Capeway Roofing Systems, Inc.

Plain-English summary

Capeway Roofing installed roofing on a firehouse with four roof levels and was cited for head protection, fall protection, monitoring, training, material storage, and defective safety equipment. The Commission found that any error in allowing two OSHA witnesses to remain in the courtroom despite a sequestration order was harmless. It affirmed a willful violation for unprotected work on the steep roof and rejected Capeway's reliance on residential-construction guidance because the firehouse used concrete, steel, and metal roof supports. It also affirmed the hardhat and safety-monitor items, three repeated violations involving other roof levels, stored materials, and fall-hazard training, and an other-than-serious item for defective harnesses. The seven reviewed violations carried $111,800 in penalties.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.100(a), 1926.501(b)(10), 1926.501(b)(11), 1926.502(d)(21), 1926.502(h)(1)(iii), 1926.502(j)(7)(i), and 1926.503(a)(1)
• Outcome: All seven violations on review and their characterizations were affirmed, with $111,800 in penalties.
• Key point: A commercial building does not become residential construction merely because its exterior resembles nearby homes or uses shingles.

Full text (OSHRC public release)

Walter, J. David
Normal
Walter, J. David
2
1
2018-08-02T18:32:00Z
2018-08-02T18:32:00Z
1
8511
48515
404
113
56913
16.00

false

false
false
false

EN-US
X-NONE
X-NONE

SECRETARY OF
LABOR,

Complainant,

v.

OSHRC Docket No.
00-1986

CAPEWAY ROOFING SYSTEMS, INC.,

Respondent.

DECISION

Before: RAILTON, Chairman; STEPHENS, Commissioner.

BY THE
COMMISSION:  

Before us is a decision involving
Capeway Roofing Systems, Inc. (“Capeway”). The case arose out of an inspection
by two compliance officers of the Occupational Safety and Health Administration
(“OSHA”) at a firehouse under construction in a residential area in South
Weymouth, Massachusetts. Capeway was installing the roof on the multi-roofed
firehouse, which had four distinct roof areas. The central roof was sloped at a
pitch of 6 in 12, was 22 feet above the ground at the eaves and 26 feet 7
inches at the peak. There were two intermediate roofs, one on each side of the
central steep roof, which were 17 feet 10 inches high, and a lower flat roof 13
feet 8 inches high adjacent to one of the intermediate roofs.

As a result of its inspection, OSHA
issued citations alleging that Capeway had violated construction safety and
health standards governing fall and head protection, training, material
storage, and the inspection of safety equipment. A total penalty of $119,000
was proposed. Capeway contested the citations, and a hearing was held before
Chief Administrative Law Judge Irving Sommer, who affirmed all the citations
and assessed a total penalty of $117,000. His decision was directed for review
by former Chairman Thomasina Rogers pursuant to 29 U.S.C. § 661(j), section
12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678
(“the Act”). Four of the citations, involving seven of the nine violations
found by the judge, are before the Commission. For the reasons that follow, we
affirm the judge’s decision.

SEQUESTRATION

The first issue on review in this case
is whether the judge committed reversible error in his rulings on sequestration
of witnesses at the hearing. Capeway claims that the judge did not abide by the
provisions of Federal Rule of Evidence 615 (“Rule 615”), which governs witness
sequestration in Commission proceedings. Commission Rule 71, 29 C.F.R. §
2200.71. Specifically, Capeway protests the fact
that compliance officer (“CO”) James Holiday and Area Director (“AD”) Brenda
Gordon were excepted from the judge’s sequestration order. Capeway claims
prejudice based on the fact that Holiday was allowed to remain in the courtroom
and hear the testimony of another CO, Peter Barletta, before giving his own
testimony on many of the same subjects. As a remedy for the sequestration
error, Capeway contends that the case should be remanded for “a new hearing
before a new judge.”

While
the Commission concludes that any error resulting from the judge’s rulings
regarding sequestration was harmless, Chairman Railton and Commissioner
Stephens have different views of the issue. Their separate views follow:

Commissioner Stephens

After careful review of the record, I conclude that
while the judge did not strictly comply with the provisions of Rule 615,
Capeway failed to raise proper objections to the judge’s rulings at the hearing.
In addition, Capeway failed to provide adequate support for its objections to
these rulings as raised for the first time in its post-hearing brief to the
judge. In any event, I find any error resulting from the judge’s rulings to be
harmless.       

Federal
sequestration rule

Sequestration of witnesses during a judicial
proceeding is a time-honored practice. See, e.g., United States v. Jackson ,
60 F.3d 128, 133 (2d Cir. 1995) (“Rule 615 codified a well-established common
law tradition,” and the practice “is at least as old as the Bible”), cert.
denied sub nom. Barretto v. United States , 516 U.S. 980 (1995). “The aim of
imposing ‘the rule on witnesses,’ as the practice of sequestering witnesses is
sometimes called, is twofold. It exercises a restraint on witnesses ‘tailoring’
their testimony to that of earlier witnesses; and it aids in detecting
testimony that is less than candid.” Geders v. United States ,
425 U.S. 80, 87 (1976). See also 29
Charles Alan Wright & Victor J.
Gold, Federal Practice and Procedure: Evidence § 6242, pp. 53-54 (1st
ed. 1997) (“Wright & Gold”).

Under
the common law, the judge was afforded exceedingly broad discretion in deciding
whether to order the sequestration of witnesses. See Holder v. United States ,
150 U.S. 91, 92 (1893). Rule 615 has somewhat limited that discretion by
requiring the judge to order sequestration upon motion of a party, though the
judge may also order sequestration sua sponte :

At the request of a party the court shall order witnesses
excluded so that they cannot hear the testimony of other witnesses and it may
make the order of its own motion. This rule does not authorize exclusion of (1)
a party who is a natural person, or (2) an officer or employee of a party which
is not a natural person designated as its representative by its attorney, or
(3) a person whose presence is shown by a party to be essential to the
presentation of the party’s cause, or (4) a person authorized by statute to be
present.

Notwithstanding
the benefits of sequestration, Rule 615 recognizes certain competing interests
warranting the continuing presence of certain categories of witnesses and
therefore carves out four exceptions, two of which are relevant here. The
exception set forth under paragraph (2) of Rule 615 permits the attorney
representing a party that is not a natural person, such as a corporation or a
governmental entity, to designate an officer or an employee of the party who
will remain in the courtroom throughout the hearing. Typically, this exception
is applied to an investigative agent of the government such as a compliance
officer. See Wright & Gold, § 6245, at 76-77.  

The
other pertinent exception, set forth under paragraph (3) of Rule 615, allows a
party to establish that the presence of a witness is “essential to the
presentation of the party’s cause.” Although the rule does not define
“essential,” the Advisory Committee’s Note indicates that “[t]he category
contemplates such persons as an agent who handled the transaction being
litigated or an expert needed to advise counsel in the management of the
litigation.” Insofar as a compliance officer might qualify as an “agent who
handled the transaction being litigated,” Rule 615(3) arguably affords the
Secretary an alternative basis for excepting a compliance officer from
sequestration. However, at least one court has warned that where the government
has already designated one investigative agent to be its representative under
Rule 615(2), “demonstrating that an additional agent is, in fact, ‘essential’
is no easy task.” United States v. Phibbs , 999 F.2d 1053, 1070 (6th Cir.
1993).

Both of these exceptions have generated interpretative
issues in their application to particular circumstances. For instance, since
the designated representative exception under Rule 615(2) is couched in the
singular, is a party foreclosed from designating more than one representative?
The majority rule permits a party only one designated representative. See,
e.g., United States v. Pulley , 922 F.2d 1283, 1286 (6th Cir. 1991); United
States v. Farnham , 791 F.2d 331, 335 (4th Cir. 1986). See generally
cases cited in Wright & Gold , §
6245, at 81 n.30. However, there is authority to the contrary, emphasizing
that sequestration orders remain fundamentally an exercise of discretion by the
judge. See, e.g., Jackson , 60 F.3d at 135 (district court must exercise
discretion to exempt more than one witness under Rule 615); United States v.
Payan , 992 F.2d 1387, 1394 (5th Cir. 1993) (district court’s decision to
exempt two government agents under Rule 615 reviewed for abuse of discretion);
Phibbs , 999 F.2d at 1073 (where prosecution had two case
agent-witnesses exempted from exclusion under Rule 615, trial court did not
abuse its discretion in ordering one of them to leave courtroom while other one
testified, based on “court’s inherent powers of trial oversight”), cert.
denied , 510 U.S. 1119 (1994); United States v. Machor , 879 F.2d 945,
954 (1st Cir. 1989), cert. denied , 493 U.S. 1081 (1990) (whereas
“discretion to exclude the government agent under Fed.R.Evid. 615 is limited,”
court has “ample discretion to control the order of interrogating witnesses.”).
Similarly, “[w]hether or not a witness is essential, and hence should be
exempt from Rule 615 exclusion, is a matter soundly within the discretion of
the trial court.” Polythane Systems v. Marina Ventures International ,
993 F.2d 1201, 1209 (5th Cir. 1993). See also United States v. Green ,
293 F.3d 886, 892 (5th Cir. 2002) (trial court had discretion to determine that
presence of three government investigators was essential in complex case
involving eight-year drug conspiracy in two states), cert. denied , 123
S. Ct. 1783 (2003).

In cases where a sequestration error is made, the
aggrieved party bears the burden of showing prejudice before a remedy will be
considered. A few courts have held in criminal
cases that a sequestration error is presumptively prejudicial, thereby imposing
the burden on the opposing party to show that error was harmless. The Commission has not directly spoken
on this issue in the context of sequestration orders but has ruled in a related
context that the aggrieved party has the burden of demonstrating that prejudice
resulted to the presentation of its case. See Williams Enterp ., 13 BNA
OSHC 1249, 1250-51, 1986-87 CCH OSHD ¶ 27,893, p. 36,582 (No. 85-355,
1987) (moving party carries burden of showing preclusion of expert testimony
resulted in prejudice).

In
the event that a judge’s sequestration error is considered prejudicial, one
remedy is to order a new hearing at which the witnesses would testify again but
be properly sequestered. E.g., United States v. Brewer , 947 F.2d 404,
412 (9th Cir. 1991); Jackson , 60 F.3d at 134. See generally
Wright & Gold, § 6244, pp. 73-74. However, courts are reluctant to take
this rather draconian step. In jury trial cases, the offending testimony can be
struck and the jury instructed to disregard it. See, e.g. , United
States v. Magana , 127 F.3d 1 (1st Cir. 1997). In nonjury civil cases and
cases before administrative tribunals, the problem is ameliorated by the fact
that the judge is the trier of fact and is given broad discretion to admit
testimony — even testimony that later is determined to be inadmissible. See generally 11 Wright, Miller & Kane , Federal Practice and
Procedure , § 2885, p. 454 (2d ed. 1995) (“In nonjury cases the
district court can commit reversible error by excluding evidence but it is
almost impossible for it to do so by admitting evidence.”).

Proceedings
before judge

At
the hearing in this case, the participants did not seem entirely cognizant of
the requirements of Rule 615. See United States v. Williams , 136 F.3d
1166, 1169 (7th Cir. 1998) (“It is not at all uncommon for trial attorneys to
treat sequestration orders under Rule 615 in a nonchalant manner, but a
cavalier approach is not advisable.”).

Counsel for the Secretary was well into the direct
examination of his first witness, CO Barletta, when he first raised a
“question” regarding whether the judge “could sequester the witnesses.” Counsel
for Capeway initially opposed the motion. He noted that such a motion is
normally made before the start of testimony and that CO Holiday, who was also
slated to testify, had already been sitting in the courtroom listening to
Barletta’s testimony. The judge stated: “I have no problem with the other
compliance officer [Holiday] sitting here.” Capeway’s counsel responded that he
would “prefer that we have everyone sitting here” and that he did not “see any
reason to sequester anyone.”

The
judge then ordered sequestration of the other witnesses, but at Capeway’s
request he allowed each party to have a representative of the client remain in
the courtroom. For some reason, however, the judge failed to ask the parties on
the record to specifically identify the witness each counsel had actually
designated as its client-representative. The judge simply stated:

Let the record show that I am allowing the compliance officer
to stay who performed the inspection. The objection by Mr. Wayne is that since
I allowed the compliance officer to stay here, he wants everybody else to stay
here. The objection is overruled and he has an exception.

When the
Secretary’s counsel noted that he would be presenting only one other witness,
AD Gordon, who was present and scheduled to testify after Barletta on the issue
of penalty assessment, the judge responded: “[Sh]e can remain. Let’s move on.”
Thus, the judge excepted both Holiday and Gordon without having been requested
to do so by the Secretary’s counsel.

Instead
of actually objecting to both Holiday and Gordon remaining in the courtroom,
Capeway’s counsel simply said, “I object to that for the same reason.” That
“same” reason, as just stated by the judge, was the desire of Capeway’s counsel
to have “everybody else … stay here.” Thus, Capeway never actually raised at
the hearing its current objection — that both Holiday and Gordon should have
been sequestered. Again, the judge overruled Capeway’s “same reason” objection
and said: “Let’s move on.”

In
a footnote in its post-hearing brief to the judge, Capeway argued for the first
time: “The Court’s decision to allow CO Holiday, as well as Area Director
Gordon [to] remain in the courtroom while CO Barletta testified was inherently
unfair, denied due process, and prejudiced Respondent. CO Holiday tailored his
testimony to address the weaknesses in CO Barletta’s testimony.” Capeway made
no specific allegations of prejudice and simply urged that Holiday’s testimony
be stricken from the record.

The
judge addressed the sequestration issue in a footnote in his decision. He
asserted that allowing Holiday and Gordon to remain in the courtroom was in
accord with Rule 615(2), the designated representative exception. He also noted
that Capeway “failed to identify even one instance where CO Holiday’s testimony
was suspect.”

Analysis
of judge’s and parties’ actions

On
review, Capeway expands upon its post-hearing objections to the judge, arguing
that: (1) the Secretary’s motion to sequester was late; (2) the judge violated
the mandatory nature of Rule 615 and thereby “destroyed the integrity” of the
hearing by failing to sequester Holiday and Gordon; and (3) the judge’s actions
prejudiced Capeway’s case, in that Holiday “tailored his testimony to fill
gaps” in Barletta’s testimony which were exposed by Capeway’s counsel on
cross-examination. As to the timeliness of the Secretary’s motion, there is no
formal time limit on when a sequestration motion may be made. See, e.g .,
William L. Comer Family Equity Pure Trust v. C.I.R. , 958 F.2d 136,
140-41 (6th Cir. 1992) (sequestration mandatory even where motion not made
until after defense witnesses had testified). See generally Wright &
Gold, § 6244, pp. 67-69. Further, Capeway cannot reasonably complain that the
Secretary’s motion should have been made earlier when Capeway itself could have
moved to sequester the witnesses at any time. See generally Wright &
Gold, § 6244, p. 68 and nn.2, 5.

As
to Capeway’s second argument, the judge did act in a manner inconsistent with
Rule 615 by excepting both Holiday and Gordon from his sequestration order
without a motion to that effect from the Secretary and without explaining his
reasons for doing so. However, despite the judge’s deviation
from the requirements of Rule 615, Capeway’s counsel did not properly frame its
objections at the hearing so as to take issue with the supposed designation of
Holiday or the subsequent failure to sequester Gordon. A party must make a
timely objection to an evidentiary ruling, “stating the specific ground of
objection.” Fed. R. Evid. 103(a)(1). See generally Stephen A. Saltzburg,
Michael M. Martin, & Daniel J. Capra, Federal Rules of Evidence Manual
§ 103.02[9] & n.40 (Matthew Bender & Company, Inc. 2003) (citing Angelo
v. Armstrong World Indus. , 11 F.3d 957, 960-61 (10th Cir. 1993) (“The
objecting party must make its objection clear; the trial judge need not imagine
all the possible grounds for an objection.”)). As the judge noted in his
decision, Capeway failed to identify any instances of prejudice in its post-hearing
brief. In fact, though Capeway challenges the judge’s decision to except Gordon
from sequestration, Capeway has never suggested to the judge or even here on
review that Gordon’s presence was prejudicial.

In
any event, whether the judge’s actions in this case “destroyed the integrity”
of the hearing, or violated Capeway’s due process rights, depends upon whether
Capeway has established prejudice. Thus, even if Capeway’s objections to the
judge’s ruling could be considered proper, Capeway is not entitled to a
rehearing absent a showing of prejudice.

Capeway’s
claims of prejudice as to Holiday’s testimony

On
review, Capeway argues that the judge’s failure to sequester Holiday prejudiced
its case in that Holiday “tailored his testimony to fill gaps” in Barletta’s
testimony. Capeway alleges four specific occurrences of “tailoring” by Holiday
that it claims affect three citation items affirmed by the judge.

Capeway
does not actually allege that Holiday’s testimony was not truthful. Nor did
Capeway offer any rebuttal witnesses as to any of the citation items that it
claims were affected by Holiday’s “tailored” testimony. Indeed, one of the
citation items is based on conditions of which Capeway supervisor Dennis Mello
and job foreman Manuel Araujo were also aware; another citation item is based on
admissions by Araujo to Holiday. Araujo, apparently designated by Capeway’s
counsel as its client-representative, remained in the courtroom and listened to
all of the allegedly “tailored” testimony. Thus, if the two occurrences of Holiday’s
“tailored” testimony that pertain to these two citation items did, in fact,
contain inaccuracies, Capeway had a knowledgeable witness already in the
courtroom available for rebuttal. However, Araujo never testified. Nor did
supervisor Mello, and there was no indication that he was unavailable to
testify. Because Capeway offered no rebuttal evidence as to these two citation
items, Holiday’s sworn testimony stands unimpeached and establishes violations
of both items.

Capeway
alleges that a third citation item was affected by two other occurrences of
“tailoring” by Holiday. Under this citation item, Capeway was cited for a
violation of the general fall protection provision at section
1926.501(b)(11) regarding its work on the pitched roof of the firehouse under
construction. Capeway argues that the item should be vacated because there is a
more specifically applicable standard, section 1926.501(b)(13), which addresses
“residential construction.” According to Capeway, the firehouse should be
considered “residential construction” because it was designed to blend into the
surrounding residential neighborhood and had components typical of such
construction such as asphalt shingles. To support its argument, Capeway does
not rely on the actual language of section 1926.501(b)(13)
because it imposes essentially the same
requirements as the cited standard. Rather, Capeway relies on an OSHA directive
that states the agency’s internal enforcement policy under section 1926.501(b)(13): OSHA
Instruction STD 3-0.1A, Interim Fall Protection Compliance Guidelines for
Residential Construction (June 18, 1999) (“RC Guidelines”).

Capeway
argues that Holiday’s testimony is inconsistent with Barletta’s as to whether,
and how, OSHA considered the RC Guidelines before citing Capeway under the
general fall protection provision. Specifically, Capeway claims Barletta
testified that OSHA did not consider the RC Guidelines before issuing the
citation, while Holiday testified that OSHA did. Capeway also claims Barletta testified
that OSHA generally looks only at the type of building being constructed in
determining whether the RC Guidelines apply, while Holiday testified that OSHA
also looks at the type of materials used.

Capeway
has misrepresented Barletta’s testimony on these points. With regard to both
issues, Barletta testified only as to what he , not OSHA, personally
considered regarding the application of the RC Guidelines. According to Holiday, it was he, not
Barletta, who was responsible for the citations in this case — including the
decision to cite the violation in question under the general construction
provision — and Holiday did not recall ever speaking to Barletta about the RC
Guidelines. In this respect, Barletta’s testimony on these two points was not
inconsistent with Holiday’s. Thus, Capeway has not demonstrated that there were
any “gaps” in Barletta’s testimony for Holiday to fill. Moreover, Capeway has
failed to explain how consideration of Barletta’s testimony alone, without the
“benefit” of Holiday’s “gap-filling” testimony, would lead to the conclusion
which Capeway urges here – that the general fall protection standard cited in
this case did not apply.

Under
these circumstances, I find that Capeway has failed to establish prejudice with
regard to Holiday’s testimony. Accordingly, any sequestration error resulting from
the judge’s actions was harmless and a remand is not warranted.

Chairman Railton

The
Commission has not previously addressed the applicability of Rule 615 to its
proceedings, and I believe that the record in this case is such that it is
inappropriate to lay down a general rule for Commission cases. In particular, I
do not join my colleague insofar as he concludes that the burden is on the
party claiming prejudice to prove it was in fact prejudiced. In reviewing the
Federal Rule 615 cases that deal with prejudice, I come to the conclusion that
largely they do not establish a rule of decision in close cases where the
burden of persuasion might matter. Rather, statements in these decisions that
the petitioners “have not established prejudice” are best understood as a
statement about the paucity of any indication of prejudice in the record, not
as a rule of decision regarding the burden of persuasion in cases of equipoise.

As my colleague points out, draconian solutions are
required in cases where prejudice is shown. I agree that such a solution is not
required in this case. There is substantial evidence in the record as a whole
to support the judge’s findings and conclusions. Assuming he committed error
with regard to Rule 615, I agree that it was harmless.

It
is worth noting, however, that the question of error in this case is close.
Counsel for Capeway seemed unaware that his objections at trial were not well
taken and were not explained. It is incumbent on counsel having objections to
articulate them to the judge. A general objection to sequestration by itself
does not inform the judge of the reasons for or against sequestration. Thus,
counsel for Capeway failed to demonstrate any need for sequestering Compliance
Officer Holiday (“Holiday”) or Area Director Gordon (the “AD”). Indeed, counsel’s
objection could have been, and likely was, understood by the judge to mean that
Holiday and the AD should remain in the hearing room. As my colleague states, a
request to sequester is not untimely merely because it is made while testimony
is being taken. Rule 615 is mandatory and sequestration must be performed when
requested.

Capeway
knew or should have known before the hearing commenced that the testimony given
by Holiday might overlap that given by Compliance Officer Barletta. If Capeway
had any concern at all in that regard, it should have voiced that concern. It
did not. As my colleague points out, Capeway thought it only worth a footnote
in its post-hearing brief. Capeway’s arguments, however, have grown at length
on appellate review. Like my colleague, however, I too deem it significant that
Capeway fails to indicate that Holiday’s testimony was false. It is also
significant that Capeway had the ability to rebut Holiday’s testimony but
failed to offer rebuttal witnesses.

I
would also briefly comment regarding the exceptions to sequestration as
addressed by my colleague. Like my colleague, I think that it is important to
preserve the integrity of the process. In this case, the highest-ranking local
representative for OSHA, i.e. , the AD was present in the courtroom. Why
she was not selected as the client representative is a mystery. Normally, one
expects the client’s representative to be a person who can make binding
decisions for the client. A compliance officer cannot make those decisions for
OSHA unless specifically empowered. As is apparent from hindsight, the
sequestration issue would not be before us had she been the designated client
representative or had the judge required the Secretary to make the designation
as to her client representative.

As
for persons “shown to be essential to the presentation of a party’s cause,” i.e. ,
exception (3) to Rule 615 – usually, in Commission cases, they are expert
witnesses. It promotes efficiency for experts to hear the facts rather than be
presented with hypothetical questions in which counsel recite the facts of
record. This is not to say that the presence of a second or even a third
compliance officer cannot come under the exception. In the usual case, it is
preferable to exclude such persons from the courtroom when their testimony will
overlap that of other compliance officers. I say preferable because the
appearance of fairness in Commission proceedings requires the avoidance of the
appearance of collusion. In this case, however, I believe that we can say with
fair assurance that any error committed was harmless and does not require
reversal.

Citation 1, item 1.

The first item on review alleges a serious violation
of the standard at 29 C.F.R. § 1926.100(a), which provides, “Employees
working in areas where there is a possible danger of head injury from impact,
or from falling or flying objects, or from electrical shock and burns, shall be
protected by protective helmets.” The record shows that none of Capeway’s
employees working on the various roof levels was wearing a hardhat when the COs
arrived, and these employees were exposed to the hazard of falling objects when
they approached and climbed the ladder to access the roof. The judge found a
violation based on these exposures. Although, as Capeway argues, the employees’
exposure may have been comparatively brief, it is sufficient to support the
finding of a violation. Walker Towing Corp. , 14 BNA OSHC 2072, 1991-93
CCH OSHD ¶ 29,239 (No. 87-1359, 1991); Whiting-Turner Contracting Co. ,
13 BNA OSHC 2155, 1987-90 CCH OSHD ¶ 28,501 (No. 87-1238, 1989); see
also , A.J. McNulty & Co. , 283 F.3d 328 (D.C. Cir. 2002). Capeway
also argues that the employees were not performing any work in these areas. The
Commission has held, however, that travel to and from the work station -
including via ladder - is an integral part of “work.” Gelco Bldrs., Inc. ,
6 BNA OSHC 1104, 1106, 1977-78 CCH OSHD ¶ 22,353, p. 26,941 (No. 14505,
1977). See also North Berry Concrete Corp. , 13 BNA OSHC 2055,
2055-56, 1987-90 CCH OSHD ¶ 28,444, p. 37,643 (No. 86-163, 1989). We
therefore affirm the judge s disposition of
this item.

Citation 1, item 3.

Item
3 of citation 1 alleges a serious violation of the standard at 29 C.F.R.
§ 1926.502(h)(1). Subsection (iii) of that standard
requires the safety monitor to be on the same level as the employees being
monitored. As the judge correctly found in affirming this item, the person
Capeway identified as the monitor was not on the same level as the employees he
was supposed to be monitoring. Capeway’s argument on review is essentially an
attack on the wisdom of the standard: “It strains logic . . . to
apply the standard in such a way to require a safety monitor to stand on the
upper roof, leaning backwards at 30̊ rather than stand on a flat roof, a foot
and a half below the sloped roof.” However, we are not permitted to assess the
wisdom of the standard. Loomis Cabinet Co. , 15 BNA OSHC 1635, 1640,
1991-93 CCH OSHD ¶ 29,689, p. 40,258 (No. 88-2012,

1992),
aff’d , 20 F.3d 938 (9th Cir. 1994). Moreover, the Commission has previously
held that section 1926.502(h)(1)(iii)’s unambiguous requirement must be met
even in a case where the cited employer argued that positioning the safety
monitor six feet above the employee being monitored gave the monitor a better
vantage point. Pete Miller, Inc. , 19 BNA 1257, 1258, 2000 CCH OSHD ¶
32,254, p. 49,102 (No. 99-947, 2000).

Capeway also argues that in addition to superintendent
Mello and foreman Araujo, there was another, unidentified individual acting as
a monitor. The record establishes, however, that this individual did not act as
a monitor at the same time as Araujo, and that Araujo gave this person his vest
and told him to act as monitor while Araujo was speaking with the OSHA
inspectors. The individual assigned apparently left the area at some point,
leaving the roofers unmonitored. Even if we found that the unidentified
individual and Araujo were monitoring at the same time, two monitors could not
have monitored all of Capeway’s employees, who were observed on all four roofs.
We therefore affirm the judge’s disposition of this item.

Citation
2, item 1.

Item
1 of citation 2 alleges that Capeway committed a willful violation of the
standard at 29 C.F.R. § 1926.501(b)(11) by failing to provide its employees on
the steep roof with any of the means of fall protection specified in that
standard. Capeway argues that the standard does
not apply to the work it was doing at the firehouse because its roofing
operation was residential construction that, as previously noted, is governed
by OSHA’s RC Guidelines. If, as Capeway argues, the roofing work on the
firehouse was residential construction, it would normally be governed by
section 1926.501(b)(13). The RC Guidelines, however, permit
employers engaged in some residential construction activities to use
alternative procedures instead of conventional fall protection if they develop
an alternative fall protection plan. Under these guidelines, “residential
construction” is defined as follows:

1.        For
purposes of this instruction, an employer is engaged in residential
construction where the working environment, materials, methods, and procedures
are essentially the same as those used in building a typical single-family home
or townhouse.

2.        Residential
construction is characterized by:

Materials: Wood
framing (not steel or concrete); wooden floor

joists and roof
structures.

Methods: Traditional
wood frame construction techniques.

3.        In
addition, the construction of a discrete part of a large commercial building
(not the entire building), such as a wood frame, shingled entranceway to a
mall, may fit within the definition of residential construction. Such discrete
parts of a commercial building would qualify as residential construction where
the characteristics listed above are present.

The judge rejected Capeway’s argument. He found that
the firehouse was a commercial structure and that neither the RC Guidelines nor
the preamble to the standards in question supported Capeway’s argument. We
agree with the judge.

The record shows that the firehouse does not meet the
criteria for residential construction. The characteristics of residential
construction set out in the RC Guidelines were not present in Capeway’s roofing
operation. It is clear from the record that the firehouse was not a wood frame
structure but was made of concrete and steel. The roof was not supported by wood
trusses and joists but by metal supports. The roof also included metal decking
covered by plywood and asphalt shingles. Although the shingles on the exterior
of the roof may have resembled the residential buildings in the neighborhood,
the building remained a concrete and steel structure with metal roof supports.
We also find no support in the record for Capeway’s claim that the roof was a
discrete part of the building that alone should be considered residential
construction. Section 1926.501(b)(11) therefore governed the roofing operation
on the steep roof. That standard requires that employees
be protected by one of the specified forms of fall protection. The record shows
that Capeway was not in compliance with this requirement. We therefore agree with the judge that
a violation has been established.

We also agree with the judge that the violation was
willful. The Commission has described a willful violation as one “committed
with intentional, knowing or voluntary disregard for the requirements of the
Act, or with plain indifference to employee safety” and held that a willful
violation is differentiated from others 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. Falcon Steel Co. , 16 BNA 1179, 1181, 1993-95 CCH OSHD
¶ 30,059, p. 41,330 (No. 89-2883, 1993) (consolidated). The record
supports the judge’s finding that Capeway had a heightened awareness of the
illegality of its conduct because of its long history of fall protection
violations and fall-related accidents. The record also supports his finding
that Capeway acted with indifference to employee safety.

An employer’s good faith reasonable belief that it was
not required to comply with the cited standard may negate willfulness provided
the employer’s belief was objectively reasonable under the circumstances. General
Motors Electro-Motive Div. , 14 BNA OSHC 2064, 2068, 1991-93 CCH OSHD
¶ 29,240, p. 39,168 (No. 82-630, 1991). However, we do not find that
Capeway’s failure to comply with section 1926.501(h)(11) was based on an
objectively reasonable belief that it was not required to comply. The RC
Guidelines are sufficiently clear such that Capeway should have known that the
metal trusses and decking disqualified the firehouse roof from treatment as
residential construction. In addition, the record as a whole supports our
conclusion that Capeway was not complying with any OSHA fall protection
requirements at the firehouse. Accordingly, we affirm the judge’s finding that
this violation was willful.

Citation
3, item 1.

Item 1 of citation 3 alleges that Capeway employees
working on the lower flat roof and on the two intermediate roofs on either side
of the steep roof were not protected from fall hazards, in violation of the
standard at 29 C.F.R. § 1926.501(b)(10). This item was alleged to be repeated.
The record shows that the lower roof was greater than 50 feet in width, and the
two intermediate roofs were less than 50 feet in width, so a safety monitoring
system alone was permitted on the intermediate roofs but not on the lower roof.

The judge found a violation based on testimony from CO
Holiday that foreman Araujo told him on the day of the inspection that Capeway
had done roofing work on the lower roof without using fall protection on the
previous day. Capeway argues on review that it was error for the judge to
ignore conflicting testimony by CO Barletta that Mello, Capeway’s
superintendent, had told him that roofing work on the lower roof had been
completed two weeks earlier. According to Capeway, the judge did not adequately
explain why he credited the testimony of one CO over that of the other. Capeway
also points to that testimony as an example of how it was prejudiced by CO
Holiday’s presence in the courtroom during CO Barletta’s testimony, because it
afforded Holiday the opportunity to tailor his testimony to “fill in the gaps”
in the Secretary’s case left by Barletta.

Capeway’s argument that Holiday tailored his testimony
to fill in the gaps implies either that Holiday fabricated evidence that he
would not otherwise have given or that counsel for the Secretary could not
discern the gaps and ask appropriate questions to elicit the evidence to
complete his case. In his testimony, however, Barletta made it clear that
although the two compliance officers both initially spoke to Mello and Araujo
as a group, they subsequently separated, with Barletta interviewing Mello and
Holiday interviewing Araujo. When asked what Araujo had told them, Barletta
consistently replied that he had not interviewed Araujo and that the question
should be addressed to Holiday. We therefore find no inherent conflict between
the testimony of the two compliance officers such that the judge would have had
to make a credibility finding as to which of them was telling the truth.

In this regard, any credibility determination to be
made was between the two Capeway supervisors, neither of whom testified at the
hearing. In relying on Araujo’s statements over Mello’s, the judge noted that
Mello was at the site only intermittently and for short periods, because he had
ten projects to supervise, while Araujo was at the site full-time and was in a
better position to know what work was being done. Araujo’s statement to CO
Holiday was also admissible as an admission under Rule 801(d)(2)(D) of the
Federal Rules of Evidence. Thus, the judge may have determined that it was
entitled to greater weight than the statement of Mello, which could be
characterized as self-serving.

Furthermore, Capeway’s brief states that Araujo was in
the courtroom, yet he was not called to testify. If he had not made the
admission to which CO Holiday testified, we would expect that he would have
taken the witness stand to deny or explain it. The fact that he did not lends
weight to Holiday’s testimony, because Capeway had the opportunity to rebut it
but did not. See Regina Constr. Co., 15 BNA OSHC 1044, 1049,
1991-93 CCH OSHD ¶ 29,354, p. 39,468-69 (No. 87-1309, 1991). It is well
established that when one party has it peculiarly within its power to produce
witnesses whose testimony would elucidate the situation and fails to do so, it
gives rise to the presumption that the testimony would be unfavorable to that
party. Graves v. United States , 150 U.S. 118, 121 (1893). The Commission
has also noted that when one party has evidence but does not present it, it is
reasonable to draw a negative or adverse inference against that party, i.e. ,
that the evidence would not help that party’s case. CCI, Inc. , 9 BNA
1169, 1174, 1981 CCH OSHD ¶ 25,091, pp. 30,994-95 (No. 76-1228,
1980), aff’d , 688 F.2d 88 (10th Cir. 1982); see also Woolston
Constr. Co., 15 BNA OSHC 1114, 1122 n.9, 1991-93 CCH OSHD ¶ 29,394,
p. 39,573 n.9 (No. 88-1877, 1991) (citing Baxter v. Palmigiano , 425
U.S. 308, 316-18 (1976)), aff’d without published opinion , No. 91-1413
(D.C. Cir. May 22, 1992).

We deem such an inference to be appropriate here.
Capeway’s failure to present testimony from either of the two supervisory
employees who were present during the inspection suggests that neither of them
would have been able to contradict the testimony of either of the compliance
officers. We therefore find that on the day before the inspection, Capeway
performed roofing work on the lower roof without using fall protection. The record also shows that the two
intermediate roofs were located on either side of the steep roof and that
employees were observed on all four roof surfaces. It is clear that the single
monitor could not see all the employees on both intermediate roofs, much less
be on the same surface with them. A violation is established on that basis as
well.

We also agree with the judge’s finding that this
violation was repeated. Under Commission precedent, a violation is properly
classified as repeated under section 17(a) of the Act, 29 U.S.C. § 666(a),
if, when it is committed, there was a Commission final order against the
employer for a substantially similar violation. E.g., Jersey Steel Erectors ,
16 BNA OSHC 1162, 1167-68, 1993 CCH OSHD ¶ 30,041, p. 41,219 (No.
90-1307, 1993), aff'd without published opinion , 19 F.3d 643 (3d Cir.
1994); Potlatch Corp. , 7 BNA OSHC 1061, 1063, 1979 CCH OSHD ¶ 23,294, p.
28,171 (No. 16183, 1979). Capeway argues that the Secretary has not established
substantial similarity because OSHA area director Gordon, who testified to the
existence of prior violations relied on to support the Secretary’s allegation
that the violation was repeated, had no personal knowledge of those violations.
However, the area director’s personal knowledge plays no part in determining
whether the violations are substantially similar.

Unless the violation involves a general standard, the
Secretary may establish a prima facie case of substantial similarity by
showing that the employer has received a prior citation for failing to comply
with the same standard and that the citation has become a final order of the
Commission. The burden then shifts to the employer to rebut that showing. Monitor
Constr. Co. , 16 BNA OSHC 1589, 1594, 1993-95 CCH OSHD ¶ 30,338,
p. 41,825 (No. 91-1807, 1994). The record includes two documents, a
settlement agreement and an administrative law judge’s decision, which
establish that Capeway has been the subject of two final orders affirming prior
citations for violating section 1926.501(b)(10). Because the standard in issue
here is not a general standard, Capeway had the burden of rebutting the
Secretary’s prima facie showing of substantial similarity. Capeway has
introduced no evidence to rebut that showing. Consequently, we find that the
violation was repeated.

Citation
3, item 2.

Item 2 of citation 3 alleges a repeated violation of
the standard at 29 C.F.R. § 1926.502(j)(7)(i) because construction materials were
stored within six feet of a roof edge that was not protected by a guardrail.
The judge found a violation based on testimony and photographic evidence that
there was insulation, a cylinder and other debris at both ends of both
intermediate roofs where there were no guardrails, and that construction
workers were working below the stored roofing materials.

On review, Capeway argues that the standard applies
“during the performance of roofing work” and that no roofing work was being
performed on the two intermediate roofs because work there had been completed.
Despite Capeway’s claim, the cited standard does not specify that roofing work
must be taking place in the same area or on the same level as the materials
stored. Although Capeway argues that no “work” was being done on the roof on
the day of the inspection, employees were in fact traversing the roofs in
question. See Gelco Bldrs., supra ; North Berry Concrete. , supra .

Capeway also asserts that the materials were placed on
the roofs temporarily until a “lull,” described as a piece of equipment similar
to a forklift truck, could be obtained to move the materials. However, the lull
belonged to the masonry subcontractor and was not present at the site that day.

Although the Commission has not determined precisely
what constitutes “stored” under section 1926.502(j)(7)(i) or its predecessor,
former section 1926.500(g)(5)(vi), it has addressed the question of whether an
object is “stored” or “in storage” in a number of cases involving other
standards. In R. Zoppo Co. , 9 BNA OSHC 1392, 1394-95, 1981 CCH OSHD
¶ 25,230, p. 31,183 (No. 14,884, 1981), the Commission rejected the
employer’s argument that temporary placement of dynamite in a shed on a jobsite
did not mean the dynamite was “stored.” In Hackney/Brighton Corp. , 15
BNA OSHC 1884, 1888, 1991-93 CCH OSHD ¶ 29,815, 40619 (No. 88-610), the
Commission held that gas cylinders that remained in one location overnight were
in storage. See also Pratt & Whitney Aircraft , 9 BNA OSHC
1653, 1672, 1981 CCH OSHD ¶ 25,359, p. 31,519 (No. 13,401, 1981)
(cylinders covered with dust which had not been used in “quite a while” in
storage); Whitcomb Logging Co. , 2 BNA OSHC 1419, 1974-75 CCH OSHD
¶ 19,128 (No. 1323, 1974) (leaving blasting caps and explosives together
for three to four hours while attending to other duties violated a standard
that prohibited storing blasting caps or detonators together with explosives).
By contrast, in Armour Food Co. , 14 BNA OSHC 1817, 1827, 1987-90 CCH
OSHD ¶ 29,088, p. 38,889 (No. 86-247, 1990), cylinders that were to
be used in fifteen minutes were found not to be in storage. See also MCC
of Florida , 9 BNA OSHC 1895, 1897, 1981 CCH OSHD ¶ 25,420,
p. 31,681 (No. 15,757, 1981) (cylinders not in storage when they were
available for immediate use in the area where they would be used).

While the record here does not indicate when the
materials were placed on the intermediate roofs, it is clear that they could
not be removed until the lull arrived. Under these circumstances, removal of
the materials was not imminent. Accordingly, we find that the materials were
“stored” within the meaning of the standard and that a violation has been
established.

The Secretary alleged that this violation was
repeated, and the judge found that the repeated characterization had been
proved. Because the record shows that Capeway had a prior final order for a
violation of section 1926.502(j)(7)(i), Capeway had the burden of rebutting the
Secretary’s prima facie showing of substantial similarity. Again,
Capeway introduced no evidence to rebut that showing. We therefore find that
the violation was repeated.

Citation 3, item 3.

Item 3 of citation 3 alleged a repeated violation of
29 C.F.R. § 1926.503(a)(1), which requires employers to train each
employee who might be exposed to fall hazards how to recognize and minimize
those hazards. The judge found a violation because a Capeway roofer told CO
Barletta that he had not received any training in fall protection from Capeway.
Furthermore, Capeway superintendent Mello told OSHA that he did not know
whether the company had a written safety program and did not know what
Capeway’s safety consultant had taught the employees.

Capeway argues that the judge ignored evidence that it
had implemented a comprehensive training program in fall protection. Capeway’s
safety consultant testified that he had created a fall protection program for
the company to satisfy a requirement in a settlement agreement resolving a
prior OSHA citation and had given fall protection training to Capeway’s
foremen. The safety consultant also developed a written fall protection program
for one particular contract and trained all Capeway’s employees on that site.
In addition, he made occasional visits to Capeway worksites and held safety
meetings for its employees. Finally, Capeway points to Mello’s statement to one
of the COs that Capeway’s employees are given an orientation when they are
hired. None of this testimony, however, negates the fact that one of Capeway’s
roofers had not been given fall protection training. Accordingly, we affirm the
judge’s finding of a violation of section 1926.503(a)(1).

The judge upheld the Secretary’s characterization of
this violation as repeated based on a prior final order for a violation of 29
C.F.R. § 1926.21(b)(2), a different training standard from the one cited
here. We must therefore consider both violations to determine if they are
substantially similar. The first sentence in section 1926.503, states, “The
following training provisions supplement and clarify the requirements of
§ 1926.21(b) regarding the hazards addressed in subpart M of this part.”
It is clear, therefore, that OSHA contemplated a considerable degree of overlap
between the two standards. In the final order on which the Secretary relies for
the prior violation, the judge found a violation of § 1926.21(b)(2)
because a Capeway roofer had not been trained to recognize and avoid hazards he
would encounter during roofing, including fall hazards. Our review of that
decision persuades us that the hazards the two roofers were not trained to
recognize and avoid were largely the same. We therefore affirm the citation for
a repeated violation. See Monitor Constr. Co. , 16 BNA OSHC at
1594, 1993-95 CCH OSHD at p. 41,825.

Citation
4, item 1.

Item 1 of citation 4 alleges an other-than-serious
violation of the standard at 29 C.F.R. § 1926.502(d)(21) because safety
harnesses with allegedly defective clips were not removed from service as
required. While the two COs were inspecting the
worksite, they observed a number of Capeway roofers who were exposed to fall
hazards and working without fall protection. The COs made it clear to Capeway
that the employees had to have fall protection, and Capeway then used safety
harnesses that were present at the site. However, the harnesses were in a
deteriorated condition. The judge found a violation based on the fact that the
harnesses were not removed from service, as the standard requires.

Capeway argues on review that the citation cannot be
upheld because it was induced to violate the standard by OSHA when the COs made
employees use the defective harnesses. We find that the record does not support
Capeway’s claim. The only means of fall protection available on site were
safety harnesses with clips that were sufficiently rusted to affect their
operation. Instead of waiting until sound harnesses could be obtained or an alternative
means of fall protection provided, Capeway elected to work without fall
protection. There is nothing in the record to suggest that the defective
harnesses were not being used because Capeway had taken them out of service. We
therefore affirm an other-than-serious violation of section 1926.502(d)(21).

Penalties

The judge assessed a penalty of $2,800 for item 1 of
citation 1 and $4,000 for item 3 of that citation. He assessed a penalty of
$63,000 for the willful violation in citation 2, and penalties of $28,000,
$8,000, and $6,000 respectively for items 1, 2, and 3 of citation 3. No penalty
was assessed for the other-than-serious violation in citation 4.

Section 17(j) of the Act provides that the Commission
shall assess an appropriate penalty for each violation, giving due
consideration to the size of the employer, the gravity of the violation, the
good faith of the employer, and the employer's history of previous violations.
29 U.S.C. § 666(j). These factors are not accorded equal weight; normally, the
most significant consideration in assessing a penalty is the gravity of the
violation. Gravity includes a number of factors, including the number of
employees exposed to the hazard, the duration of their exposure, the
precautions taken to prevent injury, and the degree of probability that an
injury would occur. Merchant’s Masonry, Inc. , 17 BNA OSHC 1005, 1007,
1993-95 CCH OSHD ¶ 30,635, p. 42,444 (No. 92-424, 1994). Capeway
argues that the judge merely recited that he had given the statutory factors
“due consideration” but did not specifically address them. Capeway asserts that
it should have been given more credit for its small size and more credit for
its good faith in hiring a safety consultant who developed a safety and health
program for the company and trained its employees in safety.

The record indicates that Capeway had a maximum of 111
employees on its payroll at any point in the year preceding this inspection and
that OSHA did give credit for size for all of the items cited, although less
for the willful item. The judge reduced by 25% the penalty proposed by the
Secretary for the training item because he determined that only one employee
was not trained, demonstrating that he did consider the statutory factors.

Although Capeway seeks credit for hiring a safety
consultant, the record shows that this was done to satisfy the requirements of
a prior settlement agreement with OSHA rather than because of any inherent
concern about safety. The record also persuades us that Capeway did not in fact
follow any of the training given by its consultant, and superintendent Mello,
who was in charge of safety at the site, did not even know what the consultant
had taught the roofers. In all, we deem the penalties assessed by the judge to
be appropriate.

Conclusion

For the foregoing reasons, we affirm the judge’s
decision finding the seven violations reviewed and his characterizations of
those violations. We also find the penalties assessed by the judge to be
appropriate.

/s/

W.
Scott Railton

Chairman

/s/

Dated:
August 26,
2003                                       James
M. Stephens

Commissioner