GP Roofing & Construction, LLC

Plain-English summary

Four GP Roofing employees installed shingles on townhomes while wearing harnesses but remaining untied on roof sections as high as 19.5 feet. The judge rejected claims that fall protection created a greater hazard or was infeasible because the company did not seek a variance, prove the claimed hazard, or use an alternative system. The employee-misconduct defense also failed because two crew members lacked training, claimed spot inspections were not substantiated, and discipline was inconsistent. GP Roofing had received seven earlier citations for the same residential fall-protection standard, and management knew employees routinely chose not to tie off so they could work faster. The judge found that this history, the crew leader's conduct, and the company's safety culture established conscious disregard and plain indifference. The violation was affirmed as willful with a $24,200 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(13)
• Outcome: Willful residential fall-protection item affirmed; $24,200 penalty assessed.
• Key point: Repeated citations and routine tolerance of untied workers supported willfulness despite written rules and available harnesses.

Full text (OSHRC public release)

                        United States of America
        OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                          1924 Building – Room 2R90, 100 Alabama Street SW
                                     Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant,

             v.                                                    OSHRC Docket No. 13-0374

GP Roofing & Construction, LLC, 1
Respondent.

Appearances:

    Uche N. Egemonye, Esquire, Office of the Solicitor, U.S. Department of Labor, Atlanta, Georgia
            For the Secretary

    Douglas A. Orr, Esquire, Orr Law Firm, P.L., Cape Coral, Florida
            For the Respondent

BEFORE: Administrative Law Judge Sharon D. Calhoun

                                     DECISION AND ORDER
    GP Roofing & Construction, LLC, (GP Roofing) is a company which engages in roofing

work. On November 20, 2012, the Occupational Safety and Health Administration (OSHA)
inspected a worksite located at 13350 Ocean Mist Drive, Jacksonville, Florida, where GP
Roofing was installing shingles on townhomes in the Berano Townhome Subdivision (Berano
Project). As a result of the inspection, on January 31, 2013, the Secretary issued a one-item
Citation and Notification of Penalty (Citation) to GP Roofing & Construction USA, Inc.
(amended herein to GP Roofing & Construction, LLC), alleging a willful violation of fall
protection standard 29 C.F.R. § 1926.501(b)(13). The Secretary proposed a penalty in the
amount of $24,200.00 for the alleged willful violation. GP Roofing timely contested the
Citation.

1
The Citation and Notification of Penalty issued in this matter identifies “GP Roofing & Construction USA, Inc.” as
the cited employer. Two weeks before the hearing, the Secretary filed a Motion to Amend to substitute GP Roofing
& Construction, LLC, as the employer. For the reasons set forth herein, the undersigned grants the Secretary’s
motion. The Complaint and underlying Citation are hereby amended to substitute GP Roofing & Construction, LLC,
as the employer in this matter.

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A hearing was held in Orlando, Florida, on September 6, 2013. The parties filed post-
hearing briefs on November 18, 2013. For the reasons set forth below, the undersigned affirms
the Citation as willful and assesses a penalty of $24,200.00.
Jurisdiction
GP Roofing stipulates that it was an employer engaged in a business affecting commerce
within the meaning of sections 3(3) and 3(5) of the Act (Tr. 8). The parties stipulate that the
Commission has jurisdiction pursuant to section 10(c) of the Act (Tr. 7).
Background
Inspection
GP Roofing engages in roofing work and is owned by partners Guillermo Perez and Elma
Maldonado, who are also officers of the company (Tr. 117, 122, 190). Perez founded the
company; the “GP” in the company name stands for Guillermo Perez (Tr. 190-191). GP
Roofing entered into a contract with Fidus Roofing & Construction, LLC, to install shingles on
townhomes under construction at the Berano Project (Tr. 23, 36, 42, 124-127, 142; Exh. C-11).
A four man crew of GP Roofing, including crew leader Edgar Lopez-Hernandez, was in the
process of installing shingles on the townhome located at Lot 29 of the Berano Project on
November 20, 2012, the day of the OSHA inspection (Tr. 119, 142).
The inspection of the worksite was conducted by OSHA Compliance and Safety Officer
(CSHO) Jeffery Lincoln. Lincoln was assisted at the worksite by CSHO Idalie Aponte who
provided Spanish language translation (Tr. 31, 84-85). Lincoln verified the address of the
worksite by talking with the general contractor’s representative, by looking at the City of
Jacksonville’s permitting web site, and also by reviewing the permitting board at the worksite
(Tr. 22). As Lincoln was driving by the worksite, he observed a townhouse under construction
with roofing employees on the roof wearing harnesses, but who did not appear to be tied off (Tr.
23). He drove into the subdivision and observed four employees working without appropriate
fall protection from the roof of the townhome located at Lot 29 (Tr. 23-24). Although wearing
fall protection harnesses, the employees were not tied off while working from either the 7:12
pitch portion of the roof or the 5:12 pitch portion of the roof which was 19.5 feet above ground
(Tr. 31, 33-35, 36-37; Exhs. C-1A and 1B). Therefore, the Secretary issued a Citation for
violation of the fall protection standard found at 29 C.F.R. § 1926.501(b)(13) .

                                             2

Motion to Amend
The Secretary issued the Citation to GP Roofing & Construction, USA, Inc. (GP Roofing
USA). By motion filed August 22, 2013, the Secretary moved to amend the Citation to identify
GP Roofing as the correct employer, alleging in support only that his discovery confirmed that
GP Roofing was the company at the jobsite on the day of the inspection (Secretary’s motion).
GP Roofing USA filed an opposition on August 30, 2013, stating therein that it would be
prejudiced by the amendment, that there is no factual basis for asserting that GP Roofing was the
employer at the jobsite, and that the two companies do not share an identity of interest to allow
relation back under Rule 15(c) of the Federal Rules of Civil Procedure (Fed.R.Civ.P.) (GP
Roofing USA’s opposition). Because of the lack of evidence regarding the Secretary’s motion,
the undersigned deferred ruling on the motion and allowed the presentation of evidence and
further arguments on the motion at the September 6, 2013, hearing. Both parties presented
arguments and evidence at the hearing.
The evidence adduced at the hearing demonstrates that in addition to similar names, both
GP Roofing and GP Roofing USA are owned by Perez and Maldonado, who are officers for both
companies. Prior to the date of the hearing, both companies shared the same business address
(Tr. 122-23). Perez testified that his accountant advised him to create GP Roofing USA as a
corporation for tax purposes because the LLC status of GP Roofing would cause problems for
him (Tr. 190-191). Therefore, he created GP Roofing USA the year before. It has no insurance,
has no employees and performs no work (Tr.191). All the roofing work is done through GP
Roofing (Tr. 192). Perez further testified that only GP Roofing had employees and contracted
for roofing work (Tr. 191-92).
Six days after the Citation was issued, Maldonado contacted OSHA to advise that the
wrong employer was identified on the citation and that it should have been issued to GP Roofing
(Tr. 131). Once the matter was referred to the Secretary’s counsel, Interrogatories were sent to
GP Roofing USA. Upon receipt of the Response to Interrogatory No. 1, the Secretary moved to
amend the Citation to change the party to GP Roofing. The Response to Interrogatory No.1
provides:
The roofing company doing work at the location was, upon information and
belief, an unrelated yet similarly named company called GP Roofing &
Construction, LLC. Persons with knowledge include Guillermo Perez and Elma

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Maldonado . . . . A roofing contract identifying GP Roofing & Construction, LLC
as the entity at issue is being located. This contract was with Fidus Group . . . .
(Exh. C-13, p.4).
The Review Commission has freely granted leave to amend pleadings. See e.g., Miller
Brewing Co., 7 OSHC 2155 (No. 78-3216, 1980); Lovell Clay Products Co., 2 OSHC 1121 (No.
683, 1974). Further, the Commission has held that Fed.R.Civ.P. 15(c) allows the Secretary to
amend her complaint more than six months after the occurrence of an alleged violation. See
Avcon Inc., 22 BNA OSHC 1440 at 1443 (Docket Nos. 98-0755 and 98-1168, 2011). It is well
established that administrative pleadings are liberally construed and easily amended. Usery v.
Marquette Cement Mfg. Co., 568 F.2d 902 (2d Cir. 1977); National Realty & Construction Co. v.
OSHRC, 489 F.2d 1257 (D.C. Cir. 1973).
The undersigned finds no support in the record for GP Roofing USA’s argument that it
would be prejudiced by the proposed amendment. Perez and Maldonado were principals of both
companies, they were aware upon receipt of the Citation that it should have been issued to GP
Roofing, and they reasonably should have understood that GP Roofing was the subject of the
Citation. Both principals knew that GP Roofing was the only company that contracted for
roofing work and that it was the only company with employees (Tr. 122-124, 131, 191-192).
They also knew that GP Roofing was their only company working at the Berano Project. They
were aware that, but for the error on the citation, GP Roofing would have been cited. At all
times, GP Roofing was on notice which company the citation should have been issued to. No
evidence was adduced at the hearing substantiating any prejudice because the Secretary sought
the amendment six months after the issuance of the Citation. Further, no evidence was adduced
at the hearing regarding how amendment would adversely impact the presentation of any
defenses. The undersigned finds granting the motion would not result in prejudice. The
undersigned also finds GP Roofing’s argument that there is no factual basis to assert it was the
employer on the jobsite to be without merit. Its principals testified that it had a crew working at
the Berano Project (Tr. 142, 227-228).
The undersigned also is not persuaded by GP Roofing USA’s argument that there is no
“identity of interest” between the two companies to establish that the amendment relates back as
required under Fed.R.Civ.P. 15(c).

                                            4

Fed.R.Civ.P. 15(c) provides:
(c) Relation Back of Amendments. (1) When an Amendment Relates Back. An
amendment to a pleading relates back to the date of the original pleading when:
(A) the law that provides the applicable statute of limitations allows relation back;
(B) the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out – or attempted to be set out -- in the original
pleading; or (C) the amendment changes the party or the naming of the party
against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the
period provided by Rule 4(m) 2 for serving the summons and complaint, the party
to be brought in by amendment: (i) received such notice of the action that it will
not be prejudiced in defending on the merits; and (ii) knew or should have known
that the action would have been brought against it, but for a mistake concerning
the proper party’s identity.
Fed. R. Civ. P. 15(c) (2014).
Here, the two companies are closely related and have the requisite “identity of interest”
needed to qualify for relation back under Fed.R.Civ.P. 15(c). In Avcon, supra, the Commission
relied on the Supreme Court’s decision in B. Krupski v. Costa Crociere S.P.A., 560 U.S. 538
(2010) (Krupski) to determine if relation back was warranted. Avcon, 23 BNA OSHC at 1444.
In Krupski, the Supreme Court held that the applicable question is whether within the Rule 4(m)
period the “prospective defendant knew or should have known that it would have been named as
a defendant but for an error.” B. Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 548 (2010); see
also Lindley v. City of Birmingham, Ala., 515 Fed. Appx. 813, 816 (11th Cir.
2013)(unpublished). Specifically, the question is whether the Respondent “reasonably should
have understood” the Secretary’s intent when it named the party incorrectly. See Id. at 554. The
undersigned finds that the evidence adduced at the hearing shows that GP Roofing should have
understood the Secretary’s intent.
As in the instant case, in CMH Co., Inc., 9 BNA OSHC 1048 (No. 78-5954, 1980), the
Secretary moved to change the name of the employer when it became apparent that he had
named the incorrect employer. Id. at 1050. 3 In CMH Co, Inc., the two companies at issue had
the same two owners who served as president and vice-president of both companies, one
company purchased construction materials for the other company’s use, and the vice-president of

2
Fed. R. Civ. P. 4(m) states, in pertinent part: “If a defendant is not served within 120 days after the complaint is
filed, the court . . . must dismiss the action without prejudice . . . .But if the plaintiff shows good cause for the
failure, the court must extend the time for service for an appropriate period.” Fed. R. Civ. P. Rule 4(m).
3
The only difference was that the motion to amend was made at the hearing in CMH Co., Inc., Id.

                                                      5

the two companies was served with the citation within the statute of limitations. Id. at 1053-54.
The Commission found that even though the two companies had separate business offices, the
party to be named and the party incorrectly named had such an “identity of interest that relation
back would not be prejudicial” and an action filed against one company provided notice to the
other company. Id. at 1054.
As set forth above, the evidence establishes that GP Roofing USA and GP Roofing share
an identity of interest. The party name change proposed by the Secretary relates to the same
claim set out in the original pleading and GP Roofing would not be prejudiced by the
amendment. GP Roofing received notice of the action since its principals are the same as those
of GP Roofing USA, and it knew that the Secretary’s mistake was the only reason it was not
cited. Further, confirmation as to the identity of the proper employer was set forth in the
interrogatory response from GP Roofing USA, at which time, the Secretary moved to amend.
The undersigned finds that good cause required by Rule 4(m) of the Fed.R.Civ.P. is therefore
established. The Citation is hereby amended to name GP Roofing as the employer.
DISCUSSION
Citation No. 1, Item 1
Item 1 of the Citation alleges a willful violation of 29 C.F.R. § 1926.501(b)(13) as
follows:
Each employee engaged in residential construction activities 6 feet (1.8 m) or
more above lower levels were not protected by guardrail systems, safety net
system, or personal fall arrest system, nor were employee(s) provided with an
alternative fall protection measure under another provision of paragraph
1926.501(b):

   a. On or about November 20, 2012, on the 5:12 pitch roof and 7:12 pitch roof,
   employees performing roofing work were not protected from a 9 feet and 19 feet
   fall hazard by the use of a fall protection system.

   The standard found at 29 C.F.R. § 1926.501(b)(13) provides:

   Residential Construction. Each employee engaged in residential construction
   activities 6 feet (1.8 m) or more above lower levels shall be protected by guardrail
   systems, safety net systems, or personal fall arrest system unless another
   provision in paragraph (b) of this section provides for an alternative fall protection
   measure. Exception: When the employer can demonstrate that it is infeasible or
   creates a greater hazard to use these systems, the employer shall develop and



                                             6

implement a fall protection plan which meets the requirements of paragraph (k) of
§ 1926.502.
Elements of the Secretary’s Burden of Proof
The Secretary has the burden of establishing the employer violated the cited standards.
To prove a violation of an OSHA standard, the Secretary must show by a
preponderance of the evidence that (1) the cited standard applies; (2) the employer
failed to comply with the terms of the cited standard; (3) employees had access to
the violative condition; and (4) the cited employer either knew or could have
known with the exercise of reasonable diligence of the violative condition.
JPC Group Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009) (citations omitted).
GP Roofing contends that the Secretary cannot meet his burden by a preponderance of
the evidence because he failed to cite the correct employer. It also raises greater hazard and
infeasibility which if demonstrated, are exceptions set forth in the standard. In addition, GP
Roofing contends that even if the Secretary were to meet his burden, the Secretary cannot prevail
because GP Roofing can establish the defense of unpreventable employee misconduct, thereby
rebutting the Secretary’s prima facie case (GP Roofing’s brief, pp. 2-6).
GP Roofing’s argument that the correct employer was not cited was addressed above in
the discussion on the Secretary’s Motion to Amend. Although the Secretary’s Motion to Amend
the Citation was not granted prior to the issuance of this Decision, for the reasons discussed
above, GP Roofing was not prejudiced in its ability to defend this matter. Regardless of the
proper name for its company, GP Roofing contends that the Secretary has not established it was
the employer of the employees observed during the inspection at the worksite (GP Roofing’s
brief, p. 4).
“[T]he Secretary has the burden of proving that a cited respondent is the employer of the
affected workers at the site.” Allstate Painting & Contracting Co., 21 BNA OSHC 1033, 1035
(No. 97-1631, 2005). In determining whether the Secretary has satisfied this burden, the
Commission applies the common law agency doctrine enunciated in Nationwide Mutual
Insurance Co v. Darden, 503 U.S. 318 (1992) which focuses on “the hiring party’s right to
control the manner and means by which the product is accomplished.” Id. at 323 (internal
quotation marks and citation omitted). See Sharon & Walter Constr. Co., 23 BNA OSHC 1286,
1289 (No. 00-1402, 2010)(applying Darden). Many factors are relevant to this inquiry,
including the work location, who sets the work hours, who provided the tools being used, the
duration of the relationship between the parties, and the method of payment. Darden, 503 U.S.

                                             7

at 323-24. But “the primary focus is whether the putative employer controls the workers.”
Allstate Painting & Contracting Co., supra.
Despite GP Roofing’s argument that the Secretary has not established that it was the
employer at the jobsite, the admissions of its principals at the hearing conclusively establish that
it was the employer of the employees on the jobsite. On direct examination, Maldonado testified
as follows:
Q. Was GP roofing & Construction, LLC the company that hired Edgar Lopez-
Hernandez and his crew to do work at the Berano Subdivision on November 20,
2012?

   A. Yes

(Tr. 142). Perez testified on cross examination as follows:

   Q. So who was in charge? For example, while they were working on the house
   and somebody committed a safety violation, who would be the one to say, “You
   have a problem”?

   A. Most of the time because it’s always one of the guys who speak better English
   than the other ones or understands English better than the other ones. He would
   be the guy to always, you know, be the front of the crew. I cannot say, you know,
   “I give you the title of crew leader.” That’s something we give--

   Q. And, for this particular crew at the Berano Project, that would have been
   Edgar Lopez-Hernandez?

   A. Yes. That was the person I communicate.

   Q. Was Alfredo Hernandez who was also a member of the crew an employee of
   GP Roofing?

   A. Yes.

   Q. What about Eddie Lopez-Hernandez? Was he an employee of GP Roofing?

   A. Yes.

   Q. What about Ranaldo Castillo”?         Was he an employee of GP Roofing &
   Construction, LLC?

   A. Yes.

   Q. So, all of these, the entire crew were employees—

                                             8

A. Employees, yes.

   Q. –of GP Roofing & Construction, LLC?

   A. Yes
   .

(Tr. 227-228). The evidence also reveals that the work was provided and supervised by GP
Roofing and that the employees were informed of the work by GP Roofing through Lopez-
Hernandez. Employees were paid by GP Roofing and received training by GP Roofing. Perez
also testified that they are employees of GP Roofing for workers compensation insurance
coverage (Tr. 192). The Secretary has established the control factor required by Darden. The
undersigned finds that GP Roofing was the employer of the crew working on the jobsite at the
time of the OSHA inspection.
Other than asserting the Secretary cited the wrong employer, GP Roofing does not
dispute the elements of the Secretary’s burden. It does not dispute that at the time of the
inspection, GP Roofing was installing shingles on the roof of a townhome which was under
construction at the Berano Project. Such work is considered residential construction.
Applicability of the standard is established. GP Roofing admits that its employees were not
tied-off or otherwise protected from falls at the time of the inspection while working on a roof
19.5 feet from the ground. Therefore, the terms of the standard were violated. GP Roofing also
does not dispute that its employees were working without fall protection from a 7:12 pitch roof,
19.5 feet above ground (Tr. 33-35, 36-37; Exhs. C-1A, C-1B). Exposure is established. The
final element of the Secretary’s prima facie case as to whether GP Roofing knew or should have
known that the employees were working unprotected from fall hazards also is not disputed.
Employer Knowledge
The Secretary must prove the employer either knew, or with the exercise of reasonable
diligence could have known, of the violative condition. Dun-Par Engineered Form Co., 12 BNA
OSHC 1962, 1965 (No. 82-928, 1986). GP Roofing’s crew leader on the Berano Project, Lopez-
Hernandez, told the CSHO that neither he nor the other three employees were tied off while they
were working on the roof (Exh. C-3D). GP Roofing admits that Lopez-Hernandez was in charge
of the crew (Tr. 142, 227-228). He worked alongside the other three crew members and was
aware they, as well as himself, were not protected from falling (Tr. 227; Exh. C-3D). As crew
leader, Lopez-Hernandez’s knowledge is imputed to GP Roofing. “An employee who has been

                                            9

delegated authority over other employees, even if only temporarily, is considered to be a
supervisor” for the purpose of establishing knowledge. Access Equip. Sys., 18 BNA OSHC
1718, 1726 (No. 95-1449, 1999). “The actual or constructive knowledge of a foreman or
supervisor can be imputed to the employer.” N&N Contractors, Inc., 18 BNA OSHC 2121, 2123
(No. 96-0606, 2000) (citation omitted), petition for review denied, 255 F.3d 122 (4th Cir. 2001).
It is not disputed that Lopez-Hernandez was a supervisor in charge of the employees at the
Berano Project. His knowledge that the crew was not tied-off or otherwise protected from falling
is imputed to GP Roofing. A supervisor’s knowledge of his subordinant’s misconduct may be
imputed to the employer. ComTran Group, Inc., 722 F.3d 1304 (11th Cir. 2013). Actual
knowledge is established.
Exception to the Standard
GP Roofing’s arguments as to greater hazard and infeasibility are not established as
exceptions to the standard. As provided in the standard, when the employer can demonstrate that
it is infeasible or creates a greater hazard to use the fall protection systems set forth in the
standard, the employer shall develop and implement a fall protection plan which meets the
requirements of paragraph (k) of 29 C.F.R. § 1926.502. GP Roofing did not adduce evidence of
a fall protection plan which meets the requirements set forth in the exception of the standard.
Section 1926.502 requires that the fall protection plan be developed specifically for the site
where the work is being performed. Also required is documentation explaining why
conventional fall protection systems cannot be used and why their use would create a greater
hazard. In addition, the fall protection plan must identify areas in which conventional fall
protection systems cannot be used, and those areas are to be classified as controlled access zones
for which the requirements of paragraph (g) of the standard must be met. GP Roofing’s fall
protection plan does not meet these and other requirements of the standard. Instead, its fall
protection plan consists of essentially three pages in its safety program, addressing fall protection
generally, and requiring the use of slide guards, anchors, or alternative safe work practices when
guardrail systems cannot be used (Exh. R-1, pp. 28-29).
The only support GP Roofing adduced regarding greater hazard was testimony that
employees move more slowly when wearing personal fall arrest systems to avoid tripping while
carrying materials on the roof (GP Roofing’s brief, p.7). To establish the affirmative defense of
“greater hazard,” an employer must show (1) the hazards created by complying with the standard

                                             10

are greater than those of noncompliance; (2) other methods of protecting its employees from the
hazards are not available; and (3) a variance is not available or is inappropriate. 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
(D.C. Cir. 1989). The Commission has held that when an employer does not explain why it did
not apply for a variance, the greater hazard defense fails and there is no need to address the other
two elements of the test. Altor, Inc., 23 BNA OSHC 1458, 1470 (No. 99-0958, 2011) (citations
omitted) aff’d, 498 Fed. Appx. 145 (3rd Cir. 2012). GP Roofing adduced no evidence to explain
why it did not apply for a variance. It has not established the greater hazard exception or
defense.
In addition to not establishing greater hazard, GP Roofing has not proven infeasibility.
To prove the defense of infeasibility the employer must show that the means of compliance set
forth in the standard was infeasible under the circumstances and that either an alternative means
of protection was used or there was no feasible alternative means of protection available. V.I.P.
Structures, Inc., 16 BNA OSHC 1873, 1874 (No. 91-1167, 1994). Infeasibility can be either
economic or technological. Id.
In support of its infeasibility argument, GP Roofing asserts that employees move more
slowly when wearing personal fall arrest systems to avoid tripping while carrying materials on
the roof (GP Roofing’s brief, p.7). In this regard, Perez testified that the employees want to
move faster to earn more money, essentially arguing that the employees are encumbered by
being tied off (Tr. 209-210). GP Roofing also contends that employees are uncomfortable
wearing the personal fall arrest equipment. Yet, GP Roofing produced no evidence of an
alternative method for fall protection. Nor did it provide any specific information about the
purported economic loss associated with wearing personal fall arrest systems, other than Perez’s
testimony that GP Roofing made only $300 on this job, and finishing a job more quickly allowed
them to start another job (Tr. 233).
The Commission has held that specific evidence is needed to show that an “employer's
existence as a company would have been adversely affected” by the cost of compliance.
Gregory & Cook, Inc., 17 BNA OSHC 1189, 1191 (No. 92-1891, 1995). GP Roofing has not
adduced evidence to demonstrate whether the company experienced an adverse economic impact
through the use of required fall protection. GP Roofing also has not established that compliance

                                            11

with the standard is technologically infeasible. The exception and affirmative defense of
infeasibility fails.
The Secretary has established his prima facie case.
Unpreventable Employee Misconduct
In an effort to rebut the Secretary’s prima facie case, GP Roofing contends that if there
was a violation, it was due to unpreventable employee misconduct (GP Roofing’s brief, pp. 5-
6). 4 Unpreventable employee misconduct is an affirmative defense that must be proven by the
employer. American Eng’g & Dev. Corp., 23 BNA OSHC 2093, 2097 n.4 (No. 10-0359, 2012).
To prove this defense, “an employer must show that it established a work rule to prevent the
violation; adequately communicated the rule to its employees, including supervisors; took
reasonable steps to discover violations of the rule; and effectively enforced the rule.” Schuler-
Haas Electric Corp., 21 BNA OSHC 1489, 1494 (No. 03-0322, 2006) (citations omitted). GP
Roofing has a work rule to prevent fall violations. However, it failed to adequately communicate
that work rule to employees; it failed to take reasonable steps to discover violations of that rule;
and its enforcement of the rule was inadequate.
Work Rule
GP Roofing has a general provision included in its safety program addressing the need
for fall protection for employees working at six feet or higher (Exh. R-1, pp 1, 28-29). Although
vague in its requirements, the undersigned construes this to be GP Roofing’s work rule on fall
protection.
Communication
Evidence adduced at the hearing reveals that GP Roofing’s fall protection rule was
included in its written safety program 5. It held quarterly safety meetings and provided employee
training in 2011 and 2012. Perez testified that employees were shown a 30-minute fall
protection video, in Spanish, which illustrates the proper way to use fall protection equipment
(Tr. 204-205; Exhs. R-1 through R-4). In addition, Perez testified that he reviewed the safety

4
GP Roofing did not pursue the other affirmative defenses listed in its Answer at the hearing or in the post-hearing
brief and are deemed abandoned. See Georgia-Pacific Corp., 15 BNA OSHC 1127, 1130 (No. 89-2713, 1991). In
the briefing order issued in this case, the parties were advised that failure to brief issues would result in them being
deemed abandoned (Notice of Receipt of Transcript issued October 13, 2013).
5
GP Roofing’s safety program consists of a compilation of materials from various sources including Archer
Exteriors, Inc., Allied Insurance, The Safeguard Group, Inc., and OSHA (Exh. R-1).

                                                      12

rules with each employee when they were hired (Tr. 158, 200). Robert (Bob) Russell, Sales
Manager for GP Roofing, testified that he conducted daily safety meetings, although this was
disputed by Perez (Tr. 179, 186, 224-25). Employee interviews reveal, however, that two of the
four crew members had not received safety training on GP Roofing’s fall protection rules (Exhs.
C-3A through C-3D). Perez’s testimony regarding safety training is not believable, considering
that two of the four member crew had not received any training. Adequate communication of the
work rule is not established.
Steps to Discover Violations
Perez testified that he conducted daily spot safety inspections (Tr. 208-209). He, or
another supervisor, goes to a job site and then, “in secret,” observes the employees to see if they
are tied-off while working (Tr. 208). Perez acknowledged it is done in secret because when the
employees see him, they will immediately tie-off (Tr. 208). If someone is not properly using
safety equipment, they are reported (Tr. 208). In addition, either daily spot inspections or daily
safety meetings were conducted by Russell (Tr. 29, 179, 186, 224-225). Perez testified that
“[e]verybody has safety covered every day. They have a daily safety spot inspection. It’s
something that every supervisor going to a job does.” (Tr. 214). He further testified that he did a
spot inspection at the beginning of the Berano job and there were no problems (Tr. 220).
Although he testified that his spot inspection was documented, Perez did not introduce a record
of the inspection (Tr. 222). Crew leader Lopez-Hernandez stated that he had seen Perez at other
work sites and that Perez reminds them “all the time” to tie-off. However, the crew leader did
not see Perez at the Berano worksite (Exh. C-3D). Russell testified that he had not conducted a
safety inspection at the Berano site (Tr. 180). The undersigned finds Perez’s testimony regarding
the spot inspections unconvincing. There is no reliable evidence substantiating the assertion that
Perez conducted spot inspections for fall protection infractions, or that he did so at the Berano
Project worksite. The record evidence is insufficient for the undersigned to find that GP
Roofing’s steps to discover safety violations were reasonable. This element of the defense is not
established.
Enforcement
Perez asserts that GP Roofing has a progressive disciplinary policy. Perez testified that
the first safety violation results in a warning, the second results in a suspension and the third in
termination of employment (Tr. 214-15). Further, he testified that he fired three employees in

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the past year for safety violations (Tr. 215). He conceded, however, that instead of formally
firing an employee, he simply did not call that employee for future work. One employee simply
left after the first warning and never returned (Tr. 217-18). Maldonado testified that after a
couple of warnings an employee is fired for not being tied-off (Tr. 145-46). Russell testified that
he never issued a warning for non-compliance. According to him, if an employee refused to tie-
off, he sent him home for the day (Tr. 188-89). When asked whether or not GP Roofing
disciplined its employees for safety violations, Russell responded: “Yes. I would imagine so,
yes.” (Tr. 182).
A preponderance of the evidence shows that GP Roofing has a disciplinary policy.
However, the evidence shows that the enforcement was not effective. Employees, including the
crew leader routinely failed to tie off when working on roofs. It appears they would tie off only
when Perez was in sight. Not even the crew leader was impressed by GP Roofing’s disciplinary
policy, as he routinely did not tie off. His statement reveals that he did not know of anyone
being fired or suspended for not using safety equipment (Exh. C-3D). The undersigned finds
that GP Roofing did not effectively or consistently discipline its employees for safety infractions.
GP Roofing has not established the defense of unpreventable employee misconduct, and,
therefore, has not rebutted the Secretary’s prima facie case.
Willfulness
The Secretary contends GP Roofing’s violation of the standard is willful. A willful
violation is done “with intentional, knowing or voluntary disregard for the requirements of the
Act or with plain indifference to employee safety.” Burkes Mech., Inc., 21 BNA OSHC 2136,
2140 (No. 04-0475, 2007) (citations omitted). A willful violation differs from a serious violation
by a heightened awareness and either conscious disregard or plain indifference. Williams Enter.,
Inc., 13 OSHC BNA 1249, 1256-57 (No. 85-355, 1987). A cavalier attitude toward employee
safety and a conscious disregard for OSHA requirements constitutes a willful violation. See
J.A.M. Builder, Inc. v. Herman, 233 F.3d 1350, 1357 (11th Cir. 2000).
The evidence shows that the Secretary issued seven citations to GP Roofing between July
17, 2011, and June 19, 2012. All citations were for violations of 29 C.F.R. § 1926.501(b)(13),
the same standard at issue here. (Secretary’s brief, p.16; Exhs. C-4A through C-10A). These
prior citations alone establish that GP Roofing had a heighted awareness of the standard. The
Commission has consistently held that prior violations of the same standard by an employer

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establish a heightened awareness of the standard. Capeway Roofing Sys., 20 BNA OSHC 1331,
1341 (No. 00-1986, 2003); Revoli Const. Co., 19 BNA OSHC 1682, 1685 (No. 00-315, 2001);
see also, Altor, 23 BNA OSHC at 1475-76. Heightened awareness is also established by Perez’s
testimony that he had been saved by his personal fall arrest system and was well aware of the
need to use fall protection (Tr. 196). Further, GP Roofing included the use of fall protection in
its safety rules and training.
“The hallmark of a willful violation is the employer’s state of mind at the time of the
violation–an ‘intentional, knowing, or voluntary disregard for the requirements of the Act or . . .
plain indifference to employee safety.” Kaspar Wire Works, Inc., 18 BNA OSHC 2178, 2181
(No. 90-2775, 2000), aff’d 268 F.3d 1123 (D.C. Cir. 2001). This state of mind is evident where
“the employer was actually aware, at the time of the violative act, that the act was unlawful, or
that it possessed a state of mind such that if it were informed of the standard, it would not care.”
AJP Constr., Inc. v. Sec’y of Labor, 357 F.3d 70, 74 (D.C. Cir. 2004). The evidence adduced in
this case shows that GP Roofing made a conscious decision to disregard the fall protection
requirements as evidenced by its crew leader’s knowingly permitting employees to work at a fall
distance of 19.5 feet without any fall protection. The crew leader’s attitude about safety can best
be described as cavalier. The day of the inspection was not an anomaly. Employees, including
the crew leader, routinely chose to not tie-off when they felt the roof was not that steep, or they
felt it was safe (Exhs. C-3A through C-3D). GP Roofing has a culture of violating safety rules.
Its extensive history with OSHA violations demonstrates that it routinely ignores its obligation to
follow the OSHA standards.
The evidence also shows that Perez was aware that his employees routinely chose to not
tie-off because they wanted to move as quickly as possible in order to earn more money. Perez
appeared to support this expediency, not only so that the employees could make more money,
but so that GP Roofing could move on to the next job, thereby making more money as well. The
fact that the crew leader working alongside the employees condoned their unsafe practices by not
requiring them to use fall protection establishes both plain indifference to employee safety and a
disregard for the requirements of the Act. “The state of mind of a supervisory employee, his or
her knowledge and conduct, may be imputed to the employer for purposes of finding that the
violation was willful.” Branham Sign Co., 18 BNA OSHC 2132, 2134 (No. 98-752, 2000). The
undersigned affirms the citation as willful.

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Penalty Determination
In assessing penalties, the Commission is required to 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. See § 17(j) of the Act. 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). Gravity is based on “the number of employees exposed, the duration of the
exposure, the precautions taken against injury, and the likelihood that any injury would result.”
Id. The maximum penalty for a willful violation is $70,000.00. See 29 U.S.C. § 666(a).
The Secretary proposed a penalty of $24,200.00. The Secretary based the penalty on the
exposure of four employees for several hours and the potential for broken bones, head trauma or
death from a fall of 19.5 feet (Tr. 49-50). A sixty percent penalty reduction was applied based
on the size of the company, which is approximately 45 employees, although only 10-15
employees work at any given time (Tr. 51, 192-193). Because of the recent history of citations,
no reduction for good faith was applied (Tr. 52). A ten percent increase was applied because the
company had high severity citations within the past five years (Tr. 51). Based on these factors,
the proposed penalty of $24,200.00 is appropriate. Therefore, a penalty in the amount of
$24,200.00 is assessed.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Rule 52(a) of the Federal Rules of Civil Procedure.
ORDER
Based upon the foregoing findings of fact and conclusions of law, it is hereby
ORDERED that:
Item 1 of Citation No. 1, alleging a willful violation of 29 C.F.R. § 1926.501(b)(13), is
AFFIRMED as willful, and a penalty of $24,200.00 is assessed.

                                                         /s/
                                                         SHARON D. CALHOUN

Date: April 11, 2014 Judge, Atlanta, Georgia
Atlanta, Georgia

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