General Property Services, Inc. a/k/a GPS Roofing Services

Plain-English summary

General Property Services contracted to replace deteriorated sections of a warehouse roof in Forest Park, Georgia. The judge found that GPS was the employer of the roofing crew because its officers supervised and inspected the work, it held crew leaders out as GPS officers, and it retained contractual control over the project. GPS lacked a written hazard communication program, an asphalt safety data sheet, and employee training on hot asphalt, so the judge affirmed the two hazard communication items. She also affirmed a fall-hazard training violation because employees worked on a deteriorated roof about 30 feet above the floor without the required training. The separate fall-protection item was vacated because OSHA inspected two months after an employee's serious fall and did not prove that employees were exposed to a fall hazard during the inspection. The judge assessed $750 for the grouped hazard communication items and $1,000 for fall training, for a total penalty of $1,750.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.1200(e)(1); 29 C.F.R. § 1910.1200(h); 29 C.F.R. § 1926.500(a)(2)(vi); 29 C.F.R. § 1926.502(a)(2); 29 C.F.R. § 1926.503(a)(1)
• Outcome: Mixed. Three training and hazard communication items were affirmed with $1,750 in penalties, while the general fall-protection item was vacated for lack of proven exposure.
• Key point: An employer may be responsible for a crew based on its actual right of control, but OSHA still must prove employee exposure to the cited condition at the relevant time.

Full text (OSHRC public release)

Secretary of Labor,
       Complainant,

                  v.                                          OSHRC Docket No. 99-1224

General Property Services, Inc.,
a/k/a GPS Roofing Services,
       Respondent.


Appearances:

          Melisa Anderson, Esquire                            Mr. Lloyd H. Black
          Rafael Batine, Esquire                              Occupational Safety and Health Associates
                  U. S. Department of Labor                   Lilburn, Georgia
                  Office of the Solicitor                              For Respondent
                  Atlanta, Georgia
                           For Complainant

Before:           Administrative Law Judge Nancy J. Spies

                                         DECISION AND ORDER
          General Property Services, Inc. (GPS), contests a citation issued by the Secretary on
July 2, 1999, following an employee accident at a warehouse in Forest Park, Georgia.1
          The citation alleges that GPS violated the hazard communication requirements of
§ 1910.1200(e)(1) (item 1a); the hazardous chemical training requirements of § 1910.1200(h)
(item 1b); the fall protection requirements of § 1926.502(a)(2) (item 2a); and the fall protection
training requirements of § 1926.503(a)(1) (item 2b).


1       The Secretary cited GPS under the name “GPS Roofing Services.” At the hearing, GPS president David
Mullininx stated (Tr. 70-71):

          The legal name is General Service Properties [sic], Inc. We just kind of use “GPS Roofing” just
          because--we have never incorporated or made it a business or anything like that. We just started
          using that name for one area. The type of work we do, we do different things for property
          management companies.

         The caption and all related pleadings are hereby amended to reflect that the correct name of the employer
corporation is General Property Services, Inc., and that it was also known as GPS Roofing Services at the time of the
OSHA inspection.

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       GPS admits jurisdiction and coverage in its answer. GPS argues that it was not the
employer of the exposed employees at the time of the accident or inspection. GPS also argues
that the Secretary failed to meet her burden of proof for each of the four alleged violations.
       A hearing on these issues was held in Atlanta, Georgia, on November 8, 1999. The
parties have filed post-hearing briefs. GPS has also filed several post-hearing motions.
       For the reasons discussed below, the Secretary has proven that GPS has safety
responsibility for the exposed employees and has established violations of items 1a, 1b, and 2b.
The Secretary failed to establish a violation of item 2a.
                                            Background
       On March 10, 1999, a work crew was removing damaged sections from the roof of a large
warehouse on Kennedy Road in Forest Park, Georgia. One of the crew, David Bagley, fell
through the roof 30 feet to the concrete floor below (Tr. 40-45, 114). He sustained serious
injuries and was using a wheelchair at the time of the hearing, eight months after his accident.
Bagley was not wearing fall protection at the time of his fall (Tr. 42).
       Subsequent to his accident, Bagley filed a written complaint with the Occupational Safety
and Health Administration (OSHA) requesting the agency investigate the worksite conditions at
the warehouse. OSHA responded to the complaint by sending compliance officer Pamela Evatt to
the warehouse to conduct an inspection on May 11, 1999 (Tr. 103).
                                    GPS’s Post-hearing Motions
       1. Motions to Dismiss. At the hearing GPS moved to dismiss the Secretary’s case based
on the Secretary’s failure to establish a prima facie case, and moved further to dismiss the case on
grounds of res judicata and collateral estoppel. The undersigned denied these motions (Tr. 209,
215-217). GPS then entered into the record a document entitled “Respondent’s Motion to
Dismiss or in the Alternative, Motion for Summary Judgment” (Exh. R-2) and a document
entitled “Respondent’s Motion to Dismiss Because of Res Judicata and Collateral Estoppel” (Exh
R-3). The undersigned again noted that the motions were denied (Tr. 217-218).
       On February 24, 2000, GPS filed another motion to dismiss which appears to be based on
the same res judicata and collateral estoppel grounds raised at the hearing. Specifically, GPS
argues that the Secretary also cited Ace Roofing for violations arising from the same inspection


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conducted by Evatt on May 11, 1999, that gave rise to the present case. GPS contends that if the
case is not dismissed, “it will result in multiple charging and results in an innocent party being
prosecuted for a violation.”
          The doctrines of res judicata and collateral estoppel may be invoked only in situations
where the same two parties are involved in more than one proceeding. The centerpiece of GPS’s
defense is that GPS and Ace Roofing are two separate and unrelated companies. Unlike the
instant case, res judicata and collateral estoppel apply in proceedings where the parties are
identical and where a final adjudication has been made. GPS’s renewal of its motion to dismiss is
denied.
          2. Motion to Make an Offer of Proof. On February 24, 2000, GPS filed a motion to
make an offer of proof. The document that GPS seeks to include in the record is a Workers’
Compensation form that GPS attempted to enter into evidence at the hearing (Tr. 257). GPS’s
intent in entering the document is to show that GPS was not the employer of the injured employee
(Tr. 258). The undersigned excluded the Workers’ Compensation form along with several other
documents because GPS had not provided the Secretary with copies during the prehearing
exchange of documents and proposed exhibits. The undersigned stated that the documents (Tr.
259):
          weren’t on the list and this is just too important an issue for me to say, “All right,
          you can bring in a surprise exhibit at this point.” The problem is that it could be
          prejudicial surprise, and for that reason, I can’t allow it. If it were some minor
          point, that might be different, but this goes to the heart of what this case is about.

          This was the point in the proceeding when GPS could have made an offer of proof if it so
desired. Commission Rule of Procedure § 2200.72(b) provides:
          Whenever evidence is excluded from the record, the party offering such evidence
          may make an offer of proof, which shall be included in the record of the
          proceeding.

          GPS admits in its reply to the Secretary’s response to GPS’s motion to make an offer of
proof that the Workers’ Compensation “form was never proffered as an ‘Offer of Proof’ during
the hearing” (Exh. J-31, ¶ 6). There is no provision for making an offer of proof after the record
has been closed. GPS’s motion to make an offer of proof is denied.


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       3. Motion to Correct. On February 28, 2000, GPS filed a motion to correct the transcript
at pages 183 and 184. Omitted from the transcript were questions from GPS’s representative put
to compliance officer Evatt and her answers concerning an access ladder. When asked, Evatt
stated that four rungs of the ladder were visible in Exhibit C-9 equal to the height of the parapet
wall. She added that the ladder was at an angle and that the height of the parapet wall was
actually equal to three and a half rungs of the ladder. Having conferred with the court reporter
and based upon the undersigned’s memory of the testimony, it is determined that the purported
testimony was elicited. GPS’s motion is granted, and the record is hereby corrected to reflect the
above stated testimony.
                        Was GPS the Employer of the Exposed Employees?
       The Secretary contends that GPS was the employer of the work crew on the warehouse
roof at the time of the inspection, or, alternatively, that GPS controlled the work crew’s
employment under the multi-employer worksite doctrine. GPS counters that it was not the
employer of the work crew, Ace Roofing was. GPS also denies having control over the work
crew sufficient to make GPS liable under the multi-employer worksite doctrine.
       GPS performed roofing work in the past and contracted with Selig Enterprises, Inc., to
reroof badly deteriorated areas of the Kennedy Road warehouse designated in the contract as
areas “A” and “B.” The contract required GPS to notify Selig in writing of the names of any
subcontractors it intended to hire to complete any of the contract work (Exh. C-6). GPS never
gave any such notification on the project (Tr. 78-79). GPS now claims that it subcontracted the
reroofing out to Ace Roofing. As the evidence establishes, GPS and Ace Roofing did not have a
mere contractor-subcontractor relationship.
       Gary Presley was supervising the work crew when compliance officer Evatt arrived at the
job. When Evatt introduced herself to Presley, he stated, “[T]his isn’t an Ace job, . . . this is a
GPS Roofing job” (Tr. 104). Presley then told Evatt that he had his own roofing business “on the
side” (Tr. 105). Presley is the owner and president of Ace Roofing. He is also a vice-president of
GPS (Tr. 80).
       GPS president David Mullininx testified that GPS verbally subcontracted with Ace
Roofing because GPS “just didn’t have the experience to do a roof like that, so that’s why we


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used Gary Presley because he had the experience and the men and equipment to do it” (Tr. 84).
As Mullininx acknowledged, about 6 months before any contract was signed with Selig, GPS
made Presley its vice-president (Exh. C-6; Tr. 239). Mullininx argues, however, that Presley had
been put in the vice-president’s position only for the Selig job and only as a nominal position for
the purpose of waiving Workers’ Compensation for Presley and gaining it for “his” crew members
(Tr. 80-81):
               It’s a form that my insurance agent sent me to waive Workman’s
       Compensation who didn’t--I had called her and said, “I’ve got a contractor that I
       want to use but he doesn’t have insurance and I can’t afford to pay it on him.
       What can I do?”
               She goes, “Well, get him to fill out this form waiving Workman’s Comp
       and you can use it.” So, she said, “Label him as a VP and put it on there” but
       that’s the extent of that. It was used just to waive Workmen’s Compensation on
       him.

       GPS did not provide a copy of this form to the Secretary. According to Mullininx, Presley
“never had any responsibilities, he’s never been to our office. He has just been a contractor”
(Tr. 82). Nevertheless, GPS held out Presley and the crew as its employees to various agencies
and to Selig. Presley acted as GPS’s representative at the opening conference (Tr. 106, 109), and
GPS made checks payable to “Gary Presley” and not “Ace Roofing” (Tr. 245-245).
       GPS’s acknowledged vice-president Jeff Gillner arrived at the worksite shortly after Evatt.
Gillner admitted at the hearing that he told Evatt the employees on the site were working for GPS
(Tr. 272-273). Consistent with this admission, Gillner gave Evatt one of his business cards which
shows the scope of GPS’s work (Exh. C-8):
                                            GPS
                                           Roofing
                                           Services
                       Roof Maintenance * Repair & Reroof * Management

       David Bagley, the injured employee who was medicated for pain at the time of the hearing
(Tr. 14), first asserted that he worked for Ace Roofing (Tr. 16). Bagley testified that he was paid
an hourly wage and that his paychecks were signed by Presley, president of Ace and a vice-
president of GPS (Tr. 16-17). Later Bagley explained that he was also working for GPS at the
time of his accident (Tr. 23). Bagley stated that Presley told the employees assembled in his van

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on the first day of the project that GPS was the employer on the project (Tr. 18).
       GPS’s Gillner testified that he would visit the site once or twice a week and would go up
on the roof. Gillner denied that he was inspecting the work (Tr. 269-271). Gillner stated that he
went up on the roof and “just walked around the roof, looked at the men working; just looked at
materials, exploring” (Tr. 270). Although Gillner denied that he inspected the roofing work for
the purposes of submitting draws, GPS’s answer to the Secretary’s interrogatory regarding
Gillner’s duties states that his job was “[c]hecking production for expense draws” (Exh. C-16).
Mullininx testified that he also went up on the roof at least once a week to inspect the work “in
order to turn in a draw request for payment” (Tr. 82, 227).
       Admitted GPS employee Brian Liscinsky worked full-time at the warehouse project as the
“project safety officer” (Exh. C-16; Tr. 95-96). GPS president Mullininx testified that this was
also a nominal position. He stated that he “put that in a letter to CTI [the tenant in the
warehouse]” to “appease” CTI regarding its safety concerns (Tr. 231). Mullininx testified that he
assigned Liscinsky inside the warehouse “just to clean up and sweep” (Tr. 92). Mullininx stated
that Liscinsky did not really have a title, but conceded that he told CTI that Liscinsky was the
safety officer because, “We’re a little company. We might have tried to make ourselves sound
bigger” (Tr. 92).
       If GPS is to be believed, it was its policy to create paper positions and make misleading
statements whenever it suited its business purposes. If Selig wanted GPS workers to have
Worker’s Compensation coverage and GPS did not want to pay for insurance for Ace Roofing,
Mullininx would claim that Gary Presley was a vice-president of GPS. GPS did not want CTI to
bother it with CTI’s safety concerns, so Mullininx told CTI that Brian Liscinsky was its project
safety officer. Now, GPS does not want to be held responsible for the safety violations with
which it is charged, so it says Presley was not one of its vice-presidents, Liscinsky was not its
safety officer, and Gillner was just “exploring” up on the roof, and not inspecting for the draw
purposes. GPS’s credibility has been seriously eroded.
       Unfortunately for GPS, an employer cannot shift its responsibility for the health and safety
of its employees. Pride Oil Well Service, 15 BNA OSHA 1809 (No. 87-692, 1992). The key
factor in determining whether a party is an employer is whether it has the right to control the


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work involved. Bagley convincingly described one instance where Mullininx directed Presley to
mark the sagging roof areas with spray paint (Tr. 39-40, 58-59). (Although Mullininx does not
recall “the specifics,” he believes that Presley suggested marking an indentation and that either he
or Presley sprayed it with paint (Tr. 89-90)). Of more importance was GPS’s authority on the job
as the only contractual employer.
       Primarily through its vice-president Presley, but also through Mullininx and Gillner, the
Secretary has shown that GPS controlled the work of the employees on the warehouse project.
While it is undisputed that Presley is the owner and president of Ace Roofing, the record
establishes that Presley also acted in the capacity of a supervisor and an corporate officer for
GPS. Representations made in a legal document for purposes of Workers’ Compensation cannot
be retracted on a situational basis for the convenience of the employer. Presley and Gillner both
told Evatt that GPS, and not Ace Roofing, was the employer of the work crew. Furthermore,
despite its denials at the hearing, GPS admitted that Liscinsky was in charge of safety on the
project and that Gillner inspected the work for draw purposes (Exh. C-16).
        The standard of proof is a preponderance of the evidence. The evidence, although
sometimes conflicting, establishes the employment relationship. GPS was the employer of the
crew performing roofing work on the Kennedy Road warehouse at the time of Evatt’s inspection.
                                           Citation No. 1
       In order to establish a violation of an occupational safety or health standard, the
       Secretary has the burden of proving: (a) the applicability of the cited standard, (b)
       the employer’s noncompliance with the standard’s terms, (c) employees access to
       the violative conditions, and (d) the employer’s actual or constructive knowledge
       of the violation.

Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1741, 1994).

                          Items 1a and 1b: §§ 1910.1200(e)(1) and (h)
       The Secretary asserts that GPS did not have a hazard communication program (item 1a)
and did not train its employees on the hazardous chemical in their work environment (item 1b).
Section 1910.1200(e)(1) requires:
       Employers shall develop, implement, and maintain at each workplace, a written
       hazard communication program which at least describes how the [the


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       requirements] for labels and other forms of warning, material safety data sheets,
       and employee information and training will be met, and which also includes the
       following:
       (1) A list of the hazardous chemicals known to be present using an identity that is
       referenced on the appropriate material safety data sheet. . .

Section 1910.1200(h) requires:

       Employers shall provide employees with effective information and training on
       hazardous chemicals in their work area at the time of their initial assignment, and
       whenever a new physical or health hazard the employees have not previously been
       trained about is introduced into their work area. . . . Chemical-specific information
       must always be available through labels and material safety data sheets.

       The work crew was using hot asphalt to reroof the warehouse (Tr. 253). Evatt asked
Presley, Gillner, and Mullininx for a copy of GPS’s written hazard communication program. She
never received one (Tr. 117-118, 136). GPS failed to supply Evatt with the material safety data
sheet (MSDS) for asphalt (Tr. 126-126). Evatt interviewed three of GPS’s employees, who told
her that they were never given hazard communication training in the use of asphalt (Tr. 116-117).
       The asphalt (Bur Coating) was heated to a liquid form at the time of Evatt’s inspection.
The MSDS for Bur Coating describes the potential results of exposure (Exh. C-17):
       May cause toxic effects if inhaled or absorbed through skin. Inhalation or contact
       with material may irritate or burn skin and eyes. Fire will produce irritating,
       corrosive and/or toxic gases. Vapors may cause dizziness or suffocation.

Evatt testified that the hazards associated with the use of asphalt are (Tr. 128): “Irritation of the
eyes, of the sinuses, of your respiratory, contact dermatitis, exposure to burns, inhalation of
vapors.”
       The Secretary demonstrated that GPS’s employees were exposed to hot asphalt, a
hazardous substance. GPS had not trained employees on the use of hot asphalt, and GPS did not
have a MSDS for asphalt or any element of a written hazard communication program on the site.
GPS violated §§ 1926.1200(e)(1) and (h). It would have been obvious to Mullininx, Presley, and
Gillner that employees were not trained or provided with the required documents on hazardous
chemicals.
       Violations of the cited standards could result in serious physical injury to the skin and the


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respiratory system. The violations cited in items 1a and 1b are serious.
                                    Item 2a: § 1926.502(a)(2)
       The Secretary alleges that GPS did not utilize appropriate fall protection for its employees
working on a flat roof in violation of § 1926.502(a)(2). The standard requires:
       Employers shall provide and install all fall protection systems required by this
       subpart for an employee, and shall comply with all other pertinent requirements of
       this subpart before that employee begins the work that necessitates the fall
       protection.

       The citation for item 2a states vaguely, “Employer did not provide fall protection systems
for employees working on warehouse roof.” No dates are given.
       Bagley fell through the warehouse roof on March 10, 1999. Evatt did not inspect the site
until May 11, 1999, two months after the accident. The site conditions had changed in the two
month period. Bagley’s accident cannot be used as the basis of the instant citation.
       Evatt’s inspection consisted of interviewing employees in the parking lot after they had
climbed down from the roof. Evatt did not go on the roof (Tr. 118-119). She did not observe
any employees working at the edge of the roof (Tr. 176). The employees told her they were not
provided with fall protection, but there is no evidence to show that they were working in an area
of the large roof where they were exposed to a fall hazard (Tr. 114-115). The portion of the roof
that proved so hazardous to Mr. Bagley was being completed at the time of the inspection (Tr.
253-254).
       The Secretary argues that the employees descended the ladder without fall protection
when called down for questioning. The cited standard appears in subpart M (“Fall Protection”) of
the construction standards. Section 1926.500(a)(2(vi) provides:
       Section 1926.501 sets forth those workplaces, conditions, operations, and
       circumstances for which fall protection shall be provided except as follows:
       ...
       (vi) Requirements relating to fall protection for employees working on stairways
       and ladders are provided in subpart X of this part.

       The Secretary has failed to establish employee exposure as the third element of her burden
of proof. No evidence was adduced to show the distance employees were working from the edge
of the roof. Item 2a is vacated.

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                                     Item 2b: § 1926.503(a)(1)
       The Secretary alleges that GPS committed a serious violation of § 1926.503(a)(1), which
provides:
       The employer shall provide a training program for each employee who might be
       exposed to fall hazards. The program shall enable each employee to recognize the
       hazards of falling and shall train each employee in the procedures to be followed in
       order to minimize these hazards.

       It is undisputed that the employees were working at heights of at least 30 feet on the
Kennedy Road warehouse project. Employees “who might be exposed” to fall hazards must
receive fall protection training. Even the acknowledged GPS employees Mullininx and Gillner
testified that they regularly went up on the roof to inspect the work. GPS admitted in its answer
to the Secretary’s interrogatory regarding fall protection that neither Mullininx not Gillner were
trained in fall protection (Exh. C-16).
       The roof was deteriorated and was opened in a number of places during the ongoing
project. Mullininx told Presley to mark the sagging areas with spray paint (Tr. 39-40, 58-59).
GPS’s employees were working on a roof whose structure was badly compromised and from
which they were tearing off and replacing sections. Certainly, these employees might be exposed
to falls. The employees told Evatt that they had received no fall protection training to do the
work they were completing for one section of the deteriorated roof (Tr. 137, 139). A failure to
train enhanced the hazardous nature of roof work occurring 30 feet above the ground floor. The
Secretary has established a serious violation of § 1926.503(a)(1).
                                 PENALTY DETERMINATION
       The Commission is the final arbiter of penalties in all contested cases. Under § 17(j) of the
Act, in determining the appropriate penalty the Commission is required to find and give “due
consideration” to (1) the size of the employer’s business, (2) the gravity of the violation, (3) the
good faith of the employer, and (4) the history of previous violations. The gravity of the violation
is the principal factor to be considered.
       GPS employed 12 or 13 employees at the time of the OSHA inspection, in addition to
those working on the roof (Tr. 231). GPS is a very small employer and is afforded a full credit
for size. The Secretary adduced no evidence of GPS’s history of previous violations (Tr. 141-

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142). GPS demonstrated a lack of good faith in its failure to have a viable safety program.
       The gravity of the violations of §§ 1910.1200(e)(1) and (h) (items 1a and 1b) is moderate.
GPS did not have a written hazard communication program or a MSDS for asphalt, but Evatt
noted that the asphalt was in the open air and that employees were wearing long sleeves and
gloves. The employees’ exposure to the hazardous effects of the asphalt was minimized. A
penalty of $750.00 is assessed.
       The gravity of the violation of § 1926.503(a)(1) is high. Employees working as roofers,
an occupation where they are routinely exposed to fall hazards, were not trained in the use of fall
protection and the recognition of fall hazards. A penalty of $1000.00 is assessed.
                    FINDINGS OF FACT AND CONCLUSIONS OF LAW
       The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Rule 52(a), Fed. R. Civ.P.
                                             ORDER
       Based on the foregoing decision, it is ORDERED:
               Item           Standard                Disposition            Penalty
               1a             § 1020.1200(e)(1)       Affirmed              )
                                                                            ) $750.00
               1b             § 1910.1200(h)          Affirmed              )

               2a             § 1926.502(a)(2)        Vacated

               2b             § 1926.503(a)(1)        Affirmed               $1,000.00

               Total                                                         $1,750.00




                                                      NANCY J. SPIES
                                                      Judge
Date: May 1, 2000




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