Tecta America New England, LLC

Plain-English summary

Two Tecta roofing employees worked near the edge of a commercial roof about 20 feet above the ground without tying off their available fall-protection equipment. The working foreman's knowledge of the condition was imputed to the company. Tecta argued that the conduct was unpreventable because it had safety rules, training, and discipline. The judge rejected that defense because management did not inspect the one-day job, did not review the job hazard analysis with the crew, and had not communicated the tie-off rule clearly enough to ensure understanding. The violation was affirmed as serious, with a $5,000 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(10)
• Outcome: One serious low-slope roof fall-protection item was affirmed, with a $5,000 penalty.
• Key point: A written safety program does not establish unpreventable misconduct when the employer does not check the job or clearly communicate the governing fall-protection rule.

Full text (OSHRC public release)

                                    United States of America
           OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                   1120 20th Street, N.W., Ninth Floor
                                   Washington, DC 20036-3457

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC DOCKET NO. 10-0942
:
TECTA AMERICA NEW ENGLAND, :
LLC, :
Respondent. :
__________ :

APPEARANCES: James L. Polianites, Jr. Esquire. Edward Q. Cassidy, Esquire
Office of the Solicitor Fredrikson & Byron
U.S. Department of Labor 200 South 6th St. #4000
JFK Building, Room E-375 Minneapolis, MN 55402
Boston, MA. 02202 For the Respondent
For the Complainant

BEFORE: G. Marvin Bober,
Administrative Law Judge

                                DECISION AND ORDER

    This proceeding arises under the Occupational Safety and Health Act of 1970, as

amended, 29 U.S.C. § 651 et seq. (“the Act”). On April 7, 2010, employees of Tecta America
New England, LLC (“Tecta” or “Respondent”) were conducting work on the flat roof of a
commercial building in Scarborough, Maine. Following an inspection by an OSHA Compliance
Officer (“CO”), Tecta was issued a citation alleging a Repeat violation of 29 C.F.R.
§1926.501(b)(10) with a proposed penalty of $50,000. The Secretary later amended the citation
to allege a serious violation, dropping the “Repeat” characterization, and proposing a penalty of
$5000. The Secretary filed her Complaint in this matter, after which respondent filed its timely
Answer. A hearing was held in Boston, MA on January 19, 2011. Both parties have filed post-
hearing briefs and this matter is ready for disposition.

                                              1

FACTS
On April 7, 2010 Compliance Officer Steve Warner was driving by Route 1 in
Scarborough, Maine, when he observed employees working on the edge of a flat roof on a
commercial building without being tied off. (Tr. 17, Ex. C-3, photo 7) The CO stopped his car
and took several photos. (Tr. 24)
From the adjacent parking lot, the CO observed two employees, one with a hat and one
bare headed, working on a roof approximately 20-feet off the ground. (Stipulation #6) The
employee without the hat was rolling glue on the roof with no fall protection and standing in
front of a 12-inch parapet. (Tr. 16-17, Ex C3 (1-4)) The employee with the hat was standing
behind a large parapet. (Tr. 22, Ex. C-3 photos 5-6) The CO crossed the street and climbed a
ladder onto the roof, which was approximately 20-feet above the ground. (Stipulation 6) Warner
identified himself as an OSHA Compliance Officer. The employee with the hat was identified as
Davis and the employee without the hat identified himself as Crockett and asserted that he was in
charge. (Tr. 39-40). Crockett told the CO that he and Davis were not tied off because they did not
want to drag their lanyards through the glue they had spread on the roof. (Tr. 41)
Although neither employee was tied off, the CO observed that they were both wearing
harnesses. Indeed, both employees had all the components necessary for proper fall protection.
(Tr. 28-29, 35) In his OSHA 1B report, the CO wrote that “the foreman stated that he knew he
needed to be tied off” and that “this would properbly [sic] cost him his job.” (Ex. C-2)
As a result of the inspection, Tecta was issued a citation alleging a repeated violation of
29 C.F.R. §1926.501(b). The standard provides:
Sec. 1926.501 Duty to have fall protection.
* * *
(b)(10) Roofing work on Low-slope roofs. Except as otherwise provided in
paragraph (b) of this section, each employee engaged in roofing activities on low-
slope roofs, with unprotected sides and edges 6 feet (1.8 m) or more above lower
levels shall be protected from falling by guardrail systems, safety net systems,
personal fall arrest systems, or a combination of warning line system and
guardrail system, warning line system and safety net system, or warning line
system and personal fall arrest system, or warning line system and safety
monitoring system. Or, on roofs 50-feet (15.25 m) or less in width (see Appendix
A to subpart M of this part), the use of a safety monitoring system alone [i.e.
without the warning line system] is permitted.
The Secretary proposed penalty of $50,000. Prior to the hearing, the Secretary amended
the citation by reducing the charge to a serious violation with a proposed penalty of $5000.

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Testimony

1. Steven Warner
   Steven Warner he has been an OSHA Compliance Officer for 30 years. (Tr. 14) In that
   time, he has conducted approximately 500 fall protection roofing inspections. (Tr. 15) He
   testified that, as part of the OSHA local emphasis program on fall protection, wherever he goes,
   he looks around to see that employees have proper fall protection. (Tr. 16) On the morning of
   April 7, 2010, he was driving in Scarborough, Maine. On Route 1, he noticed some people
   working on a roof without being tied off. It was a flat roof and people were rolling something
   onto it. He stopped and took some photographs. (Tr. 15-17, Ex. C-3, photos 1-7) The employees
   were 2-3 feet from the edge of the roof. (Tr. 20) There was a foot high parapet. (Tr. 30) They
   were not tied off, and their lanyards were hanging. (Tr. 26, Ex. C-3 photo. 9) However, there
   were unused tie-off ropes adjacent to where the employees were standing. (Tr. 28, Ex. C-3, photo
   11) The tie-off ropes were attached to a vent pipe. (Tr. 36) The CO testified that, had they been
   using the ropes, they would have had proper fall protection. (Tr. 29)
   CO Warner testified that the employee without the cap identified himself as foreman. He
   did not recall his name. (Tr. 40) He told the CO that he was an experienced roofer. (Tr. 68) The
   CO asked the foreman why he wasn’t tied-off. (Tr. 40) The foreman told him that they had been
   tied-off, but that they didn’t want to drag their lanyards through the glue they were rolling onto
   the roof and get them all sticky and gooey. (Tr. 41) They all then came down from the roof. (Tr.
   42)
   The CO held a closing conference with the employee who identified himself as foreman.
   (Tr. 42) They discussed the nature of the apparent hazard and told the foreman how to contact
   him if he had any questions. (Tr. 43) According to the CO, the foreman, now identified as
   Crockett, told him that “this would properbly [sic] cost him his job.” (Tr. 59, 62, Ex. C-2)
   The CO prepared a report, the OSHA 1A (Tr. 45-46, Ex. C-1) The CO testified that, in
   proposing $5000 penalty, he considered that Tecta had over 250 employees and was not given
   any reduction for size. (Tr. 47-48) He gave no credit for good-faith because, “if they had good
   faith, they wouldn’t be up on the roof not tied off.” (Tr. 48) Also, the CO determined that they
   had an OSHA history and were not entitled to credit for a good OSHA history. (Tr. 48) According
   to the CO, the gravity of the violation was high and there was a “greater” probability that an
   accident would occur. (Tr. 48)

                                            3
   

   The CO testified that it’s important for a company to have a written safety program and
   that the program be regularly reviewed because OSHA regulations change. (Tr. 53-54) He agreed
   that the 9th revision of Respondent’s safety program took place in April 10, 2010. (Tr. 56, Ex. R-
   2) Reading from the 9th revision, the CO noted that Respondent’s safety program said, in bright
   black letters, that fall protection violations would prompt immediate termination of the
   employee. (Tr. 61) The CO agreed that statement constituted a strong enforcement policy. (Tr.
   63) However, he would not agree that a strong policy was in effect on the day of the inspection.
   He noted that the inspection was on April 7, 2010 while the revised policy was dated April 10,
   2010 (Tr. 63) According to the CO you need to have an enforcement policy that is systematically
   and consistently enforced. (Tr. 65) Therefore, if the rules say you have to be fired, the rules must
   be followed. (Tr. 77) Similarly, if the policy calls for sending someone back to the OSHA 10-
   hour course, that is the policy that must be followed. (Tr. 78) The CO opined that he disagreed
   with the philosophy behind the concept of the unpreventable misconduct defense because every
   company he ever cited in 30 years claimed employee misconduct. (Tr. 79)
   The CO observed that Crockett had on a harness and was wearing it correctly. (Tr. 70)
   Also, the lifelines, though not attached to the employees, were properly laid out. (Tr. 72) On that
   basis, he agreed that someone successfully taught Crockett how to put on a harness and lay out a
   lifeline. (Tr. 70, 72) Crockett was also wearing a lanyard attached to the harness, which the CO
   considered to be a critical component of fall protection. (Tr. 70-71) The CO testified that all the
   safety equipment was provided by Tecta. (Tr. 73)
   According to the CO, a lapse in training could result in an employee not being tied-off.
   (Tr. 74) He also agreed that not having the proper equipment could be another reason why an
   employee is not properly tied-off. (Tr. 74) Furthermore, an employee might not be tied-off due to
   a flagrant disregard of the workrules. (Tr. 75) He agreed that, generally, employees not being
   tied-off due to a disregard of the rules create a different scenario from employees not being tied-
   off because of a mistake in judging how far they are from the roof edge. (Tr. 76)
   2. Peter Owens
   Respondent’s first witness, Peter Owens, is the President of Tecta America New England.
   (Tr. 81) He founded Delta Roofing in April 1988, which was bought by Tecta in June 2007. He
   has been president of Tecta America New England since the purchase. (Tr. 81-82) Tecta
   America New England is a wholly owned subsidiary of Tecta America. (Tr. 82) Tecta America

                                            4
   

   New England is solely involved in commercial roofing and does no residential work. (Tr. 82)
   Owens testified that in the last five years, Tecta has won two gold American Builders and
   Contractors (ABC) safety awards, four ABC platinum safety awards, and an ABC national safety
   award. (Tr. 83) Owens explained that a gold award is a first level award while the platinum
   award is the highest level. (Tr. 84) The criteria for a platinum award are based on the loss rate
   ratio and the size of the company versus lost time. (Tr. 84) Owens pointed out that the ABC
   represents all construction trades, not just roofing. (Tr. 84) Owens further explained that a
   company has to apply to compete for a National Award. There was somewhere between 90,000
   and 92,000 applicants out of which 250 were selected to compete. Out of those 250 companies,
   only 25 companies, from across all the construction trades actually won the award. (Tr. 85)
   Owens asserted that he wrote the 7th revision of the Tecta America New England safety
   program, as well as the six previous versions. (Tr. 86, Ex. R-3) He also wrote the 9th revision
   dated April 2010. He testified that the manuals are regularly revised to keep up with changes in
   the industry as well as their own investigations of their job sites. (Tr. 87)
   He explained that the safety manuals are rewritten in January of the year the revision is
   taking place and is actually issued to each of the branches in March. At that time, his safety
   director, Jay Maschmeier, goes to the jobs and different branches and conducts training. (Tr. 88)
   Maschmeier schedules a company meeting to issue the manual to current employees. Each
   employee is issued a manual and required to read it. At the meeting, Maschmeier goes through
   each category of the manual and touches on specifics, such as fall protection. Employees sign a
   sheet to confirm that they attended the meeting and went through the manual. (Tr. 92) On April
   1, the manual is actually issued to new employees. He explained that January-March is the
   slowest time of the year and that this slowdown is used to allow the manuals to be rewritten.
   Owens testified that there was a change in the disciplinary policy from version 7 to
   version 9 of the manual. The change was that they went to 100% fall protection and changed the
   disciplinary procedures for noncompliance to termination. These changes were implemented
   because of the seriousness of fall hazards. (Tr. 87) The purpose of going to 100% fall protection
   was to differentiate them from other companies and had nothing to do with improving the
   company’s Worker’s Compensation rates, which were already “phenomenal.” (Tr. 101)
   According to Owens, a typical roofer in an insurance pool has a “1” rating. Tecta’s rating is .54
   and, in 2007 was .7. (Tr. 110)

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   Owens testified that Crockett signed the attendance sheet confirming that he received the
   manual, but there was no attestation that he actually read it. (Tr. 93) According to Owens, there
   are periodic updates and safety meetings held at all the branches. (Tr. 100) Moreover, in
   December 2009, when the company decided to go to 100% fall protection, they had a meeting at
   all the branches discussing fall protection and discipline. (Tr. 100) However, Owens testified that
   the statement in the new manual that fall protection violations will lead to termination is not
   exactly correct. To be accurate, it should say that there will be immediate termination unless,
   after investigation and further probing, there is a decision not to terminate. (Tr. 108)
   Owens also explained that when he became aware of the instant violations, Crockett and
   Davis were suspended without pay rather than immediately fired because they needed to know
   what went wrong. The investigation was conducted by Jay Maschmeier. (Tr. 89-90) As a result of
   Maschmeier’s investigation, only Davis was terminated. (Tr. 90) It was determined that Davis
   had a spotty safety record and had gone through numerous safety meetings. They believed that
   Davis’ problems could not be corrected and that he could not be retrained. (Tr. 106-107)
   Owens testified that Crockett was not fired because he had a good record and he believed
   that Crockett could be retrained. He understood that he broke the rules and this was his first
   offense. However, Crockett was suspended. He was required to go through the OSHA 10-hour
   course again, as well as attend Tecta safety meetings and relearn the safety program. (Tr. 107,
   109) Since the violation, Crockett’s work record has been perfect. (Tr. 109)
   Owens explained the difference between service work and contract work. Contract work
   was defined as work that takes longer than service work. Contract work may last several days.
   Tecta does site inspections for contract work. (Tr. 94) Owens explained that because service
   work is of short duration, sometimes less than an hour, it is not practical to schedule an
   inspection. (Tr. 97-98) A Job Inspection Form is used only for contract job inspections while they
   are in progress. (Tr. 94) The inspections are generally performed by Maschmeier, who visits the
   branches weekly, inspecting jobs. (Tr. 95) If Maschmeier finds any infraction, he shuts down the
   project and holds a safety meeting at the roof. (Tr. 101) Everyone is gathered and he goes
   through the specifics of what was found. (Tr. 101) These inspections are conducted for short term
   service work only when Maschmeier has time available. (Tr. 95, 97)
   According to Owens, over the years, there have been only one or two incidents of fall
   protection violations. (Tr. 102) To the best of his recollection, this incident was the first fall

                                              6
   

   incident involving a foreman, and the first time that two employees failed to wear fall protection
   at the same time. (Tr. 104) He had no record of disciplining employees for fall protection
   because there had been only had a couple of incidents over the last five years. (Tr. 103) Owens
   testified that Crockett’s explanation about not wanting to drag the lines through the glue was not
   a valid reason not to tie-off. (Tr. 105) Employees are instructed that if they ever find anything out
   of the ordinary as it relates to safety they are to immediately call the office. He was not aware
   that Crockett ever called the office. (Tr. 106)
   According to Owens, before Crockett went out on the job, he met with the service
   manager at the Maine branch where they discussed fall protection, the specifics of the job, and
   procedures. (Tr. 99)
   3. Jay Maschmeier
   Jay Maschmeier is the Safety and Operations Director for Tecta. (Tr. 112) He has been
   with Tecta and formerly Delta for 22 years. (Tr. 113) He has also been a foreman and a field
   supervisor. He has been through the OSHA 10 and 30-hour courses as well as numerous other
   courses and training. (Tr. 113) He also received training from Keene State College for
   authorization to issue 10 and 30-hour OSHA cards. (Tr. 113) He worked hand in hand with Peter
   Owens to draft the Tecta safety manual. (Tr. 114)
   Maschmeier testified that going over the revisions with the employees is a four to six
   hour process done in conjunction with the human resources department. (Tr. 116) They go
   through the various points and highlights and then the specifics of what was changed so
   everyone understands the changes. At the end, the employees sign a sheet stating that they
   understand the changes. (Tr. 117) To assess whether the message was disseminated to the
   employees, there is a question and answer session after the meetings. Plus, he gives his card to
   employees so they can call him if they are reluctant to talk in public. (Tr. 127)
   Maschmeier prioritizes his visits based on the difficulty of the job and the nature of the
   exposure. (Tr. 114) When a job lasts more than a day, they try to get out and conduct an
   inspection. (Tr. 128) This job was scheduled to last only one day. (Tr. 128) To ensure that
   employees are acting safely on service jobs, he talks to service managers to ensure that they are
   implementing the rules properly. (Tr. 129) In both 2009 and 2010, the company wrote up fewer
   than ten employees for fall violations. Employees were disciplined with suspensions and loss of
   holiday and vacation pay. (Tr. 130) These violations involved violations other than failure to tie

                                             7
   

   off, such as setting up beyond the 15 degree designated swing radius. (Tr. 131) None of these
   violations involved the failure to tie-off. (Tr. 131) Indeed, nobody was written up for failure to
   use any fall protection at all between 2006 and 2008. (Tr. 131) Moreover, nobody other than
   Davis was fired for safety violations in 2010. (Tr. 132) Indeed, he couldn’t recall any employee
   other than Davis being terminated for fall protection violations in the last 5-6 years. (Tr. 138)
   The company issues ropes, harnesses and lanyards to its employees. (Tr. 117-118) He
   noted that, from the photographs, it appears that on the instant job, the lifelines were set properly
   and that the missing link was attaching the lanyard to the lifeline. (Tr. 118) Maschmeier
   explained the process used to analyze the reasons why a safety violation occurs. He indicated
   that the questions asked are: (1) Why did this happen? (2)Why did you make that decision? And
   (3) Why wasn’t this in place? (Tr. 118-119) He stressed that he is always looking for new and
   better ways to do things and that if something is not working he changes it. (Tr. 119)
   Maschmeier also testified that the Maine branch manager, Wayne Tardy, was responsible
   for the job and both employees on the roof. While the employees were service technicians, Tardy
   was responsible for the initial job costing and job hazard analysis. (Tr. 121) Maschmeier testified
   that, although Tardy performed a job hazard analysis, he didn’t have a meeting in the morning.
   (Tr. 122) He conceded that, if Tardy held a safety meeting, it might have made a difference. (Tr.
   140) Once the job begins, Tardy is not on the job 100% of the time. Rather he performs spot
   checks. (Tr. 122) Tardy was written up because, although he issued a job hazard analysis, he
   failed to visit the job and did not go over it with his men to assure that they understood what was
   expected of them. (Tr. 122)
   Maschmeier explained that on a two man crew, all employees are basically equal. (Tr.
   138) He never discussed with Crockett why he identified himself to the CO as foreman. (Tr. 139)
   He also explained that, if he catches an employee not tied-off he will terminate that employee
   immediately. However, when the employee is explaining the situation, shows that there was a
   misunderstanding, explains himself, and demonstrates that he was proceeding with good
   intentions, the situation is reviewable. (Tr. 139) According to Maschmeier, Davis and Crockett
   were both immediately suspended pending the investigation, which lasted about two weeks. (Tr.
   120) His initial reaction was to terminate both of them. But, he realized that people’s lives and
   incomes were at stake, so he wanted to make sure he had all the facts. (Tr. 120)
   Davis could not give a valid reason why he was not tied-off. Tardy told Maschmeier that

                                             8
   

   Davis had a problem following direction and had a few minor safety violations that were never
   reported because they were not life threatening. These involved things like hard hats and safety
   glasses not being worn. (Tr. 122-123) Davis was terminated because Tardy did not believe that
   he was retrainable and that he would be a risk down the line. (Tr. 123)
   On the other hand, Crockett had an explanation for his failure to tie-off, i.e. he didn’t
   want to drag the lanyards through the glue. He also thought that it was permissible not to tie-off
   because he misunderstood the six-foot rule for perimeter and leading edge work. Under this rule,
   the requirement to be tied-off varies with the type of job. Roofers have to tie-off if they come
   within six-feet of the edge; operators of mechanical equipment must tie-off within 10-feet of the
   leading edge; and all other activities must be tied-off when within 15-feet of the edge. (Tr. 124)
   Maschmeier noted that OSHA regulations require that employees be tied-off when they are six-
   feet or less from the roof edge. (Tr. 134) The Tecta manual requires tie-off whenever the fall
   distance to the next lower level is six feet. (Tr. 134) This was the first problem with Crockett.
   Because they concluded that he might have misinterpreted his training, they revoked his OSHA
   10-hour card which is required to work. (Tr. 124, 132) He was given a 60-day window to redo
   his 10-hour card. Crockett has reearned his card and has had no trouble since. (Tr. 125)
   The crew was taking a break, waiting for the glue to dry, so they weren’t performing any
   work. Crockett believed that they were at a sufficient distance from the edge to permit them to
   unclip their lanyards. (Tr. 124) Maschmeier acknowledged that the photographs depict the
   employees at the edge of the roof, but speculated that the difference was due to the difficulty in
   determining depth in a photograph. (Tr. 133) Nonetheless, that the lines were set and harnesses
   worn demonstrate that the employees were doing what they were supposed to be doing. (Tr. 133-
   134)
   In Maschmeier’s opinion, the incident was the result of unpreventable employee
   misconduct (“UEM”) because the decision not to tie-off was the personal choice of employees to
   not implement their training. (Tr. 126) Despite this incident, they won the Platinum award. (Tr.
   142) However, the 2010 award is based on 2009 performance. (Tr. 143)

                                   Discussion
   

   A. Did the Secretary Establish Prima Facie Knowledge?
   To establish a violation of an OSHA standard, the Secretary must establish that: (1) the

                                             9
   

   standard applies to the facts; (2) the employer failed to comply with the terms of that standard;
   (3) employees had access to the hazard covered by the standard, and (4) the employer could have
   known of the existence of the hazard with the exercise of reasonable diligence. Atlantic Battery
   Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
   There is no dispute that the cited standard applies, that the employees failed to comply
   with the terms of the standard and that the employees had access to the hazard covered by the
   standard. Respondent asserts, however, that the Secretary failed to establish that it knew or could
   have known of the hazard with the exercise of reasonable diligence. Additionally, Tecta argues
   that, if the Secretary made a prima facie showing of knowledge, the violation was the result of
   unpreventable employee misconduct.
   The Secretary satisfies her burden of showing knowledge by establishing that the cited
   employer knew, or with the exercise of reasonable diligence could have known, of the violative
   condition. United States Steel Corp. 12 BNA OSHC 1692, 1699 (No. 79-1998, 1986).
   The Commission has held that “[a]n inquiry into whether an employer was reasonably
   diligent involves several factors, including the employer’s obligation to have adequate work rules
   and training programs, to adequately supervise employees, to anticipate hazards to which
   employees may be exposed, and to take measures to prevent the occurrence of violations.” Stahl
   Roofing Inc., 19 BNA OSHC 2179, 2181 (No. 00-1268, 2003)
   Tecta asserts that its safety program, training, and discipline establish that Crockett’s and
   Davis’ violation of the fall protection policy was unforeseeable. It points out that that employees
   were aware of the workrule and knew that they should have been tied off. Moreover, neither
   employee had previously been disciplined for violating Tecta’s fall protection rules. Those rules
   were communicated and enforced. Therefore, there was no evidence that Tecta had either actual
   or constructive knowledge that Crockett and Davis would violate the fall protection rules.
   The Secretary argues that she made a prima facie showing of knowledge. She points out
   that Crockett was the foreman on the site and that Crockett knew or should have known that the
   crew was required to tie-off. As foreman, Crockett’s knowledge is imputed to Tecta. Jersey Steel
   Erectors, 16 BNA OSHC 1162, 1164 (No. 90-1307, 1993), aff'd without published opinion, 19
   F.3d 643 (3d Cir. 1994); Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1538, (No. 86-360, 1992).
   Respondent contends that Crockett was not the foreman. Although he identified himself
   as foreman to the CO, Tecta points out that Crockett was not part of Tecta’s management

                                           10
   

   personnel. He was not responsible for directing the work of Davis and did have the power to
   discipline. Maschmeier testified that on a two-man crew, nobody is actually designated foreman.
   Rather, the employees share the responsibility for getting the work done.
   I find that the preponderance of the evidence establishes that Crockett was the working
   foreman on the site. During his investigation, Maschmeier never discussed with Davis if he
   considered Crockett to be the foreman. (Tr. 137) Similarly, he never discussed with Crockett why
   he identified himself as foreman. (Tr. 139) However, although Maschmeier testified that Crockett
   and Davis had shared responsibility for getting the work accomplished, he also admitted that “for
   that one job he was in charge of making sure that the job got done.” (Tr. 136) While Maschmeier
   was vague regarding the status of Crockett, Respondent’s president, Peter Owens definitively
   testified that, on this job, Davis was the laborer and Crockett was the foreman. (Tr. 107)
   That Crockett did not have any management responsibilities does not call for a different
   result. An employee who has been delegated authority over other employees, even if only
   temporarily, is considered to be a supervisor for the purposes of imputing knowledge to an
   employer. Kerns Brothers Tree Service, 18 BNA OSHC 2064, 2068-2069 (No. 96-1719, 2000);
   Tampa Shipyards Inc., 15 BNA OSHC at 1537; See also Access Equipment, 18 BNA OSHC
   1718, 1726 (No. 95-1449, 1999)(employee who was "in charge of" or "the lead person for" one
   or two employees who erected scaffolds "can be considered a supervisor"). This is true, even
   where the leadman holds no official supervisory authority. John H. Quinlan, d/b/a Quinlan
   Enterprises, 17 BNA OSHC 1194, 1196, n.2 (No. 92-0756, 1995)
   Finding that Crockett was the foreman on the site, and that he knew or should have
   known of the violative condition, that knowledge is imputed to Tecta. Therefore, the Secretary
   has made the requisite prima facie showing of knowledge. Baytown Constr. Co., 15 BNA OSHC
   1705, 1710 (No. 88-2912S, 1992), aff ’d without published opinion, 983 F.2d 282 (5th Cir. 1993);
   A.P. O’Horo Co., 14 BNA OSHC 2004, 2007 (No. 85-369, 1991).

B. Did Respondent Establish the Unpreventable Employee Misconduct Defense?
Tecta asserts that, if the Secretary established prima facie knowledge, that showing was
rebutted because it established, as an affirmative defense, that the violation was the result of
unpreventable employee misconduct.
To establish the “unpreventable employee misconduct” defense, the employer must rebut

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the Secretary’s showing of knowledge by proving: (1) that it has established work rules designed
to prevent the violation, (2) that it has adequately communicated these rules to its employees, (3)
that it has taken steps to discover violations, and (4) that it has effectively enforced the rules
when violations are discovered. E.g., Precast Services, Inc., 17 BNA OSHC 1454, 1455, (No.
93-2971, 1995), aff'd without published opinion, 106 F.3d 401 (6th Cir. 1997).
Tecta asserts that it established all four elements of the affirmative defense. The record
shows that Tecta has an excellent safety program, that it has established work rules designed to
prevent the violation, and that it has effectively enforced those rules when violations are
discovered. However, the evidence also demonstrates several failures fatal to the defense.
A critical element of the “Unpreventable Employee Misconduct Defense” requires that
the employer has taken steps to discover violations. The preponderance of the evidence,
however, clearly demonstrates that, on this job, Tecta failed to take any steps to discover the
violation. Owens testified that Maschmeier is sent out to inspect contract work. Maschmeier
confirmed that regular inspections are set only for contract work, which generally lasts more than
a day. (Tr. 128) Service work, which can last anywhere from 15 minutes to two days, is inspected
only on a time available basis. (Tr. 95-96, 127-128) Indeed, Owens testified that the company’s
inspection form is used only for contract work, and not for the shorter term service work. (Tr. 94,
Ex. C-2, pp. 20-22) Owens pointed out that it is not realistic to have Maschmeier schedule an
inspection for a job that lasts only an hour or two. (Tr. 97-98) However, while it may be
impractical to conduct inspections of a job that lasts only a couple of hours, the evidence
established that this job was scheduled to last one day. (Tr. 128)
In the absence of a scheduled inspection from Maschmeier, it was established that the
obligation to ensure that employees comply with the safety rules falls on the branch manager.
Maschmeier made it clear that branch manager Tardy “was ultimately responsible for the actions
of his guys.” (Tr. 99, 121) Part of that responsibility is to ensure that employees are
implementing the Tecta safety program (Tr. 129) and to conduct periodic inspections of jobs
under his control. (Tr. 122) Nonetheless, the evidence demonstrates that after setting up the job,
branch manager Tardy left the site and never checked to ensure that the employees were
operating safely. (Tr. 122) Significantly, while the evidence indicates that Crockett had an
excellent safety record, it also demonstrates that there were various problems with Davis which
contributed to the decision to terminate him. (Tr. 123) Had Tardy been reasonably diligent,

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knowing of Davis problems, he would have made an effort to check on the safety status of the
job.
Another element of the defense requires that the employer adequately communicate its
rules to employees. Here, the evidence demonstrates at least two critical flaws in the
communication of its safety rules.
First, an employer has a duty, not only to inspect a worksite for hazards, but to then give
employees the appropriate instructions. Pressure Concrete, 15 BNA OSHC 2011, 2016 (No.
90-2668, 1992). As required, Tardy prepared a hazard analysis of the roofing job. (Tr. 121-122),
However, he never held a pre-work meeting with the crew, and never communicated the contents
of the hazard analysis. (Tr. 122) As Maschmeier testified, communication of the hazard analysis
helps employees to know what is expected of them. (Tr. 122) Maschmeier further testified that,
depending on the timing, had Tardy held the requisite meeting, it might have made a difference
as to whether the employees’ tied-off. (Tr. 140)
By neither communicating the hazard analysis to his employees nor conducting spot
checks of the site, Tardy was not reasonably diligent in checking for safety violations and,
therefore, had constructive knowledge of the violation. There is no question that, as a branch
manager, Tardy was a management employee. His knowledge is, therefore, imputed to Tecta.
Furthermore, as a result of his investigation, Maschmeier concluded that Crockett
misinterpreted his training and misunderstood the six-foot rule for perimeter and leading edge
work and that, as a result of this misunderstanding, he thought he was far enough away from the
edge to unclip his harness. (Tr. 124) As a result, Crockett had his 10-hour OSHA card revoked
and was required to redo the training. (Tr. 125)
An employer’s obligation to communicate work rules goes beyond merely presenting the
information to employees and having them sign a sheet stating that the information was
understood. Rather, "a reasonably prudent employer would attempt to give instructions that can
be understood and remembered by its employees, and would make at least some effort to assure
that the employees did, in fact, understand the instructions" Pressure Concrete, 15 BNA OSHC
at 2017. That there was a question and answer session after Maschmeier’s presentation does not
constitute a reasonable assessment of employee comprehension since, to ask a relevant question,
an employee must know what he or she does not understand.
Employees are supposed to read the manuals distributed by Tecta. However, in reality,

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whether the manual is actually read is left to the individual employee. (Tr. 92) While Crockett
and Davis both signed the sheet stating that they received the safety manual, there is no evidence
that either employee ever read the document. (Tr. 92-93) Furthermore, the evidence demonstrates
that even Maschmeier was uncertain about the scope of Tecta’s fall protection rules. In this
regard Maschmeier testified:
Q. Now, I believe you also said that you had come to the conclusion that Mr.
Crockett made a personal choice to do what he had done in not being clipped off;
correct?
A. Based on his knowledge, yes.
Q. Based on his knowledge, okay.
So he was mistaken about not knowing the distances or that he simply choosed
(sic) not to clip off some other reason?
A. Its two different questions as far as I’m concerned. He was mistaken in his
distance calculations because based on—if you read the OSHA regulations it does
imply 6 feet as being a leading edge and that’s when a roofer you need to be tied
off or have some kind of fall protection implemented. It does not state however
that beyond 6 feet in the interior of the roof you need to be tied off or implement
some kind of fall protection.
So there’s kind of a gray area there as far as how it’s cited—its cited in the
regulations, as far as I’m concerned. And that’s something that we need to clear
up in our training, as well.
(Tr. 133-134)
As the Secretary points out, this testimony demonstrates that even Tecta’s own safety
director did not have a clear understanding of his own company’s work rules as he, like Crockett,
conflates controlled access zones and warning line systems with basic fall protection
requirements. Also, that Crockett told the CO that, as a result of the violation he would likely be
fired, demonstrates that, as a result of the inspection, he understood that he violated the workrule.
However, it does not demonstrate that, before the violation was pointed out by the CO, he fully
understood the rule.
Therefore, it is clear from the evidence that Tecta’s communication of its safety rules to
its employees was deficient because (1) Tardy failed to communicate the Hazard Analysis to the
crew and (2) respondent failed to communicate the tie-off rule in a manner that would enable it
to be fully understood by the employees.
Accordingly, with the evidence establishing that Tecta failed to take reasonable steps to
discover violations of its workrule and failed to adequately communicate those workrules to its
employees, I find that Respondent failed to establish the affirmative defense of “unpreventable

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employee misconduct.” Therefore, the violation was established.
C. Penalty
The Secretary has proposed a $5000 penalty for this serious violation. A violation is
serious where, if an incident occurs, the result could be death or serious physical harm. Beverly
Enterprises, Inc., 19 BNA OSHC 1161, 1188 (No. 91-3144, 2000)(Consolidated). Had an
employee fallen from the roof, 20-feet to the ground below, the results would clearly have been
death or serious physical harm. (Tr. 48, Ex. C-2) Accordingly, the violation was properly
characterized as serious.
Section 17(j) of the Act, 29 U.S.C. § 666(j), requires that in assessing penalties, the
Commission must give "due consideration" to four criteria: the size of the employer's business,
the gravity of the violation, the employer's good faith, and its prior history of violations.
Specialists of the South, Inc., 14 BNA OSHC 1910 (No. 89-2241, 1990). The CO testified that
the gravity of the violation was high. He also determined that there was a high probability of an
accident. (Tr. 47-49) With over 250 employees, no deduction was given for Tecta’s size. (Tr. 47)
He also testified that Tecta had a prior history with OSHA. Thus, no history was given for either
safety history or good faith. (Tr. 48) I find that the Secretary properly considered the statutory
factors when proposing the $5000 penalty and that the proposed penalty is appropriate.
Accordingly, it is ORDERED that Citation 1, item 1 for violation of 29 C.F.R.
§1926.501(b)(10) is AFFIRMED and a penalty of $5000 is assessed.

SO ORDERED.

                                                   __/s/____________________________
                                                    The Honorable G. Marvin Bober
                                                           U.S. OSHRC Judge

Dated: July 21, 2011
Washington, D.C.

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