Latite Roofing & Sheet Metal, LLC

Plain-English summary

Latite employees removed and transported roof tiles on a low-slope commercial roof with unprotected edges 16 feet above the ground. A safety monitor was present, but he faced away from an employee pushing a wheelbarrow near the edge, and no warning line or personal fall-arrest system was in use. Because the work area was more than 50 feet wide, a safety monitor alone did not satisfy the fall-protection standard. The judge credited OSHA's observations and photographs and found both actual knowledge through the on-roof supervisor and constructive knowledge from Latite's failure to enforce its own fall-protection plan. The citation was timely because OSHA placed it in the mail within six months, even though Latite received it five days later. Three prior final citations involved substantially similar unprotected roof-fall hazards, supporting repeat classification. The judge affirmed the citation and assessed the proposed $71,137 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(10).
• Outcome: Repeat low-slope-roof fall-protection citation affirmed with a $71,137 penalty.
• Key point: A safety monitor cannot substitute for the warning line required on a roof wider than 50 feet, and a supervisor's own unprotected work establishes employer knowledge.

Full text (OSHRC public release)


Latite Roofing & Sheet Metal, LLC OSHRC Docket No.: 18-1845

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., 9 th
Floor

Washington, DC 20036-3457

Secretary of Labor,

Complainant

v.

OSHRC Docket No.:
1 8 - 1845

Latite Roofing & Sheet Metal, LLC,

Respondent.

Appearances:

Lydia J. Chastain , Esq.
and

Winfield W. Murray, Esq.

Office of the Solicitor, U.S. Department of Labor,
Atlanta ,
Georgia

For Complainant

William F.
Kaspers , Esq.

Kaspers & Associates Law Offices, LLC ,
Atlanta, Georgia

For Respondent

BEFORE: Administrative Law Judge
Sharon D. Calhoun

DECISION AND ORDER

Latite Roofing & Sheet Metal, LLC., (Latite)
contests a
one-item
Citation and Notification of Penalty
(Citation)
issued
October 24 , 2018 ,
by the Secretary
of Labor, United States Department of Labor (Secretary) , pursuant
to the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (Act) .

The Secretary issued the Citation
following an
inspection
of Latite’s worksite
by the Occupational Safety and Health Administration
(OSH A )
during the period
April
25, 2018 ,
through October 16, 2018. The inspection was conducted by
C ompliance
S afety and
H ealth
O fficer (CSHO)
Stanley Burcham ,
who
observed
several
of
Latite’s
employees engaged in work activities
on the roof of a Tires Plus building, which
he believed exposed them to fall hazards.

Item 1 of t he Citation alleges ,
a
r epeat
violation of 29 C.F.R. § 1926. 501(b)(10) f or
failing to
use a warning line in conjunction with a monitoring system on a low slope roof, exposing employees working on the roof to a fall hazard of
16
feet . The Secretary proposes a penalty of $ 71,137 .00
for th e
Citation .

Latite
timely contested the Citation. The Court held a hearing in this matter on October
30,
201 9 , in
Miami,
Florida . The parties filed briefs on
January
14,
20 20 1 . Latite argues
its employees were adequately protected from falling ,
and the CSHO’s testimony was
a complete fabrication.

For the reasons discussed below, the Court
AFFIRMS
the
Citation
and assesses a penalty of $ 71,137 . 00.

JURISDICTION AND COVERAGE

Latite
timely contested the Citation and Notification of Penalty on
November 15, 2018 . Latite admits
the
Occupational Safety and Health Review
Commission
(Commission)
has jurisdiction over this action and
it
is a covered business under the Ac t
(Tr.
15 ) . Based on the
admission s and record evidence, the Court finds the Commission has jurisdiction over this proceeding under § 10(c) of the Act and
Latite i s a covered employer under § 3(5) of the Act.

STATUTE OF LIMITATIONS

Latite contends the Citation was not issued within the six-month period required by the Act. Section 9 ( c ) of the Act
prohibits the issuance of a citation “after the expiration of six months following the occurrence of any violation.” The Citation
shows an issuance date of October 24, 2018. CSHO Burcham initiated his inspection on April 25, 2018, the date he observed employees without fall protection exposed to a fall hazard of 16 feet.

Issuance of the Citation on October 24, 2018 w as
within the six-month statute period.

Patricia Scott , 2
Safety and Health Clerk
for OSHA and
part of
its
administrative
team, testified she
assemble d
the Citation
at issue fo r mailing
on October 24, 2018 . This involved her
going
into the OIS system which puts an issuance date on the Citation
and
print ing
it for the A rea Director 's signature
(Tr. 206-207) .

She prepared the certified return receipt which is done for any outgoing Citation from the office ( Exh . C-14) . She mailed the Citation by placing it in the
United
States Postal Service
mail slot in the mailroom of the building for outgoing mail for anyone in the building (Tr. 208-209).

Ms. Scott
mad e diary sheet entries on October 24, 2018, reflecting the Citation was assembled and mailed, and placed her initials
beside the entries
(Tr. 208-209 ;
Exh . C-2 ) . Her testimony also reveals that the return green card reflecting certified receipt ,
shows
the Citation was delivered to Latite on October 29, 2018
( T r. 210-212 ;
Exh . C-14 ) .

Latite takes issue with the amount of time between the Citation being placed in the United States Postal Service mail
slot
and its receipt on October 29, 2018, arguing it was received after the six - month statute of limitations deadline. This argument fails. Once the Secretary places the Citation in
a
United States Postal Service mailbox within the six-month period required by the Act, the statute of limitations is tolled. The Secretary is neither responsible for, nor has control over ,
the amount of time
it takes for the United States Postal Service to deliver ma il. Earth Developers, Inc. , 2017 CCH OSHD ¶33,642 (Dec. 22, 2017)
(holding that “although the actions of the USPS are out of both parties’ control,” OSHA must have placed the Citation in the mail within the statutory timeframe to satisfy Section 9(c)). Latite has adduced no evidence to show the Citation was not placed in the mail within the
statutory
period. It merely assumes th e Secretary did not
timely
issue the Citation
because it took five days for
it to receive the Citation. The Act does not require the Citation be received within the six-month period. It requires that it be
issued
within that time-period. By placing the Citation in the mail on October 24, 2018, the Secretary issued the Citation within the required period.

Latite does not dispute it received the Citation. To the extent Latite argues service of the Citation was improper, the Court finds the Secretary met its obligation under § 10(a) of the Act.
Section 10(a) of the Act
provides that the Secretary “shall . . . notify the employer by certified mail of the penalty . . .”
T he Commission has consistently held § 10(a) of the Act governs service of citations.

B.J. Hughes, Inc ., 7 BNA OSHC 1471, 1474 n. 6 (No. 76-2165, 1979) . It requires the Secretary to “notify the employer by certified mail of the penalty [.]
In
B.J. Hughes , the Commission addressed the Secretary’s obligation under § 10(a), holding,

The test to be applied in determining whether service is proper is whether the service is reasonably calculated to provide an employer with knowledge of the citation and notification of proposed penalty and an opportunity to determine whether to abate or contest.

7 BNA OSHC at 1474 .
See also ,
Secretary of Labor v. NYNEX , 18 OSHC (BNA) 1944 (No. 95-1671, 1999) and
George Harms Construction Co. , 20 OSHC (BNA) 1155 (No. 02-0371, 2003)
rev’d
(3d Cir. 2004).
Here, the Citation was sent by certified mail to Latite and the return receipt shows i t
was delivered on October 29, 2018. Latite received notice of the Citation ,
and as evidenced by its notice of contest ,
had an opportunity to determine whether to abate or contest.

STIPULAT IONS

The parties stipulated the following:

1. On A pril 25, 2018, Respondent had at least three employees at the worksite performing roofing work on the roof of a Tires Plus building located at 1865 N. Flamingo Road, Sunrise, Florida, which had an eave height of approximately sixteen f e et, a slope of 4 in 12 (vertical to horizontal), and unprotected sides and edges. The measurements of the roof were as shown in the a erial
   phot og raph attached as Exhibit A to the Joint Pr e hearin g
   Statement. 3

2. On April 25, 2018, Resp o ndent had a safety monitor on the roof.

3. Resp on dent is an employer engaged in business affecting commerce within

the
meaning of Section 3(5) of the OSH Act.

( Amended Joint Prehearing Statement , pp. 19-20 ;
see also
Tr. 15 , 152 ;
Exhs . C-3
– C-8, C-15, C-17)

INSPECTION

CSHO Burcham 4
was having lunch at
a
Burger King when he
o bs erved workers
working on
the building next
door
not wearing fall protection
(Tr. 30). Burcham
took photographs and
approached t he west end of the building . He
called to one of the supervisors
who identified himself as Martin 5
(Tr. 31).
Burcham
then
call ed
the OSHA Area Office
and apparently received authorization to initiate an inspection. He
held a
brief opening conference with Martin ,
who had been acting as the
safety monitor . After Martin descended from
the roof,
he
told the CSHO he was the supervisor and
was in charge of
the workers
(Tr.
59,
152).

CSHO Burcham asked Martin if there was a safety plan involved. There was nothing at the site at the time (Tr. 61). Martin
then
c ontacted
Ray
Padron , 6
Latite Safety Director. W he n Padron arrived at the
site the opening
conference
was expanded (Tr. 33) .

CSHO
Burcham
learned the day of the inspection was the second day Latite employees had been working on the roof (Tr. 47).

He
interviewed some of
Latite’s
employees (Tr. 61).

At the time of the inspection, Latite was engaged in roofing tear-off and removal activities on the jobsite (Answer ¶ III). The project involved the removal and replacement of the roof of the Tires Plus building. (Tr. 32, 201)
It was
a single-floor building with a tiled roof. CSHO
Burcham estimated the
roof of the
building to be 100
feet by
60 feet (Tr. 31). He determined a pproximately four or five workers were located on the west roof of the building ,
and one employee was pushing a wheelbarrow at the eastern end of the building . A monitor was located on the western end of the building (Tr. 32) . The employees were not tied off and only one,
safety monitor
Martin ,
was wearing a harness, which was not tied
off
to anything (Tr. 32-33). CSHO Burcham testified e mployees were working right at the edge of the roof and there were no safety nets on the worksite (Tr. 36, 37;
Exh . C-3). CSHO Burcham observed the safety monitor had his back to the exposed worker (Tr. 100). He also observed there was no warning line
(Tr.
37 ) . CSHO Burcham determined that to dump the tiles from the roof to the dump truck below, the wheelbarrow operator would come within 6 feet of the edge of the roof. CSHO Burcham estimated the employee would be 4 feet from the edge of the roof when he tilted the wheelbarrow to empty it
(Tr. 41). The area of the roof from which the tile was transported by wheelbarrow exceeded 50 feet (Tr . 200,
Exh . C-17, C-17a).

CSHO Burcham measured the eaves of the roof with a laser which revealed they were 16 feet where
he observed
the employee pushing the wheelbarrow (Tr. 33). He
obtained building plans from the City of Sunrise
to
determine the slope of the roof (Tr. 61).

The roof measured 93 feet at one point, 105 at another and 64 at another point (Tr. 38).

As a result of his inspection,
CSHO
Burcham
recommended
the issuance of
a citation for a violation of 1926.501(b)(10) (Tr. 100) .

Based on his recommendation, the Secretary issued the Citation and Notification of Penalty in this case to
Latite
on
October 24 , 201 8 .

CREDIBILITY

The Court
assessed
the credibility of each witness based on their demeanor, consistency , motivation,
clarity ,
and reliability ,
taking into consideration the understandable nervousness witnesses often present when testifying in judicial proceedings .

CSHO Burcham displayed confidence during his testimony and admitted instances where he was mistaken or lacked knowledge. In its post-hearing brief, Latite asserts CSHO Burcham’s testimony stating he observed Latite’s employees working 4 to 6 feet from the edge of the roof was a complete fabrication. The Court disagrees with this assessment. CSHO Burcham
was
forthright
in his testimony and
demonstrated none of the mannerisms associated with untruthful testimony.

The photographs of the worksite taken by CSHO Burcham show employees at the edge of the roof
and the individual pushing the wheelbarrow across the roof in proximity to the edge of the roof
( Exh s . C-3
and C-4 ). The Court credits CSHO Burcham’s testimony regarding the conditions he observed on Latite’s worksite.

Patricia Scott testified confidently and without hesitation regarding preparing the Citation for mailing and placing it in the United States Postal Service mailbox in the building
where OSHA’s office is located. She had excellent recall of each step she took regarding the Citation, and her testimony regarding those steps was clear and understandable. The Court credits Ms. Scott’s testimony that she placed the Citation in the mail on October 24, 2018.

The testimony of Ray Padron, Safety Director for Latite, appeared coached or rehearsed. The Court found his testimony
that
there was evidence
f all protection had been used to be unpersuasive. It was obvious h is testimony was
self-serving,
designed to benefit his employer.

The Court also finds unbelievable his testimony that there were photographs taken by Latite’s
former Safety Coordinator showing employees wearing fall protection.

The photos were not produced to the Secretary and there was no attempt to introduce them at the hearing. Had such exculpatory photos existed it would be reasonable to expect that efforts to get them to the Secretary
w ould have been made. The Court finds Padron’s testimony to lack credibility.

Likewise, the Court places no weight on
Latite’s Senior Vice President
Steve
Struve ’s testimony regarding
the
photographs allegedly taken by Latite’s former Safety Coordinator. Nor does the Court find persuasive, Struve’s testimony that
photos he receives every day, updated live,
showed the employees wearing fall protection. The Court finds it unbelievable that evidence showing employees wearing fall protection would not have been provided to the Secretary
during
the course of
the inspection or the litigation. Struve’s
testimony was
not credible and appeared designed to benefit Latite .

The Court found Condell
Eastmond , OSHA Area Director, to testify confidently. His testimony was consistent , and he appeared trustworthy . The Court found
Eastmond
to be a credible witness.

THE CITATION

The Secretary’s Burden of Proof

“An employer is liable for violating an OSHA safety standard if the Secretary of Labor can show the following by a preponderance of the evidence: (1) the standard applies to the cited conditions, (2) the requirements of the standard were not met, (3) employees had access to the hazardous condition, and (4) the employer knew or should have known of the hazardous condition with the exercise of reasonable diligence.”
R.P. Carbone Const. Co. v. Occupational Safety & Health Review Comm'n , 166 F.3d 815, 818 (6th Cir. 1998) .

Item 1: Alleged
Repeat
Violation of § 1926. 5 01( b)( 10 )

Item 1 of the Citation alleges,

On or about
April 25, 2018, at 1865 Flamingo Road, Sunrise, Florida 33323, employees removing terracotta tiles on a low slope roof did not have fall protection exposing them to a fall hazard of up to 16-feet on a roof that measured approximately 93 feet by 62 feet, in that there was no warning line in conjunction [with] the monitoring morning system.

Section 1926. 501(b)(10)
provides:

Except as otherwise provided in paragraph (b) of this section, each employee engaged in roofing activities on low-slope roofs, with unprotected sides and edges 6 feet (1.8 m) or more above lower levels shall be protected from falling by guardrail systems, safety net systems, personal fall arrest systems, or a combination of warning line system and guardrail system, warning line system and safety net system, or warning line system and personal fall arrest system, or warning line system and safety monitoring system. Or, on roofs 50-feet (15.25 m) or less in width (see Appendix A to subpart M of this part), the use of a safety monitoring system alone [i.e. without the warning line system] is permitte d .

Latite
dispute s
its employees violated this standard. The record evidence, however, supports the Secretary’s contention that Latite violated the cited standard.

( 1) Applicability of the Cited Standard

The requirements for fall protection are set forth in
Subpart
M—Fall Protection,
of the construction standards which
provides:
“ This subpart sets forth requirements and criteria for fall
protection in construction workplaces covered under 29 CFR part 1926. Exception: The provisions of this subpart do not apply when employees are
making an inspection , investigation, or assessment of workplace conditions prior to the actual start of construction work or after all construction work has been completed. ”
( § 1926.500(a)(1) )
I t is undisputed
Latite’ s employees were
engaged in construction work activities involving replacing
the
roof
on the Tires Plus building
at the worksite.

Section 1926.501(b) defines a low sloped roof as
a roof having a slope less than or equal to 4 in 12 (vertical to horizontal).

The parties agree t he
slope of the roof of the Tires Plus building at issue was 4 in 12. S ection 1926. 501(b)(10)
applies to the cited condition.

(2) Terms of § 1926. 5 01 (b)( 10 )
Were Violated

CSHO
Burcham observed
four to five employees working on the roof of the Tires Plus building. He also observed an employee near the edge of the roof pushing a wheelbarrow. The parties stipulate d
Latite
had at least
three employees
performing roofing work on the roof and that the roof had an eave height of sixteen feet, a slope of 4 in 12 (vertical to horizontal), and unprotected sides and edges.
At the time of the inspection, the employees were not protected by personal fall arrest systems. The only employee wearing a safety harness was the safety monitor,
who
was not tied off. CSHO Burcham observed unprotected employees working on a section of the roof which measured more than 50 feet
wide , and
although a safety monitor
was
present, the safety monitor was turned away from the employee
pushing the wheelbarrow,
who
was
near the
edge of the
roof ,
exposed to a 16 - foot fall. Even if the safety monitor had been facing the employee, the roof where the employees were working exceeded 50 feet
in width , in which case a warning line in addition to a safety monitor is required by the standard. The record reveals there was no warning line present.

Latite argues
a
warning line was
not
required, suggesting the employees worked
o n the area of the roof which was
less than
50 feet
wide . T o the contrary, t he CSHO’s observations ,
supported by the photographs of the worksite ,
show employees on the portion of the roof
which measured
93 feet by 62 feet, far exceeding the 50-foot
width limitation and triggering the requirement for a
warning line in addition to a
safety monitor.

The Secretary has established
Latite f ailed to comply with the terms of the cited standard.

(3) Employees Had Access to the Violative Condition

To establish exposure, the Secretary must show that an  employee  was
actually exposed
to the cited condition or that  access  to the cited condition was reasonably predictable.  Phoenix Roofing Inc. , 17 BNA OSHC 1076, 1079 (No. 90-2148,
1995),  aff'd , 79 F.3d 1146 (5th Cir. 1996) (unpublished) . . . .
Reasonably predictable exposure is established by proving that “either by operational necessity or otherwise (including inadvertence) ... employees have been, are, or will be in the zone of danger.”  Nuprecon
LP , 23 BNA OSHC 1817, 1819 (No. 08-1307, 2012) (citations omitted). Employees may come within the zone of danger “while in the course of assigned working duties, personal comfort activities while on the job or their normal means of ingress-egress to their assigned workplaces.”  Gilles &
Cotting , Inc. , 3 BNA OSHC 2002, 2003 (No. 504, 1976);  Donovan v. Adams Steel Erection, Inc. , 766 F.2d 804, 812 (3d Cir. 1985) (“‘access,’ not exposure to danger is the proper test”). The Secretary need not show it was certain that employees would be in the zone of danger, but he must show that exposure was more than theoretically possible.  Fabricated Metal Prods., Inc . 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997);  Phoenix Roofing , 17 BNA OSHC at 1079;  Kaspar
Wire Works, Inc. , 18 BNA OSHC 2178, 2195 (No. 90-2775, 2000) (finding that it was “‘reasonably predictable’ that an employee would come into contact with the unguarded belt and pulley either while attempting to reposition the fan, or inadvertently while passing nearby”),  aff'd , 268 F.3d 1123 (D.C. Cir. 2001).

Calpine Corp., & Its Successors,
27 BNA OSHC 1014, 1016-17 (No. 11-1734, 2018) ,
aff’d. Calpine v. Sec’y of Labor , 774 Fed. Appx. 879 (5 th
Cir. 2019).

The Commission has long recognized that exposure is a fact-intensive inquiry that will vary from case to case.  Gilles &
Cotting , Inc. , 3 BNA OSHC 2002, 2004 (No. 504, 1976) (“ Lest
there be any confusion we would emphasize that the touchstone of our decision is stated by the words ‘will be ... in a zone of danger.’ We cannot, by this decision, foresee all the possibilities; the question is one of fact to be determined on a case by case basis.” (footnote omitted)). Accordingly, the Commission over the years has found the zone of danger to be at varying distances from an unprotected edge, including distances over six feet.  See, e.g.,  Nuprecon , 23 BNA OSHC at 1820 (employee engaged in pipe removal was exposed to unprotected edge because, among other things, “the pipes and debris on the floor alongside the wall created a tripping hazard within approximately six feet”);  N&N Contractors, Inc. , 18 BNA OSHC 2121, 2124 (No. 96-0606, 2000) (finding as evidence of exposure that foreman and decedent had “engaged in horseplay ... at a location within 6-8 feet of the unprotected edge, outside the perimeter cables, without using any fall protection”),  aff'd , 255 F.3d 122 (4th Cir. 2001);  Phoenix Roofing , 17 BNA OSHC at 1079 (finding violation under 29 C.F.R. § 1926.500(b)(4), where employees deposited materials within 12 feet of unguarded skylight, and noting that “[t]his is not a great distance”);  Cornell & Co. , 5 BNA OSHC 1736, 1738 (No. 8721, 1977) (as to employees on coffee break, those 10 feet from elevator shaft were “endangered by the hazard of falling,” whereas those 20 to 30 feet from floor opening were not);  Dic -Underhill , 4 BNA OSHC 1051, 1052 (No. 3257, 1976) (employee exposure to fall hazard “clearly established by the fact that two employees were working on this level ten feet from the unguarded edge”).

Gate Precast Co.,
No. 15-1347, 2020 WL 2141954, at *4 (OSHRC Apr. 28, 2020).

Photographs taken by CSHO Burcham show employees on the unguarded roof without personal fall protection or
a warning line
( Exhs . C-3, 4 and 5) . As shown in the photographs,
employees were observed moving along the roof . I t was reasonably predictable that employees working without fall protection on the roof could come within the zone of danger of the unguarded roof. Although Latite had a safety monitor on the roof, the safety monitor was not effective in protecting the employees. CSHO Burcham observed the safety monitor with his back to the employee who was moving the wheelbarrow across the roof. And the required warning line for the size of the roof
and
was not in place in conjunction with the safety monitor to warn employees of the fall hazard and that the edge of the roof was near .

The Secretary has established the employees had access to the violative condition.

(4) Employer Knowledge

Actual Knowledge

To prove knowledge, the Secretary can show that a supervisor had either actual or constructive knowledge of the violation and such knowledge is generally imputed to the employer. An employee who has been delegated authority over another employee, even if only temporarily, is considered a supervisor for purposes of imputing knowledge to an employer. American Engineering & Development Corp ., 23 BNA OSHC 2093, 2012 (No. 10-0359, 2012);
Diamond Installations, Inc ., 21 BNA OSHC 1688 (Nos. 02-2080 & 02-2081, 2006);
Tampa Shipyards, Inc. , 15 BNA OSHC 1533 (Nos. 86-360 and 86-469, 1992). The employee's job function rather than title is determinative. Therefore, the Commission has imputed the knowledge of a “working leader,” because although not a full-time supervisor he was a supervisor at the time of the alleged violation.

Further, in the Eleventh Circuit, where this case arises, w here the Secretary shows a supervisor had either actual or constructive knowledge of the violation, such knowledge is generally imputed to the employer.”

ComTran
Crp ., Inc. v. U. S. Dep’t of Labor , 722 F.3d 1304, 1307-08 (11 th
Cir. 2013). A supervisor’s knowledge of a subordinate employee’s violative conduct may be imputed to the employer even when the supervisor himself is simultaneously involved in the same violative conduct. Quinlan v. U. S. Dept. of Labor , 812 F.3d 832 (11 th
Cir. 2016). Here, k nowledge is imputed through
supervisor Martin, safety monitor, who worked on the roof with the employees , was not tied off himself, nor protected by a warning line as required .

Actual k nowledge of the violative condition is established.

Constructive knowledge

I n addition to
actual knowledge
being
established
here ,
constructive knowledge
also
is
established in this matter .

An example of constructive knowledge is where the supervisor may not have directly seen the subordinate's misconduct, but he was in close enough proximity that he should have . . . .
In the alternative, the Secretary can show knowledge based upon the employer's failure to implement an adequate safety program,  see New York State Elec. & Gas Corp.,  88 F.3d at 105–06 (citations omitted), with the rationale being that—in the absence of such a program—the

misconduct was reasonably foreseeable.

ComTran
Grp., Inc. v. U.S. Dep't of Labor,
722 F.3d 1304, 1308 (11th Cir. 2013).
The Eleventh Circuit has held supervisory failure to monitor compliance with safety rules establishes constructive knowledge in a case involving a construction worksite.

[S] ubstantial
evidence supports the ALJ's determination that Florida
Lemark
had constructive knowledge of the hazard because it failed to take reasonable steps to monitor compliance with safety requirements.  See id. N.Y. State Elec. & Gas Corp. v. Sec'y of Labor,  88 F.3d 98, 105–06 (2d Cir.1996) (“[C] onstructive
knowledge may be predicated on an employer's failure to establish an adequate program to promote compliance with safety standards.”). The record establishes that Florida
Lemark
knew which elements were being erected each day but that it conducted no routine inspections of the work its employees performed, nor did it kept track of the columns it had grouted or train its employees what to do if a column went
ungrouted . Nothing prevented Florida
Lemark
from taking steps to ensure that grouting was inspected, and therefore completed, before columns were loaded. Consequently, substantial evidence supports the ALJ's determination that Florida
Lemark
failed to implement an adequate safety program to ensure that grouting was performed before columns were loaded.

Fla.
Lemark
Corp. v. Sec'y, U.S. Dep't of Labor , 634 F.
App'x
681, 688 (11th Cir. 2015) (unpublished).

Here, in addition to the standard requiring fall protection for employees working from a low sloped roof, Latite had its own safety rule requiring employees utilize fall protection when performing the work
on the jobsite . Latite’s Site Specific Safety Plan for the jobsite provided:

FALL PROTECTION DEMOLITION: All roofing tasks will require the use of a positive fall protection system that will not allow the roofers to free fall greater than 6ft. Safety straps to be wrapped around steel rafters to provide a rated capacity of 5000lb or designed to maintain a safety factor of at least 2.

ROOFING: Re-nailing of plywood, Dry in, Peel in Stick, Mark out and Tile setting will require full tie off using positive fall protection. In the event of any changes SRL, horizontal lines or other fall protection methods can be used as the competent person decides.

( Exh . C-16 )
At
the time of the inspection, there was no evidence any of the fall protection required by the Site Specific Safety Plan was being utilized. Latite’s
failure to establish an adequate safety

program made it foreseeable employees would engage in the hazardous conduct. Latite offered no evidence at the hearing that it disciplined any of the employees for not following its fall protection work rules. Nor was evidence adduced showing Latite
made any other efforts to ensure its employees complied with its work rules on the jobsite. T he Court finds the Secretary has established
Latite
failed to take reasonable steps to monitor compliance with its work
rule
requiring the use of fall protection by
employees
on the jobsite . Latite’s s upervisory failure to monitor compliance with safety rules establishes constructive knowledge .

Knowledge is established. The Secretary has proven all
elements of his prima facie case.

CHARACTERIZATION OF THE VIOLATION

The Secretary
characterized
the Citation
as
a repeat violation. Under § 17(a), 29 U.S.C. § 666(a), a violation may be characterized as repeat where there is a “Commission final order against the same employer for a substantially similar violation.”
See Potlatch Corp ., 7 BNA OSHC 1061, 1063, (No. 16183, 1979).

OSHA cited
Latite
for a violation of the same standard, § 1926. 501(b)(1 0 ) ,
resulting from
an
inspection
conducted
during the period August 16, 2016 - February 2, 2017, in Fort Lauderdale, Florida, Inspection
N umber
1169898 .

There, employees were exposed to a fall hazard of up to 44 feet while working on a roof without fall protection.

Exhibit
C-18
is a copy of
the
citation and notification of penalty issued to
Latite
on
February 7, 2017 ,
as a result of
the inspection . Pages
3
and
4
of Exhibit
C- 18 contain the Informal Settlement Agreement executed on February 22, 2017, by Latite.

OSHA’s Case Summary Report reflects that
the Informal Settlement Agreement became a
final order on
February 22, 2017 ( Exh . C-18, p. 1). The evidence shows this was a substantially similar hazard to the instant hazard cited in the Citation at issue in this proceeding.

OSHA
also
cited Latite for a violation of
a similar
standard, § 1926.501(b)(1), resulting from an inspection
in Plantation, Florida, Inspection N umber 1061344 ,
where Latite was cited for exposing employees to a fall hazard of up to approximately 20 feet while working on an unprotected roof without any means of fall protection . ( Exh . 19, p. 1-6)
In that inspection ,
Latite was cited for employees who were
performing roofing work
and
who
walked between
an extension ladder
placed
against the
eave
of the overhang and a closed step ladder
approximately five feet away . While not wearing fall protection, the employees walked on the sloped roof between the
two ladders ,
expo sed
to
the 20-foot
fall hazard. Safety monitoring was not in use . The crew chief was observed walking on the roof between the two ladders. ( Exh . C-19, p.13) The parties entered into a settlement agreement on July 16, 2016, which became a final order of the Commission on August 17, 2016 ( Exh . C-19, pp. 16-21) . The evidence shows this was a substantially similar hazard to the instant hazard cited in the Citation at issue in this proceeding.

Latite
was also cited by OSHA
for a violation of
a similar
standard, § 1926.501(b)(1 3 ), resulting from an inspection
in Coral Springs, Florida, Inspection N umber 996176 ,
on
September 18, 2014 .
In that inspection Latite
was issued
a repeat citation for employees exposed to a fall hazard of approximately 16 feet while performing roofing activities on the roof of an apartment complex without the use of conventional fall protection
( Exh . C-20, p. 6). In that inspection, the foreman stated he “works the guys all day without fall protection. We have fall protection in the work truck. There is nothing to tie off to; we only use harnesses when we are close to the edge”
( Exh . C-20, p. 11).

The parties entered into a settlement agreement on July 1 5 , 201 5 , which became a final order of the Commission on August
21 , 201 5
( Exh . C- 20 , pp. 1 3 - 18,
2 3 ). The evidence shows this was a substantially similar hazard to the instant hazard cited in the Citation at issue in this proceeding.

In the three previous actions, Latite exposed its employees to fall hazards from roofs measured at heights of 44, 50, and 16 feet, by failing to comply with the requirements for fall protection. Despite the patent similarity of those fall hazards to the fall hazard in this case, Latite argues the predicate citations are not substantially
similar to
this case.

The Court finds no merit in Latite’s argument. The substantial similarity of the hazards is obvious.

The Court finds Latite’s violation of § 1926.501(b)(10) is properly characterized as repeat.

PENALTY DETERMINATION

“In assessing penalties, section 17(j) of the Act requires the Commission to give due consideration to the gravity of the violation and the employer's size, history of violation, and good faith. 29 U.S.C. § 666(j). Gravity is a principal factor in the penalty determination and is based on the number of employees exposed, duration of exposure, likelihood of injury, and precautions taken against injury.”
Siemens Energy & Automation, Inc.,
No. 00-1052, 2005 WL 696568, at 3 (OSHRC February 25, 2005) (citation omitted). "Gravity, unlike good faith, compliance history and size, is relevant only to the violation being considered in a case and therefore is usually of greater significance. The other factors are concerned with the employer generally and are
considered as modifying factors.''
Natkin
& Co. Mech. Contractors , No. 401, 1973 WL 4007, at 9, n. 3 (OSHRC April 27, 1973).

Latite
employed
more than
25 0
employees , therefore
the Secretary allowed
no reduction for size
(Tr. 106-108) . Because of Latite’s history of violations, the Secretary increased the penalty for this factor
( Tr. 106-10 9 ;
Exh s . C - 1 8, C-19. C-20) . “ With regard to good faith, the Commission has given consideration to various factors including the employer's safety and health program and its commitment to assuring safe and healthful working conditions.  Nacirema Operating Co. , 1 BNA OSHC 1001, 1971-73 CCH OSHD ¶ 15,032 (No. 4, 1972). ” Capform , Inc.,
No. 99-0322, 2001 WL 300582, at *5 (OSHRC March 26, 2001). No reduction for good faith was provided because of Latite’s pr e vious history of violations
and because it had been cited previously for the same or similar violations (Tr. 106-108) .

The severity of the violation was determined to be high -greater
because of the type of injury that could result would be death. And the probability was determined to be high because
of the length of time, the height and number of people involved ( Tr.
104-105).
The refore,
in determining the gravity-based penalty,
CSHO Burcham
assessed
gravity of the violation
at
high severity and
assessed the probability as
high (Tr. 105-106).
The gravity-based penalty was increased by a multiplier of 5 based on the number of times Latite had been cited ,
resulting in the proposed penalty issued by the Secretary (Tr.
106, 107,
109) .

B ased on these factors, the Court determines the Secretary’s proposed penalty of $71 ,137.00 i s appropriate.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The foregoing decision constitutes the findings of fact and conclusions of law in accordance with Fed. R. Civ. P. 52(a).

ORDER

Based on the foregoing decision, it is hereby ORDERED:

Item 1 of Citation No. 1 ,
alleging a repeat violation of § 1926.501(b)(1 0 ), is
AFFIRMED,
and a penalty of $ 71 , 137 .00 is assessed.

S O
ORDERED .

/s/ _________

Dated: September
28 , 2020             Sharon D. Calhoun

Washington, DC                Administrative Law Judge, OSHRC

"

1
In its Answer, Latite
asserted
five
affirmative defenses . In
its
p ost- h earing
b rief,
however,
it addressed
only the
affirmative defense s
regarding
(1)
working safely and in compliance with the standards, and
( 2 )
the
Secretary’s failure to meet the
s tatute of
l imitations. The Court advised the parties at the conclusion of the hearing and again in the
b riefing
n otice that any issues not briefed would be waived (Tr. 334-335; Notice of Transcript). Therefore,
all
other
affirmative defenses raised in Latite’s Answer
and not briefed
are deemed waived .

2
Ms. Scott has been employed as Safety and Health Clerk for OSHA for
3
years in the Plantation Area Office.
S he

has worked in that capacity for more than 10 years for OSHA (Tr. 205). Ms. Scott holds a Bachelor of Science degree in Environmental Health. She has taken training at the OSHA office and online, which include d
computers, FOIA processing, records management, and other training (Tr. 206)

3
The aerial photograph
also
is set forth in Exhs. C-17 and C-17a .

4
CSHO B urcham ,
an industrial hygienis t, r eceived a Bachelor of Science degree in microbiology from the University of Akron.
At one time he was a certified industrial hygienist (Tr. 29-30). CSHO Burcham has been employed as a
C SHO
with OSHA
for approximately 14-15 years (Tr. 29). He
has taken several courses involving industrial hygiene, fall protection ,
and workers compensation.

5
Martin was identified
during the hearing
by CSHO Burcham
as Martin Martinez , although he was uncertain as to his last name. The record contains an OSHA 10-hour Construction Safety and Health Card, for
Martin Rodriguez , which is the name counsel for Latite used when referring to Martin during witness examinations
(Tr. 151 ;
Exh. R-42, p. 15) .
To avoid confusion,
th is
decision
will refer to the safety monitor
only
as Martin.

6
Ray Padron has been Safety Director for Latite since June 6, 2006 (Tr. 262). He has worked in the roofing industry since 1992. As Safety director for Latite he oversees the safety program, conducts safety audits, compliance, training, takes corrective action as necessary, oversees and advises managers of changes in the compliance industry.