                  COURT OF APPEALS OF VIRGINIA


Present: Judge Annunziata, Senior Judges Duff and Hodges
Argued at Alexandria, Virginia


MAGCO OF MARYLAND, INC.
                                            OPINION BY
v.   Record No. 2377-99-4           JUDGE ROSEMARIE ANNUNZIATA
                                          AUGUST 1, 2000
JOHN MILLS BARR, COMMISSIONER OF
 DEPARTMENT OF LABOR AND INDUSTRY


           FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                     Joanne F. Alper, Judge

          Bruce M. Luchansky (Frank L. Kollman;
          Seth C. Berenzweig; Juliet D. Hiznay;
          Kollman & Sheehan, P.A.; Albo & Oblon,
          L.L.P., on briefs), for appellant.

          Ellen F. Brown, Assistant Attorney General
          (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Magco of Maryland, Inc. ("Magco"), appeals from the

decision of the Circuit Court of Arlington County, affirming

Magco's citation by the Commissioner of Labor and Industry

("Commissioner") for a serious violation of the safety standards

promulgated by the Virginia Occupational and Safety Health

Program ("VOSH"), 16 VAC §§ 25-175-1926.501(b)(4) and

1926.502(i)(2), including a penalty of $7,000.   Magco contends

the trial court erred 1) in imputing to Magco its foreman's

knowledge of hazardous conditions on the worksite as a basis

for Magco's liability; and 2) in placing upon Magco the burden

of proof to establish "unpreventable employee misconduct" as a
defense to Magco's liability.   We find no error and affirm the

decision of the trial court.

                            BACKGROUND

     We view the facts in this case "in the light most favorable

to sustaining the Commissioner's action and 'take due account of

the presumption of official regularity, the experience and

specialized competence of the Commissioner, and the purposes of

the basic law under which the Commissioner has acted.'"      Sentara

Norfolk General Hosp. v. State Health Comm'r, 30 Va. App. 267,

279, 516 S.E.2d 690, 696 (1999) (internal brackets omitted)

(quoting Bio-Medical Applications of Arlington, Inc. v. Kenley,

4 Va. App. 414, 427, 358 S.E.2d 722, 729 (1987)).   In December,

1996, Magco was engaged in roofing work on a building in

Arlington, Virginia.   Magco's foreman on the project, John

Hataloski, was "solely responsible for this project" as Magco's

on-site superintendent.   His responsibility was, "inter alia, to

make all field calls and to act as the safety officer

responsible for project safety."   Hataloski had extensive

experience and training in safety issues associated with roof

construction and repair and "was more familiar with the safety

regulations than any of Magco's other foremen," being Magco's

"most knowledgeable foreman" with respect to OSHA regulations.

     During the course of the project, Hataloski observed

various holes in the roof of the building that were not properly


                                - 2 -
covered.    On numerous occasions, Hataloski complained to the

general contractor, Turner Construction ("Turner"), that the

open holes constituted a hazardous condition for the workmen on

the roof.   Turner was responsible for attending to site safety,

including covering holes on the roof.   At Hataloski's direction,

it covered all the roof openings with three-quarter inch

plywood.    Periodically, however, the mechanical contractor

removed the covers to perform its ductwork and frequently failed

to replace the covers.   Despite Hataloski's safety concerns and

Turner's generally inadequate response to Hataloski's

complaints, Magco continued to have its employees work on the

roof without wearing fall protection devices, properly covering

the holes in the roof, or erecting guardrails around the holes.

     Magco employees Kevin Barnes and Frank Allen were working

on the site with Hataloski on December 20, 1996.   Barnes was "a

relatively new employee," who was assigned to work with

Hataloski on a section of the roof close to a hole "which opened

to a seven to eight story shaft below."   Hataloski was aware of

the presence of the hole, and he knew that it lay in close

proximity to the section of roof where he and Barnes would be

working.    Upon arriving at the site on the day in question,

Hataloski noted that "a portion of the shaft . . . had been

covered with a piece of plywood and another portion of the shaft

had been covered with a wooden pallet or 'skid.'   Neither the


                                - 3 -
plywood nor the wooden pallet entirely covered the opening."

The uncovered surface area of the hole was approximately 1.2

square feet.    A metal beam had been laid across the pallet and

rested on cinder blocks placed on either side of the shaft.

Hataloski directed Barnes and Allen to move the beam so that

they could better access the work area, which was located

approximately two feet from the opening of the shaft.   Hataloski

did not check the pallet to ensure that it was secured.

Hataloski testified that "he should have checked the pallet and

that he probably knew the pallet was a risk to the safety of the

employees that morning."

     Allen went to work on another area of the roof, while

Hataloski and Barnes began to work near the shaft.   They were

not wearing fall protection equipment, and no guardrail had been

erected around the opening in the roof.   The two men squatted in

an area between the wall of the building and the opening of the

shaft, a space approximately two feet wide.   Barnes' back was

toward the shaft.   As the men worked, Barnes leaned backward as

if to sit upon the wooden pallet covering the shaft.    When he

placed his weight on the pallet, it gave way and Barnes fell

through the opening.   He landed approximately 71 feet below,

suffering fatal injuries.

     David Cline, a compliance officer for VOSH, investigated

the accident.   Based upon his investigation, the Commissioner


                                - 4 -
issued Magco a citation for a "serious violation" of

construction safety standards and assessed a penalty of $7,000,

citing § 1926.501(b)(4)(i) 1 of the VOSH regulations.   The

Commissioner found the violation based on the following:      "[the

wooden pallet] wasn't large enough to cover the hole . . . it

wasn't secure . . . it had slits in it that an employee could

actually step his feet through and break an ankle, sprain, or

actually go through.    It's not an adequately covered hole using

that pallet."

     Magco contested the citation, and the Commissioner filed a

Bill of Complaint in the Circuit Court of Arlington County,

pursuant to Code § 40.1-49.4(E), to enforce the penalty.      The

circuit court heard the case on August 17, 1999, and issued an

order enforcing the Commissioner's citation and penalty on

September 7, 1999.    This appeal followed.

                IMPUTATION OF SUPERVISOR'S KNOWLEDGE

     Magco contends that the trial court erred in imputing to it

its foreman's knowledge of hazardous conditions on the worksite.

We disagree.


     1
         The regulation provides:

            Each employee on walking/working surfaces
            shall be protected from falling through
            holes . . . more than 6 feet (1.8 m) above
            lower levels, by personal fall arrest
            systems, covers, or guardrail systems around
            such holes.


                                - 5 -
     The construction of the specific statutory provisions

implementing federal Occupational Safety and Health Act ("OSHA")

regulations before us raises issues of first impression in the

Commonwealth.   OSHA regulates conditions in private industry

workplaces which affect worker safety and health.    The federal

government assigned OSHA enforcement responsibilities in

Virginia to VOSH.    To maintain federal OSHA approval, Virginia

is required to maintain an OSHA program standard that is "at

least as effective as" the federal standard.    See 29 C.F.R.

§ 1902.37(b)(4).

     Under the Virginia OSHA plan, VOSH inspects the private

industry workplace for compliance with the applicable standards.

Upon "reasonable cause to believe" that a violation has

occurred, VOSH will issue a citation to the employer.   Code

§ 40.1-49.4(A)(1).   VOSH identifies a violation as "serious" 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
          violations.

Code § 40.1-49.3.

     Magco has not challenged the trial court's factual findings

in this case.   Those findings include:   1) that Hataloski was

Magco's foreman on the project; 2) that he was the

                                - 6 -
"superintendent" of the project; 3) that he was responsible for

project safety; 4) that he knew of the hazard presented by holes

in the roof of the building in question; and 5) that he was

specifically aware of the danger presented by the hole through

which Barnes fell.   Based on these findings, the trial court

imputed Hataloski's knowledge of the safety hazard to Magco, a

decision which Magco contends constitutes reversible error.

Magco's position is not supported by applicable Virginia law.

     Although the proof required to show an employer's knowledge

of violations under this statute has not been addressed by our

appellate courts, whether knowledge of certain worksite

conditions may be imputed to an employer is well settled in

Virginia case law.   Indeed, it is a longstanding principle in

the Commonwealth that a foreman's knowledge of facts or events

on a worksite is imputed to his employer.   See Duke v. Luck, 150

Va. 406, 409, 143 S.E. 692, 693 (1928) (foreman's knowledge that

one of his crewmen had caused accident imputed to employer);

Dept. of Game & Inland Fisheries v. Joyce, 147 Va. 89, 97, 136

S.E. 651, 654 (1927) (notice to foreman of accident constituted

notice to employer); Low Moor Iron Co. v. La Bianca's Adm'r, 106

Va. 83, 91, 55 S.E. 532, 533 (1906) ("Ordinarily the foreman or

boss of a gang of hands employed in executing the master's

orders is a mere fellow servant with the other members of the

gang, but if he is discharging a nonassignable duty of the


                               - 7 -
master, he is to that extent a vice principal.   One of these

nonassignable duties is to exercise ordinary care to provide a

reasonably safe place in which the servant is to work.").

Furthermore, the imputation of a supervisor's knowledge of

safety hazards to his employer comports with federal law and

policy.   See Sec. of Labor v. Capform, Inc., 13 OSHC 2219 (1989)

(where employer's supervisors were "continually present at the

worksite," Secretary established prima facie case that employer

knew of safety violations); Sec. of Labor v. Wright & Lopez,

Inc., 8 OSHC 1261 (1980) (foreman's knowledge of conditions at

construction site was imputable to employer, considering

discretion given to the foreman in regard to safety procedures);

Sec. of Labor v. Safeway Stores, Inc., 6 OSHC 1176 (1977)

(grocery store's produce manager was a "supervisory employee"

because he had personnel working under him whom he could

discipline, was charged with ordering produce, and was charged

with general maintenance of his department, and therefore his

actions and knowledge were imputable to his employer).   Magco

concedes that Hataloski was aware of the danger posed by

improperly covered holes on the worksite.   Thus, Hataloski's

knowledge is to be imputed to Magco, and we, therefore, affirm

the trial court's decision.

     Moreover, the trial court's decision is fully supported on

the ground that, under Code § 40.1-49.3, the Commissioner's


                               - 8 -
burden of proof may be met upon a showing that Magco should have

known of the violation in the exercise of reasonable diligence.

See, e.g., Kokosing Construction Co., 17 OSHC 1869 (1996) ("The

conspicuous location, the readily observable nature of the

violative condition, and the presence of Kokosing's crews in the

area warrant a finding of constructive knowledge.").   See also

Austin Building Co. v. OSHRC, 647 F.2d 1063, 1068 (10th Cir.

1981) (evidence sufficient to prove that the company knew or

should have known that hazardous practice existed, where "the

employee welding in this precarious spot was easily observable.

A diligent foreman checking the safety of his workers should

have discovered the hazardous conduct.").

     Our review of the record establishes that Michael Gaulin,

the company's operations manager and vice president, and Mark

Gaulin, the company's president, had primary responsibility for

inspecting the site and regularly did so.   The record also

establishes that the safety hazard posed by uncovered or

incompletely covered holes in the roof at the site was open and

obvious, and the Gaulins were informed about the absence of full

coverings for the holes and the safety hazard they posed.     In

short, the record fully supports the court's conclusion that

Magco knew or should have known of the problem on the worksite

that resulted in Barnes' death.   Therefore, because Hataloski's

knowledge of the hazards on the site may be imputed to Magco,


                              - 9 -
and because the senior officers of Magco knew or should have

known of those hazards, we affirm the trial court's decision.

               THE BURDEN OF PROVING EMPLOYER DEFENSES

     In its defense, Magco argued that it did all it could do to

ensure the safety of its employees and that it was not liable

for the unforeseeable, idiosyncratic conduct of its foreman who

failed to check and secure the pallet.   It contends the court

erred in placing on it the burden of proving unforeseeable and

unpreventable employee misconduct, citing in support Ocean

Electric Corp. v. Sec. of Labor, 594 F.2d 396 (4th Cir. 1979),

and L. R. Willson & Sons, Inc. v. Occupational Safety and Health

Review Comm'n, 134 F.3d 1235 (4th Cir.), cert. denied, 525 U.S.

962 (1998).   In these cases, the United States Court of Appeals

for the Fourth Circuit has held that unpreventable employee

misconduct was not an affirmative defense to a citation 2 and

that, although a supervisor's knowledge of a safety hazard could

be imputed to the employer, employer liability is not strict

liability.    Accordingly, the Fourth Circuit has held that when a


     2
       We note that the Fourth Circuit's holding is a minority
view, with most of the federal circuits holding that employee
misconduct is an affirmative defense, the burden of proof for
which falls on the employer. See D. A. Collins Constr. Co. v.
Sec. of Labor, 117 F.3d 691, 695 (2d Cir. 1997); Brock v. L. E.
Myers Co., High Voltage Div., 818 F.2d 1270, 1276 (6th Cir.),
cert. denied, 484 U.S. 989 (1987); Daniel Internat'l Co. v.
OSHRC, 683 F.2d 361, 364 (11th Cir. 1982); H. B. Zachry Co. v.
OSHRC, 638 F.2d 812, 818 (5th Cir. 1981); General Dynamics Corp.
v. OSHRC, 599 F.2d 453, 458-59 (1st Cir. 1979); Danco Constr.
Co. v. OSHRC, 586 F.2d 1243, 1247 n.6 (8th Cir. 1978).

                               - 10 -
violation is the result of employee misconduct, i.e., where it

is created by an isolated, idiosyncratic act of an employee, the

Secretary of Labor 3 must prove as part of his case-in-chief that

the employee's conduct was "not unpreventable and not

unforeseeable." 4

     The conclusions reached by the Fourth Circuit regarding the

burden of proof on the issue of employee misconduct are not

binding on this Court, see Maxey v. American Casualty Co. of

Reading, Pa., 180 Va. 285, 290, 23 S.E.2d 221, 223 (1942), and

we decline to follow its allocation of the burden of proof,

because it is inconsistent with Virginia law.   While we agree

that employer liability based on worksite safety violations is

not absolute, see Pike v. Dept. of Labor and Industry, 222 Va.

317, 322-23, 281 S.E.2d 804, 807 (1981), the burden of proof in

establishing employee misconduct as a limitation on employer


     3
       Under Virginia law, the Commissioner is the counterpart of
the Secretary of Labor.
     4
       In Ocean Electric, the specific element that the Secretary
of Labor failed to prove was the "adequacy of the employer's
safety policy." In Ocean Electric, as in Willson, the violation
was created by an employee/supervisor's failure to adhere to a
specific safety rule. In such instances, it must be determined
whether the conduct was foreseeable, implicating the adequacy of
the employer's safety regulations and program. See Ocean
Electric, 594 F.2d at 402 (where it was stipulated that
employee/supervisor's violation of safety regulation was
"accidental, not intentional, and purely a human error," it was
incumbent upon the Secretary to introduce evidence on the
adequacy of the employer's safety program. Having failed to
meet its burden of proof on this issue, liability could not be
imposed on the employer.).

                              - 11 -
liability resides with the employer.    VOSH has enacted

regulations defining the parameters of the employee misconduct

defense under Virginia law.   These regulations are set forth in

the VOSH Administrative Regulations Manual, codified at 16 VAC

§ 25-60-260.    According to the pertinent regulation, an employer

may avoid liability for a safety violation due to employee

misconduct if

          [the] employer demonstrates that:

          1)    employees of such employer have been
                provided with the proper training and
                equipment to prevent . . . a violation;

          2)    work rules designed to prevent such a
                violation have been established and
                adequately communicated to employees by
                such employer and have been effectively
                enforced when such a violation has been
                discovered;

          3)    the failure of employees to observe work
                rules led to the violation; and

          4)    reasonable steps have been taken by such
                employer to discover any such violation.

16 VAC § 25-60-260 (emphasis added).    Thus, under Virginia law,

the burden of proving any such defense to a citation, including

unforeseeability, is on the employer.    Cf. Ocean Electric, 594

F.2d at 401-02 (Secretary has burden of proving inadequacy of

safety regulations); cf. also Willson, 134 F.3d at 1241.

     Moreover, under the pertinent regulations, employers cannot

claim the defense based on the misconduct of "any officer,

management official or supervisor having direction, management

                               - 12 -
control or custody of any place of employment which was the

subject of the violative condition cited."     16 VAC § 25-60-260.

The regulation defines "employee" to exclude supervisory

personnel. 5   See id.   Thus, under the regulations adopted

pursuant to Code § 40.1-22(5), the defense of employee

misconduct does not apply to the acts of supervisory personnel

and does not insulate Magco from liability in this case.

     For the reasons stated, we affirm the decision of the trial

court.

                                                          Affirmed.




     5
       16 VAC § 25-60-260 provides: "[T]he term 'employee' shall
not include any officer, management official or supervisor
having direction, management control, or custody of any place of
employment which was the subject of the violative condition."


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