Payton Roofing, Inc.

Plain-English summary

Payton Roofing employees worked on a low-slope commercial roof about nine feet above the ground without personal fall protection. A company officer said he was serving as the safety monitor, but he remained on the ground and could not see employees working on the back side of the roof. The judge found that the monitor was neither on the same working surface nor within visual sighting distance as required by 29 C.F.R. § 1926.502(h)(1)(iii). The officer's knowledge was the corporation's actual knowledge, and the violation was serious. The citation was affirmed, and the proposed $2,400 penalty was increased to $2,800 based on the judge's gravity assessment.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.502(h)(1)(iii)
• Outcome: The serious item was affirmed, and the penalty was increased from $2,400 to $2,800.
• Key point: A safety monitor must be on the same working surface and able to see the employees being monitored.

Full text (OSHRC public release)


Document

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

100 Alabama St. S.W

Building 1924 Room 2R90

Atlanta, GA 30303-31 0 4

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No.
16-1163

PAYTON ROOFING, INC. ,

Respondent.

DECISION AND ORDER

COUNSEL:
Patricia J. Craft , Attorney, U.S. Department of Labor, Office of the Solicitor,
Atlanta, GA , for Complainant.

Timothy
D.
Payton ,
Pro se,
Coral Springs, FL , for Respondent.

JUDGE: John B. Gatto, United States Administrative Law Judge.

I. INTRODUCTION

Payton Roofing, Inc.
was cited by the
United States Department of Labor’s
Occupational Safety and Health Administration (OSHA) 1
on July 1, 2016 ,
for
an
alleged
serious 2
violati on of
the Occupational Safety and Health Act of 1970 (Act ) 3
and the
standards
promulgated thereunder. 4

Specifically, OSHA assert ed
Payton
Roofing ’s employees were
engaged in
roofing
repair
work on January 19, 2016,
without complying with
OSHA’s fall protection standard applicable to safety monitoring systems . 5

The citation proposed
a
penalt y of $2,400.00 , which

Payton
Roofing
timely
contested .

The
Co urt finds the Co mmission has jurisdiction of this action under section 10(c)
of the Act, 29 U.S.C. § 659(c)
and that
Payton
Roofing
is an employer within the meaning of section (5) of the Act, 29 U.S.C. § 652(5 ) .
Although
Timothy
Payton
served as the registered agent of
Payton Roofing , was one of its corporate officers, and filed
Payton Roofing ’s
notice of contest
contesting the “fine , ”
he failed to appear at the pretrial conference and failed to appear at trial, both after having been properly noticed at his mailing address of record and at his email address of record. At trial, the Secretary
of Labor
moved for a default judgment, which the Court denied, since the Secretary ha s
the burden of proof.

Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, after carefully considering all the evidence
and the arguments of counsel , the Court issues this Decision and Order as its findings of fact and conclusions of law. 6 If any finding is in truth a conclusion of law, or if any stated conclusion is in truth a finding of fact, it shall be deemed so.
For the reasons indicated
infra ,
the citation
is
AFFIRMED
and
Payton
Roofing
is assessed a civil penalty of $ 2, 8 00.00 .

II.
BACKGROUND

On January 19, 2016, on his way to work,
Eduardo Vivas-Vendrell
(Vivas ) ,
an
OSHA
Compliance Safety and Health Officer ,
passed
a
commercial roofing project
in
Pembroke Pines, Florida ,
and
observed
employees
working
on top of
a ro of
about 9 feet
off the ground . Vivas
noticed the employees appeared to be working
without any fall protection.

After
Vivas opened an inspection of the worksite ,
Vivas initially noticed the workers on the front side of the roof, and upon walking around the building, also noticed employees working on the backside of the roof, which he was unable to see
while he was
standing in front of the building. Vivas
personally observed that none of
the
employees had any fall protection .

Timothy
Payton,
an officer of the
company, 7
was on the ground
on
the front
side
of the
building
when Vivas arrived on
the work site.
Timothy
Payton admitted to Vivas
that the employees on the roof were Payton Roofing employees . When asked by Vivas why none of the
workers had any fall protection, Timothy Payton stated , “I’m
the monitor. ”
Sometime in June,
Vivas call ed
Timothy
Payton
to obtain information about Payton
Roofing ’s safety program. Payton could not talk and told Vivas to call him later, which Vivas did. Vivas “ called and called and he never
returned the call back again. ” Thus, Payton Roofing
did not provide any information to Vivas regarding any
company
safety p rogram it had in effect .

III. ANALYSIS

The fundamental objective of the Act is to prevent occupational deaths and serious injuries.
Whirlpool Corp. v. Marshall , 445 U.S. 1, 11 (1980). To achieve this purpose, the Act imposes two duties on an employer: a “general duty” to provide to “each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees,” 29 U.S.C. § 654(a)(1); and a specific duty to comply with all applicable occupational safety and health standards promulgated under the Act.
Id.
§ 654(a)(2). Pursuant to that authority the
standard at issue in this case
was promulgated . 8

In the Eleventh Circuit, the jurisdiction in which this case arose, 9
“ the Secretary will make out a prima facie case for the violation of an OSHA standard by showing (1) that the regulation applied; (2) that it was violated; (3) that an employee was exposed to the hazard that was created; and importantly, (4) that the employer “knowingly disregarded” the Act's requirements.
ComTran Grp., Inc. v. U.S. Dep't of Labor , 722 F.3d 1304, 1307 (11th Cir.
2013). “If the Secretary establishes a prima facie case with respect to all four elements, the employer may then come forward and assert the affirmative defense of unpreventable or unforeseeable employee misconduct.”
ComTran , 722 F.3d
at 1308 .

Alleged Violation

The citation alleges Payton
Roofing
committed a serious violation of the Secretary’s fall protection standard related to fall protection systems cr iteria and practices , when the
“safety monitor was not on the same walking/working surface and within visual sighting distance of the employee being monitored. ” Th e Secretary’s fall protection
standard
specifically
mandates that
the
employer
“ shall designate a competent person to monitor the safety of other employees and the employer shall ensure that the safety monitor

. . .
shall be on the same walking/working surface and within visual sighting distance of the employee being monitored [.]”
29 C.F.R. § 1926.502(h)(1)(iii).

Applicability of Standard

The
Secretary’s fall protection standard
applies to “each employee engaged in roofing work on low-slope roofs, with unprotected sides and edges 6 feet (1.8 m) or more above a lower level.” 10
29 C.F.R. § 1926.501(b)(10). “Roofing work” is defined as “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.” 29 C.F.R. § 1926.500(b).
A “l ow-slope roof ”  means “a roof having a slope less than or equal to 4 in 12 (vertical to horizontal).”
Id.
Here, Payton Roofing’s employees were engaged in roofing work since they were involved in the application and removal of roofing materials. Payton Roofing’s employees were working on a roof with unprotected sides and edges approximately 9 feet above the lower level. Vivas measured the roof and determined it was a “low slope” roof since
it
measured 3
in 12 . Therefore, the Secretary’s fall protection standard was applicable to the cited condition.

Standard
Violation

Timothy
Payton admitted to Vivas
that he was the company’s safety monitor on site. As indicated
supra , under the Secretary’s cited standard, Payton Roofing was required to
“ensure that the safety monitor . . . shall be on the same walking/working surface and within visual sighting distance of the employee being monitored[.]”
29 C.F.R. § 1926.502(h)(1)(iii). Here, w hen Vivas arrived on the worksite and observed
Payton Roofing’s employees working on the roof without fall protection,
Timothy
Payton
was on the ground
and therefore was not
on the
same walking/working surface of the employee s
he was monitoring .
Further, since
Vivas
observed employees
work ing
on both the fro nt side and
back side
of the roof
and when he arrived
Timothy
Payton
was on the ground in the front of the building,
Timothy
Payton
was not within
visual sighting distance of the employee s
he was monitoring that were
working on the backside of the roof. Thus, the Secretary has established that Payton
Roofing violated the cited standard.

Exposure to Hazard

“The Secretary always bears the burden of proving employee exposure to the violative conditions.”
Fabricated Metal Products, Inc. , 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997) (citations and footnotes omitted). The Commission’s longstanding “reasonably predictable” test for
hazard exposure requires the
Secretary
to “ show that it is reasonably predictable either by operational necessity or otherwise (including inadvertence), that employees have been, are, or will be in the zone of danger.”
Delek Ref., Ltd ., 25 BNA OSHC 1365, 1376 (No. 08-1386, 2015) ( citing Fabricated Metal Prods., Inc. , 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997)). See also
Rockwell Intl. Corp. , 9 BNA
OSHC
1092 ( No. 12470, 1980 );
Gilles & Cotting , 3 BNA
OSHC 2002 (No. 504, 1976).

The zone of danger is the “area surrounding the violative condition that presents the danger to employees.”
Boh Bros. Constr. Co., LLC , 24 BNA OSHC 1067, 1085 (No. 09-1072, 2013) ( citing RGM Constr. Co. , 17 BNA OSHC 1229, 1234 (No. 91-2107, 1995)). As the Commission noted in
Gilles & Cotting , 3 BNA OSHC
at
2003, the scope of the zone of danger is relative to the wording of the standard and the nature of the hazard at issue. Here, the zone of danger presented was the unprotected sides and edges of the roof. “Our inquiry then is whether the employees' proximity” to the unprotected sides and edges of the roof “makes it reasonably predictable that they will enter these zones of danger by slipping or falling.”
Fabricated Metal , 18 BNA OSHC at 1076.

The photographs taken by
Vivas , and corroborated by his tes timo ny, clearly establish
the proximity of some of Payton
Roofing’s employees
to the unprotected sides and edges of the roof, which “makes it reasonably predictable that they will enter these zones of danger by slipping or falling.” Thus, the Court concludes the Secretary has shown “that it is reasonably predictable either by operational necessity or otherwise (including inadvertence), that employees have been, are, or will be in the zone of danger” without proper fall protection.
Delek Ref., Ltd ., 25 BNA OSHC at 1376. Therefore, the Secretary has established employee exposure to the cited conditions.

Knowledge of Violation

“ The knowledge element of the prima facie case can be shown in one of two ways. ”
Eller-Ito Stevedoring Co. , LLC v. Sec'y of Labor , 567 F. App'x 801, 803
(11th Cir. 2014)
(citing
ComTran
at 1307 ) .

“First, where the Secretary shows that a supervisor had either actual or constructive knowledge of the violation, such knowledge is generally imputed to the employer.”
Id.
(citing
ComTran
at 1307–08 ) . “In the alternative, the Secretary can show knowledge based upon the employer's failure to implement an adequate safety program, with the rationale being that—in the absence of such a program—the misconduct was reasonably foreseeable.”
Id.
at 803 -04 (citing
ComTran
at 1308 ).

However,
in the Eleventh Circuit,
a
“supervisor's ‘ rogue conduct ’
cannot be imputed to the employer in that situation.

Rather,
‘ employer knowledge must be established, not vicariously through the violator's knowledge, but by either the employer's actual knowledge, or by its constructive knowledge based on the fact that the employer could, under the circumstances of the case, foresee the unsafe conduct of the supervisor [that is, with evidence of lax safety standards]. ’ ”
ComTran
at
1316
(citation omitted). Here,
Timothy
Payton
was not just a supervisor; he was a
corporate
officer of Payton Roofing. Therefore,
not only did
Timothy
Payton
have actual knowledge
of his violative conduct but so did
Payton Roofing ,
since
a corporation
“ cannot act other than through its officers, employees, and agents. ”
United Techs. Corp. v. Mazer , 556 F.3d 1260, 127 1
(11th Cir. 2009) ;
Palazzo v. Gulf Oil Corp. , 764 F.2d 1381, 1385 (11th Cir.1985) .
Therefore, the Secretary has established Payton Roofing’s actual knowledge.

Classification

A “ serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation. ” 29 U.S.C. § 666(k).

Thus,
“ [w] hether the employer intended to violate an OSHA standard is irrelevant. The only question relevant to the employer's state of
mind is
whether he knew or with the exercise of reasonable diligence could have known of the violation. ”
Georgia Elec. Co. v. Marshall , 595
F.2d 309, 318–19
(5th Cir. 1979). 11
Here, the employees were exposed to a fall of approximately 9
feet
to the ground. Such falls “could result in death or serious physical harm.”

Therefore, the Court concludes the violation was a serious
violation .

IV. PENALTY DETERMINATION

The Secretary proposed
a penalty of
$2,400.00
for the
violation . Under the Act ,
an employer who
commit s
a
“ serious ” violat ion
may be assessed a civil penalty
of up to
$7,000 for each
such
violation. 12
29 U.S.C. § 666( b ). The Commission is empowered to “assess all civil penalties” provided in this section, “giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.” 29 U.S.C. § 666(j). “These factors are not necessarily accorded equal weight; generally speaking, the gravity of a violation is the primary element in the penalty assessment.”
J.A. Jones Constr. , 15 BNA OSHC 2201, 2216 (No. 87-2059, 1993) ( citing Trinity Indus., Inc. , 15 BNA OSHC 1481, 1483 (No. 88-2691, 1992)).

The gravity of the violation includes the number of exposed employees, the duration of exposure, the precautions taken to prevent injury, and the degree of probability that an injury would occur.
Merchant's Masonry, Inc. , 17 BNA OSHA 1005, 1006-07 (No. 92-424, 1994).
With respect to the gravity of th is
violation, the Court finds
the severity of the violation was high
since a
9- foot fall from the roof would likely
result in death or serious physical harm
and
the
probability
was
greater since there were 9 or 10 employees working
on the roof .

With respect to the size of the business,
Payton Roofing was small ,
with only 9 or 10 employees. OSHA gave
Payton
Roofing a
60%
penalty
adjustment for its size , which the
Court finds appropriate. As to history, s ince there is no evidence Payton Roofing has
been previously
inspected, the Court concludes
Payton Roofing
should
receive neither a reduction, nor an
increase based on their OSHA inspection history.
Payton
is
also
not entitled to a reduction for good faith
since
there is no evidence in the record establishing
Payton Roofing’s
effort to implement an effective workplace safety and health management system.  
Therefore , giving due consideration to the size of the business, the gravity of the violation, good faith, and history, the Court finds the
appropriate
civil penalty is
$2, 8 00.00 . 13 Accordingly,

V. ORDER

IT IS HEREBY ORDERED THAT
the citation is
AFFIRMED
and Payton Roofing is assessed and directed to pay to the Secretary a civil penalty of
$2, 8 00.00 .

SO ORDERED.

/s/ John B. Gatto   

John B. Gatto

Administrative Law Judge 

Dated:
December 2, 2016

Atlanta, GA

"

1
OSHA’s Area Directors have the authority to issue citations and proposed penalties to enforce the Act.
See
29 C.F.R. §§ 1903.14(a) and 1903.15(a).

2
See
infra , the “Classification” section for the definition and analysis of a “serious” violation.

3
See
29 U.S.C. §§ 651–678.

4
See
29 U.S.C. § 654(a)(2) (each employer
shall comply with occupational safety and health standards promulgated under the Act).

5
See
29 C.F.R. § 1926.502(h)(1)(iii).

6
This case was
designated
for Simplified Proceedings where the
complaint and answer requirements were suspended,
the Federal Rules of Evidence are inapplicable, and w ithin 45 days of the hearing a written decision must be issued .
See
29 C.F.R. §§ 2200.200-211.

7
It is not clear whether Timothy Payton is the company’s President or its Secretary. On February 8, 2010, Timothy Payton filed an amendment with the Florida Secretary of State’s Division of Corporations removing himself as President and installing himself as Secretary. However, since then Timothy Payton has continued to file the company’s annual reports listing himself as President.
See
the online corporate records of the Florida Secretary of State’s Division of Corporations at
http://dos.myflorida.com/sunbiz/search/ .

8
The Secretary of Labor
delegated his authority under the Act to the Assistant Secretary of Labor for Occupational Safety and Health, who heads OSHA, and assigned responsibility for enforcement of the Act to OSHA.
See
65 Fed.Reg. 50017 (2000). The Assistant Secretary has promulgated occupational safety and health standards,
see e.g. , 29 C.F.R. Parts 1910 and 1926 .

9
The worksite was in
Pembroke Pines, Florida , and the
Florida Secretary of State’s online
record s indicate Payton Roofing’s principal address is in Coral Springs, Florida. Therefore, both part ies
may appeal the final order in this case to the Eleventh Circuit Court of Appeals, and
in addition,
Payton Roofing
may also appeal to the District of Columbia Circuit.
See
29 U.S.C. §660(a) & (b). The Commission has held that “[w]here it is highly probable that a case will be appealed to a particular circuit, the Commission generally has applied the precedent of that circuit in deciding the case —
even though it may differ from the Commission's precedent.”
Kerns Bros. Tree Serv. , 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000). Here, the Court applies the precedent of the Eleventh Circuit
in deciding the case
w here it is highly probable that a ny appeal in this ca se will be
taken.

10
“ 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. ”
29 C.F.R. § 1926.500(b).

11
The
Eleventh
Circuit
was created when the
Fifth
Circuit
split on October 1, 1981. Immediately after the split, the
Eleventh
Circuit
stated in
Bonner v. City of Prichard, Alabama , 661 F. 2d 1206 ( 11th
Cir . 1981), that any
opinion
issued by the
Fifth
Circuit
before the close of business on September 30, 1981 is binding precedent on the
Eleventh
Circuit .

12
In 2015, Congress passed the Federal Civil Penalties Inflation Adjustment Act Improvements Act, directs agencies to adjust their penalties for inflation each year and requires agencies to publish “catch up” rules to make up for lost time since the last adjustments. As a result
of OSHA’s “catch up” rules ,
OSHA’s maximum penalties, which ha d
not been raised since 1990, increase d
by 78 %. Thus,
an employer who commits a serious violation after Nov ember
2, 2015 ,
may be assessed a civil penalty of up to
$12,471
for each such
penalty
assessed
after August 1, 2016 .

13
It appears OSHA provided its 60% penalty reduction for size to a
gravity-based penalty determination  of $6,000, which is a
severity level of “medium” rather
than “high.” However,
as indicated
supra , the Court found the severity
was high.