 13 feet above the ground and 7 feet above 

the top level of the scaffold, with no guardrail system, safety net system, or personal fall arrest 

system to protect him. (Tr. 26-27, 33, 38-44, 59; Exs. C-3, C-6). The terms of the cited standard 

were violated. 

Respondent’s Employee was Exposed to the Hazard 

The primary disputed issue in this case is whether Mr. Esquival and Mr. Malto were 

employed by Respondent. “[T]he Secretary has the burden of proving that a cited respondent is 

the employer of the affected workers at the site.” Allstate Painting & Contracting Co., 21 BNA 

OSHC 1033, 1035 (No. 97-1631, 2005). 

The Court focuses its analysis on Mr. Esquival, since he was clearly more than 6 feet 

above both the ground and the top level of the scaffold, while not using fall protection, and 

therefore exposed to the hazardous condition. The preponderance of the evidence presented at 

trial established that Mr. Esquival was employed by Respondent. Mr. Esquival and Mr. Malto 

told CSHO Hobelman when he first approached them that they were employed by Respondent. 

When CSHO Hobelman returned to the work location after inspecting two other contractors, 

Supervisor Ricky Flores confirmed their employment with Respondent, and provided detailed 

information about how to contact Respondent. During this return visit to the work location, Mr. 

Esquival and Mr. Malto reiterated their employment with Respondent, including their job titles 

 

2

 Although not determinative here since Mr. Esquival was more than 6 feet above the top level of the scaffold, it 

should be noted that scaffolding may, or may not, be considered “the next lower level” pursuant to the standard, 

depending on the configuration and condition of the scaffolding. See Midwest Roofing & Custom Metals, 21 BNA 

OSHC 1854 (No. 06-0617, 2006)(OSHRC ALJ); Ranch Masonry, 19 BNA OSHC 1931 (No. 01-0742, 

2002)(OSHRC ALJ).
6

and employment duration, while providing statements to CSHO Hobelman. No other employer 

was ever mentioned or discussed during the three workers’ conversations with CSHO Hobelman. 

(Tr. 30). No evidence was presented at trial to controvert the employee’s assertions to CSHO 

Hobelman at the jobsite. The only contradiction at trial to Mr. Flores’, Mr. Esquival’s, and Mr. 

Malto’s statements that they were employed by AAA Roofing were: (1) a question posed to 

CSHO Hobelman about whether it was possible the three were employed by someone else; and 

(2) Mr. Perez’s testimony that he “never heard of” Mr. Esquival and Mr. Malto. (Tr. 56, 67). 

At trial, Respondent’s owner and sole trial witness, alluded to an unidentified insurance 

document and unidentified 1099 tax forms during his testimony, which he asserted would 

support his defense. However, the documents were not listed in Respondent’s Pre-Trial 

Statement, and were not offered or admitted into evidence. (Tr. 67-70). Two months after the 

trial was concluded, Respondent inappropriately attached the referenced documents to AAA 

Roofing’s Closing Statement. Upon review, the newly attached exhibits consist of an insurance 

form, various 1099 tax forms, and an Affidavit by Roger Perez (Respondent’s owner’s father). 

All of the newly offered exhibits attached to Respondent’s Closing Statement are rejected as 

untimely, prejudicial to Respondent, and otherwise unreliable. 

Pursuant to the Court’s July 6, 2015 Notice of Trial in Simplified Proceeding, both parties 

were required to file a Pre-Trial Statement ten calendar days before trial, identifying each party’s 

proposed witnesses and exhibits. Respondent’s Pre-Trial Statement, which was untimely, 

identified no proposed exhibits, and only one witness: Peter Perez.3

 In addition, the three newly 

submitted documents’ admission into evidence two months after the conclusion of the trial 

 

3

 The parties’ pre-trial statements were due on or before December 5, 2015 (ten days before trial). Respondent’s 

Pre-Trial Statement was filed late, on December 10, 2015. However, the Court still permitted testimony from 

Respondent’s sole listed witness. Similarly, the Court rejects Respondent’s assertions that Complainant’s post-trial 

brief was untimely. All of the parties’ post-trial argument filings (excluding Respondent’s new purported exhibits) 

were considered prior to issuing this Decision and Order. 
7

would be prejudicial to Complainant because: (1) the documents were not disclosed to 

Complainant as potential trial exhibits as previously ordered, and (2) there was no opportunity 

for Complainant to question witnesses about any of the documents. 

Even, for the sake of argument, if the Court did consider the three new purported 

evidentiary exhibits attached to Respondent’s Closing Statement, the Court’s decision in this 

case would be the same. First, the affidavit by Roger Perez is an inadmissible, self-serving, posttrial hearsay statement. Roger Perez, the affiant, was actually at the trial, assisting Pete Perez in 

his presentation of evidence, and could have testified as a witness had he been identified in 

Respondent’s pre-trial witness list. This would also have enabled Complainant an opportunity to 

cross-examine Roger Perez on his assertions. Second, Roger Perez’s assertion in the affidavit 

that Mr. Malto and Mr. Esquival were actually employed by him (not Respondent) is unreliable. 

It is inconsistent with the employees’ and their supervisor’s own statements to the CSHO at the 

time of the inspection. Third, Roger Perez’s post-trial assertion in the affidavit that the two 

employees worked for him is very suspect considering his status as Respondent’s owner’s father, 

and the fact that this statement was made after the trial and far beyond the six month statute of 

limitations for Complainant to cite an alternative employer. Fourth, the Texas Mutual Audit 

Statement exhibit, with no discussion or testimony, provides no reliable information on the 

employer of the exposed employees one way or the other. Fifth, the sampling of IRS 1099 forms 

attached to Respondent’s Closing Statement do not provide reliable information about the 

employment status of the exposed employees. If anything, the fact that Ricky Flores is listed on 

several of the 1099 forms corroborates his statement to CSHO Hobelman on site that he was 

employed by Respondent. Sixth, Mr. Esquival’s statement to OSHA at the time of the inspection 

indicated he was paid in cash each week, further diminishing any significance in his name not 
8

appearing on the 1099 forms Respondent chose to submit after the trial. (Ex. C-6). As noted by 

Complainant, the Commission has found that the absence of federal income tax documentation is 

not dispositive as to a worker’s status as employee or independent contractor. See Sharon & 

Walter Constr., Inc., 23 BNA OSHC 1286 (00-1402, 2010) (“[F]ailure to withhold federal 

income and social security taxes was simply an attempt to hide [the worker’s] true status, not a 

bona fide reflection of an authentic independent contractor relationship . . . .”). 

In conclusion and to reiterate, the preponderance of the evidence established that Mr. 

Esquival and Mr. Malto were employed by Respondent at the time of the violation. 

Respondent’s purported Exhibits A, B, and C, attached to Respondent’s Closing Statement are 

rejected. Even if those exhibits were considered, the Court’s decision in this case would be the 

same.

Respondent Knew or Could Have Known of the Hazard 

Respondent, with the exercise of reasonable diligence, could have known of the violative 

condition. The evidence established that Respondent’s supervisor, Ricky Flores was on-site, that 

the employees had been working on the steel awning above the scaffold for about 20 minutes, 

and that the condition was open and obvious to anyone passing by the area. 

“The actual or constructive knowledge of an employer’s foreman can be imputed to the 

employer.” Dun Par Engineered Form Co., 12 BNA OSHC 1962, 1965 (No. 82–928, 1986); 

Austin Building Co. v. OSHRC, 647 F.2d 1063 (10th Cir. 1981). While reasonable diligence does 

not require full-time monitoring, inadequate supervision of employees constitutes a lack of 

reasonable diligence. See Stanley Roofing Co., Inc., 21 BNA OSHC 1462, 1463–64 (No. 03-

0997); see also Lakeside Construction, L.L.C., 24 BNA OSHC 1445 (No. 12-0422, 2012) (ALJ) 
9

(finding that failure to provide supervision over employees constituted a lack of reasonable 

diligence and that Respondent could have known of the violation because it was in plain view). 

Penalty

In calculating appropriate penalties for affirmed violations, Section 17(j) of the Act

requires the Commission give due consideration to four criteria: (1) the size of the employer’s 

business, (2) the gravity of the violation, (3) the good faith of the employer, and (4) the 

employer’s prior history of violations. Gravity is the primary consideration and is determined 

by the number of employees exposed, the duration of the exposure, the precautions taken 

against injury, and the likelihood of an actual injury. J.A. Jones Construction Co., 15 BNA 

OSHC 2201 (No. 87-2059, 1993). It is well established that the Commission and its judges 

conduct de novo penalty determinations and have full discretion to assess penalties based on the 

facts of each case and the applicable statutory criteria. Valdak Corp., 17 BNA OSHC 1135 (No. 

93-0239, 1995); Allied Structural Steel, 2 BNA OSHC 1457 (No. 1681, 1975). 

Respondent is a very small employer, with only eight employees. The violation exposed 

Respondent’s employees, particularly Mr. Esquival, to the possibility of a fall of approximately 7

feet to the scaffold, or possibly 13 feet to the ground. CSHO Hobelman testified, without 

contradiction, that a fall from that height would likely result in death or serious injury. The 

Court agrees with CSHO Hobelman’s determination that the probability of an accident actually 

occurring was relatively low. (Tr. 44-45). OSHA provided no penalty deductions for history or 

good faith. (Tr. 47-48). Considering the totality of the record, the Court finds that Complainant 

established the prima facie elements necessary to prove the violation, and that the proposed 

penalty of $1,600.00 is appropriate. 
10

Order

 Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED 

that Citation 1, Item 1 is AFFIRMED and a penalty of $1,600 is ASSESSED. 

SO ORDERED. 

 /s/ Brian A. Duncan

Date: May 10, 2016 Judge Brian A. Duncan

Denver, Colorado U.S. Occupational Safety and Health Review Commission