Richard Snader Installation Partners

Plain-English summary

Richard Snader Installation Partners performed roofing work at an apartment building with three workers on the roof. The judge found that the workers were employees under the OSH Act because Richard Snader controlled their work and pay, despite his claim that they were partners. The inspection did not violate the Fourth Amendment because the roofing activity was visible to the public and the general contractor's superintendent consented to the inspection. The company dropped debris more than 20 feet without an enclosed chute, used a ladder that did not extend three feet above the roof, and provided no fall protection. All three items were affirmed, including a willful fall protection violation based on repeated prior citations and continued refusal to comply, for total penalties of $33,600.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.252(a); 29 C.F.R. § 1926.1053(b)(1); 29 C.F.R. § 1926.501(b)(13)
• Outcome: Two serious items and one willful fall protection item affirmed; total penalty of $33,600 assessed.
• Key point: Business labels do not defeat employee status when the owner controls the work, and repeated noncompliance after prior citations supports willfulness.

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. 14-1864

RICHARD SNADER INSTALLATION
PARTNERS,
Respondent.

Hema Steele, Trial Attorney, U.S. Department of Labor, Cleveland, OH
For the Complainant.

Richard Snader, pro se, Richard Snader Installation Partners, Hamilton, OH
For the Respondent.

Before: Administrative Law Judge Keith E. Bell

                                 DECISION AND ORDER

   This proceeding is before the Occupational Safety and Health Review Commission (the

Commission) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. §§ 651-678 (OSH Act or the Act). Following an inspection of a worksite located at 730
Norland Boulevard, Cincinnati, Ohio (the Worksite) on June 13, 2014, the Occupational Safety
and Health Administration (OSHA) issued two citations to Richard Snader Installation Partners
(Respondent or RSIP), alleging three violations of the OSH Act, and proposing a total of $33,600
in penalties. (Ex. C-1.)
Specifically, Citation 1, Item 1 alleges a serious violation of 29 C.F.R. § 1926.252(a), for
failing to use an enclosed chute when materials were dropped and proposes a $2,800 penalty.
Citation 1, Item 2 alleges a serious violation of 29 C.F.R. § 1926.1053(b)(1), for failing to
properly extend a ladder and proposes a $2,800 penalty. Finally, Citation 2, Item 1 alleges a
willful violation of 29 C.F.R. § 1926.1053(b)(13), for failing to require and use fall protection
and proposes a penalty of $28,000.
Respondent filed a timely notice of contest, bringing this matter before the Commission.
(Stip. T, U, V, W.) A hearing was held on October 20, 2015, with the Respondent appearing pro
se. 1 (Tr. 4.) Afterwards, both parties filed post-hearing briefs. For the reasons set forth below, I
affirm all of the Items in Citation 1 and Citation 2.
JURISDICTION
Based upon the record, I find that at all relevant times Respondent was engaged in a
business affecting commerce and was an employer within the meaning of sections 3(3) and 3(5)
of the OSH Act. (Stip. A-D; Tr. 12-16.) I conclude that the Commission has jurisdiction over
the parties and subject matter in this case.
BACKGROUND
Richard Snader is the sole owner of RSIP. (Stip. Y; Tr. 23, 31.) He has done business
under the names “Richard Snader,” “Richard Snader Contractors,” “Richard Snader Roofing,”
and “Richard Snader Installation Partners,” which are all variations of the same entity. (Stip. X;
Tr. 23.) According to Mr. Snader, RSIP is a partnership that he creates and dissolves for each
individual worksite. (Stip. LL, MM.) Mr. Snader is the only person with authority to make
business decisions on RSIP’s behalf. (Stip. BB; Tr. 23.)
OSHA commenced an investigation of the Worksite after a compliance officer (CO)
noticed three individuals working on the roof of an apartment building without any fall
protection. (Tr. 62, 93.) The CO drove into the parking lot and photographed the workers. (Tr.
62.) He then approached the workers and asked who was in charge of the job. (Tr. 62, 78, 93-
94.) Rather than answer verbally, one of the workers pointed to Mr. Snader’s vehicle. (Tr. 78,
87.) Mr. Snader then came over to the CO and told him that OSHA had no jurisdiction at the
Worksite. (Tr. 78-79, 87-88.) When the CO questioned this assertion, Mr. Snader refused to
clarify his claim. (Tr. 79.) At that point, the CO walked over to leasing office for the apartment
building to try to determine who employed the workers, but the office was closed. Id. While

1
Initially, RSIP was represented by legal counsel that was paid for by Mr. Snader. (Stip. KK;
Resp’t Br. 3.) However, Attorney Carl D. Ferris, Respondent’s former counsel, filed a Notice of
Withdrawal on October 6, 2015. Accordingly, RSIP was not represented by counsel at the
hearing and the post-hearing brief was signed solely by Mr. Snader. (Resp’t Br. at 8.)

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there, he noticed other workers demolishing an adjacent apartment building. Id. The CO asked
those workers who was responsible for the workers on the roof. (Tr. 79-80.) The workers
indicated that the site superintendent, Terry Reed, was responsible for all of the construction on
the buildings. (Tr. 80.) After discussing Mr. Snader’s claim that OSHA lacked jurisdiction over
the Worksite, Mr. Reed told the CO that OSHA had jurisdiction to be at the site and
accompanied him back to the building where the CO had initially observed the workers engaged
in roofing work without fall protection. Id. At that time, Mr. Snader and the other workers were
no longer present. Id. The CO specifically asked the superintendent if he could continue his
inspection, including taking photographs and measurements, and the site superintendent agreed
to allow the CO to complete his inspection. Id.
At some point during the CO’s inspection, Mr. Snader and the other roofers returned to
the site. (Tr. 81.) Mr. Snader ordered the roofers to return to work. (Tr. 81, 83.) He then
repeated his claim to the CO that OSHA lacked jurisdiction to inspect the site. (Tr. 81.) The CO
explained that the site superintendent had granted permission and suggested that Mr. Snader
discuss the matter further with him. Id. Mr. Snader did not do so and instead proceeded to
videotape the CO conducting the rest of his inspection. (Tr. 81-82.) The CO pointed out that the
workers should be using fall protection, but Mr. Snader did nothing in response. Id.
DISCUSSION
Coverage
At the onset, it must be determined whether RSIP had any employees at the Worksite on
June 13, 2004, the date of the inspection. (Stip. E.) RSIP claims that all the individuals working
at the site were partners and that it has no employees. (Resp’t Br. at 1.) The Secretary disputes
the characterization of the workers as partners because there was no signed partnership
agreement at the time of the inspection and because of the level of control exercised by Mr.
Snader over the other workers. (Sec’y Br. at 14-15.) The Secretary also argues that even if the
workers were partners, the Commission should consider them employees for purposes of
compliance with the OSH Act. (Sec’y Br. at 14.)
The fact that the business enterprise is a partnership, joint venture, or sole proprietor does
not exempt it from the Act. See Loomis Cabinet Co., 15 BNA OSHC 1635, 1639 (No. 88-2012,
1992) (partnership agreement not determinative as to whether business had employees); aff’d,
203 F.3d 938 (9th Cir. 1994); B&K Paving Co., 2 BNA OSHC 1173, 1174 (No. 59, 1974)

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(upholding violations of the Act by a partnership). Under the Act, an employer is a “person
engaged in a business affecting commerce who has employees,” and a “person” means “one or
more individuals, partnerships, associations, corporations, business trusts, legal representatives,
or any organized group of persons.” 29 U.S.C. § 652(4)-(5). When determining OSH Act
jurisdiction, what matters is not the corporate form, but whether there is an employer/employee
relationship. See 29 C.F.R. §§ 1975.3(d)(5); 1975.4(a); Elmer Vath, Painting Contractor, 2
BNA OSHC 1091, 1093 (No. 773, 1979) (fact that employer has only one regular employee does
not exempt employer from coverage of the Act); Poughkeepsie Yacht Club, Inc., 7 BNA OSHC
1725, 1727 (No. 76-4026, 1979) (single employee sufficient to invoke coverage under the Act).
Rather than focusing on the corporate form, to assess whether an employer/employee
relationship exists, the Commission looks to the hiring party’s right to control the manner and
means for accomplishing the work. See e.g., Sharon & Walter Constr., Inc., 23 BNA OSHC
1286, 1289-90 (No. 00-1402, 2010) (discussing Nationwide Mut. Ins. Co. v. Darden, 503 U.S.
318 (1992); Barbosa Grp., Inc., 21 BNA OSHC 1865, 1867 (No. 02-0865, 2007) (Commission
uses common law agency test expressed in Darden), aff’d, 296 Fed. Appx. 211, (2d Cir. 2008);
Restatement (Second) of Agency § 220(1) (definition of servant).
In terms of control, as he did for nearly every other project RSIP was involved in, Mr.
Snader secured the contract for job on which the Citations discussed herein arose. (Stip. CC, EE,
FF; Tr. 28, 31.) He executed the contract for the work with Malloy Roofing and obtained the
trailer used at the Worksite. (Tr. 31; Ex. C-3; Stip. H.) Mr. Snader was responsible for relying
the general contractor’s instructions and for discussing any problems with the work. (Stip. DD;
Tr. 52.) Malloy Roofing understood and expected that Mr. Snader would be responsible for
directing the work of the other individuals involved in the project. (Tr. 52-53.) The CO heard
Mr. Snader exercise this authority when he ordered the other workers to continue their roofing
activities during the inspection. (Tr. 83.) See Restatement (Second) of Agency § 220 (control
over the workers may be either exercised or reserved). In addition, a worker indicated that Mr.
Snader was in charge of the Worksite and Mr. Snader did not deny during the inspection that the
workers were employees of RSIP. (Tr. 78, 95.)
The work being done was part of the regular business of RSIP and only workers
associated with RSIP were working on the roof of the building that the CO inspected. (Stip. B,
D, G.) Mr. Snader is the sole owner of RSIP. (Stip. Y; Tr. 23, 31.) He is the only “partner”

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with the authority to make business decisions on RSIP’s behalf. (Stip. BB; Tr. 23, 42.) He
created the alleged partnership and could dissolve it. (Stip. LL.) On occasion, Mr. Snader has
refused to allow a worker at a job site because he was concerned with his ability to work. (Tr.
37-38.)
Thus, I find that Respondent had the authority to control the workers at the Worksite. I
also find that Mr. Snader's approach to taxes and paying the workers supports the Secretary’s
contention that there was an employer/employee relationship. Darden, 503 U.S. at 323-24
(including method of payment and tax treatment as relevant factors to consider). In terms of the
tax treatment of the business, RSIP stipulated that it is not a limited liability partnership. 2 (Stip.
Z.) It has not filed a certificate of limited partnership with any state and did not prepare any of
the documents required for doing business as a limited partnership in Ohio. (Stip. AA, OO; Tr.
139.) Nor has it filed partnership tax returns. (Stip. NN.) Instead, Mr. Snader filed tax returns
as a sole proprietor and claimed that he had paid more than $100,000 in wages to roofers. (Tr.
33-34; Ex. C-2 (tax returns).)
His tax return is consistent with how RSIP paid the workers at the Worksite. Mr. Snader
was responsible for communicating with the general contractor to determine how and when it
paid RSIP for the roofing work. (Stip. HH, GG.) The general contractor paid Mr. Snader
directly for work done by RSIP on a weekly basis—a contract term required by Mr. Snader.
(Stip. GG; Resp’t Br. at 3.) Mr. Snader than made the initial determination of what amount he
would pay the workers and distributed those payments weekly. (Stip. II, JJ; Tr. 25-27, 41;
Resp’t Br. at 3.)
Considering the level of control and other evidence presented, I find that the Secretary
met his burden of establishing an employment relationship between RSIP and workers engaged
in roofing activities at the Worksite at the time of the inspection.

2
During the inspection, Mr. Snader presented an unsigned document titled “Limited Partnership
Agreement.” (Tr. 87, 89.) After the inspection, Mr. Snader provided OSHA with a signed
document dated July 28, 2014 that was also titled Limited Partnership Agreement. (Tr. 87-9; Ex.
C-9.) Because the signed document is dated six weeks after the inspection, I find that it is not
probative as to whether there was an employer/employee relationship between RSIP and the
workers at the Worksite at the time referenced in the Citations. Id. See Sharon & Walter, 23
BNA OSHC at 1290 (signed subcontractor disclaimer form was not determinative).

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Fourth Amendment
At the hearing, Mr. Snader appeared to suggest for the first time that OSHA should have
obtained a warrant before it conducted the inspection of the Worksite. (Tr. 98-99; Resp’t Br. at
4-6.) The Secretary argues that no warrant was necessary because the work RSIP conducted was
observable to the public. (Sec’y Br. at 11.)
The Supreme Court has held that the Fourth Amendment to the Constitution requires the
Secretary to obtain a warrant in order to conduct an inspection without the consent of the
employer whose workplace is being inspected. Marshall v. Barlow's, Inc., 436 U.S. 307, 314-15
(1978). However, “[w]hat a person knowingly exposes to the public ... is not a subject of Fourth
Amendment protection.” Katz v. United States, 389 U.S. 347, 351 (1967); Hester v. U.S., 265
U.S. 57, 59 (1924) (finding no fourth amendment protection on open fields). “What is
observable by the public is observable without a warrant by the Government inspector as well.”
Marshall, 436 U.S. at 315. The Fourth Amendment protects against intrusions only into areas
where an individual has a reasonable expectation of privacy. L. R. Willson & Sons, Inc., 17 BNA
OSHC 2059, 2060 (No. 94-1546, 1997) (observation of construction site from roof of adjacent
building did not violate Fourth Amendment), aff’d in pertinent part, 134 F.3d 1235 (4th Cir.
1998). “Whether there is a reasonable expectation of privacy is not necessarily determined by
the location from which the observations are made.” Id. Further, under the “open fields”
doctrine, there is not a legitimate demand for privacy for activities conducted out of doors when
there is no societal interest in protecting the privacy of those activities. Tri-State Steel Constr.
Inc., 15 BNA OSHC 1904, 1909-10 (No. 89-2611, 1992) (consolidated) (even though violations
could not have been observed from land accessible to the public, work was done in the open and
thus the Fourth Amendment did not apply), aff’d, 26 F.3d 173 (D.C. Cir. 1994); Ackermann
Enters., Inc., 10 BNA OSHC 1709, 1712 (No. 80-4971, 1982) (“There is no violation of fourth
amendment rights when a government’s agent’s observations occur in ‘the open fields’ even if
the government agent trespasses on private property to make his observations”); Well Solutions
Inc., 15 BNA OSHC 1718, 1720-21 (No. 89-1559, 1992) (no reasonable expectation of privacy
for a worksite located off a private road because it was still in an open field and not set off by a
gate or other obstacle).
The same principle controls the situation in this case. The Worksite here was the roof of
a building not owned or operated by Respondent and the Citations relate to activities visible from

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outside. (Stip. A, D; Tr. 12-16.) The part of this Worksite where the CO saw the individuals
working was open to public view. (Tr. 62; Ex. C-10 at 1, 5, 11, 13.) Indeed, the CO first saw the
roofers working without fall protection while traveling by the Worksite. (Tr. 62.) See Gem
Indus., 17 BNA OSHC 1184, 1186 (No. 93-1122, 1995) (no expectation of privacy when the CO
observed the violative conditions from his car parked in the parking lot next to the employer’s
worksite), aff’d without published opinion, 149 F.3d 1183 (6th Cir. 1998); Boshear Contractors,
Inc., 16 BNA OSHC 2094, 2095 (No. 91-2125, 1994) (violations seen from a public road), aff’d,
81 f.3d 1147 (D.C. Cir. 1196). Therefore, RSIP cannot claim that it had a “ ‘justifiable,’ a
‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded by government
action.” 3 Smith v. Maryland, 442 U.S. 735, 740 (1979). And so, OSHA’s inspection was not
unconstitutional.
Merits of the Citation Items
Turning to the Citations themselves, 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. Prods., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981), aff'd in relevant part, 681
F.2d 69 (1st Cir. 1982). The Secretary has the burden of proving his case by a preponderance of
the evidence. Id.

3
I also note that a general contractor may consent to the inspection of a common worksite where
a subcontractor is working. Havens Steel Co., 6 BNA OSHC 1740, 1745 (No. 15538, 1978) (the
general contractor had at least common authority over the site and therefore could validly
consent to the presence of the compliance officers); Nat’l Eng’g & Contracting Co. v. U.S. Dep’t
of Labor, 687 F. Supp. 1219, 1221-22 (S.D. Ohio 1988), aff’d without published opinion, 902
F.2d 34 (6th Cir. 1990). The site superintendent for the general contractor at the Worksite gave
the CO direct permission to inspect the area and the activities being conducted by RSIP. (Tr.
80.) It is unclear whether Mr. Snader requested a warrant before or after the site superintendent
gave this permission. (Tr. 95, 99.) Because of his pro se status, Mr. Snader was specifically
offered an opportunity to take the stand to clarify when the warrant request was made or to
submit his video of the inspection, but he declined to do so. (Tr. 106, 109.) In any event, when,
or even if a warrant request was made, is not determinative to my analysis because I find that no
warrant was necessary. See Concrete Constr. Co., 15 BNA OSHC 1614, 1617 (No. 89–2019,
1992) (the Fourth Amendment “does not require a warrant for a nonconsensual inspection of a
workplace to the extent the workplace is open to the public”).

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All of the alleged violations arise under the construction standards. An employer must
comply with the construction standards if its employees are “engaged in construction work,” an
activity defined as “work for construction, alteration, and/or repair, including painting and
decorating.” 29 C.F.R. § 1910.12(b). Respondent does not dispute that it was engaged in
construction and I find that the roofing repair work performed by RSIP fits within the standard’s
definition of construction. (Stip. B, D.)
1. Serious Citation 1, Item 1 – Disposal of waste materials – 29 C.F.R.
§ 1926.252(a)
When materials are dropped more than 20 feet to any point outside of the exterior walls
of a building, an enclosed chute must be used to carry the materials. 29 C.F.R. § 1926.252(a).
The CO observed workers dropping materials from the roof to a trailer without using an enclosed
chute. (Stip. F, I; Ex. C-10 at 1, 5, 12; Tr. 68.) He determined that the height from which the
workers dropped the materials was twenty-two feet or more. (Tr. 68.) And so, I find that the
standard applies and that it was violated. In terms of exposure, the trailer was situated near the
ladder, which was the only way to access the roof where the work was being done. (Tr. 64-65,
68-69; Ex. C-10 at 1, 5.) This enhanced the risk that debris coming from the roof could strike
employees. Id. There were no physical barriers to prevent employees from getting close to the
trailer into which the workers on the roof were dumping waste. (Stip. J; Ex. C-10 at 1.) Thus, I
find that it was reasonably predictable that an employee might be on or near the ladder while
others threw materials down. (Tr. 68-70; Ex. C-10 at 1, 5.) See e.g., Phoenix Roofing Inc., 17
BNA OSHC 1076, 1079 (No. 90-2148, 1995) (access to violative condition reasonably
predictable), aff’d without published opinion, 79 F.3d 1146 (5th Cir. 1996); Nuprecon LP, 23
BNA OSHC 1817, 1819 (No. 08-1307, 2012) (finding exposure because it was reasonably
predictable that employee would need to move about his entire work area); Kaspar Wire Works,
Inc., 18 BNA OSHC 2178, 2195 (No. 90-2775, 2000) (finding exposure when hazard was
located adjacent to a walkway), aff’d, 268 F.3d 1123 (D.C. Cir. 2001). In terms of knowledge,
Mr. Snader admitted that the work was being done without a chute. (Stip. I.) The lack of the
chute was in plain view and was directly visible to Mr. Snader. (Ex. C-10 at 1, 12, 13; Tr. 81
(Mr. Snader was present when the CO took photographs).) See Hamilton Fixture, 16 BNA
OSHC 1073, 1089 (No. 88–1720, 1993) (an employer is chargeable with knowledge of
conditions which are plainly visible to its supervisory personnel), aff'd without published

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opinion, 28 F.3d 1213 (6th Cir.1994); Am. Airlines, Inc., 17 BNA OSHC 1552, 1555 (No. 93-
1817, 1996) (consolidated) (finding knowledge when conditions were in plain view and
supervisory personnel were present). Accordingly, the Secretary proved a violation of 29 C.F.R.
§ 1926.252(a).
The Secretary characterizes this Citation item as serious. A violation is “serious” if there
was a substantial probability that death or serious physical harm could have resulted from the
violative condition. 29 U.S.C. § 666(k). The CO testified that there was a likelihood of serious
harm, such as disability or death from being struck by falling debris. (Tr. 70.) The fact that the
only ladder that workers could use to access the roof was near the trailer into which the workers
were throwing the debris made this possibility more likely. (Tr. 70; Ex. C-10 at 2.) Therefore, I
find that the violation specified in Citation 1, Item 1 should be characterized as serious.
2. Serious Citation 1, Item 2 – Ladders - 29 C.F.R. § 1926.1053(b)(1)
When portable ladders 4 are used to access an upper landing surface, the ladder’s side rails
must extend at least three feet above the surface to which the ladder is used to gain access. 29
C.F.R. § 1926.1053(b)(1). There is no dispute that Respondent was using at least one portable
ladder at the jobsite, so the standard applies. (Stip. K, M; Ex. C-10 at 5; Tr. 72.) Respondent
stipulated that the standard was violated. (Stip. K (“The ladder that is the subject of Citation 1,
Item 2 extended less than 3 feet past the roof”); Stip. L (“There was no guardrail at the top of the
ladder”); Tr. 13.) In terms of exposure, Respondent stipulated that the ladder was the only way
for the workers to reach the roof, so there was actual exposure to the hazard. (Stip. M; Tr. 69,
73-74.) See Phoenix Roofing, 17 BNA OSHC at 1079. As for knowledge, the ladder was in
plain sight and visible to Mr. Snader. (Tr. 63; Ex. C-10 at 5, 13 (showing Mr. Snader within site
of the ladder).) He was present at the Worksite when the workers used the ladder to access the
roof. (Tr. 81, 83.) See Ted Wilkerson, Inc., 9 BNA OSHC 2012, 2016 (No. 13390, 1981) (a
leadman “would have been in a position to observe” the employee in the hazardous situation);
Minnotte Contracting & Erection Corp., 6 BNA OSHC 1369, 1371-72 (No. 15919, 1978)
(employees working without tied-off safety belts were in plain view and within sight of a

4
The standard defines a portable ladder as “a ladder that can be readily moved or carried.” 29
C.F.R. § 1926.1050(b).

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foreman). This satisfies the knowledge requirement and, accordingly, the Secretary proved a
violation of 29 C.F.R. § 1926.1053(b)(1).
The Secretary characterizes this Citation item as serious. As noted above, a violation is
“serious” if there was a substantial probability that death or serious physical harm could have
resulted from the violative condition. 29 U.S.C. § 666(k). The CO testified that the improper
extension of the ladder could result in a fall that would cause serious injuries or death. (Tr. 73-
74.) Because the ladder was the only way to reach the roof, employees were necessarily exposed
to this possibility. (Stip. M; Tr. 73-74.) Therefore, I find that the violation specified in Citation
1, Item 1 should be characterized as serious. See Manganas Painting Co., Inc., 21 BNA OSHC
2043, 2058-59 (No. 95-0103, 2007) (consolidated) (affirming a violation of § 1926.1053(b)(1) as
serious), partially rev’d on other grounds, Chao v. Manganas Painting, Co., Inc., 540 F.3d 519
(6th Cir. 2008).
3. Willful Citation 2, Item 1 – Fall Protection – 29 C.F.R.
§ 1926.501(b)(13)
When employees engage in residential construction activities six feet or more above
lower levels, the employees must be protected by fall protection, which may include guardrail
systems, safety net systems, or personal fall arrest systems. 29 C.F.R. § 1926.501(b)(13). I find
that the standard applies because the workers were engaged in residential construction and
working at a height of over six feet. (Stip. B, D, N, O, P; Tr. 13, 66.) There is no dispute that
the standard was violated because Respondent admitted that the workers were not wearing any
fall protection devices. (Stip. Q.) Further, Respondent did not require fall protection and there
were no guardrail systems, safety net systems, or personal fall arrest systems in place, or even
available at the Worksite. (Stip. O, P, R.) In terms of exposure, the CO observed three
employees working more than seventeen feet from the ground without fall protection both at the
start of his inspection and later in the day. (Stip. Q; Tr. 62, 75-7; Ex. C-10 a p. 2-4, 12.) See
Phoenix Roofing, 17 BNA OSHC at 1079. Exposure has been shown and is not disputed by
Respondent. See John H. Quinlan, d/b/a Quinlan Enters., 17 BNA OSHC 1194, 1196 (No. 92-
0756, 1995); A.L. Baumgartner Constr., Inc., 16 BNA OSHC 1995, 2001 (No. 92-1022, 1994)
(crediting CO’s unrebutted observations even when made from a distance). Finally, the
Secretary showed knowledge because the violation was in plain view and the CO directly
informed Mr. Snader of the need for fall protection. (Tr. 62, 81; Ex. C-10 at 2-4, 13.) See

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Bardav, Inc. d/b/a Martha’s Vineyard Mobile Home Park, 24 BNA OSHC 2105, 2110 (2014)
(condition in plain view and supervisor stood nearby); Minnotte, 6 BNA OSHC at 1371-72.
Therefore, the Secretary established a violation of 29 C.F.R. § 1926.501(b)(13).
The Secretary alleges that this violation was willful. (Sec’y Br. at 18-19.) To establish a
willful violation, the Secretary must demonstrate that the employer violated the Act and that the
violation was committed voluntarily with intentional disregard or demonstrated plain
indifference to the Act. Kaspar Wire Works, 18 BNA OSHC at 2181; 29 U.S.C. § 666(a). “[A]
willful violation can be found where the employer is aware that violations exist in its workplace
and is on notice of the requirements of the standard based on its history of previous citations for
noncompliance with the standard in question.” J.A. Jones Constr. Co., 15 BNA OSHC 2201,
2209 (No. 87-2059, 1983).
The evidence shows that Mr. Snader had a heightened awareness of the fall protection
standard and that his business was not in compliance with it. (Tr. 48, 81-82; Exs. C-4, C-5, C-6.)
The Citation before me is the fifth time Richard Snader or one of his businesses has been cited
for violating 29 C.F.R. § 1926.501(b)(13). 5 (Tr. 85-87; Exs. C-4; C-5; C-6; Resp’t Br. at 2.) On
May 12, 2006, OSHA issued a repeat citation to “Richard Snader Contractor, and its successors,”
which Respondent stipulated is the same entity as RSIP, for violating the same fall protection
standard at issue here–29 C.F.R. § 1926.501(b)(13). (Tr. 85-86; Ex. C-6; Stip. X.) After that,
OSHA issued another repeat violation of the same standard on November 2, 2006. (Ex. C-5.)
Yet again, on December 13, 2012, OSHA cited Richard Snader for violating 29 C.F.R.
§ 1926.501(b)(13), for exposing his employees to fall protection hazards. (Tr. 86-87; Ex. C-4.) I
find that this pattern of violations shows Respondent’s heightened awareness of OSHA’s
standards regarding fall protection. See Avcon Inc., 23 BNA OSHC 1440, 1456 (No. 98-0755,
2011) (consolidated) (finding the heightened awareness required for a willfulness
characterization based on past interactions with OSHA), aff’d, 498 F. App’x 145 (3d Cir. 2012).
J.A. Jones, 15 BNA OSHC at 2209.
After all of these inspections and despite these repeated citations of the exact same
standard, Mr. Snader refused to seek guidance or assistance on how to comply with the standard.

5
Respondent stipulated that “Richard Snader,” “Richard Snader Contractors,” “Richard Snader
Roofing,” and “Richard Snader Installation Partners” are all the same entity. (Stip. X.)

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(Stip. R, PP; Tr. 48.) RSIP stipulated that it has never attempted to change its safety practices or
otherwise alter its business approach. Id. Mr. Snader admitted that when his contract partner,
Malloy Roofing, asked him to comply with OSHA, he “lied” to them and said that he would.
(Tr. 48; Stip. PP.) He knew that these employees were working without fall protection and he
does not even contend that he made any effort to comply with the fall protection standard. (Stip.
O, P, Q, R; Tr. 81-82.) No guardrail systems, safety net systems, or personal fall arrest systems
were even available at the site. (Stip. P.) Even after the CO specifically notified him about the
unsafe conditions and the need for fall protection during the inspection, he did nothing. (Tr. 48,
81-82, 90.) See Calang Corp., 14 BNA OSHC 1789, 1791 (No. 85-0319, 1990) (finding that the
employer could not in good faith have believed that it complied with the standards after the
compliance officer explained the requirements and pointed out deficiencies the employer failed
to correct); Star Brite Constr. Co. Inc., 19 BNA OSHC 1687, 1695 (No. 95-0343, 2001)
(affirming a violation of the fall protection standard as willful). Therefore, I find that Citation 2,
Item 1 is appropriately characterized as willful.
Penalty Determination
The Commission, as the final arbiter of penalties, must give due consideration to the
gravity of the violation and to the employer's size, history, and good faith. J.A. Jones, 15 BNA
OSHC at 2213-14. These factors are not necessarily accorded equal weight, and gravity is
generally the most important factor. Trinity Indus., Inc., 15 BNA OSHC 1481, 1483 (No. 88-
2691, 1992). The gravity of a violation depends upon such matters as the number of employees
exposed, duration of exposure, precautions taken against injury, and the likelihood that an injury
would result. J.A. Jones, 15 BNA OSHC at 2213-14.
With respect to all of the violations, I find that the Secretary established that RSIP was a
small business with three employees, and I have given due consideration to its size in assessing
the penalties. I also find that a reduction for good faith is not warranted. (Stip. P, PP; Tr. 48, 81-
82, 90, 96; Resp’t Br. at 2.)
Accordingly, for the violation of 29 C.F.R. § 1926.252(a), I find that a penalty of $2,800
adequately takes into account the seriousness of the hazard, the gravity of the violation, including
the lack of precautions taken, Respondent’s violation history, the company’s size, and the lack of
good faith. Turning to the violation of 29 C.F.R. § 1926.1053(b)(1), I note that Respondent was

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cited previously for a violation of this standard in 2006. 6 I find that a penalty of $2,800 takes
into account the seriousness of the hazard, the gravity of the violation, Respondent’s violation
history, the company’s size, and the lack of good faith. Lastly, for the willful violation of 29
C.F.R. § 1926.501(b)(13), as discussed above, I find that Respondent previously violated the
same cited standard several times and that the violation presently before me was committed
voluntarily and with demonstrated plain indifference to the Act. Accordingly, I find that a
penalty of $28,000 sufficiently addresses the willful nature of the hazard, its gravity, including
the lack of precautions taken, Respondent’s violation history, the company’s size, and the lack of
good faith.
ORDER
Based upon the foregoing decision, it is hereby ORDERED:
1. Item 1 of Citation No. 1, alleging a serious violation of 29 C.F.R. § 1926.252(a) is
AFFIRMED, and a penalty of $2,800 is assessed.
2. Item 2 of Citation No. 1, alleging a serious violation of 29 C.F.R. § 1926.1053(b)(1) is
AFFIRMED, and a penalty of $2,800 is assessed.
3. Item 1 of Citation No. 2, alleging a willful violation of 29 C.F.R. § 1926.501(b)(13) is
AFFIRMED, and a penalty of $28,000 is assessed.
SO ORDERED.

                                          /s/
                                          Keith E. Bell

Date: April 11, 2016 Judge, OSHRC
Washington, D.C.

6
The Secretary has not alleged, and I do not find, that this was a Repeat violation, as specified in
29 U.S.C. § 666(a).

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