Court rejects unsubstantiated trial defense by Elmer W. Davis Inc.
SYRACUSE, NY – An administrative law judge has ordered a Rochester commercial roofing company to pay $16,782 in penalties for two serious fall protection and ladder safety violations, after an investigation and litigation by the U.S. Department of Labor.
The company, Elmer W. Davis Inc., had contested citations issued by the U.S. Department of Labor’s Occupational Safety and Health Administration that alleged safety violations including that the employer failed to protect an employee from a 40-foot fall hazard as they stood near the edge of a roof to guide a crane’s operation. OSHA also alleged the company allowed workers to use an unsafe ladder.
In April 2022, OSHA found that workers performing roofing work on the Village of Newark’s municipal building were not using the necessary fall protection.
The post-trial decision affirmed two of the citations, including the allegation that the employer failed to protect an employee from a 40-foot fall while directing a crane near the edge of a four-story building’s roof, without using fall protection. One citation related to fall protection methods on a low slope roof was vacated.
Following a trial before the Occupational Safety and Health Review Commission, the judge announced on Sept. 19, 2024, that the department’s Office of the Solicitor proved Elmer W. Davis had knowledge of the fall protection violation because the violation was readily visible to the company’s foreman and the company had failed to implement its safety program adequately. The judge rejected the company’s contention that its defense of unpreventable employee misconduct should be automatically credited based on an unrelated prior case involving the same defense. Read the decision, and the errata order.
Additionally, the judge rejected the company’s defense based on the fourth amendment’s protection against unreasonable searches and seizures, finding that Elmer W. Davis Inc. could have no reasonable expectation of privacy on the rooftop of a construction site that it did not own, and that the OSHA inspector acted reasonably during the inspection.
“As the U.S. Department of Labor’s vigorous litigation showed, and the judge appropriately held, Elmer W. Davis Inc. failed to protect employees from fall hazards and cannot claim permanent and complete freedom to commit violations,” said Regional Solicitor of Labor Jeffrey S. Rogoff in New York. “The department takes protecting employees from fall hazards very seriously.”
The decision becomes a final Occupational Safety and Health Review Commission order on Oct. 30, 2024, unless the OSHRC directs review of the decision before that date. The employer filed an appeal petition on Oct. 18.
“Falls from roofs and other elevations are the leading cause of death in the construction industry, needlessly killing hundreds of workers each year and leaving many more with permanent and often disabling injuries,” said OSHA Area Director Jeffrey Prebish in Syracuse, New York. “Elmer W. Davis Inc. violated mandatory federal safety regulations and put workers in danger.”
OSHA’s Area Office in Syracuse conducted the inspection. Trial attorney Julie Pittman and senior trial attorney David Rutenberg of the regional Office of the Solicitor in New York litigated the case.
Elmer W. Davis Inc. serves many geographic locations across Western and Central New York, as well as areas in Pennsylvania, installing all types of low slope roofing applications.
OSHA’s stop falls website offers safety information and video presentations in English and Spanish to teach workers about fall hazards and proper safety procedures. The agency also offers compliance assistance resources on Protecting Roofing Workers and recommendations for developing a safety and health program.
