Holland Roofing of Columbus, Inc.

Plain-English summary

Holland Roofing used a safety-monitoring system for employees working on a flat roof more than 20 feet above the ground. The designated monitor left the workers' level and later turned away from them while helping place materials. The judge found that both actions violated the safety-monitor requirements. Holland did not prove unpreventable employee misconduct because its discipline system relied on verbal warnings and did not effectively enforce its safety rules. The judge affirmed both items as serious, reclassifying the second from willful because the brief lapse did not show intentional disregard or plain indifference. Penalties of $2,000 and $500 were assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.502(h)(1)(iii) and 1926.502(h)(1)(v)
• Outcome: Two safety-monitor violations affirmed as serious, with the second reduced from willful, and $2,500 in total penalties assessed.
• Key point: A safety monitor must remain on the same working surface, keep the monitored employees in sight, and avoid other duties that divert attention.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NO. 01-1629
HOLLAND ROOFING OF COLUMBUS, INC.,
Respondent.

APPEARANCES:

Patrick L. DePace, Esq. Gary W. Auman, Esq.
U.S. Department of Labor Dunlevy, Mahan & Furry
Cleveland, OH Dayton, OH
For the Complainant For the Respondent

BEFORE: G. MARVIN BOBER
Administrative Law Judge

                                    DECISION AND ORDER
    This proceeding is before the Occupational Safety and Health Review Commission (“the

Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §
651 et seq. (“the Act”). This case arose following an OSHA inspection on July 2 and 3, 2001, at a work
site in Portsmouth, Ohio. After the inspection, the Secretary issued to Holland Roofing of Columbus
(“Holland”) a citation alleging a serious violation of 29 C.F.R. § 1926.501(h)(1)(iii) and a willful violation
of 29 C.F.R. § 1926.502(h)(v). Holland filed a timely notice of contest, and an administrative trial was held
on April 18, 2002. Both parties have filed post-
trial briefs.1

        1
             Holland had two motions outstanding at the time of the

administrative trial. The first motion sought to preclude the
Secretary from offering certain documents into evidence. This
motion was rendered moot when the Secretary never sought to admit
the allegedly objectionable items during the trial. Holland’s
second motion was for the inclusion of additional evidence and for
sanctions. That part of the motion which sought inclusion was
rendered moot when the items were admitted during the trial.
(continued...)
 Jurisdiction
At all times relevant to this action, Holland was a contractor performing roofing work at the work
site. (Tr. 52). Holland stipulates that the Commission has jurisdiction over it and the action. I accordingly
conclude that Holland is an employer within the meaning of section 3(5) of the Act and that the
Commission has jurisdiction over the parties and the subject matter of this proceeding.
Background and Relevant Testimony
On July 2, 2001, OSHA Compliance Officer (“CO”) Robert Barbour observed and videotaped
Holland employees performing work on a flat portion of the roof of a three-story structure at the site. This
flat area of the roof was on the second story and was described as less than 50 feet deep and less than 50
feet wide. CO Barbour noted that there was no effective guarding around the edge of the roof or any other
form of fall protection in use, even though employees were working on the roof and were exposed to falls
of over 20 feet. Holland employee Brad Setters, who was later identified as the site supervisor and the
designated safety monitor for the flat roof, was videotaped standing at the peak of a pitched roof one level
above the flat roof area and speaking on a cellular telephone. He was also later videotaped on the flat roof,
performing work with his back to some of the employees he was to have been monitoring. (Tr. 15, 20, 32-
33, 51-59, Exh. C-1).
Holland employee Leslie Clark, who was videotaped working on the flat roof area, testified that
a “6 or 3 foot high” “guardrail” protected the open edge of that area. In identifying this “guardrail,”
however, Mr. Clark pointed to a tall rail supported by what appeared to be metal poles spaced 4 to 6 feet
apart. There was only one horizontal rail, and it was as high as or higher than the heads of the workers
standing on the flat roof. (Tr. 21, 30, 38-39, Exh. C-1).
The Serious Citation Item
Citation 1, Item 1 alleges a serious violation of 29 C.F.R. §1926.502(h)(1)(iii). The cited standard
requires that an employer ensure that the designated safety monitor “be on the same walking/working
surface and within visual sighting distance of the employee being monitored.” Holland chose to use a
safety monitoring system in lieu of another form of fall protection, (Tr. 136), and I therefore conclude that
the standard applies. Because Mr. Setters was on the peak of the pitched roof one story above the
employees he should have been monitoring, I also conclude that the standard’s terms were violated. (Exh.

   1
   (...continued)

Holland’s application for sanctions, however, was denied. (Tr. 87-
97, 217). In its post-trial brief, Holland moved to renew its
motion for sanctions against the Secretary. That motion is herein
denied. See Commission Rule 40(a), 29 C.F.R. § 3300.40(a).
C-1). At least one employee was working close to the edge at the time that Mr. Setters was on the upper
level, and this, I find, shows that Holland employees were exposed to the cited hazard. (Exh. C-1).
I further conclude that Holland had knowledge of the hazard. Mr. Setters had actual knowledge that
he was not on the same level as the employees he was designated to monitor. In fact, he admitted to CO
Barbour that he had been acting “negligently.” (Tr. 55-56). In addition to being the safety monitor, Mr.
Setters was the site supervisor. (Tr. 15, 128-129). His actual knowledge, therefore, will be imputed to the
company.2 See Southwestern Bell Tel. Co., 19 BNA OSHC 1097, 1099 (No. 98-1748, 2000); Halmar
Corp., 17 BNA OSHC 1014 (No. 94-2043, 1997). The Secretary has accordingly established a violation
of the cited standard.3
In support of its contention that it did not violate the standard, Holland argues that the CO’s
testimony should be discredited because (1) he did not prove that Mr. Setters could not see the employees
working on the lower level from his perch at the top of the pitched roof; and (2) the CO relied for his
measurements on blueprints which Holland claims were incorrect. These arguments are rejected. As to (1),
the standard specifically requires that a safety monitor remain on the same level as the workers and that
he be able to observe the workers. The violation thus occurred when Mr. Setters left the flat roof,
regardless of whether he could observe the workers from the higher point. As to (2), the standard applies
whether the roof was 29 by 29 feet, as indicated in the blueprints, or 20 by 29 feet, as claimed by Holland’s
president, Steven Johnson. (Tr. 122, 141).
Holland further argues there was a guardrail on the flat roof and that, therefore, the Secretary did
not prove that employees were exposed to a hazard. (Resp. Brief p. 21). As indicated above, the “guardrail”
that Mr. Clark identified consisted of only one horizontal rail that was at least as high as the heads of the
workers. (Tr. 38, Exh. C-1). Even taking into account the fact that this rail might appear higher in the video
because of the angle from which the video was taken, I find that the rail was too high to serve as effective

       2
           Holland’s unsupported argument that the imputation to the

company of a supervisor’s actual knowledge of a violation is
unconstitutional is rejected.
3
In order to prove that an employer violated an OSHA
standard, the Secretary must show that: (1) the standard applies to
the working conditions; (2) the terms of the standard were not met;
(3) employees had access to the violative condition; and (4) the
employer either knew, or with the exercise of reasonable diligence
should have known, of the violative condition. Kiewit Western Co.,
16 BNA 1689, 1691 (No. 91-2578, 1994).
fall protection. Moreover, under 29 C.F.R. § 1926.502(b)(2), in order to be considered adequate fall
protection, guarding must include a mid-rail that is at least 21 inches high. The “guarding” on which
Holland relies, however, clearly had no mid-rail.
Finally, Holland argues that it should not be held liable for either of the alleged violations in this
case because both occurred as the result of the unforeseeable and unpreventable misconduct of Mr. Setters.
Holland had the burden of proving this defense, and, as discussed below, it failed to do so. See, e.g., Pride
Oil Well Serv., 15 BNA OSHC 1809, 1816 (No. 87-692, 1992); Brock v. L.E. Myers Co., 818 F.2d 1270,
1276 (6th Cir., 1987).
This item is affirmed as a serious violation because there was a substantial probability of serious
physical harm or death if an employee had fallen over 20 feet to the ground. (Tr. 52-53). The Secretary has
proposed a penalty of $2,000.00 for this item. After giving due consideration to the evidence regarding
Holland’s size, history and good faith, and to the gravity of the violation, I find the proposed penalty
appropriate. The penalty as proposed is therefore assessed. (Tr. 63-64, 100).
The Willful Citation Item
Citation 1, Item 2 alleges a willful violation of 29 C.F.R. § 1926.502(h)(1)(v). The cited standard
requires that an employer ensure that the designated safety monitor “not have other responsibilities that
could take the monitor’s attention from the monitoring function.” The standard applies, because Holland
chose to use a safety monitoring system to protect its employees from falling off the flat roof. I also
conclude the terms of the standard were violated, because Mr. Setters, in bending down to assist a worker
place materials, had his back to the other roofers for several minutes. (Exh. C-1). This activity clearly
interfered with his ability to effectively monitor the other workers on the roof. (Tr. 15, 57, Exh. R-4).
Holland employees were exposed to the hazard, in that they were working on an insufficiently guarded roof
20 feet above the ground and Mr. Setters was not paying attention to what they were doing. Finally, the
Secretary has established the knowledge element of her case. Mr. Setters knew, or should have known, that
his activity interfered with his ability to safely monitor the other roofers, and, as with Item 1, his
knowledge is imputed to Holland.
Holland argues that it should not be held liable for the alleged violation because the Secretary did
not show that Mr. Setters’ designated responsibilities caused him to turn away from the roofers he should
have been monitoring. 4 This argument is not persuasive. Mr. Setter’s act of bending down to assist a roofer

       4
           Mr. Johnson, Holland’s president, testified that Mr. Setters

was the site supervisor and was responsible for ensuring compliance
with the job’s specifications. Mr. Johnson also testified that Mr.
(continued...)
place materials was compatible with his admitted obligation to ensure that the materials were placed in
accordance with the specifications of the job and the manufacturer as well as with his position of site
supervisor. (Tr. 186-187). Based on the record, the Secretary has met her burden of demonstrating the
alleged violation.
The Secretary has classified this citation item as willful. In order to show that a violation is
properly characterized as willful, the Secretary must show that it was committed with intentional disregard
for the requirements of the Act or with plain indifference to employee safety. Monfort of Colorado, Inc.,
14 BNA OSHC 2055, 2063 (No. 87-1220, 1991). Where the violative conduct was that of a supervisor,
the employer may be held responsible for the willful nature of the supervisor’s actions without any separate
proof of willful conduct on the employer’s part. See Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1539
(Nos. 86-360 and 86-469, 1992).
I find that neither Mr. Johnson’s act of designating Mr. Setters as both superintendent and safety
monitor, nor Mr. Setters’ act of helping to place materials on the flat roof, reflects intentional disregard
for the requirements of the Act or plain indifference to employee safety. Mr. Setters assisted a worker for
only a few moments, there was no evidence that he had a practice of unsafe behavior before that date, and
he expressed regret for his actions during the OSHA inspection.5 (Tr. 62). Similarly, Johnson’s act, while
possibly negligent, was not willful, in my opinion. Although Mr. Setters did not do so here, it is certainly
conceivable that a trained employee working pursuant to an effective and enforced safety monitoring plan
could adequately serve as both site supervisor and safety monitor for a small crew in a clearly delineated
work area. Moreover, Holland had an extensive safety program that included employee training, a written
safety manual for foremen that specifically addressed this type of hazard, and daily site safety inspections
by Holland supervisors and unannounced safety inspections by “Holland Roofing Group.”6 (Tr. 14-15, 31-

   4
   (...continued)

Setter’s only duty was to monitor the other employees. This
testimony is patently inconsistent and is thus not credited. (Tr.
128-129, 136-137, 145, 186-187).
5
It is necessary to note that this violation is based solely
on Setters’ activities while on the flat roof. The Secretary
submitted no proof that the Setters’ use of the telephone and his
climb to the top of the pitched roof were part of Setters’
responsibilities.
6
“Holland Roofing Group” is an administrative company that
(continued...)
35, 130-135, 151, 192-193). Finally, the Secretary submitted no evidence that Holland had ever had a prior
OSHA violation. I conclude, therefore, that this citation item was not properly classified as willful.
Having found the violation was not willful, I nonetheless conclude that it was serious, as there was
a substantial probability of serious injury or death if an employee had fallen 20 feet from the flat roof area
to the ground below. (Tr. 52-53). With respect to an appropriate penalty, I have given due consideration
to the evidence regarding Holland’s size, history and good faith. I have also given due consideration to the
gravity of the violation, and to its temporary nature, which mitigates somewhat the gravity. I find that a
penalty of $500.00 is appropriate, and a $500.00 penalty is accordingly assessed for this citation item. (Tr.
63-64, 100).
Holland’s Defense of Unpreventable Employee Misconduct
As indicated above, Holland argued it should not be held liable for either citation item, based on
its contention that the alleged violations were caused by the unforeseeable and unpreventable misconduct
of Mr. Setters. To establish this affirmative defense, an employer must prove that it has: (a) established
work rules designed to prevent the violation, (b) adequately communicated those work rules to its
employees, (c) taken steps to discover violations, and (d) effectively enforced the rules when violations
were discovered. American Sterilizer Co., 18 BNA OSHC 1082, 1087 (No. 91-2494, 1997). As noted
supra, Holland submitted unrebutted proof that it established work rules designed to prevent the violations,
that it took steps to detect violations, and that it had a written safety manual for foremen that addressed
both violations in language adopting, verbatim, the cited standards.7 (Tr. 127-134, Exh. R-4). In addition,
Holland conducted job site safety inspections every morning and had daily on-site safety meetings; Holland
also had unannounced safety inspections. (Tr. 27, 31,192-195). Finally, Holland provided safety training
to its employees, and there was unrebutted evidence that Mr. Setters had been trained in the provisions of
the Foreman’s Safety Manual and that Mr. Johnson had discussed the safety monitor’s responsibilities with
him when he assigned Mr. Setters to the Portsmouth site. (Tr. 129-135).
However, Holland failed to show it effectively disciplined employees when safety violations
occurred. Despite the fact that there were prior safety infractions, some involving sites where Mr. Setters

   6
   (...continued)

has an undisclosed relationship with five companies, one of which
is Holland. (Tr. 193-194)
7
The “Foreman’s Safety Manual,” a 57-page document, was the
only safety manual Holland offered into evidence. (Tr. 132-133,
Exh. R-4). Mr. Johnson testified that Holland had a separate manual
for employees, but no such manual was offered. (Tr. 131)
had worked, Holland gave only verbal warnings.8 (Tr. 153, 198-200). This does not constitute effective
discipline, in my opinion, and Commission precedent has indicated that evidence solely of verbal
reprimands suggests an insufficient disciplinary program. Precast Serv., Inc., 17 BNA OSHC 1454 (No.
93-2971, 1995). Mr. Setters, in fact, received no discipline for his admittedly violative conduct at the
subject site. (Tr. 139, 159). Further, the written disciplinary plan in Holland’s Foreman’s Safety Manual
was inadequate. It provided only for either a verbal warning or employee termination. In my view, this
provision would not reasonably influence employee behavior because it does not discipline employees who
commit dangerous safety infractions that are not so egregious as to warrant termination. Rather, the plan
should have provided for progressive discipline with increasingly harsh punishment. See Precast Serv.,
supra, at 1455. In addition, Holland’s plan was confusing and internally inconsistent; it provided for only
verbal warnings, but also contained a written employee warning form. (Exh. R-4).
Finally, the misconduct in this case was committed by a supervisor, and, under Commission
precedent, this renders the asserted defense much more difficult to establish because it is the supervisor’s
duty to ensure the safety of employees under his supervision. L.E. Myers Co.,16 BNA OSHC 1037,1041
(No.90-945, 1993). Moreover, the fact that Setters himself was involved in the violative conduct is strong
evidence that Holland was lax in enforcing its safety rules. See Consolidated Freightways Corp., 15 BNA
OSHC 1317 (No. 86-351, 1991).
For all of the foregoing reasons, I conclude that Holland failed to meet its burden of establishing
the affirmative defense of unpreventable employee misconduct.

                                             ORDER
    Based on the foregoing decision, the disposition of the citation items, and the penalties assessed

therefor, is as follows:

       8
           Mr. Johnson testified he would have issued written warnings

if he had ever observed second infractions at Holland’s job sites,
but he could not recall if this had ever occurred. (Tr. 167). Based
on his demeanor while testifying, and on the fact that Holland’s
disciplinary plan had no specific provision for written warnings,
I do not find this statement credible. Further, just as Holland had
the burden of showing it effectively enforced its safety program,
it also had the burden of showing whether there had been repeated
safety infractions and what it had done about such infractions.
Citation Violation Disposition Classification Penalty
Item

Citation 1 29 C.F.R
Item 1 § 1926.501(h)(1)(iii) Affirmed Serious $2,000.00

Citation 1 29 C.F.R.
Item 2 §1926.502(h)(v) Affirmed Serious $ 500.00

   And it is further ORDERED:

That Holland’s motion to renew its motion for sanctions is denied.

                                                       /s/
                                                G. MARVIN BOBER
                                                Judge, OSHRC

Dated: October 28, 2002
Washington, D.C.