An administrative law judge in Syracuse, N.Y., ordered a roofing company to pay $16,782 in penalties for two violations related to a roofing project on the Village of Newark’s Municipal Building after the company’s appeal of the U.S. Department of Labor’s initial finding.

In a news release, the Labor Department announced the judgment against Elmer W. Davis Inc. for what the agency characterized as “two serious fall protection and ladder safety violations” from an April 2022 incident when workers were performing roofing work on Newark’s municipal building. Newark is a village about 35 miles southeast of Rochester.

The Occupational Safety and Health Administration alleged 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 and that the company allowed workers to use an unsafe ladder.

Elmer W. Davis Inc., a commercial roofing firm founded in 1936 and based in Rochester, N.Y., filed an appeal of the OSHA findings on Oct. 18.

Following a trial before the Occupational Safety and Health Review Commission, the judge announced on Sept. 19 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,” the Labor Department said.

Additionally, said the Labor Department, “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.”

The Labor Department said 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.”

The agency noted that one citation related to fall protection methods on a low-slope roof was vacated.

In a statement, the company categorically rejected the judge’s findings, noting that no employees fell or were injured in connection with the inspection at hand and that the Labor Department had mischaracterized the matter in its public comments.

“Since 2013, OSHA has conducted 13 separate inspections of EWD,” the statement, first reported by The Finger Lake Times, said. “For 11 of these 13 inspections, OSHA found EWD to be in full compliance with any and all applicable OSHA standards and, for that reason, OSHA issued no citations against EWD in any of those matters. 

“In an additional matter, EWD was cited with one violation. However, EWD contested the violation, went to trial, and prevailed on its defenses. That leaves the one matter that is the subject of the OSHA news release. 

“In view of its past compliance, EWD does not believe that the matter addressed in the news release provides an accurate reflection of its health and safety plan and efforts — much less its prior performance.”

The company firmly denies any claims that its safety and health program is inadequate and is committed to investing significant resources to protect its employees. It writes, in part, that it “must take issue with any suggestion that its safety and health program is anything but comprehensive, effective, and exemplary … For many decades, EWD has enjoyed a positive standing in the community and looks forward to continuing to do so in the future.”

Barring a last-minute change of heart, the order will be final, effective Oct. 30. Read the decision and the errata order here.