NOTICE: The opinions posted here are
subject to formal revision. If you find a typographical error or
other formal error, please notify the Virginia Court of Appeals.




AUGUST 1, 2000

Record No. 2377-99-4

Argued at Alexandria, Virginia





From the Circuit Court of ARLINGTON County

Joanne F. Alper, Judge

Present: Judge Annunziata, Senior Judges Duff
and Hodges

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

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
Sect.Sect. 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.


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
, 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 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 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

David Cline, a compliance officer for VOSH,
investigated the accident. Based upon his investigation, the
Commissioner issued Magco a citation for a "serious
violation" of construction safety standards and assessed a
penalty of $7,000, citing Sect. 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 Sect. 40.1-49.4(F)(1), 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.

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. Sect. 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 Sect. 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 Sect. 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 "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.
, 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 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 Sect. 40.1-49.3,
the Commissioner’s 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
, 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, 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 violation is
the result of employee misconduct, i.e., where it is created by
an isolated, idiosyncratic act of an employee, the Secretary of
[3] must prove as part of his case-in-chief that the
employee’s conduct was "not unpreventable and not

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 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 Sect. 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
employer to discover any such violation.

16 VAC Sect. 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 control or custody of any place of
employment which was the subject of the violative condition
cited." 16 VAC Sect. 25-60-260. The regulation defines
"employee" to exclude supervisory personnel.
[5] See
id. Thus, under the regulations adopted pursuant to Code
Sect. 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.



[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.

[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.
, 599 F.2d 453, 458-59 (1st Cir. 1979); Danco Constr.
Co. v. OSHRC
, 586 F.2d 1243, 1247 n.6 (8th Cir. 1978).

[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.).

[5] 16 VAC Sect. 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