R&S Roofing, LLC

Plain-English summary

R&S Roofing used a crew to replace a rubber roof on a one-story commercial building in Ohio. Although the company called the roofers independent contractors, the judge found they were employees because R&S controlled the workplace and the manner and timing of their work, paid them hourly, provided some equipment, and maintained continuing relationships with them. Workers performed roofing work near unprotected edges more than 12 feet above pavement after the personal fall arrest and warning line systems had been removed. A safety monitor alone did not satisfy the standard because the work area was more than 50 feet wide. R&S did not prove that compliant protection was infeasible or created a greater hazard. The serious citation was affirmed with a $2,800 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(10)
• Outcome: The serious fall-protection citation was affirmed with a $2,800 penalty.
• Key point: Calling workers independent contractors does not avoid OSHA coverage when the company controls their work and workplace.

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. 12-2427
R&S ROOFING, LLC,
Respondent.

Appearances: Paul Spanos, Esquire
U.S. Department of Labor, Office of the Solicitor, Cleveland, Ohio
For the Secretary

                     Laurie J. Pangle, Esquire
                     Spengler Nathanson P.L.L., Toledo, Ohio
                     For the Respondent

Before: William S. Coleman
Administrative Law Judge

                                 DECISION AND ORDER

      On August 30, 2012, the Occupational Safety and Health Administration (OSHA)

inspected a worksite in Toledo, Ohio, where the Respondent, R&S Roofing, LLC (R&S) was
replacing a rubber roof on a one-story commercial building. On October 31, 2012, OSHA issued
a Citation and Notification of Penalty (Citation) to R&S that alleged one serious violation of
OSHA’s standard for fall protection in construction workplaces. 29 C.F.R. Part 1926, Subpart M
(§§ 1926.500 to .503).
R&S timely filed a notice of intention to contest the Citation, and OSHA duly forwarded
the contest to the Occupational Safety and Health Review Commission (Commission). The
Commission has jurisdiction pursuant to section 10(c) of the Occupational Safety and Health Act
of 1970, 29 U.S.C. § 651, et seq. (Act). The contest was assigned to the undersigned
Commission administrative law judge for hearing, which was conducted in Toledo, Ohio, on
June 11, 2013. Both parties timely filed post-hearing briefs.
The broad issues for decision are whether R&S is covered by the Act, and if so, whether
R&S violated the cited standard as alleged. R&S asserts that it is not covered because it is not an
“employer” as defined in section 3(5) of the Act. Alternatively, it denies that it violated the cited
standard.
As described below, the Secretary has carried his burden to prove by a preponderance of
the evidence that R&S (1) was covered by the Act because it was an “employer” as defined in
section 3(5), and (2) violated 29 C.F.R. § 1926.501(b)(10) by exposing its employees to fall
hazards of over 12 feet without providing adequate fall protection. Moreover, R&S has failed to
prove either of the asserted affirmative defenses of “infeasibility” or “greater hazard.” The
Citation is affirmed, and a penalty of $2,800 is assessed.

                                       Background
   On August 30, 2012, at about 11:30 a.m., OSHA Compliance Safety and Health Officer

(CO) James McManus was driving by a worksite in Holland, Ohio, when he saw four persons
working on the flat roof of a one-story commercial building without any apparent fall protection.
(Tr. 21-24). The CO stopped and watched the workers from ground level. After spending about
30 minutes watching and taking some photographs of the workers, the CO approached the
workers and asked to speak to the person in charge. (Tr. 75-76; Ex. 1). Mr. Rob Tipping then
descended from the roof, and the CO introduced himself. Mr. Tipping consented to being
interviewed and responded to the CO’s questions. The CO then interviewed two of the other
workers -- Mr. Robert Smith and Ms. Sabrina Tipping (who is the daughter of Mr. Tipping). The
remaining worker chose not to be interviewed. (Tr. 149; Ex. P, pp. 27-31; Ex. S).
OSHA later issued the Citation alleging that R&S had violated the fall protection
standard of 29 C.F.R. § 1926.501(b)(10) in that “no acceptable form of fall protection was being
utilized to protect employees from falling approximately 12.1 feet to the paved ground below.”

                     Whether the Respondent was an “Employer”
   Only an “employer” may be cited for a violation of the Act. Section 9(a) of the Act; 29

U.S.C. § 658(a); Allstate Painting & Contracting, 21 BNA OSHC 1033, 1035 (No. 97-1631,
2005) (consolidated). The Secretary bears the burden of proving by a preponderance of the
evidence that a cited entity is an “employer.” See Lake County Sewer Co., Inc., 22 BNA OSHC
1522, 1523 (No. 07-1786, 2009). Whether a cited entity is an “employer” is an issue of the Act’s

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coverage (not an issue of subject matter jurisdiction). StarTran, Inc., 21 BNA OSHC 1730, 1732
(No. 02-1140, 2006) aff’d in relevant part, 290 Fed. Appx. 656 (5th Cir. 2008) (unpublished).
In section 3(5) of the Act, the term “employer” is defined as “a person engaged in a
business affecting commerce who has employees.”1 29 U.S.C. § 652(5).
R&S denies that it is “engaged in a business affecting commerce.” R&S denies further
that it “has employees” and argues that it has never had employees, but rather than all persons
who work for R&S do so as independent contractors. (Resp. Br. 1-7).
As described below, the Secretary has met his burden to establish that at the time of the
inspection R&S was covered by the Act because it was an “employer” as defined in section 3(5).

                       “Person Engaged in a Business Affecting Commerce”
   R&S is an Ohio limited liability corporation that was formed in June 2010. Mr. Rob

Tipping and his wife, Stacey Tipping, are the founding members, and they remain the only
members of R&S. (Resp. Exs. A, B and C). R&S is a “person” as defined in section 3(4) of the
Act, 29 U.S.C. § 652(4).
R&S is in the business of residential and commercial roofing. (Tr. 124-25). The
particular project that resulted in the issuance of the Citation was installation of rubber roofing
material on an existing commercial building in Toledo, Ohio. (Ex. F). Such roofing work
constitutes “construction work,” which is defined in 29 C.F.R. § 1926.32(g) as “work for
construction, alteration, and/or repair, including painting and decorating.” The construction
industry as a whole affects “commerce,” and even a small business within that industry is
“engaged in a business affecting commerce” within the meaning of section 3(5). Slingluff v.
OSHRC, 425 F.3d 861, 865 (10th Cir. 2005) (holding that a small commercial stuccoing business
was subject to the requirements of the Act because the “economic activity of
stuccoing/construction, as an aggregate, affects interstate commerce”); Clarence M. Jones, 11
1
The terms “commerce,” “person,” and “employees” used in this definition are themselves defined
terms in section 3, 29 U.S.C. § 652, as follows:
(3) The term “commerce” means trade, traffic, commerce, transportation, or
communication among the several States, or between a State and any place outside
thereof, . . . or between points in the same State but through a point outside thereof.
(4) The term “person” means one or more individuals, partnerships, associations,
corporations, business trusts, legal representatives, or any organized group of persons, . . .
.
(6) The term “employee” means an employee of an employer who is employed in a
business of his employer which affects commerce.

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BNA OSHC 1529, 1531 (No. 77-3676, 1983) (holding that construction work is within the class
of activities Congress intended to regulate). The Secretary has proven that R&S was “engaged in
a business affecting commerce” within the meaning of section 3(5).

                                     “Has Employees”
   In determining whether a cited entity “has employees” within the meaning of section

3(5), the Commission relies upon the common law test adopted by the Supreme Court in
Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992) (Darden). See Sharon & Walter
Constr., Inc., 23 BNA OSHC 1286, 1289 (No. 00-1402, 2010); Allstate Painting & Contracting,
21 BNA OSHC at 1035; see also Weary v. Cochran, 377 F.3d 522 (6th Cir. 2004) (applying
Darden in context of ADEA claim). The Court in Darden listed the following factors to be
considered in determining whether a worker is an employee or an independent contractor:
In determining whether a hired party is an employee under the general common
law of agency, we consider the hiring party's right to control the manner and
means by which the product is accomplished. Among the other factors relevant to
this inquiry are the skill required; the source of the instrumentalities and tools; the
location of the work; the duration of the relationship between the parties; whether
the hiring party has the right to assign additional projects to the hired party; the
extent of the hired party's discretion over when and how long to work; the method
of payment; the hired party's role in hiring and paying assistants; whether the
work is part of the regular business of the hiring party; whether the hiring party is
in business; the provision of employee benefits; and the tax treatment of the hired
party.
Darden at 323-324 (quoting Cmty. for Creative Non–Violence v. Reid, 490 U.S. 730, 751-52
(1989)). The Darden Court noted that this “common-law test contains ‘no shorthand formula or
magic phrase that can be applied to find the answer, ... all of the incidents of the relationship
must be assessed and weighed with no one factor being decisive.’” Id. at 324 (ellipsis in
original), quoting NLRB v. United Ins. Co. of Am., 390 U.S. 254, 258 (1968). The Commission
has observed that the Darden Court focused primarily on the first stated factor: the extent of the
hiring party’s right to control the manner and means by which the product is accomplished.
Sharon & Walter Const., Inc., 23 BNA OSHC at 1289.
The Commission has noted that the “primary focus” of the Darden common law test “is
whether the putative employer controls the workers.” Allstate Painting & Contracting, 21 BNA
OSHC at 1035. The Commission has also noted that the central inquiry of the Darden test “is
the question of whether the alleged employer controls the workplace.” Don Davis, 19 BNA

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OSHC 1477, 1480 (No. 96-1378, 2001) (discussing commonality of the factors in the Darden
test and the “economic realities” test that the Commission had used before Darden) (quoting
Loomis Cabinet Co., 15 BNA OSHC 1635, 1638 (No. 88-2012, 1992), aff’d, 20 F.3d 938 (9th
Cir. 1994)).
R&S is an Ohio limited liability corporation (LLC) that was formed in June 2010 with
Rob Tipping and Stacey Tipping as its founding members.2 (Tr. 126; Resp. Exs. A & B). Both
Rob Tipping and Stacey Tipping testified that R&S has no employees and operates solely
through independent contractors, with whom R&S has entered into agreements that are titled
“Independent Subcontractor Agreement,” and which Mr. Tipping describes as “self-employment
contracts.” (Tr. 126-27, 181-82; e.g., Ex. D). Both Rob Tipping and Stacey Tipping have
entered into such agreements with R&S. (Exs. D and E). Provisions in the identical agreements
signed by all of the workers include the following (emphasis in originals):
1. This Independent Subcontractor Agreement establishes the lack of employer-
employee relationship between the parties . . . .
4. Independent Subcontractor works under his own name when performing
services for R&S Roofing LLC.
5. R&S Roofing LLC shall not cover Independent Subcontractor under any of its
insurance policies or be liable for injuries incurred in performing its services . . . .
6. Independent Subcontractor may do similar work for others any time it wishes.
R&S Roofing LLC shall not have priority on subcontractor time. The
Independent Contractor shall not work during any set hours.
7. Independent Subcontractor performs services for an indefinite period on
various jobs of his choosing, or until his services are no longer needed by R&S
Roofing LLC or until Independent Contractor decides to no longer provide his
services to R&S Roofing LLC.
8. R&S Roofing LLC shall pay Independent Subcontractor at the end of each job,
of which his services were provided and will issue a 1099 at the end of the year.
9. R&S Roofing LLC shall not supervise Independent Subcontractor, though it
may inspect work completed. Independent Subcontractor will work in a
professional manner, having represented that it has the necessary skills to do this.
10. Independent Subcontractor shall redo defective work and replace damaged
material at its own expense . . . .
11. R&S Roofing LLC shall advise the Independent Subcontractor about when it

2
 Before the LLC was created in June 2010, Mr. Tipping was engaged in the same business as “R&S

Roofing,” apparently either as a sole proprietorship or in a partnership with Stacey Tipping. See Tr. 124-
126; Ex H, p. 3 (“R&S Roofing Subcontractor Agreement” with Robert Smith, dated 3/24/02); Ex. I (IRS
forms 1099 for tax years 2002 and 2010 for Robert Smith, with the “Payer” being “Stacey Tipping”).

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can begin work and the job details.
12. R&S Roofing LLC shall pay the Independent Subcontractor by an hourly rate
for the type and quality of services performed pursuant to the job on which they
are performed.
13. R&S Roofing LLC shall not provide for draws or advances.
14. R&S Roofing LLC shall not withhold any taxes from Independent
Subcontractor, who shall be liable for its own withholding, Social Security, self-
employment and other applicable taxes.
15. R&S Roofing LLC shall not provide Independent Subcontractor with, or
reimburse for, hospital, medical, business liability or Worker’s Comp. Insurance,
sick or vacation pay, a work vehicle, bonuses, gas allowances, special clothing,
tools, etc. . . . .
17. Independent subcontractor shall provide and maintain his own tools for its
services that are being provided. It is solely liable for loss, damage or theft of its
property at R&S Roofing LLC job locations. This includes storage at such
locations or in route to or from them.
18. R&S Roofing LLC may lend equipment or specific tools, pertinent to the job,
to Independent Subcontractor, at its discretion, with the understanding that any
damage, loss, or theft of said lent equipment . . . will be the sole responsibility of
the subcontractor . . . .
Nothing in the agreements identifies the worker’s rate of hourly pay. There is no provision that
describes what kind of work the worker is agreeing to do “in a professional manner, having
represented that it has the necessary skills to do this.” The word “roof” does not appear in the
agreement, and the word “roofing” appears only when used as part of R&S’s proper name.
The analysis of the Darden factors that follows is limited to the determining whether the
three workers at the worksite other than Mr. Tipping were employees of R&S at the time of the
inspection. In view of the conclusion that these three workers were employees of R&S, it
unnecessary to determine whether Mr. Tipping’s status was that of “employee” or “independent
contractor.”

                 Hiring Party’s Right to Control the Manner and Means
                         by which the Product is Accomplished
   Rob Tipping, as the agent of R&S, entered into the contract for the roofing job and

scheduled the other roofers to work on that project. (Tr. 128, 133-34; Ex. F).
When the CO made his presence known at the worksite and told one of the workers that
he wanted to speak to the “person in charge,” the worker notified Mr. Tipping, who then
descended from the roof to speak to the CO. (Ex. S, p. 1; Tr. 14-15, 22, 26-27, 30, 177).

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In response to the CO’s questions regarding the status of the workers, Mr. Tipping
repeatedly told the CO that “everybody is a sub.” (Tr. 178; Ex. 2; Ex. S). Mr. Tipping also told
the CO: “I tell the guys what to do;” “[i]f I am not on the roof, they know to come down;” and “I
want to them to know I am watching.”3 (Ex. 2). Mr. Tipping testified that the workers
sometimes refer to him as the “head grunt,” and that “[e]verybody knows if it goes wrong, it’s all
on me.” (Tr. 166, 168).
Both of the other workers the CO interviewed identified Mr. Tipping to be “the boss.”4
(Ex. P, pp. 29 & 31; Tr. 104-06). One of the workers told the CO that Mr. Tipping was in charge
of the overall site, told them when to start and stop work, and “would fix safety and job issues.”
(Ex. P, pp. 29-30; Tr. 104-105).
In response to the CO’s questions regarding safety training, one of the workers stated that
Mr. Tipping “shows two movies a week,” and that “[w]e watched a tape on fall protection this
morning.” (Ex. P, p. 29; Tr. 88-89). The other worker told the CO that Mr. Tipping provides
safety training.5 (Tr. 105; Ex. P, p. 31).
Mr. Tipping told the CO that during part of the roofing job the workers had been using a
personal fall arrest system (which included body harnesses and ropes) that he had brought to the
worksite and that he had made available to the workers. Mr. Tipping told the CO that he did not

3
  The CO testified that he took contemporaneous notes during his interview with Mr. Tipping. (Tr.

83). These notes were received in evidence as Exhibit 2. Mr. Tipping testified that he did not see the CO
taking notes during the interview. (Tr. 148). The CO’s testimony that his notes of the interview were
taken contemporaneously is more probative than Mr. Tipping’s recollection that he did not notice the CO
taking notes. In his testimony, Mr. Tipping corroborated many of the entries contained in the CO’s
contemporaneous notes (e.g., that “everybody is a sub,” that the roof has “Tectum” decks, that the “lines
are down right now and [Sabrina Tipping] is the monitor,” that “I had anchor points I had installed in
[purlins],” that “we were using harnesses with the ropes”). This corroboration supports a finding that the
CO’s notes are a generally reliable record of what Mr. Tipping told the CO in the interview.
4
The CO interviewed Robert Smith and Sabrina Tipping after Mr. Tipping had returned to the roof
and was no longer in the CO’s presence. (Tr. 88). The CO’s notes of those interviews were received in
evidence as part of R&S’s Ex. P, pages 29-31. Mr. Tipping’s testimony that he did not see the CO taking
notes while interviewing these two individuals is not probative, inasmuch as Mr. Tipping explained
further that he had returned to the roof during those interviews and that, “I don’t know what they [the
workers] did; I’m assuming they talked.” (Tr. 149, lines 24-25). The CO’s notes provide a reliable
record of the workers’ responses to the CO’s questions.
5
In his testimony, Mr. Tipping denied having provided safety training to R&S’s “independent
subcontractors” at any time, and denied further that he had shown the workers a training video earlier on
the day of the inspection. (Tr. 166-168). Assuming this to be accurate, the workers’ statements to the
contrary would support an inference that they believed that R&S had the right to require them to submit to
such training.

                                                7

require that the workers use this equipment because of their status as independent contractors
(Ex. S, p. 1; Tr. 35), but that he “thought it would be a good idea for everybody to wear a body
harness if they then so chose.” (Ex. S, p. 1). He testified, “I did not force anybody to do it: if
you want to use it here they are.” (Tr. 130). One reasonable inference from this testimony is that
if Mr. Tipping had directed the workers to use certain fall protection equipment, they would have
felt compelled to do so.
The evidence supports the finding that R&S, through Mr. Tipping, substantially
controlled or had the right to control both the workplace and the workers (i.e., the “right to
control the manner and means by which the product is accomplished”). This being the most
important of the Darden factors, this evidence weighs heavily in favor of finding that the
workers were employees of R&S.
Skill Required
The evidence suggests that the workers that R&S uses provide skilled labor, which tilts in
favor of finding an independent contractor relationship.

                        Source of the Instrumentalities and Tools
   Mr. Tipping purchased the materials for the job on behalf of R&S. (Tr. 131). Mr.

Tipping coordinated the delivery and staging of the roofing materials at the work site. (Tr. 130-
31).
Mr. Tipping testified that the workers bring and use their own hand tools, although they
sometimes use hand tools that he brings to the worksite as well as larger equipment when the
project calls for such equipment (such as a “compressor” for air guns). (Tr. 165). The other two
workers told the CO that Mr. Tipping supplied tools, with the exception of small hand tools.
(Ex. P, pp. 29-31). The roofing job here required mostly only hand tools. (Tr. 165). Mr.
Tipping supplied the workers with safety harnesses that they had used as part of a personal fall
arrest system during part of the roofing job. (Tr. 130; Ex. S).
The evidence establishes that R&S provided some instrumentalities and tools required for
its projects, and weighs in support of finding an employment relationship.

                                   Location of the Work
   All the roofing work takes place at the various construction sites where R&S has

contracted to do the work. This Darden factor has no weight here because the roofing work

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would be done at those various locations regardless of the status of the workers as employees or
independent contractors.

                     Duration of the Relationship between the Parties.
   R&S does not enter into a separate “Independent Subcontractor Agreement” for every job

on which a worker provides labor, but rather maintains a standing agreement with each worker.
The agreements establish a continuing relationship between R&S and the worker for an
indefinite period that is terminable at the will of either party. (Exs. D, E, F-2, H). One roofer
had worked for R&S (or its predecessor entity) since 2008. (Ex. G). Another roofer had worked
for R&S (or its predecessor entity) since 2002, and told the CO, “I don’t work for anybody else.”
(Tr. 187; Ex. H; Ex. P, p. 29).
While the written agreements expressly provide that a worker may work for others at any
time (Ex. D, ¶ 6), such other work would not preclude the existence of an employment
relationship with R&S.
The evidence relevant to this factor tilts in favor of finding an employment relationship.

                     Hiring Party's Right to Assign Additional Projects
   The written agreements provide that the worker will “perform services … on various jobs

of his choosing.” (Ex. D, ¶ 7). Mr. Tipping’s practice is to contact individual workers to form a
crew for a particular job or part of a job. (Tr. 132-34). While one of the workers told the CO
that he works only for R&S (Ex. P, p. 29-30), there is no evidence respecting whether this
worker believed he could refuse to do a job that Mr. Tipping would call him about. The whole
of the evidence on this factor weighs against the finding of an employment relationship.

         Extent of the Hired Party's Discretion over When and How Long to Work
   After R&S obtains a contract for a roofing job, Mr. Tipping’s practice is to telephone a

worker about being part of a crew for that job. But sometimes a worker will telephone Tipping
to find out if there is “any work for the day, two days, three days, a week, that type of situation.”
(Tr. 133).
One of the workers told the CO that Mr. Tipping determined when the work began and
ended each day. (Ex. P, p. 30). Mr. Tipping told the CO that “I tell the guys what to do” and “if
I am not on the roof they know to come down.” (Tr. 37; Ex. 2). Mr. Tipping also told the CO
that he wanted the workers to know that he is watching them. (Tr. 37; Ex. 2; see also Tr. 165, “I

                                             9

see them doing the part that they do”). The weight of the evidence establishes that Mr. Tipping
sets the hours of work and expects the roofing crew to work only while he is present on a roof
and under his oversight. This factor supports finding an employment relationship.

                                   Method of Payment
   The written agreements provide that a worker is paid on an “hourly rate for the type and

quality of services performed.” (Ex. D, ¶ 12). Payment is made at the end of a project, usually
in cash. (Tr. 109, 183; Ex. 2). Paying a skilled laborer by the hour, versus being paid by the job,
weighs in favor of finding an employment relationship.
Stacey Tipping testified that she has advanced payment to workers before the end of a
project (which was contrary to ¶ 13 of the written agreements). (Tr. 187-88; Ex. I, p. 2). An
advance on payment is more indicative of a traditional employer-employee relationship than of
an independent contractor.

                   Hired Party’s Role in Hiring and Paying Assistants
   Mr. Tipping assembles roofing crews based upon the skills and number of workers

needed for a particular job. (Tr. 132-34). There is no evidence that R&S uses “assistants” for
the workers for any projects that it undertakes. This factor has no bearing on the analysis here.

                Work as Part of the Hiring Party’s Regular Business, and
                        Whether the Hiring Party is in Business
   R&S is in the roofing business (residential and commercial). (Tr. 125-26). The work

performed by the workers is integral to R&S’s regular business.
Mr. Tipping told the CO that “I carry insurance” and that the other workers “are covered
under mine,” (Ex. 2) (which is contrary to ¶ 5 of the written agreements). The evidence on these
factors weighs in favor of finding an employment relationship.

        Provision of Employee Benefits and the Tax Treatment of the Hired Party
   R&S provides no benefits and deducts no taxes from the payments it makes to the

workers. (Tr. 127; Ex. P, p. 31). The provision of employee benefits and withholding of taxes
from a paycheck is generally indicative of an employment relationship. The evidence here on
these factors weighs against finding an employment relationship, but like all the Darden factors,
these factors in isolation are not determinative of the issue. Cf. Sharon & Walter Const., Inc., 23

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BNA OSHC at 1290 (finding “failure to withhold federal income and social security taxes was
… not a bona fide reflection of an authentic independent contractor relationship”).
Conclusions Based on the Darden Factors
The agreements on which R&S relies to establish “the lack of an employer-employee
relationship” (Ex. D, ¶ 1 [emphasis in original]), while a factor, are not determinative on the
issue. The agreements do not relate to a particular project, do not specify the rate of hourly pay,
do not identify the nature of the work to be provided, and establish a relationship of indefinite
duration that is terminable at will. (Id.¶ 7). And while the agreements declared that R&S “shall
not supervise” the worker (Id. ¶ 9), the great weight of the evidence established that R&S,
through its agent Mr. Tipping, had the right to control the workers and the workplace.
Based on the foregoing and in particular the key factor (right to control of the manner and
means of the work), the evidence weighs in favor of the conclusion that the three workers at the
worksite other than Mr. Tipping were “employees” of R&S as defined in section 3(5) of the Act.
The Secretary has met his burden to establish that at the time of the inspection R&S was
an “employer” under the Act, so that the Act covered R&S’s activities at the construction site on
August 30, 2012.

                         Alleged Violation of § 1926.501(b)(10)
                                     The Work Area
   The roof of the one-story commercial building was divided into three discernable

rectangular sections, with the larger middle section being sandwiched between two smaller end
sections. The roofing project involved R&S installing 20-foot wide sheets of rubber roofing
material over only the roof’s middle section (Work Area). (Tr. 22, 49, 136, 141). The Work
Area was flat, was about 78 feet wide and 90 feet long, and its surface was approximately 12.1
feet above ground level. (Ex. 1, pp. 25 & 30, Tr. 33).
The north side of the Work Area was about 78 feet long and was defined by a parapet
wall where it abutted the roof’s north section. The south side of the Work Area was the same
length as the north side and was defined by a drop in elevation to the roof’s south section. The
roof’s south section had a low slope, and was about two feet below the level of the Work Area
where the two sections abutted. (Tr. 201).

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The Work Area’s east and west edges were both about 90 feet long and were not abutted
by any other part of the roof. The east and west edges had no wall, guardrail, or other structure
that extended higher than the Work Area’s surface level.6 (Tr. 48-50; Ex. P, p. 34).
The CO arrived at the worksite about 11:30 a.m. (Tr. 21). Mr. Tipping testified that there
had been a warning line system in place on the Work Area until about 10 a.m. that day, when it
had been taken down to complete work on the final roof seam. (Tr. 160). Mr. Tipping’s
testimony in this regard is consistent with what the two other workers told the CO in separate
interviews. (Ex. P, p. 29 and 31). Mr. Tipping’s testimony is also consistent with the CO’s
testimony and photographs that the CO took that show no indication that a warning line system
was in place.7 (Tr. 41; Ex. 1).
Mr. Tipping indicated in his testimony that no personal fall arrest system (PFAS) was
being used at the time of the inspection: “No harnesses, no safety line, nothing.” (Tr. 163). Mr.
Tipping showed the CO a body harness that was part of a PFAS that the workers had been using
earlier during the job. (Tr. 34, 54-55; Ex. 2; Ex. P, p. 29). Mr. Tipping told the CO that the use
of the PFAS equipment had been discontinued because the anchorage points that R&S had been
using were not accessible during the completion of the final seam work. (Tr. 37-38, 129-130;
Ex. P, p. 23). Mr. Tipping told the CO that when the use of the PFAS was discontinued “one of

6
  The description of the roof is based on the composite testimony of the CO (Tr. 48-52), Mr. Tipping

(Tr. 134, 136-37, 139-41, 144-46, 156-60), and another witness for R&S (Mr. Kip Reiher) (Tr. 200-201).
The CO did not ascend the roof and thus he never saw the surface of the Work Area. Rather, he observed
the workers on the roof and took photographs from various positions on the surface pavement. While
interviewing Mr. Tipping, the CO drew a diagram of the roof based on information that Mr. Tipping
provided him. (Tr. 48; Ex. P, p. 34). In his testimony Mr. Tipping did not challenge the accuracy of the
basic information reflected on the diagram, although he testified that he did not observe the CO preparing
a diagram or taking notes during the interview. (Tr. 148-49). In any event, Mr. Tipping’s testimonial
description of the Work Area corroborated the CO’s testimony with respect to both the east and west
edges of the Work Area having no structure that extended higher than the roof’s surface level, and that the
width of the roof was greater than 50 feet (Tr. 158-160, 162). Photographs of the Work Area that Mr.
Tipping took are consistent with the configuration he described. (Ex. R, pp. 3, 5 & 6).
7
The CO concluded that when Mr. Tipping and the other two workers had referred to the removal of
“warning lines,” that they had been referring to a rope that had been used as part of a personal fall arrest
system, and not a line that had been used as part of a warning line system. (Tr. 100-104; Ex. P, p. 24). It
is not necessary to sort out the precise nature of the misunderstanding, since Mr. Tipping acknowledged
in his testimony that at the time of the inspection, no one was using a personal fall arrest system, and no
warning line system was in place.

                                                12

the subs was implemented as a roof monitor.”8 (Ex. P, p. 1; Tr. 38-39, 54-55; Ex. 2; Ex. P, p. 34;
Ex. S, p. 1).
The Work Area was approximately 12.1 feet above ground level along the unprotected
west edge of the Work Area. (Tr. 23-24, 28-29, 40, 62-63; Ex. 1, pp. 16, 25, 30). Before making
his presence known at the worksite, the CO observed and photographed a male worker other than
Mr. Tipping near the unprotected west edge. The worker was bent over at the waist, such that
his head was almost directly above the edge itself, as depicted in the photograph at page 8 of
Exhibit 1. The CO took numerous other photographs of the workers engaged in roofing work on
the Work Area. (Ex. 1). Some of the photographs showed workers (other than Mr. Tipping)
engaged in roofing work six feet or closer to the unprotected west edge (e.g. Ex. 1, photographs
8, 12, 15, 19, 23, 26).9

                                          The Citation
    The Citation alleges that R&S violated 29 C.F.R. § 1926.501(b)(10) on August 30, 2012,

when it “did not ensure that each employee engaged in roofing activities on a commercial
structure with a flat roof were protected from falls” in that “no acceptable form of fall protection
was being utilized to protect employees from falling approximately 12.1 feet to the paved ground
below, which could result in permanent disability or death.”
The cited standard, 29 C.F.R. § 1926.501(b)(10), provides:

8
  At the hearing, Mr. Tipping explained that the body harnesses had been used to prevent the workers

from falling through the roof in the event that part of the roof collapsed, and not specifically to prevent
workers from falling off the edge (although it would seem that the equipment would have protected
against that hazard as well). (Tr. 129-30). Mr. Tipping indicated at the hearing that he did not believe
that a PFAS or warning line system was necessary at the time of the inspection because there was no
longer any risk of the roof collapsing, no worker got closer than 40 feet to the unprotected east and west
edges, and a safety monitor system was in place. (Tr. 162-64).
9
Mr. Tipping testified that he believed the photographs that the CO took in Exhibit 1 were taken over
the course of four different days of work on the project, and not all on August 30, 2012. (Tr. 175). He
testified that he had reached this conclusion based upon the configuration of material depicted in the
various photographs, and also because some of the photographs show one of the workers wearing
different clothing. The evidence does not support Mr. Tipping’s belief. First, the CO testified reliably
and credibly that he took all the photographs contained in Exhibit 1 on August 30, 2012. There is simply
no reason to believe that the CO surreptitiously took photographs of the work site over the course of four
days, or that the CO testified falsely in stating that he took all the photographs on August 30, 2012.
Secondly, Mr. Tipping is simply incorrect in his belief that certain of the photographs show some of the
workers wearing different clothing than in other photographs. (Tr. 175). The photographs he cites do not
support his perception. The clothing worn by the workers appears to be the same in all the photographs.
(Ex. 1).

                                                13

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 standard contains a number of defined terms. Moreover, some of the terms used in
the defined terms are themselves defined terms. Some of these defined terms in § 1926.500(b)
are as follows:
Lifeline means a component consisting of a flexible line for connection to an
anchorage at one end to hang vertically (vertical lifeline), or for connection to
anchorages at both ends to stretch horizontally (horizontal lifeline), and which
serves as a means for connecting other components of a personal fall arrest
system to the anchorage.
Low-slope roof means a roof having a slope less than or equal to 4 in 12 (vertical
to horizontal).
Lower levels means those areas or surfaces to which an employee can fall. Such
areas or surfaces include, but are not limited to, ground levels, floors, platforms,
ramps, runways, excavations, pits, tanks, material, water, equipment, structures,
or portions thereof.
Personal fall arrest system means a system used to arrest an employee in a fall
from a working level. It consists of an anchorage, connectors, a body belt or body
harness and may include a lanyard, deceleration device, lifeline, or suitable
combinations of these. As of January 1, 1998, the use of a body belt for fall arrest
is prohibited.
Roofing work means the hoisting, storage, application, and removal of roofing
materials and equipment, including related insulation, sheet metal, and vapor
barrier work, but not including the construction of the roof deck.
Safety-monitoring system means a safety system in which a competent person is
responsible for recognizing and warning employees of fall hazards.
Unprotected sides and edges means any side or edge (except at entrances to
points of access) of a walking/working surface, e.g., floor, roof, ramp, or runway
where there is no wall or guardrail system at least 39 inches (1.0 m) high.
Walking/working surface means any surface, whether horizontal or vertical on
which an employee walks or works, including, but not limited to, floors, roofs,
ramps, bridges, runways, formwork and concrete reinforcing steel but not
including ladders, vehicles, or trailers, on which employees must be located in
order to perform their job duties.

                                           14

Warning line system means a barrier erected on a roof to warn employees that
they are approaching an unprotected roof side or edge, and which designates an
area in which roofing work may take place without the use of guardrail, body belt,
or safety net systems to protect employees in the area.
Work area means that portion of a walking/working surface where job duties are
being performed.
Other provisions of Subpart M prescribe the requirements for “personal fall arrest systems” [§
1926.502(d)], “warning line systems” [§ 1926.502(f)], and “safety monitoring systems” [§
1926.502(h)].

                               Secretary’s Burden of Proof
   To establish a violation of an OSHA standard, the Secretary must prove that: (1) the cited

standard applies; (2) the terms of the standard were violated; (3) one or more employees had
access to the cited condition; and (4) the employer knew, or with the exercise of reasonable
diligence could have known, of the violative condition. Astra Pharm. Prod., Inc., 9 BNA OSHC
2126, 2129 (No. 78-6247, 1981), aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982).
Subpart M of 29 C.F.R. Part 1926 “sets forth the requirements and criteria for fall
protection in construction workplaces covered under” Part 1926. 29 C.F.R. § 1926.500(a)(1).
Subpart M applies because R&S was engaged in roofing work at a “construction workplace.”
(Tr. 131). See 29 C.F.R. §§ 1926.32(g) (defining “construction work”) and 1926.13(a)
(discussing terms “construction, alteration, and repair”). The cited standard within Subpart M, §
1926.501(b)(10), applies to the Work Area because R&S was engaged in “roofing work” on a
“low-slope roof,” and the east and west edges of the Work Area constituted “unprotected sides
and edges” that were more than six feet above “lower levels,” as those terms are defined in §
1926.500(b). The Secretary established that the cited standard applies.
R&S suggests in its brief (Resp. Br. p. 15) that it appropriately discontinued the use of
certain fall protection systems because the “job was finished” and the workers were
“withdrawing … equipment and coming off the roof.” (Testimony of Mr. Reiher, Tr. 205). This
contention appears to be based on a regulatory exception to Subpart M contained in 29 C.F.R. §
1926.500(a) that provides as follows: “Exception: The provisions of this subpart do not apply
when employees are making an inspection, investigation, or assessment of workplace conditions
prior to the actual start of construction work or after all construction work has been completed.”

                                            15

As the party seeking the benefit of an exception to a standard, R&S had the burden to
show that the exception was applicable. Kaspar Wire Works, Inc., 18 BNA OSHC 2178, 2194
(No. 90-2775, 2000), aff’d, 268 F.3d 1123 (D.C. Cir. 2001). R&S failed to meet its burden. Mr.
Tipping testified that at the time of the inspection, the crew was sealing the “final seam” of the
rubber roofing material. (Tr. 160). He testified further that the crew did not finish the roofing
job on the day of inspection, but rather had to return on another day to do so. (Tr. 144). It is
apparent that the “seam work” that the crew was doing at the time of the inspection was an
essential part of the roofing work itself, and was not part of “an inspection, investigation, or
assessment of workplace conditions … after all construction work has been completed.” 29
C.F.R. § 1926.500(a). The exception does not apply.
Section 1926.501(b)(10) lists seven alternative ways for an employer to meet the
standard: “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.”
R&S does not contend that it used a “guardrail system” or a “safety net system” for fall
protection for this roofing job. Further, it is undisputed that at the time of the inspection, R&S
had discontinued the use of personal fall arrest systems and had taken down the warning line
system. According to Mr. Tipping, the only fall protection being used at the time of the
inspection was a safety monitoring system. The use of a safety monitoring system alone was
insufficient to meet the standard because the Work Area was more than 50 feet wide.10
The CO’s photographs and supporting testimony described above establish that workers
other than Mr. Tipping were engaged in roofing work on the Work Area and thus had access to
the violative condition.
To prove the element of knowledge, the Secretary must show that the employer either
knew, or with the exercise of reasonable diligence, should have known of the violative condition.
Dun-Par Engineered Form Co., 12 BNA OSHC 1962, 1965 (No. 82-928, 1986). The knowledge

10
   The Secretary argues that even if a safety monitoring system alone had been sufficient to meet the

standard, the evidence showed that the safety monitoring system implemented by R&S did not meet the
requirements for such a system specified by 29 C.F.R. § 1926.502(h). (Sec’y Br. p. 9). In view of the
conclusion that R&S did not comply with cited standard, it is unnecessary to make findings on whether
R&S’s safety monitoring system met requirements.

                                               16

element is directed to the physical conditions that constitute a violation. The Secretary need not
show that an employer understood or acknowledged that the physical conditions were actually
hazardous. Phoenix Roofing, Inc., 17 BNA OSHC 1076, 1079-1080 (No. 90-2148, 1995), aff’d
without published opinion, 79 F.3d 1146 (5th Cir. 1996).
The actual or constructive knowledge of an employer’s supervisory personnel can be
imputed to an employer, unless the employer establishes substantial grounds for not imputing it.
Ormet Corp, 14 BNA OSHC 2134, 2137 (No. 85-531, 1991); Danis Shook Joint Venture XXV,
319 F.3d 805 (6th Cir. 2003). Regardless of whether Mr. Tipping’s status was that of an
employee or an independent contractor, he was acting as R&S’s managing agent for the roofing
job. He signed the contract (Ex. F), he purchased the materials and was present for their delivery
at the worksite (Tr. 130-31), he arranged for the other workers to be present (Tr. 132-33), and he
acted as the functional equivalent of a foreman at the worksite. (Tr. 147, 166, 168; Ex. P, pp. 27-
31; Ex. S).
As both the on-site supervisor and managing agent of R&S at the worksite, Mr. Tipping’s
actual knowledge of the violative condition is imputed to R&S. The Secretary has proven the
element of knowledge.
The Secretary has met his burden and proved that R&S violated 29 C.F.R. §
1926.501(b)(10) in the manner alleged.

                                  Affirmative Defenses
   R&S asserted the affirmative defenses of “infeasibility” and “greater hazard.” (Tr. 9-11).

The burden to prove the affirmative defenses falls on the employer. See Pitt-Des Moines, Inc.,
16 BNA OSHC 1429, 1433 (No. 90-1349, 1993).
To prove the defense of infeasibility, an employer must show that the means of
compliance set forth in the standard were infeasible and that there were no feasible alternative
means of protection. V.I.P. Structures, Inc., 16 BNA OSHC 1873, 1874 (No. 91-1167, 1994).
Infeasibility can be either economic or technological. Id.
R&S makes the conclusory assertion that fall protection was not feasible because the
anchorage points for a PFAS had to be removed in order to seal the final seam of the rubber
roofing material. (Resp. Br. 13). The cited standard provides for five alternative means of
compliance that do not involve the use of a PFAS. R&S did not show why these alternative

                                            17

forms of fall protection were not feasible. The Respondent has failed to establish the affirmative
defense of infeasibility.
To establish the affirmative defense of “greater hazard,” an employer must show (1) the
hazards created by complying with the standard are greater than those of noncompliance; (2)
alternative means of protecting employees were either used or were not available; and (3) a
variance under section 6(d) of the Act is unavailable or that application for a variance is
inappropriate. Altor, Inc., 23 BNA OSHC 1458, 1470 (No. 99-0958, 2011); Walker Towing
Corp., 14 BNA OSHC 2072, 2078 (No. 87-1359, 1991). Each element of the three-part test must
be satisfied to establish this defense. See Dole v. Williams Enters., Inc., 876 F.2d 186, 190 n.7
(D.C. Cir. 1989).
R&S has failed to establish any of the three elements of the greater hazard defense. As to
the first element, there is simply no evidence that any hazard would have resulted from
compliance with the standard. As to the second element, R&S’s proof fails for the same reason
that the infeasibility defense failed. As to the third element, R&S acknowledges that it had not
applied for a variance, and it presented no evidence to explain why a variance was not available
or was inappropriate. (Resp. Br. 14). Altor, Inc., 23 BNA OSHC at 1470 (rejecting greater
hazard defense where employer did not explain why it did not apply for a variance). The
Respondent has failed to establish the affirmative defense of greater hazard.

                        Characterization and Penalty Assessment
   The Secretary classified the violation as “serious” and proposed a penalty of $2,800. A

violation is “serious” under section 17(k) of the Act if “there is substantial probability that death
or serious physical harm could result.” “That provision does not mean that the occurrence of an
accident must be a substantially probable result of the violative condition but, rather, that a
serious injury is the likely result should an accident occur.” Pete Miller, Inc., 19 BNA OSHC
1257, 1258 (No. 99-0947, 2000). A fall of over 12 feet could have resulted in serious injury or
death. (Tr. 43). The violation was aptly characterized as “serious.”
Section 17(j) of the Act requires the Commission to give due consideration to four criteria
in assessing penalties: the size of the employer’s business, the gravity of the violation, the
employer’s good faith, and its prior history of violations. Gravity is generally the primary factor
in the penalty assessment. See J. A. Jones Constr. Co., 15 BNA OSHC 2201, 2214 (No. 87-
2059, 1993).

                                             18

The Secretary rated the violation as being of high gravity. (Tr. 78). The Secretary
reduced the statutory maximum penalty of $7,000 by 60% due to the employer’s small size. See §
17(b) of the Act, 29 U.S.C. § 650. There was no adjustment for good faith and, because there was
no prior inspection history, there was no adjustment for history. (Ex. P, p. 18). The Secretary’s
proposed penalty of $2,800 was appropriate and is assessed.

                       Findings of Fact and Conclusions of Law
    The foregoing decision constitutes the findings of fact and conclusions of law in

accordance with Federal Rule of Civil Procedure 52(a).

                                        ORDER
    Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that

Item 1 of Citation 1, alleging a serious violation of 29 C.F.R. § 1926.501(b)(10) is AFFIRMED
and a penalty of $2,800 is assessed.

                                        /s/
                                        WILLIAM S. COLEMAN
                                        Administrative Law Judge

Date: January 28, 2014
Washington, D.C.

                                           19