United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 1120 20th Street, N.W., Ninth Floor

 Washington, D.C. 20036-3457

SECRETARY OF LABOR,

Complainant, 

v. OSHRC Docket No. 17-2056 

C & W FACILITY SERVICES, INC.,

Respondent. 

Appearances: Kate S. O’Scannlain, Solicitor of Labor

 Stanley E. Keen, Regional Solicitor 

 Karen E. Mock, Counsel

 Melanie L. Paul, Trial Attorney

 Melanie A. Stratton, Trial Attorney 

 Richard A. Latterell, Esq., Trial Attorney 

 U.S. Department of Labor, Office of the Solicitor, Atlanta, GA 

 For the Secretary of Labor

 

 Thomas M. L. Metzger, Esq.

 Bryan M. Gramlich, Esq.

 Littler Mendelson, P.C.

 21 East State Street, 16th Floor

 Columbus, OH 43215

 For the Respondent

Before: The Honorable Dennis L. Phillips

 U.S. OSHRC Judge

DECISION AND ORDER 

I. BACKGROUND

This case arises from a fatal drowning that occurred on May 15, 2017 at 333 Franklin 

Street, Tampa, FL 33602 (Worksite). (Tr. 365-66; Joint Prehearing Statement (Jt. Pre-Hr’g
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Stmt.); Stipulation of Fact (SF) Nos. 1, 13). The victim, Johnnie Norton, was operating a 

pressure washer on a dock at the Tampa Convention Center (TCC). Mr. Norton was not 

wearing a personal flotation device (PFD) when he walked backward off the dock and drowned. 

(SF 11-12). OSHA opened Inspection No. 1237383 of C&W Facilities Services, Inc. 

(Respondent or C&W) as a result.1 (Ex. 1). 

On November 13, 2017, OSHA issued a one-item serious citation item to Respondent. 

OSHA cited Respondent for a violation of 29 C.F.R. § 1910.132(a) for the failure to provide 

and require the use of personal protective equipment (PPE) in the form of PFDs to an 

employee pressure washing a boat dock. (Ex. l). The total penalty issued to the company was 

$12,675. (Ex. 1). Respondent timely contested the Citation and Notification of Penalty. (SF 

4). 

The Court held an evidentiary hearing in the matter in Tampa, Florida on September 5-6, 

2018 and February 20, 2019. (Tr. 1, 226, 576). Both parties filed post hearing briefs and post 

hearing reply briefs.

II. STIPULATIONS OF FACTS

In the Joint Prehearing Statement at 14-15, the Parties stipulated to the following facts:

1. On and before May 15, 2017, Respondent had a contract with the City of Tampa to provide 

certain services addressed in the contract at the Tampa Convention Center located at 333 Franklin 

Street, Tampa, FL 33602. 

2. Johnnie Norton was a worker at the Tampa Convention Center Worksite on Awnclean's payroll. 

1 Any references herein to C&W Facility Services, Inc.’s or C&W Services’ (C&W) predecessors, UGL Services 

University Cleaning Company Operations CO (UNICCO) or DTZ, Inc. (DTZ), are references to Respondent or 

C&W, and treated herein as one and the same. 
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3. Johnnie Norton had worked at the Tampa Convention Center for about one year prior to May 

15, 2017. 

4. Respondent's predecessor DTZ, Inc. and Awnclean USA, Inc. had entered into a contract for 

Awnclean to provide certain services at the Tampa Convention Center as specified in the contract. 

5. DTZ, Inc. changed its name to C&W Facility Services, Inc., on November 20, 2015. 

6. On May 15, 2017, Johnnie Norton was pressure washing the docks at the Tampa Convention 

Center as part of his normal job duties. 

7. Mr. Norton was wearing rubber boots while pressure washing. 

8. The City of Tampa owned the pressure washer used by Respondent and Awnclean personnel 

to clean the docks. 

9. The dock was approximately 289' 7" long and 10' 2" wide. 

10. The bay was approximately 19 feet deep at the end of the dock where Mr. Norton was working 

on May 15, 2017. 

11. While pressure washing the dock, Mr. Norton walked backward off the end of the dock and 

fell into Tampa Bay.

12. Mr. Norton was not wearing a personal flotation device at the time he fell into the bay. 

13. Mr. Norton drowned. 

(Tr. 47). 

III. STIPULATIONS OF LAW

In the Joint Prehearing Statement at 13-14, the Parties stipulated to the following 

Statement of Applicable Principles of Law on which there is agreement: 
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1. Respondent, at the time of the OSHA inspection, was an employer engaged in a business 

affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health 

Act of 1970 (“the Act" or "OSH Act"), 29 U.S.C. 651, et seq. 

2. The Occupational Safety and Health Review Commission has jurisdiction of this action 

pursuant to section 10(c) of the Act. 

3. The principal place of business of Respondent is at 275 Grove Street, Suite 3-200, 

Auburndale, MA 02466, but Respondent operates an office in the state of Florida at 5200 

Lagoon Drive, Suite 760, Miami, FL 33126. 

4. Respondent timely contested the Citation and the proposed Penalty, pursuant to the 

provision of Section 10(c) of the Act. 

(Tr. 47-48).

IV. JURISDICTION

The Court finds that, as of the date of the alleged violation, Respondent was an employer 

engaged in business affecting commerce within the meaning of section 3(5) of the OSH Act. 

(Stipulation of Law (SL) Nos. 1-2; Resp’t Answer, ¶¶ 1-3). Based upon the record, the Court 

finds that at all relevant times Respondent was engaged in a business affecting commerce and 

was an employer within the meaning of sections 3(3) and 3(5) of the OSH Act. The Court 

concludes that the Commission has jurisdiction over the parties and subject matter in this 

case, and Respondent is covered under the OSH Act.2

 

V. CITATION

Complainant’s Citation alleges a violation of one standard—29 C.F.R. § 1910.132(a). The 

2 Respondent was a covered employer under the OSH Act. 29 U.S.C. § 652(5) (defining “employer” as a “person 

engaged in a business affecting commerce who has employees”). 
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Citation alleges the following:

Citation 1, Item 1 Type of Violation: Serious

29 C.F.R. § 1910.132(a): Protective equipment was not used when necessary 

whenever hazards capable of causing injury and impairment were encountered: 

a. At the Tampa Convention Center, an employee engaged in pressure washing 

a boat dock was not provided and wearing a personal flotation device (PFD), on or 

about May 15, 2017. 

(Ex. 1). 

VI. FACTS 

On October 12, 2012, the City of Tampa issued a Request for Proposals (RFP) for 

Operational Staffing Services at the TCC located at 333 South Franklin Street, Tampa, Florida 

33602 calling for proposals to be received by November 16, 2017.3

 (Ex. 37, at 3, 6; SF 1). The 

RFP stated that the successful proposer shall be responsible for annually providing: 1) 

Cleaning/Setup Personnel: about 110,000 hours, 2) Working Supervisors: about 12,800,4

 3) 

On-Site Manager: about 2,080 hours (salaried),5

 4) Event Maintenance Personnel: about 12,000 

hours, and Event Technical Personnel: about 4,160 hours. The RFP also stated that the 

successful proposer shall be responsible for providing on an as needed basis, among other types 

of equipment, “Pressure Washer.” (Ex. 37, at 6). The RFP stated that it awarded rating points 

3 The RFP stated: “The TCC is directly on the waterfront in the heart of downtown Tampa. The facility, which is 

an award winning 600,000 feet of meeting space and 2,000 feet of waterfront access .... The facility hosts over 300 

events annually.” (Ex. 37, at 6). 

4 The RFP stated that the responsibilities of the Working Supervisor included ensuring “proper training programs for 

Successful Proposer’s personnel and generate training schedules.” (Ex. 37, § 8.2.5, at 9). It also stated that 

working supervisors were to “verify that all tasks requested by TCC rep have been completed in proper fashion and 

in a timely manner. Response time to critical tasks shall be closely monitored.” (Ex. 37, § 8.2.14, at 9). The RFP 

also stated that the responsibilities of the Successful Proposer’s Cleaning/Event Set-Up personnel included being 

“Knowledgeable concerning safety procedures, ....” (Ex. 37, § 8.3, 5., at 10). The RFP further required 

maintenance personnel to be able “to use a pressure washer.” (Ex. 37, § 8.4.8, at 10). Section 12.5 4., Cleaning 

Requirements, Riverwalk, required the successful proposer to perform work including “Pressure wash outside ... 

docks, etc.” (Ex. 37, at 13-14, § 12.5 4.). 5 The RFP stated that the On-Site Manager shall be responsible for ensuring that proper training programs for the 

Successful Proposer’s personnel are scheduled and completed to maintain “best practices” standards, including 

classes for the “Proper use of cleaning equipment”. (Ex. 37, at 8). 
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for proposals that utilized Small Local Business Enterprise (SLBE or SBE) subcontractors with 

evaluation criteria that included “Diversity of SLBE subcontractors” and “Percentage of 

proposal/scope committed to SLBE subcontracting.”6 (Ex. 37, at 24, 52). 

On April 1, 2013, the City of Tampa entered into a contract with UGL Services’ 

UNICCO (also referred to as DTZ) for operational staffing services, including janitorial, grounds 

maintenance, and maintenance, at the TCC. This contract expired on March 31, 2014, subject to 

renewal for additional one-year periods by agreement of the parties. The contract was repeatedly 

renewed and continued through July 31, 2018. (Tr. 521-25, 607; Exs. 37, at 27, Y). DTZ 

identified three subcontractors, including Awnclean, U.S.A., Inc. (Awnclean), Chinchi Janitorial 

Services, Inc. (Chinchi or Chinchi’s), and P&L Cleaning Services (P&L or J&L), for small 

business enterprise participation. (Tr. 523; Ex. Y, at 6). The contract called for 25% 

($493,339.50) of its total value to be assigned to Awnclean and 13% of its total value to be 

assigned to Chinchi’s ($256,536.54) and P&L ($256,536.54).7

 Chinchi and P&L provided 

janitorial services under the contract. Awnclean provided janitorial services and some 

maintenance of the exterior grounds under the contract. (Tr. 523-26; Ex. Y at 8). 

Ken Jermulka (or Germulka) was a DTZ salesman who handled DTZ’s account with the 

TCC. (Tr. 312). In 2013, Mr. Jermulka was working with Paul Frederick Diehl, then 

Awnclean’s Office Manager, helping Awnclean become a subcontractor for DTZ because DTZ 

needed minority participation in DTZ’s contract with the TCC.8

 (Tr. 140, 312-15). Mr. Diehl 

6 The evaluation criteria included the award of “5 Bonus Points” for SLBE participation. (Ex. 37, at 25). 7 Ms. Diaz testified that DTZ “proposed that we would have 51 percent minority spent for SBE component into the 

contract. ... Therefore, if you have a contract that is valued at $1 million, you already know of $510,000 of that 

contract value, it’s going to go to that SBE component because you proposed 51 percent SBE.” (Tr. 604-05). She 

said once the City of Tampa awarded the contract to DTZ, DTZ had to comply with the 51 percent SLBE 

participation DTZ had proposed. (Tr. 616-17). 

8 Mr. Diehl testified that: “We were told that – that we were participating and involved with them because we were 

going to be the minority business participation, which is what they needed for their contract and so we were one of 

the two or three or four vendors who provided that.” (Tr. 328). 
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testified that “the contract put out by the City was that there had to be a certain amount of 

minority owned business participation in the contract. And so they had to subcontract out some 

of their work to minority companies, and we were one of those.” (Tr. 329-30). 

Amy Diehl is Awnclean’s owner and President. She is married to Mr. Diehl. (Tr. 133, 

140). Awnclean is a commercial cleaning business that specializes in the clean-up of 

construction sites. (Tr. 133, 136, 252-53; Ex. D, at 5). It performs roof, building, pressure, 

awning, and window cleaning. It also does some construction cleanup and interior rafter 

cleaning in gymnasiums. (Tr. 133, 308-09). Awnclean employs approximately 26 employees. 

(Tr. 133). It has been in business since 1989, when it was founded by Mr. Diehl. (Tr. 257, 309). 

Mr. Jermulka reached out to Ms. Diehl and asked her if Awnclean was interested in 

joining DTZ to bid for a contract with the City of Tampa to provide operational staffing services 

(also referred to as janitorial services) at the TCC. (Tr. 134, 285-86, 539-40). He did so because 

Awnclean is a woman-owned business. (Tr. 134-35, 276, 300, 312; Ex. M). Ms. Diehl testified 

that, “It was made clear to us on this contract that we were doing – providing staffing. That this 

was a staffing position.” (Tr. 253). She explained that Awnclean “wouldn’t have got the 

contract” if it did not agree to the terms of the contract that said otherwise. (Tr. 253-54). She 

said “the truth, is that” the workers on Awnclean’s payroll who were paid weekly and worked at 

the TCC “were all run and managed by C&W.” (Tr. 253-54). 

Mr. Diehl testified that the TCC awarded a contract to DTZ for operational staffing in 

May 2013. (Tr. 310). He said, during that same year, Awnclean entered into an agreement with 

DTZ.9 He said DTZ transferred workers already working at the TCC to Awnclean’s payroll. He 

further said DTZ hired new workers to work at the TCC who were also placed on Awnclean’s 

9 This agreement is also referred to herein as the subcontract agreement or subcontract.
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payroll. (Tr. 313-14). Mr. Diehl stated that later on DTZ sent workers to be hired to work at the 

TCC to Awnclean to fill out applications. (Tr. 313-14, 320). 

By email dated May 20, 2013, DTZ’s Interim Site Manager Tommie Harris10 asked Ms. 

Diehl to advise her when Ms. Diehl’s attorney approved the subcontractor agreement between 

DTZ and Awnclean. Ms. Harris also attached “the steps that we will use to get your company 

started as a subcontractor to DTZ @ the Tampa Convention Center.” (Tr. 142-43; Exs. 13, at 1, 

L, at 1). These “Step by Step instructions for a smooth transition” included an unspecified date 

for DTZ to meet with its current DTZ employees to end their DTZ assignment and identified a 

list of eleven DTZ employees and one supervisor (for a total of twelve employees), and their 

“Work Hours”, who would be assigned by DTZ to Awnclean to work at the TCC.11 The date the 

“Subcontractor starts employee assignment” was left blank. The email also stated that a weekly 

payroll, including the signature and time clocked by each worker, would be sent to Awnclean by 

DTZ weekly by 4:00 p.m., on Mondays. Both Amy and Paul Diehl testified that until Awnclean 

received a payroll time sheet from DTZ Awnclean did not know who had worked, what hours 

they had worked, and what rate to pay them for work performed at the TCC.12 Ms. Diehl 

testified that the May 20, 2013 email were DTZ’s instructions on how to put these twelve DTZ 

employees on Awnclean’s payroll. (Tr. 143, 147-48, 153, 161, 315-16, 322-23; Ex. 13, at 2). 

Both Paul and Amy Diehl also testified that it was DTZ’s policy for Awnclean to pay the 

10 Mr. Diehl testified that Ms. Harris handled the administrative side of the contract between DTZ and Awnclean for 

DTZ. (312-13). Ms. Diaz testified that Ms. Harris was the first account manager on the contract who preceded Ms. 

Ericka Alberti. (Tr. 553-54). 11 Rigoberto Monteaqudo was atop the list. Ms. Diehl testified that, although he was on Awnclean’s payroll, she had 

never met him in person. (Tr. 141; Ex. 13, at 2). She also testified that she had not met or did not know Jermain 

Slaughter, Ducatel Watson, or Anita Letourneau, even though the latter two were also on Awnclean’s payroll. (Tr. 

141-42). 12 Ms. Diehl testified that Ms. Harris or her replacement, Ms. Alberti, sent the time sheets directly to Awnclean’s 

office manager. (Tr. 161).
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workers working at the TCC on a weekly basis. (Tr. 160-61, 327). Paul Diehl testified that “this 

is the only contract we had that was like that.” (Tr. 328). 

She said that Awnclean was “working within their [DTZ] payment system” for only these 

workers on Awnclean’s payroll. Paul and Amy Diehl both testified that Awnclean paid all its 

employees, other than those workers on its payroll working at TCC, on a bi-weekly basis. (Tr. 

160-61, 327). Both Paul and Amy Diehl testified that DTZ supervisors set the number of hours 

each worker was going to work at the TCC. (Tr. 161, 356). Paul Diehl said that Respondent 

dictated the amount of hours supervisors on Awnclean’s payroll paid weekly worked at the TCC. 

(Tr. 356). Both Amy and Paul Diehl testified that if a worker working at TCC was sick that 

worker would notify DTZ, but not anyone at Awnclean. (Tr. 161-62, 321-22, 330). Paul and 

Amy Diehl also stated that DTZ supervisors, specifically Michael Sheehan,13 provided safety 

and health training for the workers on Awnclean’s weekly payroll who worked at the TCC. (Tr. 

173, 303-05, 338; Ex. 19). 

Ms. Diehl testified that she was not aware of any Job Hazard Analysis (JHA)14 that 

Awnclean prepared prior to May 15, 2017 for work at the TCC. (Tr. 239). She said that DTZ 

made it “really clear” that it did not want Awnclean to write up a JHA for work done at the TCC 

by workers on Awnclean’s weekly payroll. (Tr. 199-200). Awnclean’s employees also said that 

a DTZ supervisor performed the job safety analysis (JSA) for pressure washing at the TCC. She 

said Awnclean did not perform a JSA because Awnclean assumed DTZ did one. She said after 

Mr. Norton’s drowning, Mr. Sheehan told her that workers on Awnclean’s weekly payroll 

13 Mr. Diehl testified that Mr. Sheehan handled the management side of the contract between DTZ and Awnclean for 

DTZ. (Tr. 312-13). Ms. Diaz testified that Mr. Sheehan was an “Assistant Manager.” (Tr. 600; Ex. 35, at 34-35). 14 The trial transcript also refers to the JHA as a "JSA"; these terms and abbreviations are used interchangeably.
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working at the TCC had sat in on safety meetings; but may not have signed off on paperwork.15 

(Tr. 174-75, 199). 

By email dated May 31, 2013, Ms. Harris indicated that her first meeting with Awnclean

would occur on June 4, 2013 where employee information would be transferred from DTZ to 

Awnclean and DTZ would provide the work schedule for Awnclean’s “new employees.” Ms. 

Harris also stated that these employees would start working for Awnclean starting the week of 

June 17, 2013. Ms. Diehl testified that Ms. Harris was transferring or switching the employees 

from DTZ to Awnclean’s payroll. (Tr. 148, 153-54, 287-88, 607-08; Ex. 14, at 1). 

Mr. Diehl testified that he was the only Awnclean representative to show up for the June 

4, 2013 “kick off” meeting. He said he thought it would be “like a job’s fair.” (Tr. 313-14). Mr. 

Diehl said he went to the meeting “under the assumption that we would be managing our 

employees.” Instead, he said Mr. Sheehan told him that “you don’t need to be here” and that 

DTZ would manage the employees on Awnclean’s weekly payroll working at the TCC. (Tr. 

314-19). Mr. Diehl testified that he “was surprised by it. I did leave. I didn’t stay for the 

meeting.” (Tr. 317-19). He said DTZ did not provide a work schedule to anyone there. (Tr. 

317). 

 By email dated June 12, 2013, Ms. Harris sent Paul Diehl16 a listing of twelve DTZ 

employees that omitted one employee whose name appeared on the May 20, 2013 listing and 

added Jermain Alonzo Slaughter. Ms. Harris stated, “We [DTZ] just made J. Slaughter a new 

supervisor.”17 The listing included the Job Type and Hourly rate for each employee. (Tr. 149, 

15 Ms. Diehl testified that “during the course of the contract. She had talked to Mike [Sheehan] and I knew they 

were doing safety sessions, because they were very proud of it.” (Tr. 176). 

16 Mr. Diehl was also an Awnclean officer at that time. (Tr. 308-09). 

17 Mr. Diehl testified that Awnclean had no role in making Mr. Slaughter a supervisor or giving him, or any other 

weekly paid workers, a pay raise. (Tr. 324, 326-27; Ex. 14, at 5). Ms. Diehl testified that she did not know what 

day-to-day activities of Mr. Slaughter’s new role as supervisor involved. (Tr. 156, 167). 
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155-56, 316; Ex, 14, at 3). Ms. Diehl testified that these were the employees who would be 

working on the TCC project. She said that DTZ assigned them to Awnclean’s payroll to be paid 

weekly. (Tr. 155, 287, 316-17). Ms. Diehl testified that Respondent set the hourly rate of pay 

for workers on Awnclean's weekly payroll. (Tr. 159). Mr. Diehl testified that DTZ set up 

autopay for these workers. He said Awnclean put the autopay information into its system and 

got it over to Awnclean’s accountant, who did Awnclean’s weekly payroll. He said Awnclean 

had no role in soliciting, interviewing, or hiring these workers, or any workers later on. (Tr. 316-

17, 326-27). He said he did not meet any of these twelve workers who were placed on 

Awnclean’s payroll. (Tr. 319; Ex. 14, at 3). 

By email dated June 20, 2013, Paul Diehl informed Ms. Harris, and others, that 

Awnclean would begin processing weekly payroll the next week. He also indicated that he 

would soon need to pick up “employee files” from DTZ. (Ex. 13, at 3). 

By email dated June 21, 2013, Ms. Harris told Paul and Amy Diehl that she [Ms. Harris] 

had collected applications from potential employees. Ms. Diehl testified that DTZ “ran the 

employment adds” seeking the applications. (Tr. 143-44, 155; Ex. 13, at 3). 

In 2013, Awnclean and DTZ entered into a subcontract for Awnclean to provide certain 

services at the TCC as specified in the subcontract.18 (Tr. 205; SF 4). Ms. Diehl testified that 

Awnclean had annual revenues of about $2,400,000. (Tr. 184). She said that Awnclean made 

an annual profit of about $18,000 under the subcontract, although some years were “slimmer 

than others.” (Tr. 205-06). Both Amy and Paul Diehl testified that when Awnclean entered 

into the subcontract with Respondent, Awnclean did not have enough employees on its 

regular payroll to complete the work required by the subcontract. (Tr. 138, 313). 

18 The Court is unaware of the exact date in 2013 this subcontract was entered into by Awnclean and DTZ.
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 By email, Subject: payroll W/E 6/30/13 total hours 354.50, dated July 1, 2013, Ms. 

Harris told Amy and Paul Diehl that “[t]his is our first week of payroll.” Ms. Harris further 

stated: “We only had 10 employees this week. We did not send the termination papers in for 

Marie Justinvil. We will get that done this week and she will be on next weeks payroll for your 

company.” Ms. Diehl testified that Ms. Justinvil came onto Awnclean’s weekly payroll at 

DTZ’s request. (Tr. 152, 158; Ex. 14 at 10). 

 By email dated October 17, 2013, DTZ’s Operations Manager, Michael Sheehan, told 

Awnclean’s Scheduler, Brooke Martz, and Paul Diehl that DTZ was “sending a new employee, 

she [Jill Glass] will be on you[r] (sic) staff starting Monday, 10/21/13. Her rate of pay is $8.00 

an hour.” (Tr. 156; Ex. 14, at 7). Ms. Diehl testified that even though Awnclean did not solicit 

or interview Ms. Glass, Awnclean put her on the weekly payroll. (Tr. 157). She further 

testified that DTZ sent Awnclean “an email saying we’re adding five people to your payroll.” 

(Tr. 284). 

Ms. Diehl testified that she had a statewide certification as a Woman Owned Business 

for quite a few years before 2014. (Tr. 273-74; Ex. L, at 7). She said that since she was going 

after local work, she submitted an application to Hillsborough County. On February 17, 

2014, Hillsborough County, Florida, Minority and Disadvantaged Business Manager, Sheila 

Hudson, acting on behalf of the Economic Development Department, approved Awnclean’s 

application for certification as a bona fide Disadvantaged Minority/Disadvantaged Woman 

Business Enterprise for two years effective February 14, 2014.19 (Tr. 276; Ex. M). 

In April 2014, Awnclean’s principal place of business was at 501 N. Newport Avenue, 

Tampa, FL 33606. On April 1, 2014, Awnclean entered into a follow-on one year “Services 

19 Ms. Diehl testified that Awnclean was a Woman Business Owner of the Year in 2014. (Tr. 273-74; Ex. L, at 7).
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Agreement” subcontract with DTZ because it was an opportunity for Awnclean to work with 

Respondent, a larger company, and learn how to provide janitorial services.20 (Tr. 135, 253, 

526; Ex. A). Ms. Diehl stated she thought Respondent was “going to help us on how to do that 

[provide janitorial services]” since Awnclean’s experience was with construction cleaning 

which differed from janitorial cleaning. She said, “Yeah, we were kind of learning as we went 

along.” (Tr. 136). 

Paragraph 6, Change in Scope of the April 1, 2014 subcontract, stated, in part: “DTZ 

has the right to increase or decrease the scope of Services upon thirty (30) days advanced 

written notice to Subcontractor.”21 

Paragraph 11, Contractor Relationship, stated: 

In furnishing Services, hereinunder, Subcontractor shall be acting as an 

independent contractor in relation to DTZ. ... Neither Subcontractor nor any 

personnel employed by or affiliated with Subcontractor for the benefit of DTZ 

shall be considered as having employee status at DTZ.22 

(Tr. 286; Ex. 30, at 4). 

Paragraph 13, Subcontractor Employees, stated: 

DTZ agrees not to directly or indirectly hire or cause to hire, employ or engage the 

services of Subcontractor’s employees during the term of this Agreement. Subject 

to controlling law, DTZ shall have the right, upon written notice to Subcontractor 

stating any cause, to require Subcontractor to remove any employee of 

Subcontractor’s from assignment to any locations services under this Agreement. 

20 Ms. Diehl testified that Respondent was one of the largest janitorial contractors “in the world and we were 

following their lead.” She said regardless of what the contract said, DTZ “dictated what was going to be done ... we 

did it the way they [DTZ] wanted to do it.” (Tr. 236, 245). 

21 Ms. Diehl testified that the special, additional or extra projects she was referring to being done by Awnclean’s 

biweekly employees through DTZ at the TCC fell under this section of the subcontract. (Tr. 269-75, 285, 289-90, 

299-300, 331-33; Exs. 30, at 3, ¶ 6, L). She said Awnclean’s bi-weekly employees who performed these large oneto-four-day projects were always supervised by Awnclean’s crew chiefs, and not C&W management. She further 

stated that none of these projects involved pressure washing the docks, or were near water. (Tr. 290-92). 22 Ms. Diehl testified that in practice, DTZ and Awnclean did not follow paragraph 11 of the contract. She said, “the 

people on our [Awnclean’s weekly] payroll were essentially DTZ employees. They did everything that their people 

told them to do. They [DTZ] set the schedules.” (Tr. 118-27, 286; Ex. 20). Ms. Diehl testified “that what was put 

on that contract [in this regard] was not what was put in practice per their [DTZ’s] request and their [DTZ’s] 

directions.” (Tr. 235). 
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Such right of removal shall not be construed as instruction to dismiss the 

employee(s). 

(Exs. 30, at 5, 35, at 14). 

 Paragraph 17, Indemnification, stated, in part: 

(a) Subcontractor shall defend, indemnify, and hold harmless DTZ, Prime 

Customer, and their respective employees, agents, directors, officers, 

shareholders, successors, and assigns from any and all claims and liability for ... 

death to persons providing that such arise out of (1) the presence of 

Subcontractor’s personnel and equipment at the Location serviced under this 

Agreement, (2) the acts or omissions of Subcontractor or its agents, employees, 

under this Agreement, or (3) any failure by Subcontractor to conform to the 

terms of this Agreement and/or Federal, state, and local laws, regulations and 

ordinances. ... In no event shall DTZ be liable for any special, indirect or 

consequential loss or damage under this Agreement. 

 (Ex. 30, at 6). 

The Scope of Services and Locations section at Exhibit A of the subcontract stated, in part: 

CLEANING SET-UP PERSONNEL

The responsibilities of the subcontractor’s Cleaning/Event Set-Up 

personnel include, but are not limited to the following:

... 

3. Ability to operate all aspects of cleaning equipment. ...

5. Knowledgeable concerning safety procedures, .... 

(Ex. 30, at 9). 

MAINTENANCE PERSONNEL REQUIREMENTS.

Responsibilities of the subcontractor’s Maintenance Personnel include, but 

are not limited to the following: 

... 

2. Must be skilled in one or more of the following: 

 ... 

f. Ability to use a pressure washer. 

(Ex. 30, at 9).

SUBCONTRACTOR’S PERSONNEL UNIFORM REQUIREMENTS

1. DTZ shall provide, ..., complete uniforms and require all employees to 

wear distinctive uniform clothing and assure every employee is in uniform 

on the date an employee first enters on duty.... 
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3. DTZ shall furnish and require each employee at the work site to wear 

name tag identification with the names of both the employee and the TCC 

logo. ... 

 

(Ex. 30, at 10). ... 

CLEANING REQUIREMENTS

The performance of work to be completed by the subcontractor includes, 

but is not limited to, the list of duties provided below: ...

ENTRANCES/BISTRO/PARK/FRONT DRIVE/RIVERWALK: 

... 

4. Pressure wash outside ... docks, etc.

(Tr. 134, 197-99; Ex. 30, at 12). 

OTHER DUTIES:

1. Subcontractor shall perform all related tasks as requested [sic] the 

Operations Manager or designee necessary to fulfill building requirements 

with the ability of their employee(s) to safely and successfully accomplish 

the work.23

(Tr. 201-02; Ex. 30, at 14).

EXHIBIT B, CHARGES, stated: 

DTZ shall pay Subcontractor in current funds for the performance of the 

Subcontract, (actual costs for payroll with the associated taxes, insurance 

and benefits). Listed below are the regular time billable rates that you will 

invoice DTZ for the following positions; 

Cleaning/Event Setup personnel $ 10.75 per hour for hours worked 

only 

 Supervisor personnel $13.25 per hours for hours worked 

only.24

(Tr. 160, 207-08; Ex. 30, at 15). 

23 Ms. Diehl testified that, when signing the subcontract, she was told “that DTZ was going to be managing these 

teams and that they [DTZ] did not want us there because there would be too much hassle trying to have all these 

different companies running around. And I – you’re correct that it does say this in the contract. What we were told 

was, we [DTZ] will take care of it.” (Tr. 201-02). 24 Ms. Diehl testified that workers at TCC were not actually paid these hourly wages; these were billable hourly 

rates paid to Awnclean by DTZ. (Tr. 166-67). For example, she said Supervisor Slaughter was actually paid $9.50 

as of June 12, 2013. By email dated June 12, 2013, Ms. Harris told Paul Diehl to review Mr. Slaughter’s 

performance on August 1, 2013 “and give [him a] raise to 10.00 if doing acceptable job.” (Ex. 14, at 3). 
- 16 - 

On April 1, 2015, the subcontract was extended for 12 months through March 31, 2016. 

(Tr. 136-37; Ex. 30, at 17). The subcontract was further extended through 2018 until there was a 

“formal separation” that occurred in December 2017 after Awnclean gave Respondent a 30-day 

notice. (Tr. 137-38, 297, 527). Ms. Diehl testified that Awnclean terminated the subcontract 

because it was not making money on it and it “didn’t seem like a good fit anymore.” (Tr. 137-

38, 206). She said that when the subcontract ended the employees working at the TCC “were 

transferred back on staff to C&W” or to another company’s payroll.” (Tr. 140, 297-98). 

Ms. Diehl testified that she did not know that docks were being pressure washed at the 

TCC. (Tr. 198-99, 205). She said Awnclean never identified the need for an employee 

working near water to wear a PFD “because we were not aware when we started this contract 

that we were going to be working on any docks. And yes, I see it there and I’m just telling you 

what happened.” (Tr. 205). She further said Awnclean did not provide anybody doing work at 

the TCC with a PFD or life jacket “[b]ecause we did not know they were doing it, for one 

thing. We were not directing their bus – their work. That was totally done by DTZ 

supervisors.” (Tr. 256). Ms. Diehl testified that she did not know that some of the workers on 

Awnclean’s weekly payroll were pressure washing the docks. (Tr. 170). 

She said that she went to the TCC about three or four times a year, primarily to quote 

additional work through the subcontract to be performed by Awnclean employees not put on 

Awnclean’s weekly payroll by DTZ, such as large pressure cleaning projects performed away 

from water. She said that Awnclean did not do a written formal JHA for these jobs because they 

too were DTZ’s “employees in a lot of ways.” She acknowledged that she was responsible for 

the safety and identification of hazards for these employees on Awnclean’s bi-weekly payroll. 

(Tr. 198-204, 237). 
- 17 - 

Ms. Diehl said that while at the Worksite she was not welcome to check to see what 

workers on Awnclean’s weekly payroll were doing. Ms. Diehl testified that she never attended 

any scheduling or planning meetings between C&W and employees on Awnclean’s weekly 

payroll regarding getting work done at the TCC. (Tr. 301). She said DTZ “did not want us 

managing the day-to-day employees.” (Tr. 207). Mr. Diehl similarly testified Awnclean never 

had Awnclean managers managing the day to day activities of workers on Awnclean’s weekly 

payroll working at the TCC. (Tr. 321, 359). He said supervisors on Awnclean’s weekly payroll 

working at the TCC did not report to Awnclean. (Tr. 321). 

On about November 20, 2015, DTZ changed its name from DTZ to C&W Facility 

Services Inc. (Tr. 524-25; Ex. V; SF 5). 

Mr. Diehl testified that sometime in about 2016 Respondent got behind in their minority 

owned business participation rate in their contract with the TCC. As a result, he said, Mr. 

Sheehan told him: 

[W]e’re going to put more – we’ve got to raise this quota and so we’re going to 

give more employees to you, mostly because we just did a good job. We made 

his life easier. And so we were given quite a few at that point. In round numbers 

I think our numbers went from, you know, the gross payroll of $3,800 to it was 

5,800 to 6,000. So it substantially increased for that reason, so. 

(Tr. 328-29). 

Ms. Diehl testified that C&W sent Mr. Norton over to Awnclean to fill out Awnclean’s 

paperwork and start working at the TCC. (Tr. 288). On about June 3, 2016, Mr. Norton 

submitted an Awnclean Employment Application, where he indicated he had worked as a laborer 

at Staff Zone, at Tampa, Florida from March 2015 through about June 1, 2016. He also 

indicated that he had some experience performing the service of “Flat Work Pressure Cleaning”, 

including sidewalks, pavers, and hot water pressure washer. He also submitted a Form W-4 

(Employee’s Withholding Allowance Certificate) and a Form I-9, both forms dated June 3, 2016. 
- 18 - 

(Tr. 211-16; Ex. I). The parties have stipulated that Mr. Norton worked at the TCC for about one 

year before his death on May 15, 2017. (Tr. 379-80; SF 3). Ms. Diehl believes C&W referred 

Mr. Norton to Awnclean. (Tr. 212-13). Mr. Diehl testified that “Mike [Sheehan] or someone at 

DTZ or in this case C&W Services hired him and put him on, instructed us to put him on the

[Awnclean weekly] payroll.” (Tr. 338-39, 379-80). Ms. Diehl said Awnclean did not assign Mr. 

Norton to pressure cleaning duties. She testified that either Mr. Sheehan or Ms. Alberti assigned 

Mr. Norton to perform pressure cleaning. (Tr. 215-16). 

By email, Subject: Sam Wilson new employee, dated September 20, 2016, Awnclean’s 

Office Manager, Keith Richardson, told Paul Diehl that “C W Services/DTZ is hiring another 

person.” (Tr. 151; Ex. 14, at 8-9). Ms. Diehl testified that even though Awnclean did not solicit 

or interview Mr. Wilson, Awnclean put him on the weekly payroll to work at the TCC. (Tr. 157-

58). 

Ms. Diehl testified that Respondent disciplined workers on Awnclean's weekly payroll 

by Respondent’s managers "writing up" those employees. (Tr. 170, 336). Ms. Diehl said 

Awnclean never did these write-ups. (Tr. 289). One worker, Ms. Glass, was written up twice 

by DTZ supervisors. (Tr. 170). On March 10, 2014, Respondent’s Michael Sheehan issued a 

"Progressive Discipline Notice" to Ms. Glass, a worker on Awnclean's weekly payroll. (Tr. 

171-72; Ex. 15, at 8). She said on March 13, 2014, Respondent’s Area Manager South Region, 

Lillian Casiano, and Mr. Sheehan completed an "Incident/Investigation Report" regarding Ms. 

Glass. (Tr. 171; Ex. 15, at 4-12). By email dated April 30, 2014, Subject: Jill Glass, to 

Awnclean’s scheduler, Sara McGue, with copies to Mr. Sheehan and Paul and Amy Diehl, Ms. 

Casiano, confirmed her meeting of April 29, 2014 with Amy and Paul Diehl and Mr. Sheehan 

where another situation with Ms. Glass that occurred during the weekend was discussed. She 
- 19 - 

further stated Ms. Glass “was given an opportunity when that [previous] situation was enough 

for immediate termination.” (Tr. 170-73, 278-80; Ex. 15). Thereafter, Respondent asked

Awnclean “to talk to her and let her go. So she did come over to her office and we fired her.”25 

(Tr. 170-71, 280).

By email, Subject: “DTZ janitorial acct.”, dated September 20, 2016, Paul Diehl 

informed Amy Diehl that he was: 

thinking about tell[ing] (sic) DTZ that we are going to drop the account 

come January, 1 [2017]. Why mostly as a negotiating tool. I had asked 

roughly .20 cents more starting in August due to the increase in Workers 

Comp premiums by an injury at their facility.26 It does not really make 

sense to drop the account because the account does cover the cost of the 

[Workers Comp] premium increase, but most if not all profit is gone. Two 

thoughts, if there is another claim we could readily be upside down. Our 

three year commitment with them ended in March[2016]. ... 

(Tr. 151, 277-78; Ex. 14, at 8). 

Ms. Diehl testified that Mr. Sheehan had told Awnclean that it was “his favorite sub[contractor] 

because we always did the payroll correctly. They never had problems with us.” (Tr. 289). Mr. 

Diehl testified that Respondent never notified Awnclean that it was not complying with any of 

the terms of the subcontract. He said “Just the opposite. We were always told we were doing a 

great job.” (Tr. 338). 

Mr. Diehl testified that Awnclean’s total gross pay for 2016 was $1,369,421.29. (Tr. 

346; Exs. 36, at 1, H, at 1). He further stated that the hourly supervisor and hourly workers on 

Awnclean’s payroll working at the TCC for 2016 was about $170,000, or more than 10 percent 

of all Awnclean’s gross pay for 2016. (Tr. 344-46; Exs. 36, at 1, 8, H, at 1). Awnclean’s Payroll 

25 Ms. Diehl testified that DTZ made the decision to terminate Ms. Glass’ employment. She said, “we were told to 

fire her and so we fired her.” (Tr. 280-81, 336-37). She acknowledged that this was the practice, even though the 

subcontract said DTZ cannot make the decision to fire anybody. (Tr. 281).

26 Ms. Diehl testified that the injury involved a slip and fall at the TCC by one of the workers there on Awnclean’s 

weekly payroll. She also said that in 2016 she was aware that an injury by such a worker could impact TCC’s 

Workers’ Compensation premiums. (Tr. 278; Ex. 14, at 8).
- 20 - 

Summary for 2016 shows those weekly paid workers on Awnclean’s payroll who worked at the 

TCC included: 1) Rose A. Bonheur, 2) Esther Chery, 3) Nam T. Dam, 4) Jashon D. Davis, 5) 

Watson Ducatel, 6) Ralph A. Few, 7) James L. Flanning, 8) Cornelious Fiournoy-Walker, 9) 

Jimmy L. Gilchrist, 10) Kennethia L. Hall, 11) Erica Q. Howard, 12) Virginia N. Lee, 13) 

Terrance G. Malloy III, 14) Rigoberto Monteaqudo, 15) Johnnie L. Norton, 16) Earnest E. Reid, 

17) Jermain A. Slaughter and 18) Latasha G. Williams. (Exs. 36, H). Only two workers, 

Messrs. Monteaqudo and Slaughter, remained on the Awnclean payroll as of December 31, 2016 

from those twelve workers identified in Ms. Harris’s June 12, 2013 email to Mr. Diehl. (Exs. 14, 

at 3, 36). 

 On February 8, 2017, Messrs. Sheehan and Taurus Gadsden taught a course entitled 

“2017 Hazard Communications (GHS)” at the TCC. The Class Attendance Sign-In sheets show 

that several C&W employees on Awnclean’s weekly payroll, including Deanna Ballard, 

Rigoberto Monteaqudo, Anita Letourneau and Watson Ducatel, attended the course. (Tr. 304-

05; Ex. 19). 

On May 15, 2017 at 10:57 a.m., E.D.T., Mr. Norton fell into the water at Tampa Bay and 

drowned while pressure washing the dock at the TCC. (Tr. 366-71, 374; Ex. 12; SF 6, 11-13). 

OSHA’s Safety and Health Compliance Officer (CO) Winfred E. Marrero explained how Mr. 

Norton died. 

Q And what did you learn during your investigation about how Mr. Norton drowned? 

A That he was doing some pressure washing with the use of a rotating scrubber, and that 

accidentally he fell on the – I think this is the Hillsborough River – into the Hillsborough 

River. And that there was nobody nearby and as much as he tried to surface or save his 

life, you know, he was not able to do so.27 

27 OSHA’s Fatality/Catastrophe Report’s “Preliminary Description (Hazard Description and Location” stated: 

“Johnny Norton, 53 was pressure washing the docks at the Tampa Bay Convention Center when his pressure washer 

fell on top of him and he fell off the dock being pinned by the pressure washer under the water.” (Ex. U, at 3). The 
- 21 - 

(Tr. 371; Ex. 12). 

Ms. Diehl testified that she first learned of Mr. Norton’s drowning a couple of hours after 

it happened. She said she went to the TCC and Mr. Sheehan showed her where he drowned. 

They did not go out onto the dock, which she agreed was a solid concrete structure that did not 

move or shake when stepping on it. She said that she had previously been on the dock for nonbusiness occasions. Unless coming onto the dock from a boat, she did not wear any PFD. (Tr. 

216-18). Ms. Diehl testified that Awnclean made a call to the police, its insurance company, and 

a report to OSHA regarding the fatality.28 She also believed C&W made a report to OSHA. (Tr. 

232). 

On May 16, 2017, Ms. Diehl testified that she also met with CO Marrero at the TCC.

29 

CO Marrero testified that Ms. Diehl told him that C&W “was in charge of the process or the 

activity inside the Convention Center which Johnnie Norton was involved.” (Tr. 369). Ms. 

Diehl testified that she told the CO that Awnclean’s role was to administer the weekly payroll on 

the project as a subcontractor. She confirmed that Mr. Norton was on Awnclean’s weekly 

payroll. She said she was unaware of any distinction between subcontractor and independent 

Court finds this to be inaccurate as the video shows that only the rotary scrubber fell into the water and it was 

retrieved from the water and returned atop the dock two minutes after Mr. Norton fell into the water. (Ex. 12)

28 Ms. Diehl signed OSHA’s Form 301 “Injury and Illness Incident Report” for 2017 that indicated Mr. Norton was 

an Awnclean employee who drowned at 11:00 a.m., May 15, 2017 while “pressure cleaning the dock at the 

Convention Center.” It further stated Mr. Norton “stepped backward and fell in the water and never came up.” (Tr. 

264-65; Ex. G, at 14; SF 6, 11, 13). OSHA’s Form 300 “Log of Work-Related Injuries and Illnesses” for 2015 

reported injuries to three Awnclean employees, including Ralph Few, that occurred at the TCC. Ms. Diehl stated 

she never met the three injured workers. She said Respondent notified Awnclean of the injuries. (Tr. 263-64, 298-

99; Ex. G, at 4). The OSHA Form 300A “Summary of Work-Related Injuries and Illnesses” for 2016 stated that the 

average number of employees for 2016 was “22” with total hours worked at 32,000 and for 2017 stated that the 

average number of employees for 2017 was “25” with total hours worked at 43,750. (Ex. G, at 10, 13). The OSHA 

Form 300A and Payroll Summary for 2016 shows that the Awnclean weekly paid workers at the TCC completed 

24,384.03 hours (or 76%) of the 32,000 total hours performed by all workers on Awnclean’s payroll in 2016. (Exs. 

G-H, 36). The Court finds that at least one-half of the average number of 22 employees at Awnclean for 2016 

worked at the TCC and were on Awnclean’s weekly payroll. (Exs. G-H, 36). 

29 CO Marrero has a Bachelor of Science degree in Chemistry. He has been an OSHA CO with a specialty in 

industrial hygiene for 28 years. He is a senior industrial hygienist. He has been trained in and able to handle both 

health and safety-related issues. (Tr. 362-63, 396). CO Marrero said that the Tampa Police Department notified 

OSHA of Mr. Norton’s fatality. (Tr. 367).
- 22 - 

contractor. (Tr. 233-34, 362-67; SF 2). Ms. Diehl said she told CO Marrero that Awnclean’s 

employees were “absolutely not” washing the docks.30 (Tr. 235). She said she later found out 

that someone on Awnclean’s weekly payroll was washing the docks. (Tr. 235). 

Upon arrival at the dock on May 16, 2017, CO Marrero spoke briefly with the TCC’s 

dock master, who told him that he gives permission for people to go onto the dock. (Tr. 411-13). 

During the course of his on-site investigation on May 16, 2017, CO Marrero took 

photographs of the dock area where Ms. Diehl described that the incident occurred. (Tr. 370-71, 

432-33; Exs. 2-6, 9). He said Mr. Norton fell off the far right of the dock shown in the 

photograph at Exhibit 9. (Tr. 433, 451; Ex. 9). He said that the photograph at Exhibit 9 was a 

close-up view where Mr. Norton fell from at the end of the dock. (Tr. 451, Ex. 9). On a 

different day, he took measurements of the length and width of the dock. (Tr. 371-72, 426). The 

CO said there were no guardrails or barricades around the dock between the dock and the 

water.31 He said the dock was surrounded by three sides of water. He said that the water was 19 

feet deep at the location where Mr. Norton drowned. (Tr. 372-73; Exs. 2-6; SF 9-11). 

CO Marrero testified that the only PPE Mr. Norton was wearing when he drowned was 

rubber boots.32 (Tr. 373; SF 7). Mr. Norton was not wearing a PFD at the time he fell into 

Tampa Bay. (SF 11-12). CO Marrero testified that when personnel working at the TCC needed 

PPE or equipment, they would contact a C&W supervisor, such as Mr. Sheehan, to obtain the 

equipment from a warehouse that the City of Tampa maintained. (Tr. 383-84). 

30 Ms. Diehl testified that Mr. Sheehan had told her after Mr. Norton’s drowning that regularly pressure washing the 

docks had recently been added to the service list. 

31 At her Rule 30(b)(6) deposition, Ms. Diaz admitted that there were no guardrails or barriers on the dock that 

separated the dock from the water. (Ex. 35, at 28).

32 CO Marrero testified that Mr. Norton was still wearing rubber boots when his body was recovered from the 

bottom of the Hillsborough River. (Tr. 375). The parties have stipulated that Mr. Norton fell into Tampa Bay. (SF 

11).
- 23 - 

At the trial, CO Marrero narrated a TCC video that recorded Mr. Norton’s drowning.33 

Mr. Norton can be seen pushing the rotary scrubber forward and pulling it backwards cleaning 

the dock. CO Marrero stated and the video shows that Mr. Norton was using the rotary scrubber 

all the way at the very edge of the dock. The video shows Mr. Norton walking backwards with 

the rotary scrubber at his front and falling off the very end of the dock into the water at about 

10:57 AM. He can be seen splashing around in the water for about 30 seconds during which 

time he was unable to reach the dock or remain on the surface of the water. The CO said, and 

the video shows, the rotary scrubber34 went into the water as well. At 10:59 AM, the video 

shows three unidentified men appearing at the end of the dock. One man is seen diving into the 

water at 10:59 AM. The two men atop the dock are seen pulling the cord of the rotary scrubber. 

At 10:59 AM, these three men are shown pulling and pushing the rotary scrubber back atop the 

dock. The man in the water stretches to reach the level of the dock and returns to the top of the 

dock. At 11:00 AM, the man dives into the water a second time. Two minutes later, a second 

unidentified man dives into the water. The divers are shown getting help to get back atop the 

dock. Other dives into the water by unidentified men are shown. At 11:21 AM, a boat appears 

near where Mr. Norton fell into the water. At 11:27 AM, a diver, with the help of others atop the 

dock, is seen placing Mr. Norton back atop the dock where he is removed on a gurney from the 

scene of the incident. (Tr. 373-75; Ex. 12; SF 11). 

CO Marrero testified that during his investigation he requested that Respondent provide 

to him all documentation pertaining to Respondent’s Hazard Communication (HazCom)

33 The video at Exhibit 12 shows Mr. Norton using the rotary scrubber at the end of the dock where he fell into the 

water from 10:55 AM through 11:32 AM, May 15, 2017. (Ex. 12). With the consent of the parties, the video itself 

has been sealed by Order of the Court in the public record of this case pursuant to Fed. R. Civ. P. 5.2(d), (e) and 29 

C.F.R. § 2200.67(c).

34 CO Marrero testified that the photograph at Exhibit 11 shows the pressure washer and rotary scrubber. He said 

that the rotary scrubber [at photograph’s right] was an attachment to the pressure washer [at photograph’s left]. (Tr. 

450; Ex. 11).
- 24 - 

program, Respondent’s policy, supervision of Awnclean employees, and training records. He 

said Respondent’s response to his document request was that “it was not related to the accident, 

therefore they did not provide me with that documentation.”35 (Tr. 391-92, 443-44). He said 

that the only thing Respondent provided to him was the JSA at Exhibit 21, dated 12/8/2014, 

“Description of Job/Task: Pressure Washer.” (Tr. 391-92; Ex. 21). CO Marrero testified that 

the JSA “fail[ed] to address an obvious hazard, which was drowning while doing the pressure 

washing on the dock area.” (Tr. 392-93; Exs. O, at 2, U, at 5, 8). He said that the hazard was 

obvious “because the person is working around water. If there’s going to be some slips, trips 

and fall, the person basically can fall in water. There was nothing to prevent an individual to fall 

into the water, regardless if the person knew how to swim or not.”36 (Tr. 392-93). 

Ms. Diehl said after Mr. Norton’s drowning Mr. Sheehan told her workers on 

Awnclean’s weekly payroll were not going to be performing work on the docks anymore. (Tr. 

244, 248-49).

On May 24, 2017, CO Marrero discussed the incident with Milagros Diaz37 and Robert 

Mucinski, Respondent’s Southeast Regional Safety and Health person. (Tr. 375-76, 485). He 

was seeking to obtain further information from them as to who supervised Mr. Norton and told 

him to pressure wash the dock. (Tr. 375-76). They told him that Marvin Walker was Mr. 

Norton’s immediate supervisor. They also identified Erika Alberti as the “top person to speak to 

in reference to the job that he was performing. And also Mike Sheehan was kind of like a top 

person involved with the services that they were being provided to the Convention Center.”38 

35 Consequently, during cross examination, CO Marrero acknowledged that he did not identify any records showing 

that C&W told Mr. Norton how to perform pressure washing on the dock. (Tr. 419).

36 At her Rule 30(b)(6) deposition, Ms. Diaz testified that she dd not know if working close to the water presented a 

potential drowning hazard. (Ex. 35, at 30). 

37 Ms. Diaz is C&W’s Director of Operations in Florida. (Tr. 519-21, 591).

38 CO Marrero testified that “top person” was referring to managers. (Tr. 376).
- 25 - 

(Tr. 376). CO Marrero requested C&W provide him with documentation concerning safety and 

health programs and training records relating to Mr. Norton. (Tr. 377). 

CO Marrero testified that he interviewed several C&W employees and workers on 

Awnclean’s weekly payroll randomly selected by Ms. Alberti.39 (Tr. 393-94). The interviews 

occurred in a meeting room on the fourth floor of the TCC. (Tr. 393-94). On May 24, 2017, CO 

Marrero interviewed Marvin Dwayne Walker, Respondent’s Supervisor of Grounds, who said he 

had worked for C&W for one year, six months.40 Written notes of the interview show that Mr. 

Walker told CO Marrero that when he [Mr. Walker] pressure washed the north dock he [Mr. 

Walker] “was not given and they didn’t have a PFD to wear. Now after the accident, they are 

available (5) But prior to the accident there were none. Now they require that you wear it when 

doing pressure washing in the docks or checking the trash in the docks.” His interview notes 

further state he told the CO he had: 

never seen a job hazard analysis and training for the docks pressure washing 

process. They just hire someone and put them to do pressure washing without 

any training “(sic) because they say they know how’ and they just put them to 

perform the work. It’s always rush, rush, rush. Johnny didn’t had (sic) a radio. 

He had done some pressure washing that morning but he went back because he 

was told to clean a rust stain on the floor of the dock area. 

Mr. Walker’s interview notes state that “They never did asked (sic) me if I knew how to 

swim.”41 (Tr. 390-91, 395; Exs. 22, U, at 9). 

39 CO Marrero testified that although he had asked to interview a supervisor on Awnclean’s weekly payroll he was 

not given that opportunity. (Tr. 415). 

40 CO Marrero testified that Mr. Walker supervised Mr. Norton on May 15, 2017 and that the task assigned to Mr. 

Norton that day to scrub and pressure wash the docks “probably came in from Mr. Mike Sheehan.” The CO said 

that C&W was preparing the dock area for the Special Operations Forces Industry Conference event that was going 

to occur on May 16, 2017. (Tr. 450-51; Exs. O, at 2, U, at 5). 41 Ms. Diaz testified that Mr. Walker did not appear at his deposition that had been noticed by the Secretary of Labor 

for July 25, 2018. She said that he stopped working for C&W in “late July, beginning of August”, 2018. (Tr. 601-

02). 
- 26 - 

 On May 24, 2017, Ms. Diehl sent an email to Mr. Sheehan and Ms. Alberti 

seeking, at OSHA’s request, a copy of their most recent signed subcontract, information 

relating to DTZ’s Safety Training Program, and JHAs. Later that evening, Respondent’s 

Ms. Diaz responded by stating: 

As a subcontractor to C&W Services and as Mr. Norton’s employer, Awnclean 

should be maintaining the documents requested by OSHA. C&W Services, as the 

prime contractor, will provide any information requested by OSHA directly to 

OSHA. C&W Services is not responsible for maintaining compliance records for 

subcontractors or their employees. I also do not think that you should be 

communicating with C&W Services’ client, Tampa Convention Center, regarding 

OSHA’s request for information.

(Tr. 175-76, 281-82; Ex. 16, at 3). 

Ms. Diehl said, “that was the first time we’d ever had any kind of conversation like that, ever.” 

(Tr. 282). She never received the three items she requested from C&W Services. (Tr. 176). She 

also said that Respondent never asked Awnclean to provide it with any safety documentation or 

safety training documents for the workers on Awnclean’s weekly payroll. (Tr. 289). 

On June 5, 2017, CO Marrero also interviewed Ms. Alberti in the presence of an attorney 

representing C&W. Ms. Alberti had worked at the TCC for three years as Respondent’s 

Account Manager. In that position she received instructions from the City of Tampa as to what 

needed to be done at the TCC; such as setting up for activities, doing maintenance work and 

housekeeping. She also routinely walked around to insure employees were doing their work. 

CO Marrero described her as “top top management” and testified his impression was that she

was at the TCC “every single day.” (Tr. 377-80, 600; Exs. 24, 35, at 31). The CO testified that 

Ms. Alberti told him that “C&W was in charge of providing the supervision to all the employees 

working at the Convention Center.” She said that supervisors worked under two operational 

managers. If one of the operational managers is not available, the supervisors can go directly to 

her. She said supervisors make sure jobs are completed and direct orders to subcontractor 
- 27 - 

employees. She said Chinchi employees provide supervision to their employees. She said 

“Awnclean use to provide with supervision but not ... right now, probably couple of months ago. 

There was no supervisor from Awnclean when the accident took place.” He said she told him 

that Mr. Norton had been working for about a year under her direction and was being supervised 

by C&W employee, Marvin Walker. She further said that Mr. Walker “had to follow the 

supervision of Mike Sheehan.” (Tr. 378-82; Exs. 24, Y, at 6). 

Ms. Alberti told the CO that Charlie Estonier, and two other men, did the pressure 

washing before Mr. Norton. She said that Mr. Estonier did not know how to swim and always 

use to wear a PFD if he was doing work close to water. (Tr. 382-83, 386; Ex. 24). She did not 

know how he got his PFD because he was working at the TCC before she arrived. She said the 

City of Tampa warehouse will provide PPE upon request. She said that Mr. Norton did not tell 

her that he could not swim. (Tr. 383-84; Ex. 24). Ms. Alberti said she saw Mr. Norton perform 

his work the day of the accident. She saw him pressure washing the dock area many times. She 

said he performed pressure washing “most of the time.” CO Marrero testified that Ms. Alberti 

told him that she saw Mr. Norton on May 15, 2017 pressure washing or scrubbing the dock 

without wearing a PFD. (Tr. 450; Exs. 24, U, at 8).

Ms. Alberti told CO Marrero that there was a JHA for pressure washing that did not 

specify the use of a RFD when pressure washing the dock area. She said that “Nobody that 

works on the docks wears a PFD. Including City employees, basically all employees working at 

the Tampa Convention Center.” She told the CO that she “will not wear a PFD because she 

knows how to swim.” She said, “nobody has ever asked to wear a PFD while working in the 

dock area”, including Mr. Norton. CO Marrero also testified that Ms. Alberti created the 
- 28 - 

schedules assigning tasks to different employees of different companies working at the TCC. 

(Tr. 387, 439; Ex. 24). 

On June 16, 2017, CO Marrero interviewed James Flanning, who worked in 

Housekeeping at the TCC on Awnclean’s weekly payroll for about two years. (Tr. 401; Ex. 28). 

He said about a year before he cleaned and picked up trash in the dock area. He said he knew 

how to swim; but no one asked him at work if he did. He said he saw only one worker, Charlie 

[Court finds that Charlie’s last name is Estonier], wear a PFD while working close to the water. 

He also said he had received training from C&W and the City of Tampa; but not from Awnclean. 

(Tr. 401-03; Ex. 28). 

On June 16, 2017, CO Marrero interviewed Virginian Lee, who worked in Housekeeping 

at the TCC on Awnclean’s weekly payroll for about two and one-half years. (Tr. 404; Ex. 29). 

She said that she “never worked close to water that will require me to wear a personal floatation 

device. Have never worked close to the edge of the river or dock area.” She also said she had 

received training from C&W, an unidentified Awnclean representative, and the unidentified 

“distributor.” She said some supervisors at the TCC were from C&W, and others were 

Awnclean supervisors.42 (Tr. 404-05; Ex. 29). 

On June 16, 2017, CO Marrero interviewed Mr. Sheehan who told him that he had been 

working at C&W since April 2013, and before that with DTZ, for a total of nine years at the 

TCC. (Tr. 385; Ex. 23). Mr. Sheehan was the Operations Manager in control of the supervision 

and employee work at the TCC. (Tr. 386; Ex. 23). CO Marrero testified that Mr. Sheehan told 

him that he was aware of a worker that had a fear of water using something similar to a PFD 

while pressure washing the docks. The written, signed statement of Mr. Sheehan’s interview 

42 Ms. Lee identified her job classification as “housekeeping” and she did not identify herself as a supervisor during 

her interview. (Ex. 29). 
- 29 - 

states that he told the CO that Mr. Norton had told him a couple of months after Mr. Norton 

began working at the TCC that he knew how to swim. He stated, “[Norton] told me that he 

knew how to swim. This conversation happened when he was told to do pressure washing. He 

was asked because the person that used to clean the area had a fear of water and used to put a 

jacket [on].” Mr. Sheehan’s statement also states that he had “never seen anybody wearing a 

personal floatation device working in the dock area.”43 His statement says if Mr. Norton had 

asked for a PFD, he [Mr. Sheehan] would have been able to get him one from the City of Tampa. 

(Tr. 385-88, 439; Ex. 23). 

On about June 16, 2017, CO Marrero also interviewed Mario Arana who had worked 

“the grounds as maintenance” for C&W for two-and-a-half years. (Tr. 399; Exs. 25-26). He told 

the CO that he last pressure washed the dock when Mr. Norton was sick. He said he went to the 

warehouse and got a life jacket (PFD) and put the PFD on to wash the dock. Mr. Arana said no 

one told him to get the PFD. Even though he knows how to swim, he said he wanted to make 

sure that he was protected. He said that he did not “remember having seen anyone else using the 

life jacket during the pressure washing process in the dock area.” (Tr. 399-400; Exs. 25-26). 

On June 16, 2017, CO Marrero also interviewed Ms. Ballard who had worked for DTZ 

and C&W for about 7 years. (Tr. 76, 401; Ex. 27). At the trial, Ms. Ballard testified that she 

worked in housekeeping and maintenance at the TCC. At that time, she was employed by 

Owens Realty, the company that take over from Respondent in about July 2018 after Respondent 

lost the contract. (Tr. 75-76). She said she had performed pressure washing at TCC, but never 

on the docks near the water. (Tr. 76). Ms. Ballard testified that in 2017 Messrs. Marvin Walker, 

Norton, Ralph [Few], Mario [last name not given; believed by the Court to be Arana], and others 

43 CO Marrero testified that Mr. Sheehan had also told him that he knew one worker, with a fear of water, had worn 

something similar to a PFD while pressure washing the docks. (Tr. 386, 442; Ex. 23). 
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pressure washed the docks at TCC.44 (Tr. 77-78; Exs. 25-26, 35, at 59). Derrick [last name not 

given], and Supervisor Torres [no last name given], who did both inside and outside work, also 

performed pressure washing at TCC when she worked for Respondent. (Tr. 78-79). 

Ms. Ballard said Michael Sheehan was the top supervisor at TCC and Mr. Walker, who 

was responsible for outside work, was a supervisor subordinate to Mr. Sheehan. (Tr. 79). She 

said workers paid by Chinchi and Awnclean also worked at the TCC performing the same types 

of activities as those performed by Respondent’s employees.45 (Tr. 79). 

Ms. Ballard testified that supervisors working for Respondent provided all the workers at 

the Worksite, including those from C&W, Chinchi, Awnclean, and J&L Services, with safety 

equipment. (Tr. 81, 110-11). She said she was working at the Worksite on May 15, 2017 when 

Mr. Norton drowned. She said Mr. Norton was not wearing a PFD when he was pressure 

washing the docks. (Tr. 81-82; SF 12). She testified that starting on May 16, 2017 all C&W 

workers had to wear a PFD when pressure washing the docks or pulling the “garbage” off the 

dock.46 (Tr. 82). 

Ms. Ballard attended, along with many other C&W employees, HazCom training taught 

by Mr. Sheehan at Taurus Gadson at the TCC on February 8, 2017. (Tr. 84, 116; Ex. 19, at 1). 

She later said everyone had to attend safety meetings, including Chinchi employees. (Tr. 116). 

CO Marrero testified that he concluded during his investigation that employees from Awnclean 

attended training presented by Respondent. (Tr. 386-87). 

44 At her Rule 30(b)(6) deposition, Ms. Diaz stated C&W employees Messrs. Walker, Mario [Arana], and Jason 

Wilson pressure washed the docks in 2017. (Exs. 35, at 24-25, X, at 3).

45 Ms. Ballard testified that these workers were “fill-ins” who worked with Respondent’s employees under the same 

supervisors Respondent’s employees worked for. (Tr. 80-81). 

46 Ms. Ballard stated: “They just said nobody can go on the dock without a floatation device.” (Tr. 83-84). 
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On June 16, 2017, the CO Marrero interviewed Ms. Ballard at the TCC. She read, 

initialed and signed the written account of her interview. (Tr. 395, 400-01; Ex. 27). At the trial, 

Ms. Ballard acknowledged that she told CO Marrero on June 16, 2017 that Respondent “has 

never asked me if I knew how to swim.” She further said that Respondent did not require her to 

wear a PFD when she worked near the water collecting trash from around the dock area. She 

also acknowledged that she told the CO that she recalled that a C&W employee named “Charlie” 

wore a life jacket when he was collecting trash along the river or pressure washing. He stored 

the life jacket in his locker. She said Charlie “wore it [a life jacket] a lot”, and Respondent’s 

management knew that.47 (Tr. 89-92, 102, 110-11; Ex. 27). 

During cross examination, Ms. Ballard testified that she was a C&W hourly employee 

who operated a sweeper machine, backpack blower, pressure washer and other extractor 

machines as part of her job at the TCC. She also cleaned restrooms, swept mostly outside, and 

pulled “garbage around the south pavilion where the docks are and pulling garbage down the 

river walk.” (Tr. 103-04). She said that she did not wear a PFD when she swept or cleaned the 

trash by the water in 2011. (Tr. 105). She testified that C&W provided her with the PPE that 

she needed. She said that some PPE was stored in a warehouse controlled by the TCC. (Tr. 

108). Ms. Ballard said she never requested a PFD, and was never told by Respondent that she 

could not have a PFD. She did not feel that she needed a PFD because she knew how to swim. 

(Tr. 109-110; Ex. 27). She said that Respondent never said she needed to wear a PFD during 

training she attended. (Tr. 110). She explained that the statement in her interview with CO 

Marrero that Charlie “stood out wearing the jacket” meant that Charlie “left it on for such a long 

period, like half the day.” She further explained that Charlie “kind of stood out, running outside 

47 Later, Ms. Ballard said Charlie left Respondent in about 2015. (Tr. 112). The Court finds that she was referring 

to Charlie Estonier.
- 32 - 

with a hot life jacket on.” (Tr. 112-13; Ex. 27). She said she never saw anyone, other than 

Charlie, wear a PFD while working at the TCC. (Tr. 113). She also said she never saw a sign or 

notice from the City [of Tampa] saying if you’re going out on the dock you have to wear a PFD. 

(Tr. 113; Ex. 27, at 2). Ms. Ballard also said C&W managed other contractors at the Tampa 

Convention Center, including Chinchi and J&L Services. (Tr. 110-11). Ms. Ballard said she 

saw Mr. Norton actually pressure washing on May 15, 2017. She did not observe him going into

the water. She said nobody was on the dock with Mr. Norton. (Tr. 115; Ex. I, at 8). 

During redirect examination, Ms. Ballard stated C&W directed all the employees at the 

TCC, including those on Awnclean’s and Chinchi’s payrolls, and told them where to work and 

what tasks to perform. (Tr. 118). She said, “[w]e would go in and they [C&W] would tell you 

in the morning at the table which break you have, what you’re supposed to be doing.” She 

further said C&W had a written weekly schedule that told her and others at the Worksite, 

including workers from C&W, Awnclean, Chinchi, and P&L, what tasks were going to be 

performed each day. (Tr. 120-21, 125-26; Exs. 20, Y, at 6). She said C&W Supervisor Erika 

Alberti prepared the work schedule for the period May 15 through May 21, 2017.48 (Tr. 126-27; 

Ex. 20). 

48 The weekly schedule showed Mr. Norton assigned to the Exterior: “Water pressure and river walk” for Monday, 

May 15, 2017. (Ex. 20, at 1). Of the 39 workers identified on the schedule for the week of May 15 through May 21, 

2017, seven workers (or 18%): Johnnie Norton, Ralph Few, James Flanning, Jimmy Gilchrist, Marie Justinvil, 

Virginia Lee, and Dam Nan, were identified as “Awnclean”. The Court finds that the Awnclean Payroll Summary 

for 2017 shows that, with the very limited exception of Ms. Lee, none of the other six workers served as a 

supervisor in 2017. Ms. Lee was paid the same hourly wage rate of $8.25 as her six other colleagues for 1,654.7 

hours, and the supervisor wage rate of $10 for only 7.75 hours in 2017. The Court further finds that Ms. Lee was 

not working as a supervisor during the week starting May 15, 2017. Her tasks that week included cleaning the 

grounds, restrooms, and halls. 18 other workers on the May 15, 2017 weekly schedule were identified as “C&W”, 

5 workers as “Chinchi”, 3 workers as P&L, and 6 workers were not identified with any company. (Tr. 125, 444-45, 

514, 525, 559-60; Exs. 20, 35). Ms. Diaz testified at her Rule 30(b)(6) deposition that Awnclean not have any 

supervisor at the TCC on May 15, 2017. (Ex. 35, at 3). 
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At trial, CO Marrero testified that he determined that it was appropriate for him to cite 

Respondent with the general industry standard for PPE at 29 C.F.R. § 1910.132(a) because it is a 

performance standard and addressed PPE whenever an employee is exposed to a hazard that 

could cause severe injury or death. (Tr. 406, 438; Ex. 1). He said he concluded that C&W, and 

not Awnclean, was providing the supervision of workers on Awnclean’s weekly payroll at the 

TCC, including Mr. Norton. He further stated that C&W had control over the environment, 

which was an unguarded dock 300 feet in length and only 10 feet in width,49 and was capable of 

correcting the condition.50 (Tr. 406-07). CO Marrero testified that C&W obtained PPE from the 

City of Tampa and gave the PPE to workers on Awnclean’s weekly payroll at the TCC. (Tr. 81, 

404, 447; Ex. 35, at 115). He said Messrs. Arana and Estonier were able to detect that there was 

a hazard and find a way to protect themselves through the use of PFD. (Tr. 408). He said 

Awnclean was “just providing employee service to” C&W. (Tr. 406-07). 

The CO said the citation was classified as Serious since the case involved a fatality. He 

said that the proposed penalty of $12,675 was derived from the OIS “system” where the severity 

was high because a fatality occurred, and the probability was greater because the activity was 

being done almost on a daily basis. He said no reductions were allowed to the original proposed 

penalty of $12,675 due to the fatality.51 (Tr. 409-10; Ex. U, at 7-8).

49 CO Marrero testified that a dock width of only 10 feet provided an insufficient 5 feet of distance from the center 

point. (Tr. 407; Exs. 2-6, 9). He later testified that the dock was a solid, level cement structure. (Tr. 419-20).

50 The parties have stipulated that the dock was approximately 289' 7" long and 10'2" wide. (SF 9).

51 OSHA’s C&W Services Inspection Narrative for Inspection No. 1237383, dated 9/20/2017, stated that C&W 

Services had “no prior OSHA history”. (Ex. U, at 4). OSHA’s C&W Services Violation Worksheet for Inspection 

No. 1237383 indicated that “information obtained from the NOK [next of kin] indicated his [Mr. Norton’s] lack [of] 

knowledge on how to swim.” (Ex. U, at 8-9). It also indicated C&W Services as the “Exposing, Controlling” 

employer for C&W Services employee, Marvin Walker, and Awnclean’s Virginia Lee. (Ex. U, at 7-8). The Court 

need not decide whether or not Mr. Norton could swim. He should have been issued and required to wear a PFD to 

accomplish his assigned task to scrub the dock regardless.
- 34 - 

During cross examination, CO Marrero that he said during his July 19, 2018 deposition 

that Awnclean’s owner had confirmed that Mr. Norton was an Awnclean employee and that he 

had been pressure washing the docks for about one year. (Tr. 410-11, 414; SF 3). He 

acknowledged at trial that he understood that the City of Tampa and the TCC were “owners of 

the dock” who controlled and operated the dock. (Tr. 411). He also acknowledged that he said 

at his deposition that the City of Tampa was providing PPE for individuals working at the TCC, 

including workers on Awnclean’s weekly payroll.52 (Tr. 414-15). He also acknowledged that at 

his deposition he said that C&W did not provide any safety rules to workers on Awnclean’s 

payroll.53 (Tr. 418-19). He also said that he did not find any information related to any industry 

standard for somebody to wear a PFD while working on the dock. (Tr. 422-23). He further

acknowledged that at the start of his investigation he spoke with Mr. Mucinski about any 

requirement to wear a PFD on the dock. CO Marrero testified that Mr. Mucinski told him that a 

lot of people working adjacent to water were not wearing PFDs.54 The CO told him that 

whenever a company is doing work close to water there is a more direct requirement under the 

“construction industry standard” to use a PFD. CO Marrero stated that he continued his 

investigation “to determine if indeed there was a need to have a personal floatation device while 

conducting this type of task.” (Tr. 423-24, 448-49). CO Marrero testified that he did not 

52 At trial, CO Marrero clarified his deposition by saying he was “not a hundred percent” sure of that because his 

conclusion was based on his interviews with employees. (Tr. 414-15, 445-47).

53 During re-direct examination, CO Marrero explained that at the time of his deposition he was unaware of C&W’s 

HazCom Program, a document C&W had not provided to him during his investigation even though he had asked for 

it. (Tr. 391-92, 443). 

54 At trial, he clarified this early belief of what Mr. Mucinski told him by saying “it was not something that I made a 

conclusion in my mind that that was a real statement or a statement to take as solid from C&W.” The Awnclean 

USA, Inc., Inspection No. 1234048, Inspection Narrative, dated 9/20/2017, prepared by CO Marrero states that “[i]t 

was C&W Services (sic) belief that there was no regulation and/or requirement for the use of PFD while working on 

a boat dock area; therefore, employees that conducted the task even prior to Mr. Norton were not offered and/or 

provided PFD’s as part of their ppe.” (Tr. 424, 452; Exs. N-O, at 2, U, at 5, HHH, at 58). OSHA’s Awnclean 

Inspection Report for Inspection No. 1234048 identifies C&W Services Inspection No. 1237383 as a JointEmployer related Inspection type. (Ex. N).
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identify any incidents before May 15, 2017 where Mr. Norton, or any other employee, including 

C&W or Awnclean employees, had fallen into the water. (Tr. 424-25). 

Ms. Diehl testified that OSHA did not issue a citation to Awnclean for events related to 

Mr. Norton’s drowning. She said it was her understanding that OSHA’s investigation 

determined that Mr. Norton was an employee on Awnclean’s weekly payroll working under the 

direction of Respondent’s management. (Tr. 237). By letter dated November 13, 2017, 

OSHA’s Tampa Area Office Area Director (AD), Leslie L. Grove III, sent to Awnclean copies 

of the citations OSHA issued to Respondent for violations of the OSH Act. AD Grove asked 

Ms. Diehl to review the citations “and ensure that appropriate steps are taken to protect your 

employees at that job site.” He also stated:

While the extent of responsibility under the law for staffing agencies and host 

employers is dependent on the specific facts of each case, staffing agencies and 

host employers are jointly responsible for maintaining a safe work environment 

for temporary workers. Temporary staffing agencies and host employers share 

control over the worker, and OSHA may hold both the host employer and the 

staffing agency responsible for violative condition(s) in the appropriate case. 

(Tr.238; Ex. R, at 2). 

At the trial, Ms. Diehl testified that Respondent provided Awnclean with the employees 

needed to fulfill the contract at TCC. (Tr. 138). Awnclean did not advertise or solicit 

employees to work on the contract at the TCC. (Tr. 138). Respondent ran employment 

advertisements for the contract at the Tampa Convention Center. (Tr. 155). Mr. Diehl 

attempted to attend a job fair to recruit workers for the subcontract on or about June 4, 2013. 

Upon arriving at the job fair, Mr. Sheehan told Mr. Diehl that he did not need to be [at the job 

fair] because Mr. Sheehan would be "managing everyone." (Tr. 140, 313-15). Awnclean never 

interviewed applicants or candidates to work on the subcontract with Respondent at the TCC. 

(Tr. 138). Awnclean received completed employment applications for jobs at Awnclean from 
- 36 - 

Respondent. (Tr. 143; Ex. 13, at 3). Ms. Diehl testified that Awnclean did not independently 

hire or fire any of the weekly payroll workers working at the Tampa Convention Center. (Tr. 

138-39, 289). Respondent conducted criminal background checks for employees hired to work 

under the subcontract and placed them on Awnclean's weekly payroll. Respondent also handled 

the drug screening of these workers.55 (Tr. 287, 315, 320; Ex. 30, at 11).

Ms. Diehl testified that Awnclean provided supervision and project managers to, and 

conducted monthly safety meetings and JHAs with, the Awnclean employees who worked on 

special projects at the TCC. (Tr. 290-91). Ms. Diehl said that the Awnclean employees who 

worked on "special projects" at the TCC did not interact with, or work on, the same projects as 

the Awnclean workers at the TCC being paid weekly. (Tr. 292). She said Awnclean staffed 

those special projects with different workers than the Awnclean workers working under the 

subcontract at the TCC. The Awnclean special project employees were paid on a biweekly 

basis. (Tr. 300). 

Except when performing large special projects, such as multi-story building window 

cleaning regularly done by Awnclean employees paid bi-weekly and not assigned to 

Respondent, Amy and Paul Diehl said Awnclean did not have any management employees 

supervising supervisors who were working on Awnclean’s payroll at the TCC. (Tr. 166-68, 

331). Ms. Diehl testified that Respondent did not want Awnclean to have any of its actual 

employees on site daily at the TCC to manage the subcontract on Awnclean’s end. (Tr. 167-

68). Ms. Diehl said C&W management decided that there would not be any workers paid at 

the supervisory level working at the TCC on Awnclean’s payroll in 2017. (Tr. 168-69). If an 

55 Mr. Diehl testified that Awnclean’s subcontract with Respondent called for criminal background checks and drug 

screening to be handled by Awnclean. (Tr. 287, 315, 320; Ex. 30, at 11).
- 37 - 

Awnclean worker did not report to work, C&W would "pull from their [C&W] resources" to 

cover the work. (Tr. 35, at 44). 

Ms. Diehl testified C&W set vacation and sick time policies for the workers working at 

TCC on Awnclean's weekly payroll. (Tr. 162-63, 282; Ex. 17). Mr. Diehl testified that 

Respondent “didn’t have any vacation pay for them. ... They didn’t have PTO hours for them, 

they didn’t have 401(k)’s for them. They didn’t have anything. You got basically a paycheck, 

which did create a conflict for us, because it created two tiers of employees.”56 (Tr. 330). 

Ms. Diehl said Awnclean withheld taxes from, gave W-2 forms to, and went through the 

I-9 [Employment Eligibility Verification] process for workers, including supervisors, on 

Awnclean’s weekly payroll who worked at the TCC. (Tr. 195-97, 209). Mr. Diehl testified 

that Awnclean handled the deductions for Mr. Norton while he was on Awnclean’s weekly 

payroll, including Federal tax, Medicare and social security withholdings. (Tr. 350; Exs. 36, at 

32, H). 

Ms. Diehl testified that Awnclean only gave copies of Awnclean’s Employee Handbook 

to Awnclean’s employees who were on its biweekly payroll. (Tr. 249-50, 295, 320-21; Ex. D). 

She said Awnclean’s Employee Handbook was kept at Awnclean’s office and was not 

disseminated to workers on its weekly payroll who were working at the TCC since it was not 

part of the TCC project. Both Paul and Amy Diehl said the workers on Awnclean’s weekly 

payroll working at the TCC followed C&W policies. (Tr. 170, 249-50, 295, 321; Ex. D). Ms. 

Diehl also stated that Awnclean’s “Crew Handbook” only applied to Awnclean’s employees 

who were paid bi-weekly. She said there was nothing in the Personal Protection section of the 

56 During cross examination, Mr. Diehl admitted that Awnclean’s Payroll Summary for 2017 showed that James L. 

Flanning. a worker on Awnclean’s weekly payroll who worked at the TCC, was paid a vacation hourly rate of 

$10.00 for 34.5 hours. (Tr. 348-49; Exs. 36, at 27; Supplement to H, at 27). He said that Mr. Flanning would have 

to clear any vacation with Respondent. (Tr. 359). 
- 38 - 

Crew Handbook that defined the use of PFDs or life jackets. She explained that Awnclean had 

“not actually done work on any docks or anything that would have required anything like that.” 

(Tr. 257-58, 295-96; Ex. E, at 3, ¶ C). 

Both Amy and Paul Diehl testified that Awnclean did not provide tools to the Awnclean 

workers on its weekly payroll working at the TCC. (Tr. 177, 334). Amy and Paul Diehl and 

Ms. Diaz all said Respondent provided uniforms to the workers on Awnclean's weekly payroll. 

(Tr. 177-78, 330, 549; Ex. 30, at 10). Mr. Diehl stated that the uniforms were printed with the 

words "The Convention Center." (Tr. 330-31). Ms. Diehl said Respondent provided cleaning 

supplies to the workers on Awnclean's weekly payroll who worked at the TCC. (Tr. 177-78). 

Mr. Diehl testified that Awnclean’s total gross pay for 2017 was $1,479,285.59. (Tr. 

346; Exs. 36, at 1, H, at 3). He further stated that the hourly supervisor and hourly workers on 

Awnclean’s weekly payroll working at the TCC were paid about $128,000 during 2017, or a 

little less than 10 percent of all Awnclean’s gross pay for 2017. (Tr. 347-48; Exs. 36, at 1, H, 

at 1). 

Respondent called Marc Lee Hale Wendall (also referred to in exhibits as Wendell) as a 

witness during its case-in-chief.57 He started working for UNICCO in 2003 as the manager of 

the Plant Services Group through 2005, and later as the director overseeing the business as a 

whole. In 2015, he was promoted to Vice President of Health, Safety, Security and 

Environment (HSSE) reporting to the chief executive.58 He is one of about 15 who serve as the 

executive leadership team for C&W’s 15,000 employees. He is Respondent’s head of safety. 

57 Mr. Wendall is a chemical engineer who graduated from the University of Illinois with the highest distinction. He 

also has a Master’s degree in organizational systems and communication. For four and one-half years, he later 

taught and pursued a Ph.D. at Cornell University reaching a level of “all but dissertation.” (Tr. 468-69). 

Thereafter, he worked for Environmental Resources Management as an auditor and compliance expert for about 8-

10 years. He then spent another 8-10 years working at Foster Wheeler’s Environmental Remediation section before 

coming to UNICCO. (Tr. 468-70). 

58 Mr. Wendall is also a certified safety professional, who has received PPE training on OSHA standards. (Tr. 473).
- 39 - 

He testified that C&W is in the “general industry, it’s 1910, and the PPE portion is ... in that 

realm, 1910, 132 and --.” He said it’s called either “facilities management or facilities 

services.” (Tr. 470-74, 477; Ex. 18, at 1, 18, 20-22). 

Mr. Wendall testified that it was his understanding that the TCC provided in its

warehouse PPE for employees working at the TCC. (Tr. 477-79). He said that he knew “that 

Awnclean was responsible for doing certain pieces of the work” at the TCC, but later admitted 

on cross examination that he “didn’t know the specifics of what each contractor was doing” 

before May 15, 2017. (Tr. 480, 491-92). He said Respondent often invites its subcontractors 

to voluntarily participate in Respondent’s training. Doing so, he said, “doesn’t negate their 

[subcontractors’] requirement to do their training.” He said Respondent does not track the 

training of subcontractor personnel. (Tr. 481-82). 

Mr. Wendall testified that C&W developed multiple JSAs for the TCC, including a JSA 

for pressure washing. He said Jaime Gonzalez, a Florida based safety professional reporting to 

Mr. Mucinski, prepared the JSA for the Pressure Washer task at the TCC that was prepared in 

2014 and revised on January 10, 2017. He said that he did not know whether Mr. Gonzalez 

considered the 300-foot dock when he created the JSA. (Tr. 484-85, 502-03; Exs. 21, 31, at 8, 

35, at 57-58). He said that Messrs. Jason Wilson, Marvin Walker and Mario [no last name 

identified; believed by the Court to be Arana] signed off on the JSA for pressure washing. (Tr. 

483-87; Ex. X). He said Respondent does not give its JSAs to subcontractor personnel. He also 

said Respondent does not train subcontractor personnel on its JSAs. (Tr. 486). 

Mr. Wendall testified that Respondent looks at the hierarchy of controls when preparing a 

JSA, including the use of PPE, which he described as the “last and least significant important or 

the least effective” control. (Tr. 486-86). He said that Respondent’s Pressure Washer JSA for 
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the TCC does not identify a PFD.59 (Tr. 487-89). Mr. Wendall said that JSAs are site specific 

and any need for PPE is situational. (Tr. 494-95; Ex. 35, at 54-55). He said a pressure washer is 

powerful and the one used by Mr. Norton had 4,200 pounds per square inch of pressure. He said 

that rubber boots provided protection from cuts, for traction, and help keep bodies dry when 

water is sprayed.60 (Tr. 496-97; Ex. 35, at 59-61, 68). He said rubber boots do not prevent 

tripping. He agreed that every inch of the dock had to be cleaned, initially saying “Absolutely”, 

then adding “I’m presuming, yeah”, and knew that Ms. Alberti directed Mr. Norton to go back a 

second time to clean the dock to remove some rust stains.61 He agreed that “people can have a 

slip, trip or fall anywhere, including the dock.” (Tr. 498-99, 601). He said it was possible, but 

“very improbable”, that a person on an unguarded 300 feet long dock could trip, slip, or fall and 

end up in the water, with an injury.62 He said when preparing a JSA you look at the various 

possibilities “within the realm of significant possibility and that present a significant risk”, where 

an employee can get injured when performing a particular task. (Tr. 502; Ex. 35, at 71-72). 

Mr. Wendall also testified that HSSE’s HazCom Program, last reviewed on June 1, 2016, 

was in effect at all C&W work sites. He said the HazCom Program required C&W to provide 

subcontractor employees working under C&W’s direction “precautions to be taken to protect 

subcontractor employees”.63 He said C&W invited subcontractor personnel, including 

59 Mr. Wendall testified that he “didn’t see a risk that warrants a PFD”. 

60 Respondent’s response to Interrogatory No. 13, Request for Admission No. 10, states “that the City of Tampa 

provided the rubber boots, safety glasses and ear plugs used by Awnclean USA, Inc. employees.” (Ex. 32, at 16).

61 Ms. Diaz testified at her Rule 30(b)(6) deposition that Ms. Alberti told Mr. Norton to go back and clean some rust 

stains. (Ex. 35, at 23). At his Rule 30(b)(6) deposition, Mr. Wendall said that he considered Ms. Alberti’s statement 

to Mr. Norton to be “a direction.” (Ex. 35, at 78). Nonetheless, Respondent asserts that “Mr. Norton was not 

supervised by C&W Services.” (Resp’t Post Hr’g. Br., at 18, ¶ 63). The Court rejects this assertion and finds that 

on May 15, 2017, C&W, and not Awnclean, was directly supervising Mr. Norton’s work at the TCC. (Tr. 166-69, 

331, 378-82; Exs. 24, 35, Y at 6). 

62 Mr. Wendall said that Mr. Norton “didn’t fall off the dock, he walked off the dock.” (Tr. 502). At his Rule 

30(b)(6) deposition, Mr. Wendell said that walking “backwards off of a dock is very improbable. Extremely 

improbable.” (Ex. 35, at 72).

63 At his Rule 30(b)(6) deposition, Mr. Wendall said he did not know whether C&W complied with this provision. 

(Ex. 35, at 75-77). 
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Awnclean, to attend C&W’s HazCom training. But, he said, these subcontractor employees 

were “not temp agency employees, they’re independent contractors.” He said it was not C&W’s 

“job to train them.” He acknowledged that C&W did not verify whether Awnclean or Chinchi 

had provided HazCom, PPE, and/or safety and health training to their employees on their weekly 

payroll. He said C&W had not alleged Awnclean had breached its contract with C&W. (Tr. 

505-16; Ex. 18, at 17).

Mr. Wendall said that C&W was not aware of any alleged requirement for an employee 

to wear a PFD on a dock prior to May 15, 2017. (Tr. 487-91). After reviewing photographs, 

including exhibit 2, Mr. Wendall testified that the dock was solid concrete, with a uniform, flat

surface, that was low to non-turbulent water and not slippery. He said that the 10-foot width of 

the dock was not a significant concern to him. (Tr. 488-90; Ex. 2). Both Ms. Diaz and Mr. 

Wendall said they knew that people on Awnclean’s and Chinchi’s weekly payroll were 

performing the same job classifications as C&W employees; i.e. custodial, janitorial, 

groundkeepers, and maintenance. (Tr. 493, 540; Ex. 35, at 2). He said prior to May 15, 2017, 

C&W had not identified any circumstance where an employee of any contractor had fallen off 

the dock at the TCC. (Tr. 516-17). 

At his pre-trial Rule 30(b)(6) deposition, Mr. Wendall agreed that anyone tasked with 

using a pressure washer to clean the dock would have to get the entire dock including the very 

edge of the dock that abuts the water. He agreed that workers can sometimes be distracted in 

their jobs and do things that are unsafe. He also stated he was not sure what Mr. Norton did on 

May 15, 2017 that was improper. Specifically, he said: 

Q And you are saying that – what are you saying was improper about what Mr. 

Norton did on that day? 

A My perspective?

Q From C&W’s perspective. You are answering for C&W. 
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A I’m not sure. I’m not sure. I’m not sure what he did wrong. Certainly walking 

backwards off a dock is something that you shouldn’t do. 

(Tr. 499-501; Ex. 35, at 63-67). 

Mr. Wendall said: 

Q Falling into water; let’s say water that’s 19 feet deep, is that a drowning hazard” 

 

A The Witness: Falling into a swimming pool that’s a foot deep or 5 feet deep 

could be a hazard. It’s a hazard. There’s hazards, you know, everywhere. That’s 

a hazard, but it wasn’t identified in this case. We don’t see the hazard here. 

(Ex. 35, at 69). 

When asked during his Rule 30(b)(6) deposition if the JSA anticipated that a person 

performing the task of pressure washing on the dock could trip or slip or fall, Mr. Wendall 

stated, “It’s possible, yeah, because that is a general hazard that you see.” He further said that

“it’s possible” that a person can slip or fall in the water when on an unguarded edge that’s 

abutting water. (Ex. 35, at 72-73). He also said that he did not know if any subcontractor 

employees sat in on any HazCom training provided by C&W. (Ex. 35, at 74). 

Milagros Diaz testified that since July 2011 she has worked as C&W’s Director of 

Operations responsible for, and oversees, all 18-19 accounts in Florida. Before that, she served 

as C&W’s general manager at the Miami International Airport. (Tr. 519-21, 591). She said 

C&W hired Awnclean as a subcontractor under its contract with the City of Tampa based on its 

expertise, experience, and strength with regards to pressure washing, among other things. (Tr. 

527-29). Ms. Diaz said that Awnclean employees pressure washed the docks “multiple days 

during the week” including after May 15, 2017 through the end of the subcontract in December 

2017. (Tr. 530). She said C&W did not consider Awnclean’s employees to be employed by 

C&W. She said Awnclean was an independent contractor. She said that a provision for the 

small business enterprise in the contract between the City of Tampa and C&W required 
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Awnclean to perform a “useful function” which required Awnclean to manage, supervise, pay, 

process, and “cover all of their operational needs of the facility.” She said, “useful function” 

“means that the companies have to be engaged in the operation, have to have a useful function in 

managing their contracts.” (Tr. 530-32). She said, “employee discipline, employee 

communications, schedulings, supervision, direction of the work, checking of the quality of the 

work are requirements in order for the subcontractors to comply and maintain their SLBE 

certification with the City or the County.” (Tr. 592-93). 

Ms. Diaz said Awnclean’s employees were not on C&W’s payroll and C&W did not pay 

them for vacation. She said workers on Awnclean’s weekly payroll had to notify C&W if they 

were going to be absent from working at the TCC.64 (Tr. 590-91; Ex. 35, at 18-19). She said 

C&W never employed Mr. Norton. Ms. Diaz said C&W did not maintain a personnel or training 

file for Mr. Norton. (Tr. 532-33). She said work schedules were prepared after production 

meetings between C&W and the TCC’s project manager. Thereafter, she said “an allocation of 

hours had to be made according to the subcontractors and the percentage of allocation that 

needed to go to each of them.” She said other assignments could either be emailed to Awnclean 

or assigned to Awnclean supervisors. At her Rule 30(b)(6) deposition, Ms. Diaz said that C&W 

dispatched work to Awnclean. She said C&W assigned tasks, such as cleaning a space, to 

particular individuals, including workers on Awnclean’s weekly payroll. She said C&W did 

“not necessarily” go through “the Awnclean executive team. We could go directly to a 

supervisor at the site, to Awnclean, or to the employee that’s been performing the task.” Ms. 

64 Ms. Diaz said absence notifications “ideally needs to come from the subcontractors. That’s as per contract and as 

per policy.” (Tr. 590-91). But, she later agreed what’s written in the contract on paper is not necessarily how 

things progress in reality. (Tr. 594). At her Rule 30(b)(6) deposition, she said C&W “could pull from their 

resources” if an Awnclean worker called out sick or did not report to work when Awnclean did not have any 

supervisors at the TCC. (Ex. 35, at 18-19). 
- 44 - 

Diaz agreed that C&W Managers, Ms. Alberti and Mr. Sheehan, told Awnclean employees 

directly what tasks they needed to perform. (Ex. 35, at 3-9). She stated that C&W checked work 

performed by Awnclean workers for quality purposes when Awnclean did not have any 

supervisors at the TCC. She admitted that C&W had the ability to “ask” Awnclean workers to 

redo work that it decided was deficient when done the first time. (Ex. 35, at 10-11, 21-22). She 

also said Ms. Alberti and Mr. Sheehan could stop any Awnclean worker from working in an 

unsafe manner. (Ex. 35, at 12-13). She said C&W did not tell Awnclean how to do the work. 

She said Awnclean had supervisors at the TCC “on a regular basis, depending on the number of 

allocated hours given to us by the City of Tampa and the events that were going to be taking 

place.” She said Awnclean had responsibility for supervision of its employees on site “because 

it’s part of the useful function of the subcontractor. Each of the subcontractors had responsibility 

for the supervision, the management, and the operation of their portion of the contract.” 

Ms. Diaz testified that the City of Tampa requested the dock be pressure washed on May 

15, 2017 because of a scheduled large military event where the dock would be used. She said 

C&W did not tell or show Mr. Norton how to clean the dock. She said Mr. Norton never told 

C&W that he had a concern about working on the dock or that he could not swim.65 She said 

that C&W’s work schedule for the week starting May 15, 2017 showing “Awnclean” to the right 

of Mr. Norton’s name indicates that Mr. Norton was an employee of Awnclean. (Tr. 533-37; Ex. 

20, at 3). 

During cross examination, Ms. Diaz testified that she did not “remember if it was 

required or optional” under the 2013 contract between the City of Tampa and DTZ to use 

subcontractors as part of the small business/minority business component. She acknowledged 

65 Ms. Diaz testified at her Rule 30(b)(6) deposition that C&W did not know whether Mr. Norton could swim. (Ex. 

35, at 23).
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that the City of Tampa would look more favorably upon a company bidding for the contract if it 

were utilizing minority owned, small businesses. She agreed that C&W transferred C&W 

employees to Awnclean at the beginning of the contract in order to fulfill the minority small 

business requirement with the City of Tampa. (Tr. 555). 

Ms. Diaz said the agreement between C&W and Awnclean called for C&W to provide 

uniforms to employees on Awnclean’s weekly payroll who worked at the TCC. (Tr. 549-50; Ex. 

37, at 9, § 10). She said C&W required workers on Awnclean’s payroll who worked at the TCC 

to be paid by Awnclean on a weekly basis. (Tr. 549-50). Ms. Diaz agreed that Ms. Alberti 

created the weekly schedules that provided the scheduling of all people on Awnclean’s weekly 

payroll for work to be performed at the TCC. C&W designated the “break times” for the 

workers shown on the weekly schedules.66 She said the draft schedules did not assign specific 

work to a specific subcontractor’s employee. She agreed that the weekly schedules identified 

“C&W Services” in several places, including the top caption. (Tr. 551, 558-59, 585-86, 606; 

Exs. 20, 35, at 16-17, 32). She said, “as a prime contractor we had to create drafts and make 

allocations because the point of contact between the Tampa Convention Center and the contract 

and the operations was C&W Services.” (Tr. 586). Ms. Diaz testified that C&W communicated 

the number of draft hours that were allocated by the City of Tampa for operations at the TCC for 

a particular week to “each of the subcontractors [including Awnclean] in order to be able to 

schedule the staff to come in and for the staff to know when to show up to work assignments and 

projects that were to be conducted.” (Tr. 581-82). She said that she was not involved in the dayto-day activities at the TCC. (Tr. 552). Ms. Diaz testified that C&W did not set the hourly rate 

of pay for workers on Awnclean’s weekly payroll who worked at the TCC. (Tr. 553-54). She 

66 Ms. Diaz testified that “assignments were given, not directions.” (Tr. 558-59; Ex. 20). She said Awnclean could 

schedule any worker on Awnclean’s weekly payroll to perform the work that needed to be completed. (Tr. 603-06). 
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said Awnclean would submit an invoice to C&W after Awnclean received payroll information 

from C&W that included the names and hours worked by workers on Awnclean’s weekly payroll 

who had worked at the TCC. Ms. Diaz initially denied having any knowledge that C&W 

continued to hire employees to be put on Awnclean’s payroll after the initial transfer of C&W 

employees to Awnclean’s payroll. Based upon C&W emails shown to her at trial, she agreed 

that C&W continued to hire employees and send them to Awnclean to be placed on Awnclean’s 

payroll as late as September 2016. (Tr. 556-58, 583-84; Ex. 14).

Ms. Diaz testified that as prime contractor, C&W’s Ms. Alberti and Mr. Sheehan had the 

responsibility to do joint checks with the City of Tampa on the quality of work performed by 

individuals on Awnclean’s weekly payroll at the TCC. Ms. Diaz said that Ms. Alberti and Mr. 

Sheehan “did not have authority to direct staff that belongs or are employees of another 

company. In this case the subcontractors. They had to communicate to each of the vendors, 

whether it was the company owner, the supervisor on site or the point of contacts for each of the 

subcontractors.”67 (Tr. 587). She agreed that Awnclean did not always have supervisors on site 

at the TCC on a day-to-day basis. She agreed that Awnclean did not have any supervisors at the

TCC for a period of several months prior to May 15, 2017.68 (Tr. 587-88, 594-95; Ex. 35, at 3). 

She said as an independent contractor, Awnclean had to “supervise and manage their staff, 

comply with the contract and the supervisors don’t necessarily work with the employees every 

hour of a shift or every single day.” She said the main reason Awnclean did not have 

supervisors on site was because the City of Tampa started reducing the number of hours and 

67 Ms. Diaz later contradicted herself by testifying that if C&W, after checking on the quality of work performed, 

identified work that needed to be redone “you could either communicate it to a subcontractor or the employee.” (Tr. 

589, 595). She also said at her Rule 30(b)(6) deposition that Mr. Sheehan could tell Awnclean workers what tasks 

they needed to perform on any given day. (Ex. 35, at 35). 

68 The Payroll Summary for 2017 shows that the amount of hours supervisors were paid was only about 3.7% 

(558.75 hours) for the total hours of 15,515.85 worked by both supervisory and hourly Awnclean workers 

(14,957.10 hours). (Ex. H, at 3).
- 47 - 

projects being scheduled in exterior grounds, window cleaning, and pressure washing. (Tr. 610-

11). She said that C&W did not direct, assign or tell subcontractor employees how to perform 

their tasks. She said that Ms. Alberti or Mr. Sheehan could stop the work of a worker on 

Awnclean’s weekly payroll’s if they saw something occurring at the TCC that was unsafe. She 

also testified that C&W had the contractual right to ask that a worker on Awnclean’s weekly 

payroll be dismissed from working at the TCC. (Tr. 590). 

At the trial, Ms. Diaz testified that Marvin Walker was not a C&W supervisor.69 She 

said he was a “lead worker.”70 She was unaware that Mr. Walker told OSHA during his 

interview that he was “Supervisor of Grounds.” She said Mr. Walker did not tell Mr. Norton to 

pressure wash the dock on May 15, 2017.71 (Tr. 596-97). She also said C&W did not know that 

Charlie Estonier wore a life jacket while pressure washing the docks.72 (Tr. 598). 

At her Rule 30(b)(6) deposition, Ms. Diaz testified that she did not know what C&W 

believed that it did to protect against the Citation’s alleged violation. (Ex. 35, at 38). She also 

did not identify any specific measures C&W took to prevent any drowning hazards at the TCC. 

69 Respondent’s response to Request for Admission No. 4 states, “Respondent admits that Marvin Walker was a 

supervisor for C&W Services at the Tampa Convention Center and was employed by C&W on May 15, 2017.” (Ex. 

31, at 4-5). Respondent also identified Mr. Walker as “Supervisor of Grounds” in its Answer to Interrogatory No. 

12 verified by Ms. Diaz on June 20, 2018. (Tr. 599; Ex. 32, at 12, 20). Ms. Alberti also told the CO on June 5, 2017 

that Mr. Norton worked under her supervision for about a year. She further said Mr. Norton was supervised by Mr. 

Walker, who reported to Mr. Sheehan. (Tr. 378-82; Exs. 24, Y, at 6). Nonetheless, Respondent asserts in its post 

hearing brief that “Mr. Marvin Walker was not a supervisor for C&W Services.” (Resp’t Post Hr’g. Br., at 16, ¶ 

54). The Court finds Ms. Diaz’s trial testimony that Mr. Walker was not a supervisor to not be credible. (Tr. 596-

97). The Court further rejects Respondent’s position and finds that Mr. Walker was a C&W supervisor who 

supervised Mr. Norton on and before May 15, 2017. (Tr. 378-82, 599, Exs. 24, 31-32, Y, at 6). 

70 At her July 25, 2018 Rule 30(b)(6) deposition, Ms. Diaz described Mr. Walker on May 15, 2017 as a “working 

lead so he was one more individual working in the area.” (Tr. 615-16; Ex. 34, at 13). She also said his role with 

C&W was as a “Working supervisor.” (Ex. 35, at 33). 

71 Ms. Diaz agreed that at her July 25, 2018 Rule 30(b)(6) deposition she answered, “They worked as a team, yes.” 

when asked if “So Marvin Walker would tell Johnny Norton to go pressure wash the dock on May 15, 2017.” (Tr. 

597-98; Ex. 35, at 20-21). Ms. Diaz also stated Mr. Walker could have conveyed the task to clean the dock to Mr. 

Norton on May 15, 2017. (Ex. 35, at 26). She said she did not know whether Ms. Alberti or Mr. Sheehan told Mr. 

Norton to pressure wash the dock on May 15, 2017. (Ex. 35, at 26, 35). 

72 Ms. Diaz testified that she never reviewed statements made to OSHA by Ms. Alberti, Mr. Sheehan or Mr. Walker. 

(Tr. 598-99; Ex. 35, at 44, 46-48). 
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(Ex. 35, at 39). She further stated that there is no state or federal regulation that requires 

employees pressure washing docks to wear a PFD. She also said that pressure washing a dock 

does not require an employee to work on the dock’s edge. Specifically, she said: “It’s not to 

work on the edge. You work off the center side to side, or front to back, always keeping your 

eyes looking at the machine in front of you. So, you know, it’s not a function that you do in any 

other manner.” (Exs. 32, at 9, 35, at 40-42). Ms. Diaz also said the City of Tampa’s training and 

recommendations from the pressure washer manufacturer do not recognize the need for a worker 

to wear a PFD when working on a dock.73 (Ex. 35, at 43). 

VII. ARGUMENT

A. Respondent was in an Employer-Employee Relationship with Workers on 

Awnclean’s Weekly Payroll, including Mr. Norton, who worked at the TCC for 

at least Several Months on and before May 15, 2017. 

This case raises the issue of whether C&W, the prime contractor, was in an employeremployee relationship with workers who were on Awnclean’s weekly payroll who worked at 

the TCC on and before May 15, 2017, including the worker exposed to the violative condition, 

Johnnie Norton. In cases in which the cited employer asserts that it was not the statutory 

employer of Mr. Norton as of May 15, 2017, resolution of the issue turns on the application of 

the common law test for agency, based on the Supreme Court's decision in Nationwide Mut. 

Ins. Co. v. Darden (Darden), 503 U.S. 318 (1992) (holding, in an ERISA context, that the 

common law test for master/servant relationships applies). The Commission has harmonized 

its test with Darden. See e.g., All Star Realty Co., Inc., 24 BNA OSHC 1356, 1358 (No. 12-

1597, 2014); Don Davis, d/b/a Davis Ditching and Davis Ditching Inc., 19 BNA OSHC 1477, 

73 Ms. Diaz also said at her Rule 30(b)(6) deposition that she was not saying that there are other companies within 

the facilities management industry that do not recognize the need for PFDs when working on a dock. (Ex. 35, at 

43). 
- 49 - 

1480 (No. 96-1378, 2001); Timothy Victory, 18 BNA OSHC 1023, 1026 (No. 93-3359, 1997); 

Vergona Crane Co., 15 BNA OSHC 1782, 1784 (No. 88-1745, 1992). 

In determining whether a hired party is an employee under the general common law of 

agency, the Court considers the hiring party's right to control the manner and means by which 

the product is accomplished. Other factors relevant to this inquiry are: (1) the skill required; 

(2) the source of the instrumentalities and tools; (3) the location of the work; (4) the duration of 

the relationship between the parties; (5) whether the hiring party has the right to assign 

additional projects to the hired party; (6) the extent of the hired party's discretion over when 

and how long to work; (7) the method of payment; (8) the hired party's role in hiring and 

paying assistants; (9) whether the work is part of the regular business of the hiring party; (10) 

whether the hiring party is in business; (11) the provision of employee benefits; and (12) the tax 

treatment of the hired party. Darden, 503 U.S. at 323-24; Richard Hargrove d/b/a R.H. 

Constr., 25 BNA OSHC 1702 (O.S.H.R.C.A.L.J. Sept. 8, 2015). The single most important 

question is whether the putative employer controls the means and manner of the employee's 

work. See Darden, at 323; Timothy Victory, 18 BNA OSHC at 1026-27; Barbosa Grp., 

Inc., d/b/a Executive Security, 21 BNA OSHC 1865, 1867 (No. 02-0865, 2007)(stating 

“[r]egardless of whether the INS had any sort of employment relationship with the security 

personnel supplied by Barbosa, the degree of control Barbosa retained over its contract security 

personnel compels the conclusion that Barbosa remained their employer in these circumstances 

and was properly cited as such under the OSH Act.”)(emphasis added). (Id.).

The record shows that Complainant has established that Respondent controlled the means 

and manner of the workers who were on Awnclean’s weekly payroll who worked at the TCC for 

at least several months on and before May 15, 2017, including Mr. Norton. See Timothy 
- 50 - 

Victory, 18 BNA OSHC at 1026-27. Respondent exercised daily control over the weekly 

Awnclean workers at the TCC by assigning work directly to the weekly Awnclean workers, 

including Mr. Norton. The City of Tampa sent daily work orders directly to Respondent. (Tr. 

377-80, Exs. 20, 24, 35, at 24, 31). After receiving a work order, Respondent dispatched the 

work order to its own staff and to the workers on Awnclean’s weekly payroll who worked at the 

TCC. (Exs. 20, 35, at 3-9, 21-24). 

Both Amy and Paul Diehl credibly testified that Awnclean did not conduct daily 

supervision or management of the workers on Awnclean’s weekly payroll who worked at the 

TCC.

74 Respondent exercised virtually complete control over these workers, especially during 

the several months preceding May 15, 2017. (Tr. 167- 68, 331). During that time frame, 

Awnclean did not have any supervisor at the Worksite. (Tr. 166-69, 331, 378-82, 587-88, 594-

95; Ex. 24, 35, at 20, Y, at 6). It is undisputed that on the day Mr. Norton drowned, Awnclean 

did not have a supervisor at the Worksite. Ms. Alberti testified that "[t]here was no supervisor 

for Awnclean when the accident took place.” Mr. Norton worked for about a year under Ms. 

Alberti’s direction. On May 15, 2017, he was being supervised by Ms. Alberti and C&W 

employee, Marvin Walker, who followed the directions of C&W’s Mike Sheehan. (Tr. 378-82; 

Exs. 24, 35, at 20, Y at 6). 

In addition to assigning work, Respondent also exercised control over the workers on 

Awnclean’s weekly payroll by inspecting their work at the TCC and ordering them to redo 

work if their initial work was deficient. (Ex. 35, at 29-30). Here, Mr. Norton drowned after 

74 Ms. Diehl testified that its subcontract with Respondent called for Awnclean to provide “staffing” to Respondent 

and the workers on Awnclean’s weekly payroll who worked at the TCC “were all run and managed by C&W.” (Tr. 

253-54). She said, “They were essentially DTZ employees.” (Tr. 286). Respondent’s Alberti admitted “C&W was 

in charge of providing the supervision to all the employees working at the Convention Center.” (Tr. 378-82, 406-07; 

Exs. 24, Y, at 6). Ms. Diaz agreed that Awnclean did not have any supervisors at the TCC for a period of several 

months prior to and on May 15, 2017. (Tr. 587-88, 594-95; Ex. 35, at 3). 
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C&W Supervisor Alberti directed him to again pressure wash the dock in order to remove 

some rust stains.75 (Tr. 390-91, 395, 498-99, 601; Exs. 22, 35, at 54, 65, 78, U, at 9). 

1. The Secretary has established an employer-employee relationship under the 

Darden factors.

The record demonstrates Respondent's control over the workers on Awnclean’s 

weekly payroll at the TCC on and before May 15, 2017 and substantiates a finding of an 

employer relationship under the Darden factors.76 Here, Respondent was motivated to enter 

into a subcontract with Awnclean that included some provisions that were generally not 

enforced; e.g. paragraphs 11 and 13, in order to: a) better posture itself to secure the 

contract with the City of Tampa through the engagement of a SLBE and b) directly control 

the day-to-day activities of the workers on Awnclean’s weekly payroll at the TCC. In doing 

the latter, C&W created and maintained an actual employer-employee relationship between 

itself and the workers on Awnclean’s weekly payroll who worked at the TCC. (Tr. 118-27, 

207, 253-54, 314-21, 328-29, 359, 387, 439; Exs. 20, 24, 30, at 4-5, Y, at 6).

First, with regard to the skill required for pressure washing and scrubbing the dock, 

the work itself is essentially manual labor and does not require specialized skill. This favors 

the existence of an employer-employee relationship. 

Second, the Darden factor regarding the provisions of instrumentalities and tools favors 

an employer-employee relationship. Respondent obtained and gave workers at the TCC on 

Awnclean’s weekly payroll all the tools and equipment needed to perform assigned tasks. C&W 

employee Deanna Ballard testified that C&W provided equipment, including safety equipment, 

75 Mr. Wendell testified that he knew that Ms. Alberti directed Mr. Norton to go back a second time to clean the 

dock to remove some rust stains. (Tr. 498-99, 601; Ex. 35, at 78). 

76 The Secretary’s position is that Mr. Norton and other workers similarly situated to him on Awnclean’s weekly 

payroll, were “both Awnclean and C&W employees.” (emphasis in original) (Sec’y Reply to Resp’t Post Hr’g. Br., 

at 2).
- 52 - 

to these workers. (Tr. 81, 110-11). Respondent’s argument that it did not own the equipment 

does not overcome the fact that it provided the equipment to these workers.77 Respondent 

determined what equipment was needed and obtained equipment from the City of Tampa. 

Respondent then gave the equipment directly to the workers on Awnclean’s weekly payroll. 

(Ex. 35, at 115). C&W obtained the pressure washer and rotary scrubber Mr. Norton was using 

atop the dock when he drowned. (Tr. 211). Respondent's attempt to argue that it did not own 

the pressure washer obfuscates the fact that Respondent, not Awnclean, obtained and provided 

the pressure washer and rotary scrubber to Mr. Norton. Respondent could also have provided 

workers pressure washing the dock with a PFD and required its use — but chose not to. Mr. 

Sheehan told the CO that he could have obtained a PFD from the City of Tampa’s warehouse for 

Mr. Norton to use when pressure washing the dock. (Ex. 23). Of the eight workers who 

reportedly pressure washed the dock before May 15, 2017, only Messrs. Estonier and Arana 

wore PFDs. (Tr. 77-82, 113, 598; Exs. 25-26, 35, at 59). 

In addition to tools, Respondent also provided the workers on Awnclean’s weekly 

payroll with uniforms. (Tr. 177-78, 330, 549). Respondent provided all Chinchi, J&L Services 

and Awnclean workers on its weekly payroll with identical uniforms that said, "The Convention 

Center." (Tr. 330). These workers were indistinguishable from every other worker working 

under C&W’s contract with the City of Tampa, including C&W's own employees. 

77 Ms. Diehl testified that she did not know whether the pressure washer was owned by the TCC or Respondent. 

(Tr. 211). The parties have stipulated that the City of Tampa owned the pressure washer used by Respondent and 

Awnclean personnel to clean the docks. (Tr. 414; SF 8; Ex. 35, at 45). The CO testified that the City of Tampa and 

the TCC owned both the pressure washer and the rotary scrubber used by Mr. Norton on the dock on May 15, 2017. 

(Tr. 414). 
- 53 - 

Third, the Darden factor regarding work location also favors an employer-employee 

relationship. Respondent managed the personnel of multiple subcontractors at the TCC, 

including those of Awnclean, Chinchi, and J&L Services. (Tr. 110-1l). Workers on 

Awnclean’s weekly payroll worked side by-side with C&W, Chinchi's, and J&L Services 

workers; performing the same tasks. (Tr. 79; Ex. 35, at 17). 

Fourth, the duration of the relationship between the parties favors an employer-employee 

relationship. The workers on Awnclean’s weekly payroll were not simply hired for one job or 

one project; some worked continuously at the TCC for a period of years.78 Mr. Norton worked 

there for about one year. (SF 3).

Fifth, the Darden factor regarding whether the hiring party has the right to assign 

additional projects to the hired party is indicative of an employee-employer relationship. 

Respondent could and did assign tasks to the workers at the TCC on Awnclean’s weekly 

payroll at will. (Tr. 118-27, 207, 253-54, 314-21, 328-29, 359, 387, 439; Exs. 20, 24, 35, at 3-

9, 10-13, 21-22, Y, at 6). 

Sixth, the Darden factor regarding discretion over when and how long to work favors an 

employer-employee relationship. C&W assigned work and set the weekly schedules for the 

workers on Awnclean’s weekly payroll working at the TCC. (Tr. 118-27, 207, 253-54, 314-21, 

328-29, 359, 387, 439; Exs. 20, 24, Y, at 6). Respondent exercised near total control over the 

schedules for all the workers at the TCC on Awnclean’s weekly payroll. Ms. Ballard testified 

that C&W had a written weekly schedule that told her and others at the Worksite, including 

workers from C&W, Awnclean, Chinchi, and P&L, what tasks were going to be performed 

78 Workers on Awnclean’s weekly payroll began working at the TCC in 2013 and continued working there through 

December 2017. (Tr. 137-38, 297, 314,527; Exs. 13, at 3, 30).
- 54 - 

each day.79 (Tr. 120-21, 125-26; Exs. 20, 35, at 36-37, 87, Y at 6).80 Respondent then gave 

Awnclean the weekly schedules so Awnclean could process the weekly payroll. (Tr. 154, 322; 

Ex. 14, at 1). Awnclean had no idea how many hours the workers were working until after 

Respondent provided the records. (Tr. 322). Awnclean did not have discretion over when 

workers on its weekly payroll could start and finish jobs at the TCC.

Seventh, the Darden factor regarding the method of payment also favors an employeremployee relationship. Awnclean managed the payroll of the workers paid on a weekly basis 

while working at the TCC under the subcontract between C&W and Awnclean. However, 

Respondent wielded total control over Awnclean's payroll practices for these paid weekly 

workers. Respondent required Awnclean to bifurcate its pay practices; demanding that 

Awnclean pay workers working under the subcontract at the TCC on a weekly basis. (Tr. 160, 

327, 549). Awnclean paid all its remaining workers on a bi-weekly basis; its usual practice. 

(Tr. 160-61, 168, 327-28, 181). Respondent also told Awnclean which workers to place on its 

weekly payroll. (Tr. 143, 155, 316; Exs. 13, at 2, 14, at 3). For example, Respondent sent 

Awnclean an email with a list of workers to add to its weekly payroll. Some of the workers that 

Respondent told Awnclean to place on its weekly payroll were previously on Respondent's 

payroll. Awnclean never interviewed, solicited, or made any hiring decisions for any of the 

twelve workers identified in Ms. Harris’ email to Mr. Diehl in June 2013. (Tr. 316-17; Ex. 14). 

Awnclean was merely a conduit for Respondent's own payroll practices. This practice

continued even after Awnclean ended its contractual relationship with Respondent in December 

2017, when Respondent just transferred the workers on Awnclean's weekly payroll to another 

79 The Court finds the testimony of Ms. Diaz that C&W’s weekly schedules did not assign specific work to 

Awnclean workers to not be credible. (Tr. 551, 558-59, 585-86, 606; Exs. 20, 35, at 16-17, 32). 80 Ms. Ballard said C&W Supervisor Erika Alberti prepared the work schedule for the period May 15 through May 

21, 2017. (Tr. 126-27; Ex. 20). 
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subcontractor’s payroll. (Tr. 297-98). Respondent also set the hourly rate of pay for workers 

on Awnclean's weekly payroll. (Tr. 159). Respondent decided which workers on Awnclean’s 

weekly payroll to promote and how much their pay raises should be. (Tr. 156; Ex. 14, at 3). 

 Eighth, the Darden factor regarding whether the hired party’s role in hiring and paying 

assistants favors an employer-employee relationship. Respondent exercised hiring and firing 

power over the workers who worked at the TCC who were on Awnclean’s weekly payroll. 

Awnclean never solicited or interviewed applicants or candidates to work at the TCC on 

Awnclean’s weekly payroll. (Tr. 138, 143-44, 155, 316-17, 326-27; Ex. 13, at 3). In 2013, Mr.

Diehl attempted to participate in an employee recruiting event and Respondent’s Michael 

Sheehan told him that he did not need to be there. (Tr. 313-15). Respondent recruited and 

interviewed applicants to work at the TCC under Awnclean’s subcontract with C&W. 

Respondent sent Awnclean completed employment applications for these jobs. (Tr. 143; Ex. 

13, at 3). Ms. Diehl testified that C&W sent Mr. Norton over to Awnclean to fill out 

Awnclean’s paperwork and start working at the TCC. (Tr. 288). Respondent also conducted 

the criminal background checks for these workers. (Tr. 287, 320). 

Respondent also controlled disciplinary and firing decisions. Respondent disciplined 

workers on Awnclean's weekly payroll by "writing up" those employees. (Tr. 170). In at least 

one instance, Respondent completed an "incident report" and a "Progressive Discipline Notice" 

for Jill Glass, a worker at the TCC on Awnclean's weekly payroll. (Tr. 171; Ex. 15, at 4-12). 

Respondent ultimately directed Awnclean to fire Ms. Glass. ( Tr. 170-71). While Respondent 

may argue that Awnclean fired Ms. Glass, the Court agrees with the Secretary that it was 

Respondent who “wielded the ax.”81 (Sec’y Post Hr’g. Br., at 25). 

81 Ms. Diehl acknowledged that she could “[t]heorectically” terminate a supervisor who worked at TCC who was on 

Awnclean’s payroll. (Tr. 209).
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Ninth, the Darden factor regarding whether the work is part of the regular business of the 

hiring party favors an employer-employee relationship. C&W was the prime contractor on a 

contract to provide janitorial services to the TCC. Respondent's own employees worked on the 

contract as managers, custodial and maintenance workers, and groundskeepers. (Ex. 35, at 16-

17). Respondent did not hire Awnclean so that Awnclean's actual employees would provide 

janitorial services at the TCC. Respondent's own workers were already doing that. Awnclean 

was merely a conduit for Respondent to obtain the contract in the first place. The Court agrees 

with the Secretary that Respondent courted Awnclean in order to help obtain the award of the 

contract with the City of Tampa for the work at the TCC because Awnclean is a woman-owned 

small business.82 (Tr. 134-35, 276, 300, 312-13, 329-30, 555; Exs. 37, at 24, 52, M; Sec’y Post 

Hr’g. Br., at 23). During contract performance, Respondent needed to ensure that it was 

spending more on Awnclean to meet the SLBE component in its contract with the City of 

Tampa. (Tr. 328-29, 616-17). 

Tenth, the Darden factor regarding whether the hiring party is in business favors an 

employer-employee relationship. It is undisputed that Respondent is in business. Respondent 

was one of the largest janitorial contractors “in the world.” As noted above, Respondent 

provided janitorial services to the TCC and its own employees worked on the contract as 

managers, custodial and maintenance workers, and groundskeepers. (Tr. 236; Ex. 35, at 16-17). 

Eleventh, the Darden factor regarding the provision of employee benefits favors an 

employer-employee relationship. Respondent set vacation and sick time policies for the workers 

at the TCC on Awnclean's weekly payroll. (Tr. 163; Ex. 17). Awnclean employees paid on a 

biweekly basis received vacation time, whereas Awnclean workers working at the TCC who 

82 Awnclean did not have sufficient actual employees on its regular payroll at that time to complete the work 

required under its subcontract with C&W. (Tr. 138, 313-14, 320). 
- 57 - 

were paid on a weekly basis did not, with very limited exception.

83 When a worker at the TCC 

on Awnclean's weekly payroll was sick and needed to request time off, the worker called

Respondent, and not Awnclean. (Tr. 161-62, 321-22, 330; Ex. 35, at 43). 

Here, the tax treatment of the hired party favors a non-Employer-employee relationship. 

Awnclean withheld taxes from, gave W-2 forms to, submitted W-4 forms for, and went through 

the I-9 [Employment Eligibility Verification] process for workers, including supervisors, on 

Awnclean’s weekly payroll who worked at the TCC. (Tr. 195-97, 209). Awnclean also 

handled the deductions for Mr. Norton while he was on Awnclean’s payroll, including Federal 

tax, Medicare and social security withholdings. (Tr. 350; Exs. 36, at 32, H, at 9, Supplement to 

Ex. H, at 32; Resp’t Post Hr’g. Reply Br., at 10-11). 

With limited exception, the Court’s analysis of the Darden factors demonstrates that 

Respondent was in an employer-employee relationship with the workers at the TCC who were 

on Awnclean’s weekly payroll on, and for at least several months before, May 15, 2017, 

including Mr. Norton. (Sec’y Post Hr’g. Br., at 19-26). 

B. Respondent Controlled the Workers on Awnclean’s Weekly Payroll at the TCC, including 

Mr. Norton, on, and for at least Several Months before, May 15, 2017. 

Pursuant to OSHA Directive CPL 2-0.124 (Multi-Employer Citation Policy (MEP)), 

OSHA may cite an employer if it creates a hazard, exposes employees to a hazard, has the 

ability to correct a hazardous condition, or is a controlling employer. A controlling employer 

has "general supervisory authority over the worksite, including the power to correct safety and 

health violations itself or require others to correct them." Summit Contractors Inc., 22 BNA 

OSHC 1777, 1780-81 (No. 03-1622, 2009) (agreeing with and quoting the MEP's definition of 

a controlling employer). Although control can be established by explicit contractual authority, 

83 See n. 56, above.
- 58 - 

it is not required where an employer exercises control in practice. Where a right to control 

safety is not clearly defined or where the contract says that the employer does not have such a 

right, an employer may still be deemed "controlling" based on a totality of circumstances, 

including analysis of other contractual rights that may grant an employer broad responsibility 

over almost all aspects of the job that necessarily involve safety, i.e. resolving disputes between 

subcontractors, setting schedules, making purchase decisions, and determining project 

sequencing. Even in the complete absence of explicit contractual provisions, the exercise of 

control in practice is equally enough to deem an employer "controlling." (CPL 2-0.124, ¶ E5(b)). Here, the provision in the subcontract stating Awnclean was an “independent contractor” 

was more form than substance. (Tr. 286; Ex. 30, at 4, ¶ 11). In practice, the subcontract 

provisions at paragraphs 11 and 13 were ignored with regard to workers on Awnclean’s weekly 

payroll. (Tr. 118-27, 161-63, 168-70, 201-02, 235-36, 245, 281-82, 286, 316-17, 336, 356, 

378-82, 594; Exs. 17, 20, 30, at 4-5, Y, at 6). Ms. Diaz agreed that what’s written in the 

contract on paper is not necessarily how things progress in realty. (Tr. 594). 

Under Commission precedent, an employer who either creates or controls the cited 

hazard has a duty under section 5(a)(2) of the Act to protect not only its own employees, but 

those of other employers “engaged in the common undertaking." McDevitt St. Bovis, Inc., 19 

BNA OSHC 1108, 1109 (No. 97-1918, 2000) (citing Anning-Johnson, 4 BNA OSHC 1193, 

1199, (No. 3694, 1976); Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185, 1188 (No. 

1275, 1976). Specifically, the Commission has concluded that an employer may be held 

responsible for the violations of other employers "where it could reasonably be expected to 

prevent or detect and abate the violations due to its supervisory authority and control over the 

worksite." Centex-Rooney Constr. Co., 16 BNA OSHC 2127, 2130 (No. 92-0851, 1994). 
- 59 - 

Here, Respondent was the prime contractor of a facilities services contract. The MEP 

applies. See Harvey Workover, Inc., 7 BNA OSHC 1687 (No. 76-1408, 1979) (holding "We no 

longer find the distinction between construction sites and other worksites valid. The safety of 

all employees can best be achieved if each employer at multiemployer worksites has the duties 

to: (1) abate hazardous conditions under its control and (2) prevent its employees from creating 

hazards.

In addition to its own employees, Respondent managed three subcontractors at the 

Worksite, including Awnclean, Chinchi and P&L. (Tr. 110-11). These workers generally 

performed similar tasks, wore identical uniforms, and were supervised by Respondent. (Ex. 

35, at 17). Workers on Awnclean’s weekly payroll and C&W employees alike were "engaged 

in the common undertaking" of cleaning and maintaining the Worksite. Respondent had a duty 

to protect the workers on Awnclean’s weekly payroll working at the TCC, including Mr. 

Norton. See McDevitt St. Bovis, Inc., 19 BNA OSHC at 1109.

Respondent argues that Awnclean's subcontract with Respondent does not establish 

C&W’s control within the meaning of OSHA’s MEP. It further argues that the subcontract 

specifically disclaims an employment relationship (or any "engagement") with workers on 

Awnclean's weekly payroll working at the TCC. (Tr. 190; Ex. 30; Resp’t Post Hr’g. Br., at 

28-29). An employer cannot shift to another its responsibilities under the Act. See Pride 

Oil Well Serv., 15 BNA OSHC 1809, 1815-17 (No. 87-692, 1992). In Summit Contractors, 

Inc. 23 BNA OSHC 1196, 1207 (No. 05-0839, 2010), citing to Cent. of Ga. R.R. Co. v. 

OSHRC, 576 F.2d 620, 624-25 (5th Cir. 1978), the Commission stated that "Commission 

precedent establishes that ‘an employer may not contract out of its duties under’ the OSH 

Act.” Summitt Contractors Inc., 23 BNA OSHC at 1207.
- 60 - 

The exercise of control in practice is enough to deem an employer "controlling." (CPL 

2-0.124, ¶ E-5(b)). Respondent could "reasonably be expected to prevent or detect and abate 

the violations due to its supervisory authority and control over the worksite" because on the day 

Mr. Norton drowned and the months leading up to May 15, 2017, Awnclean did not have a 

supervisor at the Worksite. (Tr. 166-69, 331, 378-82, 587-88, 594-95; Ex. 24, 35, at 20, Y, at 

6). See also Centex-Rooney Constr. Co., 16 BNA OSHC at 2130; Double "A" Indus., Inc., 19 

BNA OSHC 1833, 1836 (No. 01-0534, 2002) (finding controlling employer status where the 

prime contractor's project manager was overseeing the work, could stop work, make corrections 

to the work, and the subcontractor 's foreman was not at the worksite).

Respondent exercised control and supervision over its own workers and the workers on 

Awnclean’s weekly payroll at the TCC. It made safety decisions, set schedules, and exercised 

hiring and firing power for workers at the TCC on Awnclean’s weekly payroll. C&W 

supervisors had the authority to stop Awnclean personnel from working if they observed the 

employee doing something unsafe. (Ex. 35, at 31-32). Respondent could, and did, require a 

subcontractor to remove its employee from the Worksite. (Ex. 35, at 33). Respondent could 

also obtain safety equipment for all its subcontracted workers. C&W Supervisor Michael

Sheehan stated that "[i]f Johnnie [Norton] would have asked for a PFD I would have been able 

to get him one."84 (Ex. 23). 

Respondent set the work schedules for all the personnel who worked under 

Respondent’s contract with the City of Tampa at the Worksite. C &W Supervisor Alberti 

created and implemented a weekly schedule that directly affected workers on Awnclean’s 

weekly payroll. The weekly schedule designated assignments, set the allocation of the hours 

84After Mr. Norton drowned, C&W provided PFDs to all the workers who worked under its contract with the City of 

Tampa at the TCC, including workers on Awnclean’s weekly payroll. (Tr. 389; Ex. 22).
- 61 - 

and assigned specific workers to specific tasks.85 (Tr. 118-27, 207, 253-54, 314-21, 328-29, 

359, 387, 439; Exs. 19-20, 24, Y, at 6). Ms. Alberti's schedule included assignments for both 

C&W and workers on Awnclean’s weekly payroll who worked at the TCC. (Tr. 387, 439; Exs. 

20, 24, 35, at 36-37, 87). Respondent, not Awnclean, told Mr. Norton to pressure wash the 

dock. (Tr. 498, 601; Ex. 35, at 23, 78).

C&W exercised hiring and firing power over Awnclean workers. Awnclean never 

interviewed applicants or candidates to work at the TCC under its subcontract with Respondent. 

(Tr. 138). Respondent explicitly told Awnclean who to place on its weekly payroll. 

Awnclean’s President never met many of these workers, including Mr. Norton. 

In addition to having hiring authority over the Awnclean workers, Respondent also 

disciplined and fired workers on Awnclean’s weekly payroll who worked at the TCC. 

Respondent completed an "incident report" and a "Progressive Discipline Notice" for Ms. Glass, 

a worker on Awnclean's weekly payroll. Respondent ultimately directed Awnclean to fire Ms.

Glass. (Tr. 170-71, 280-81, 336-37; Ex. 15, at 4-12). 

All these facts establish Respondent's "general supervisory authority over the worksite, 

including the power to correct safety and health violations itself or require others to correct 

them."86 Summit Contractors Inc., 22 BNA OSHC at 1780-81. The Court finds that OSHA 

properly cited Respondent as the controlling employer pursuant to OSHA’s MEP. (Sec’y Post

Hr’g. Br., at 26-31). 

1. Respondent Failed to Exercise Reasonable Care to Prevent and Detect 

Violations at its Worksite.

85 To the extent that Ms. Diaz testified to the contrary, she was either mis-informed or not credible. (Tr. 551, 558-

59, 585-86, 606; Exs. 20, 35, at 16-17, 32). 

86 The facts of this case as enumerated herein refute Respondent’s discredited argument that it “did not supervise 

Awnclean’s employees, did not provide them with the tools to complete their work, did not control the quality of the 

Awnclean’s employees’ work, [and] did not have the authority to remove or terminate any Awnclean employee,....” 

(Resp’t Post Hr’g. Br., at 34, Resp’t Post Hr’g. Reply Br., at 4). 
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A controlling employer must "exercise reasonable care to prevent and detect 

violations on the site." CPL 2-0.124, ¶ E-2. In Grossman Steel & Aluminum Corp., 4 BNA 

at 1188, the Commission articulated the position that:

The general contractor is well situated to obtain abatement of hazards, either 

through its own resources or through its supervisory role with respect to other 

contractors. It is therefore reasonable to expect the general contractor to assure 

compliance with the standards insofar as all employees on the site are affected. 

Thus, we will hold the general contractors responsible for violations it could 

reasonably have been expected to prevent or abate by reason of its supervisory 

capacity.

(Id. at 1188). 

The Commission has not required a general contractor to conduct continuous inspections 

of the subcontractor's work. A general contractor does have responsibility to seek to have 

worksite hazards corrected, if it was aware of the hazards or could reasonably be expected to 

have detected them. Many facts may bear on the issue of reasonableness. These may include 

the manner, frequency or extensiveness of an employer's efforts to monitor the worksite; the 

difficulty an employer might have had in discovering the alleged hazards; or the length of time 

the hazards existed. (CPL 2-0. 124, ¶¶ E-3-4). Where work is not routine or where unusual 

hazards are present, it is not "reasonable to completely rely on [an employee's] experience and 

provide no supervision or oversight...." Wayne J. Griffin Elec., Inc., 26 BNA OSHC 1786, 

1805 (No. 15-0858, 2017) (ALJ). 

Here, Respondent was well suited to ensure that workers on Awnclean’s weekly payroll 

whom it tasked to pressure wash and rotary scrub the dock at the TCC wore PFDs because it 

exercised supervisory control over them and was aware that workers had pressure washed the 

dock without wearing PFDs. The Court agrees with the Secretary that Respondent could have 
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prevented or abated the hazardous drowning condition involving the use of a pressure washer 

and rotary scrubber on a dock adjacent to deep water without wearing a PFD. 

First, Respondent monitored the Worksite. This is not the situation where the contractor 

was unaware of what was happening at the Worksite or where Respondent relied on the 

experience of a supervisor when assessing the frequency of inspections.87 Here, Respondent 

was well aware of what was happening at the Worksite because it exercised near complete 

control over the workers on Awnclean’s weekly payroll at the TCC, including Mr. Norton. 

Respondent did not rely on Awnclean supervisors to inspect the Worksite and detect hazards 

because on the day of, and months leading up to, the accident Awnclean did not have any 

supervisory personnel at the Worksite. Respondent knew that Mr. Norton was going to pressure 

wash the dock and work close to surrounding water because Respondent’s supervisors ordered 

Mr. Norton to do so. Further, C&W supervisors Walker and Alberti knew Mr. Norton was not 

wearing a PFD while he was pressure washing and rotary scrubbing the dock on May 15, 2017. 

(Tr. 390-91, 395, 450; Exs. 22, 24, U, at 8-9). Respondent was monitoring the Worksite with its 

supervisory personnel who knew exactly what Mr. Norton was doing, and was, therefore, aware 

of the hazard.

Next, pressure washing a dock using a rotary scrubber to clean every inch of the dock up 

to and including the very edges of a ten foot wide, 289 feet long unguarded, raised above the 

water, dock while wearing rubber boots and not wearing a PFD while surrounded on three sides 

by open, 19 feet deep water in Tampa Bay, Florida, is an open and obvious drowning hazard. 

Respondent had no difficulty in assessing how obviously hazardous this was. Respondent knew 

87 Cf. E.P. Guidi, Inc. and Haines & Kibblehouse, Inc., No. 04-1055, 2005 WL 3338020 ((O.S.H.R.C.A.L.J., Sept. 

16, 2005) (consolidated) (noting prime contractor not liable for subcontractor’s violation because it neither 

controlled safety measures at the work site nor had authority to direct the means or methods of the subcontractor’s 

work, and the Secretary failed to show prime contractor should have known of the violative conditions.). 
- 64 - 

that pressure washing the dock without a PFD presented a hazard after at least two of 

Respondent's own employees used a PFD to do so. Respondent recognized the hazard because 

C&W Supervisor Sheehan specifically asked Mr. Norton if he could swim. This conversation 

happened when Mr. Norton was told to pressure wash the dock. Mr. Sheehan’s inquiry was 

made because one of the employees that used to clean the dock “area had a fear of water and 

used to put a jacket [on]." If Respondent was unaware of the drowning hazard, Mr. Sheehan 

would not have asked Mr. Norton if he could swim. It was foreseeable to Respondent and its 

Worksite supervisors that an employee looking forward and down at a rotating scrubber 

dragging a cord could fall into the bay while cleaning the edges of the TCC’s boat dock on May 

15, 2017. (Tr. 371-73, 392-93, 426, 498-501, 601; Exs. 1, 23, 35, at 63-73; SF 2-6, 9-11). 

Finally, this is not the case were Respondent was caught unaware because the hazard 

existed for a short period. This hazard played out repeatedly, as Respondent routinely ordered 

many workers, including Messrs. Walker, Estonier, Norton, Arana, Wilson, and Few to pressure 

wash the dock on and before May 15, 2017. Respondent could have reasonably been expected 

to prevent or abate the hazard. (Sec’y Post Hr’g. Br., at 31-35). 

C. Judicial Notice is Not Suitable for the Factual Assertion Sought by the Secretary. 

 In Complainant’s Reply to Respondent’s Post Hearing Brief “[t]he Secretary asks the 

Court to take judicial notice of the dangers of swimming or falling into open water pursuant 

to Rule 201 of the Federal Rules of Evidence.” (Sec’y Reply to Resp’t Post Hr’g. Br., at 9-

10). The Secretary asserted that “[o]pen water presents additional dangers due to limited 

visibility, depth, distance, and drop-offs, currents and tides, water temperature, and weather 

and seasonal differences [fn omitted].” (Id.). The Secretary asserts that “the dangers of 

swimming or falling into open water are generally known.” He argues that these facts can be 
- 65 - 

accurately and readily determined from a handout produced by Safe Kids Worldwide, 

available at https://www.safekids.org/blog/five-hidden-hazards-open-water, and another 

document produced by the Red Cross and available on the Bureau of Resource 

Management’s webpage at https://www.usbr.gov/watersafety/docs/RedCrossWater 

Safety.pdf.

Federal Rule of Evidence 201(c) states the court “must take judicial notice if a party 

requests it and the court is supplied with the necessary information.” Subsection e of the same 

Rule continues, noting, “[o]n timely request, a party is entitled to be heard on the propriety of 

taking judicial notice and the nature of the fact to be noticed.” On January 13, 2020, the Court 

ordered the parties to state their respective positions concerning Complainant’s request that the 

Court take Judicial Notice of the dangers of swimming or falling into open water pursuant to 

Rule 201, F.R.E. See 29 C.F.R. § 2200.67(l). On January 17, 2020, both parties filed their 

respective positions.88 

Federal Rule of Evidence 201 allows judicial notice of “a fact that is not subject to 

reasonable dispute because it: (1) is generally known within the trial court’s territorial 

jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot 

reasonably be questioned.” See Fed. R. Evid. 201(b)(1)(2). Judicial notice is an adjudicative 

device that alleviates the parties’ evidentiary duties at trial, serving as “a substitute for the 

conventional method of taking evidence to establish facts.” Grand Opera Co. v. Twentieth 

Century–Fox Film Corp., 235 F.2d 303, 307 (7th Cir. 1956). It replaces the evidentiary 

procedure that would otherwise be necessary to establish “adjudicative fact[s]” that are generally 

known or “capable of accurate and ready determination” by resort to reliable sources. York v. 

88 Neither party took advantage of the Court’s offer to allow the parties the opportunity to present oral argument on 

the Secretary’s request that judicial notice be taken. 
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Am. Tel. & Tel. Co., 95 F.3d 948, 958 (10th Cir. 1996). Caution must be used in determining 

that a fact is beyond controversy under Rule 201(b). See, Fed. R. Evid. 201(b) Advisory 

Committee Notes; Int’l Star Class Yacht Racing Ass’n v. Tommy Hilfiger USA, Inc., 146 F.3d 66, 

70 (2d Cir. 1998) (noting that “[c]are must be taken that the requisite notoriety exists [and] 

[e]very reasonable doubt upon the subject should be resolved promptly in the negative”). Here, 

the Secretary’s request for judicial notice falls short of qualifying under Rule 201(b). 

The Secretary cites to several federal and state court premises liability cases in support 

of his argument that the Court should take judicial notice of the fact that open water may be 

deemed an obvious danger as a matter of law.89 (Sec’y Position Stmt., at 2-3). None of these 

cases are in the context of the OSH Act and “judicial notice” was not taken by any of these 

courts in these cited cases. 

The Secretary also cites to Knife River, Contestant v. Sec’y of Labor, Mine Safety and 

Health Admin. (MSHA), No. WEST 2009-1147-RM, 2011, 2011 WL 3794326 

(F.M.S.H.R.C.A.L.J., June 16, 2011) (consolidated) , a Federal Mine Safety and Health 

Review Commission (FMSHRC) case where the Secretary asserts that a FMSHRC judge 

observed that a dock that lacked handrails and toe boards exposed “miners to the risk of fatal 

drowning in the event of a slip or fall into water reported to be ... approximately 20 feet 

deep” and presented a clear and present danger. (Id. at 1460). Again, no “judicial notice” 

was taken in that case.

Respondent argues that taking judicial notice of “the dangers of swimming or falling into 

open water” is inconsistent with Federal Rule of Evidence 201 and should be denied. C&W 

asserts that Secretary’s general request is subject to reasonable dispute, and the assertion is not 

89 The Secretary cites to one OSHA-related case concerning 11th Circuit law on what the Secretary is required to 

show to make out a prima facie case for a violation of an OSHA standard. (Sec’y Position Stmt., at 2-3). 
- 67 - 

capable of ready determination with accurate sources whose accuracy cannot reasonably be 

questioned. Citing to Shahar v. Bowers, 120 F.3d 211, 214 (11th Cir. 1997), Respondent asserts 

that judicial notice would apply to an indisputable fact such as the number of days in a week, or 

that the sun rises in the east, e.g. “the kinds of things about which courts ordinarily take judicial 

notice are (1) scientific facts: for instance, when does the sun rise or set; (2) matters of 

geography: for instance, what are the boundaries of a state; or (3) matters of political history: for 

instance, who was president in 1958.” (Id. at 214). Respondent states that a high degree of 

indisputability is an essential prerequisite for judicial notice. See Fed. R. Evid. 201(b) Advisory 

Committee’s Notes to subdivision (b) (“With respect to judicial notice of adjudicative facts, the 

tradition has been one caution in requiring that the matter be beyond reasonable controversy”). 

 Here, the Secretary’s request to take judicial notice of swimming or falling into open 

water” is general and not indisputable. The Secretary’s assertion does not define “open water” or 

conditions of the open water.90 It does not identify particular “dangers.”91 As noted by 

Respondent, courts have declined to take judicial notice of general assertions that do not meet the 

test of indisputability. See Shahar v. Bowers, 120 F.3d at 214 (declining to take judicial notice of 

newspaper accounts or press releases of a public official’s conduct); Howard v. Hyundai Motor 

Mfg. Ala., 754 F. App’x 798, 807 (11th Cir. 2018) (declining to take judicial notice of the general 

“fact that, in most employment situations, an applicant is required to submit the name of his or 

her last employer to the new employer”) (unpublished) cert. denied, 140 S.Ct. 126 (2019);

Kerruish v. Essex Holdings, Inc., 777 F. App’x 285, 293 (11th Cir. 2019) (declining to take 

90 Here, the parties have stipulated that the waters of Tampa Bay were approximately nineteen (19) feet deep at the 

end of the dock, where Mr. Norton was working before he fell and drowned.

91 Complainant asserts that “[o]pen water presents additional dangers due to limited visibility, depth, distance, and 

drop-offs, currents and tides, water temperature, and weather and seasonal differences. [fn. omitted]”. (Sec’y Reply 

Br., at 10). 
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judicial notice of an affidavit never made part of the district court record) (unpublished) ; United 

States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) (stating that judicial notice is appropriate if 

the fact is “one that only an unreasonable person would insist on disputing” and declining to take 

judicial notice that a defendant “refused to come to work”); Davis v. Valsamis, Inc., 752 F.App’x 

688, 697 (11th Cir. 2018) (unpublished) , cert. denied, 139 S. Ct. 1283 (2019) (declining to take 

judicial notice that defendant received knowledge of the plaintiffs’ injuries through the news). 

(Resp’t Opp. To Sec’y Request for Judicial Notice, at 4-5).

Judicial notice is also improper if a legitimate question exists as to the underlying 

source(s) of the information upon which the proponent relies. Accurate records or other sources 

of a judicially noticed fact must be known to the court to enable it to consider whether the fact is 

amenable to judicial notice. Here, the Secretary did not provide the Court with sources whose 

accuracy cannot reasonably be questioned. As support for his request for judicial notice, the 

Secretary refers to two general online handouts or pamphlets that it never identified during the 

trial, and that he never introduced as trial exhibits. No one testified at trial regarding either of 

these two documents and their authors are unknown. The Safe Kids Worldwide handout 

describes potential risks of open water for children and teens. The Red Cross document provides 

general guidelines on what to look out for near a natural water environment. Both publications 

describe potential variables of open water; not facts about a particular body of water. Neither 

publication is specific to the body of water around the dock at issue in this case. Neither 

document indicates the source of its information. See Carley v. Wheeled Coach, 991 F.2d 1117, 

1126 (3rd Cir. 1993) (refusing to take notice of government test on vehicle rollovers because 

results are not “readily provable through a source whose accuracy cannot be reasonably 

questioned”); Cofield v. Ala. Pub. Serv. Comm’n, 936 F.2d 512, 517 (11th Cir. 1991) (holding 
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that a statement of fact that appears in a daily newspaper does not of itself establish that the 

stated fact is “capable of accurate and ready determination by resort to sources whose accuracy 

cannot reasonably be questioned”) (citing Fed. R. Evid. 201(b)(2)). Here, the accuracy of the 

sources referenced by the Secretary in his request for judicial notice can reasonably be 

questioned. 

D. The Secretary Has Met His Burden of Proving That Respondent Violated 29 C.F.R. § 

1910.132(a). 

In order to establish that an employer violated an OSHA standard, the Secretary must 

show: (1) the standard applies to this employer at this workplace; (2) the employer failed to 

comply with the standard; (3) employees were exposed to the hazard; and (4) the employer 

knew or could have known of the conditions with the exercise of reasonable diligence. See 

Astra Pharm. Prods., Inc., 9 BNA OSHC 2126 (1981), aff’d in relevant part, 681 F.2d 69 (1st

Cir. 1982); Pressure Concrete Constr. Co., 15 BNA OSHC 2011, 2015 (No. 90-2668, 1992). 

1. The Standard Applies to this Worksite 

The Secretary cited Respondent for violating 29 C.F.R. § 1910.132(a). 

That standard provides: 

Protective equipment, including personal protective equipment for eyes, face, 

head, and extremities, protective clothing, respiratory devices, and protective 

shields and barriers, shall be provided, used, and maintained in a sanitary and 

reliable condition wherever it is necessary by reason of hazards of processes or 

environment, chemical hazards, radiological hazards, or mechanical irritants 

encountered in a manner capable of causing injury or impairment in the function 

of any part of the body through absorption, inhalation or physical contact. 

General industry standards under 29 C.F.R. § 1910 apply at this Worksite. Respondent 

was engaged in providing janitorial services at the Worksite, and it is undisputed that their 

employees were custodians, groundskeepers, and maintenance workers. (Ex. 35, at 16-17). 
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PFDs are considered PPE within the meaning of 29 C.F.R. § 1910.132(a). United Geophysical 

Corp., 9 BNA OSHC 2117, 2121-22 (No. 78-6265, 1981) (holding section 1910.132(a) "may 

properly be read to encompass flotation devices to protect against the hazard of drowning."). 

(Id. at 2122). In United Geophysical Corp., the Commission concluded “that the hazard of 

drowning in the gravel pit is part of the surroundings in which United’s employees worked.” 

(Id.). Respondent was in an employment relationship with workers on Awnclean’s weekly 

payroll, including Mr. Norton, for a period of several months on and before May 15, 2017. The 

evidence establishes that the cited standard applies to Respondent at this Worksite.92

2. Respondent Failed to Comply with the Standard.

On May 15, 2017, Mr. Norton was pressure washing and rotary scrubbing the docks at 

the TCC as part of his normal job duties. (SF 6). The dock was unguarded on three sides and 

was approximately 289'7" long and 10' 2" wide. (SF 9). The bay at the end of the dock where 

Mr. Norton was working was approximately 19 feet deep. (SF 10). Mr. Norton was not 

wearing a PFD when he drowned. (SF 12-13). Respondent failed to ensure that Mr. Norton was 

issued and wore a PFD while he was pressure washing the dock. Respondent violated the 

standard. 

3. Johnnie Norton was Exposed to the Hazard 

Mr. Norton was not wearing a PFD on May 15, 2017 when he drowned. (SF 12-13). See 

Id. at 2123 (“By inquiring whether any employee could swim across the pit at a time when no 

protective equipment was available at the site, [the head linesman] demonstrated that he was 

willing to expose an employee to the hazard of drowning in order to accomplish the assigned 

work.”). (Id.). Mr. Norton was exposed to the hazard. (SF 12). 

92 The Court notes that it is unaware of any indication that the drafters of the standard intended to exclude PFDs 

from the scope of the standard. See United Geophysical Corp., 9 BNA OSHC at 2122.
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4. Respondent Had Actual Knowledge of the Hazard 

“To meet [his] burden of establishing employer knowledge, the Secretary must show 

that the cited employer either knew or, with the exercise of reasonable diligence, could have 

known of the presence of the violative condition." Pride Oil Well Serv., 15 BNA OSHC at

1814. An employer is required to make a reasonable effort to anticipate the particular 

hazards to which its employees may be exposed during the course of their scheduled work. 

Automatic Sprinkler Corp. of Am., 8 BNA OSHC 1384, 1387 (No. 76-5089, 1980). The

actual or constructive knowledge of a foreman or supervisor can be imputed to the employer. 

Tampa Shipyards, 15 BNA OSHC 1533, 1537 (No. 86-368, 1992) (consolidated) (citing A.P. 

O'Horo Co., 14 BNA OSHC 2004, 2007 (No. 85-369, 1991); N&N Contractors, Inc., 18 

BNA OSHC 2121, 2123 (No. 96-0606, 2000); Cent. soya de P. R., Inc., 653 F.2d 38, 39 (1st 

Cir. 1981). 

Because the site of the alleged violation was in Florida, this case can be appealed to 

the United States Court of Appeals for the Eleventh Circuit. The Eleventh Circuit has held 

that to prove a violation of a generally-worded PPE standard such as section 1910.132(a), 

unless he has proven actual knowledge, the Secretary must show that the protective 

equipment sought by the Secretary is what the employer's industry would deem appropriate 

under the circumstances.93 Farrens Tree Surgeons Inc., 15 BNA OSHC 1793 (No. 76-4083, 

1992) citing Fl. Mach. & Foundry, Inc., 693 F.2d 119, 120 (11th Cir. 1982). 

Here, Respondent had actual knowledge on May 15, 2017 that Mr. Norton was pressure

washing a dock at the Worksite using a rotary scrubber to clean every inch of the dock up to and 

93 The parties agree that the Secretary did not put forth evidence of industry custom at trial. The Secretary asserts 

that he need not address “industry custom” because here Respondent had actual knowledge of the hazard. (Sec’y 

Reply to Resp’t Post Hr’g. Br., at 8, Resp’t Post Hr’g. Br., at 18). 
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including the very edges of a ten foot wide, 289 feet long unguarded, raised above the water, 

dock while wearing rubber boots and not wearing a PFD while surrounded on three sides by 

open, 19 feet deep water in Tampa Bay, Florida. ((Tr. 371-73, 392-93, 426, 498-501, 601; Exs. 

23, 35, at 63-73; SF 2-6, 9-11; Sec’y Reply to Resp’t Post Hr’g. Br., at 7-8). Respondent’s 

management tasked Mr. Norton to scrub and pressure wash the dock. (Tr. 450-51; Exs. O, at 2, 

U, at 5). At least two separate C&W supervisors, Mr. Walker and Ms. Alberti, were fully aware 

that Mr. Norton was pressure washing the dock without a PFD that morning. After Mr. Norton 

pressure washed the dock the first time, Ms. Alberti told him to go back and clean some rust 

stains off the dock. (Tr. 378-82, 450-51, 498-99, 601; Exs. 24, 35, at 23, 35, 54, 65, 78, O, at 2, 

U, at 5, 8, Y, at 6).

Actual knowledge may be imputed to the employer where a supervisor continues to 

work in the area of the violative condition through the time of the accident. Am. Wrecking 

Corp., 19 BNA OSHC 1703, 1710 (No. 96-1330, 2001) (consolidated), affd in relevant part, 

351 F.3d 1254 (D.C. Cir. 2003). The violative condition, Mr. Norton not provided and 

wearing a PFD while he was pressure washing a boat dock at the TCC on May 15, 2017, did 

not change between the time Ms. Alberti observed him working and when Ms. Alberti sent 

Mr. Norton back to the dock to clean the rust stains. Mr. Wendall acknowledged that falling 

into water that was nineteen feet deep was a drowning hazard. (Ex. 35, at 69). He further 

acknowledged that there was a “general hazard” where a worker pressure washing a dock with 

an unguarded edge could trip, slip or fall into water the abutted the dock’s edge. These 

acknowledgements were made on behalf of Respondent at Mr. Wendall’s Rule 30(b)(6) 

deposition. (Ex. 35, at 72-73). 
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The Secretary need not show that an employer understood or acknowledged that the 

physical conditions were actually hazardous. He must show only that the employer was aware 

of the physical conditions that constitute a violation. Jake 's Fireworks Inc., 893 F.3d 1248, 

1260 (10th Cir. 2018). C&W Supervisors Alberti and Walker were fully aware of the physical 

conditions that constituted a violation, i.e. that Johnnie Norton was pressure washing a boat 

dock at the TCC without wearing a PFD on May 15, 2017. (Ex. 1). Respondent also misstates 

the Secretary’s burden where it argues that the “Secretary failed to establish in the record that 

Respondent had actual knowledge that a personal flotation device was necessary for the work 

performed at the Tampa Convention Center.” (Resp’t Post Hrg. Br., at 42). The Secretary 

need not show that a PFD was “necessary for the work performed.” S&H Riggers & Erectors, 

Inc. v. Occupational Safety & Health Review Comm’n, 659 F.2d 1273, 1284 (5th Cir. 1981), 

provides that the Secretary must show “clear actual knowledge that personal protective 

equipment was necessary under the circumstances.” (Id.).

In the thirty seconds after Mr. Norton fell into the Tampa Bay, video evidence shows 

Mr. Norton splashing and struggling in the water (Ex. 12). He was unable to remain above 

water, get or stay afloat, reach the dock or its deck, or swim to the sea wall. (Exs. 5, 9, 12). 

Under these circumstances, where Mr. Norton suddenly fell into Tampa Bay, a PFD would 

have prevented Mr. Norton from quickly sinking down into the Tampa Bay and drowning. 

(Sec’y Reply to Resp’t Post Hr’g. Br., at 14-15).

These facts demonstrate that Respondent had “clear actual knowledge that PPE was 

necessary under the circumstances.” The circumstances (that the dock was unguarded and 

surrounded on three sides by the Tampa Bay, and that there were no ladders extending off 

the dock) are facts that existed before Mr. Norton drowned. When Mr. Sheehan asked Mr. 
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Norton if he could swim, he was aware of these “circumstances.” 

The Court finds that the Secretary has carried his burden in this regard. 

Respondent's attempts to argue that it did not have knowledge of the hazard because it 

did not "see a hazard" are rejected. Mr. Wendell testified that he did not "see a risk there ... a 

risk that warrants a PFD ....” (Tr. 502). Respondent's JHA did not identify a drowning hazard 

associated with pressure washing and Mr. Wendell did not know if the JHA was site specific 

to the dock. (Tr. 503; Ex. 21). The JHA provides little support to Respondent’s argument. 

Whether or not Respondent understood or acknowledged that the physical conditions were 

actually hazardous is not dispositive. Jake 's Fireworks Inc., 893 F.3d at 1260. (Sec’y Post 

Hr’g. Br., at 40). 

Respondent's position that it just did not see a "risk there" is unpersuasive because its 

own employees recognized the hazard. Operating a pressure washer and rotary scrubber on an 

unguarded dock close to water is an open and obvious hazard as discussed above. As Mr. 

Wendall stated at his Rule 30(b)(6) deposition, anyone tasked with using a pressure washer to 

clean the dock would have to get the entire dock, including the very edge of the dock that abuts 

the water. (Tr. 499-501; Ex. 35, at 63-67). C&W's employees, not on Awnclean’s weekly 

payroll, recognized that working near water while pressure washing presented a drowning 

hazard. Mr. Estonier routinely wore a life jacket/PFD when he pressure washed the dock. (Tr. 

382, 386; Ex. 24, at 7). Ms. Ballard testified that she observed C&W management watching Mr. 

Estonier pressure washing the dock while wearing a life jacket. (Tr. 92, 110; Ex. 27, at 2). In 

another instance, Mario Arana wore a life jacket when he pressure washed the dock once when 

Mr. Norton was sick. (Ex. 26). Mr. Arana knew how to swim but wore the life jacket anyway 

because he "wanted to be sure that [he] was protected." (Ex. 26). C&W supervisor Sheehan also 
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recognized the hazard because he specifically asked Mr. Norton if he could swim. This 

conversation happened when Mr. Norton was told to do pressure washing on the dock. He was 

asked because the person that used to clean the area had a fear of water and used to put a jacket 

on. (Tr. 386, 442; Ex. 23). The fact at least two C&W employees recognized the hazard belies 

Respondent's argument that it "didn't see a hazard there." (Sec’y Post Hr’g. Br., at 37-42). 

Respondent points to Cotter & Co. v. Occupational Safety & Health Review Comm'n, 

598 F.2d 911 (5th Cir. 1979) in support of its position that the citation should be vacated. 

(Resp’t Post Hr’g. Br., at 40). In Cotter, the Fifth Circuit Court of Appeals reversed the 

Commission’s decision which had found actual knowledge, by finding no evidence of 

“confirmed knowledge”94 on the employer’s part regarding a hazard warranting PPE. Cotter,

598 F.2d at 915. In support of its holding, the Cotter Circuit court found that an employer’s 

voluntary provision of steel-toed shoes to employees did not establish actual knowledge of the 

hazard. (Id. at 914). The Circuit court reasoned that the safety-shoe program was “established 

merely to accommodate the preferences of the employees.” (Id.). The Circuit court further 

explained its rationale stating that it recognized “the folly of discouraging an employer, by 

expanding the scope of his liability beyond what it would otherwise be, from exhorting 

employees to take every possible safety precaution in the development of a superior industrial 

safety program.” (Id.).

That is not the case here. Cotter’s holding is distinguishable from the case at hand. 

Respondent did not exhort employees “to take every possible safety precaution.” Respondent 

did not provide Mr. Norton with a host of safety precautions, including a PFD, Mr. Norton 

94 The Court finds that Respondent had specific confirmed knowledge that PFDs were warranted because C&W 

Supervisor Sheehan specifically asked Mr. Norton if he could swim. Mr. Sheehan’s query as to whether Mr. Norton 

could swim is evidence of actual knowledge that pressure washing the boat dock at the TCC without a PFD being 

issued and worn presented a drowning hazard. (Sec’y Rely to Resp’t Post Hr’g. Br., at 11-12).
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could have taken. Instead, Respondent did not give Mr. Norton any PPE even after Mr. 

Sheehan made a specific inquiry of Mr. Norton regarding a hazard (drowning) warranting a 

PFD. (Id. at 915). Mr. Norton did not express a “preference” for a PFD and Respondent did 

not “take every possible safety precaution in the development of a superior industrial safety 

program.” (Id.). Instead, Mr. Sheehan recognized a specific hazard (drowning) and then did 

nothing. Respondent did not require the use of a PFD once it recognized the drowning hazard. 

(Sec’y Reply to Resp’t Post Hr’g. Br., at 8-9). 

The aforementioned facts establish that C&W supervisors had actual knowledge that 

Mr. Norton was pressure washing an unguarded boat dock at the TCC on May 15, 2017 

without being provided with, or wearing, a PFD. 

VIII. THE VIOLATION WAS PROPERLY CLASSIFIED AS SERIOUS AND THE 

PROPOSED PENALTY IS REASONABLE

Under section 17(a) of the Act, a "serious" violation exists if there is a "substantial 

probability that death or serious physical harm could result" from the condition and the 

employer knew, or with reasonable diligence could have known, of the presence of the violation. 

See E. Tex. Motor Freight, Inc., 671 F.2d 845, 849 (5th Cir. 1982); Cal. Stevedor & Ballast Co., 

517 F.2d 986, 988 (9th Cir. 1975); Ga. Elec. Co., 595 F.2d 309, 318 (5th Cir. 1979). 

Respondent's knowledge of the conditions has been established. In determining whether 

the violation here was serious, the only consideration is whether there would be a substantial 

probability of death or bodily harm in the event of an accident. The Secretary need not prove 

substantial probability that an accident will occur, only the probability of death or bodily harm if 

an accident occurs.

The evidence in this case establishes that there is a high probability of death or serious 

bodily harm if an accident occurs given that Mr. Norton actually drowned. This evidence is 
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sufficient to support a serious citation. Accordingly, the violation was properly classified as 

"Serious."

The evidence also reflects that the penalty of $12,675 was properly calculated and 

should be affirmed. Section 17(j) of the Act, 29 U.S.C. 666(j), requires the Secretary to 

consider four factors in proposing penalties: the gravity of the violation and the employer's 

good faith, history, and size. The Act does not prescribe how or what weight to apply to the 

factors. Atlas Roofing Co. v. OSHRC, 518 F.2d 990, 1001 (5th Cir. 1975), aff’d, 430 U.S. 442 

(1977) (OSHA penalties are meant to "inflict pocket-book deterrence"). Usually, the gravity of 

the violation is the factor of greater significance. Caterpillar, Inc., 15 BNA OSHC 2153, 2178 

(No. 97-922, 1993). Penalty assessment requires application of administrative discretion. D.S. 

Grading Co., Inc., 899 F.2d 1145, 1148 (11th Cir. 1990). 

CO Marrero testified that there was a "greater" probability of an accident in light of the 

fact that C&W employees, including workers on Awnclean’s weekly payroll, were routinely 

pressure washing the dock without wearing a PFD device, and, in this case a fatality occurred. 

(Tr. 409). Accordingly, the gravity of the violation is properly classified as "high/greater." (Tr. 

413). The Secretary’s analysis resulted in the assessment of a $12,675 penalty. (Tr. 408; Sec’y 

Post Hr’g. Br., at 44-46). 

The Court finds that the Secretary properly considered Respondent's size, history of 

violations, and good faith and determined that no adjustments to the gravity-based penalty were 

warranted. (Tr. 409). After considering these same factors, the Court agrees with the 

Secretary’s proposed penalty and assesses the penalty of $12,675. 
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IX. RESPONDENT'S DEFENSES FAIL

In its Answer, Respondent pleaded numerous defenses: inapplicability of the 

standard, that it was not an employer of Mr. Norton, it was not a controlling employer at 

the Worksite, that Mr. Norton's drowning was an isolated incident, that it took adequate 

alternative measures, that it lacked knowledge that PFDs were required in these 

circumstances, that the violation was not serious, that it followed normal and customary 

procedures in its industry, that its safety precautions were adequate, and estoppel.95 Each 

and every one of these defenses fails. (Sec’y Post Hrg. Br., at 46-51). 

The Secretary has proven his prima facie case. He has shown that the standard applies, 

Respondent was in an employee-employer relationship with Mr. Norton on and before May 15, 

2017 for at least several months, or, at the very least, was a controlling employer, and that 

Respondent had actual knowledge that its employees were pressure washing the boat dock at the 

TCC without being issued or wearing PFDs. 

Respondent's argument that Mr. Norton's drowning is an isolated incident is 

unsupported. The affirmative defense of "isolated incident" is sustained when an employer 

proves that the assertedly isolated incident results from an employee's departure from a 

uniformly enforced work rule. B-G Maint. Mgmt., Inc., 4 BNA OSHC 1282 (No. 4713, 1976); 

Robert T. Winzinger, Inc., 4 BNA OSHC 1475 (No. 6790, 1976). Respondent's has not 

identified any work rule that Mr. Norton allegedly violated. As such, Respondent has not 

carried its burden and this affirmative defense fails.

 Respondent's adequate alternative measures defense also falls short. In 

95 Respondent has abandoned its estoppel defense. (Ex. 32, at 10, answer to Interrogatory No. 9).
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Novak & Co., Inc., 11 BNA OSHC 1763, 1765-66 (No. 80-7335, 1984), the Commission held 

that where a "a hazard remains unabated, the employer who does not create or control the hazard 

will be relieved of any responsibility for violating the standard if it can establish that it used 

reasonable alternative means to protect its employees or had no actual or constructive 

knowledge that the condition was hazardous." (Id.). Here, Respondent controlled whether 

employees were exposed to the drowning hazard and had actual knowledge of it. Respondent 

sent Mr. Norton to pressure wash and rotary scrub an unguarded boat dock close to water 

without issuing him a PFD and requiring its use. C&W Supervisor Alberti sent Mr. Norton back 

to the dock to remove a rust stain. Respondent ordered Mr. Norton to do the work and 

controlled the Worksite. It had actual knowledge as imputed to it through its supervisors Ms. 

Alberti and Mr. Walker. There is no persuasive evidence that Respondent took any meaningful 

alternative measures to protect Mr. Norton from drowning while pressure washing the boat dock 

at the TCC on May 15, 2017. During her Rule 30(b)(6) deposition, C&W's designated 

representative, Ms. Diaz, could not articulate any facts about this defense. 

Q: What does C&W believe that it did to protect against . . . the violation alleged 

in the citation?

A: I don't know. 

(Ex. 35, at 103). 

Respondent's defense that it lacked knowledge that PFDs were required in these 

circumstances is unpersuasive and also fails. As noted above, Respondent argues that it lacked 

knowledge that PFDs were required. For the reasons outlined above, Respondent had actual 

knowledge of the hazard. 

Respondent’s argument that the violation was not serious is also without merit. As set 

forth above, in determining whether a violation is serious, the only consideration is whether 
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there would be a substantial probability of death or bodily harm in the event of an accident. The 

Secretary need not prove substantial probability that an accident will occur, only the probability 

of death or bodily harm if an accident occurs. Here, an accident occurred, and Mr. Norton 

drowned. The violation was properly classified as "Serious".

Respondent's claim that its practices were consistent with normal and customary 

procedures in the facilities management industry is unpersuasive. Respondent has not 

sufficiently shown what the industry norms are. During Ms. Diaz's Rule 30(b)(6) deposition, 

she admitted that Respondent only looked to what the TCC did. She said:

Q: Are you saying that there are other companies within that industry that don't 

recognize the need for PFDs when working on a dock? 

A: No, I am not saying that.

Q: Okay. You are saying that as far as the City of Tampa's training and the 

recommendations from the pressure washer manufacturer, that's what your answer 

is based on? 

A: Correct.

(Ex. 35, at 109). 

The TCC is in the "facilities management industry." But what it told, or did not tell, Respondent 

to do does not by itself establish normal and customary procedures within the facilities 

management industry. 

The Secretary has carried his burden showing that Respondent had actual knowledge that 

Mr. Norton performed pressure washing work on the boat dock at the TCC without being issued, 

or wearing, a PFD on May 15, 2017. What the employer's industry would deem appropriate 

under the circumstances of this case is therefore immaterial. Moreover, neither Mr. Wendell nor 

Ms. Diaz were qualified as an expert witness pursuant to Fed. R. Civ. P. 702. They were only 
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competent to speak about their own actual knowledge and were not qualified to opine about 

what the employer's industry would deem appropriate under these circumstances.

It is Respondent's duty to identify hazardous conditions. Respondent conducted a JHA 

for pressure washing at the TCC.

96 (Ex. 21). Its JHA identifies three components for training

on: how to operate the pressure washer, required PPE, and the manufacturer's/operator's 

manual. (Ex. 21, at 2). Respondent's reliance on the pressure washer manual to establish 

"normal and customary procedures in the facilities management industry" is deficient. It is not 

the pressure washer manufacturer's duty to identify all hazardous conditions. 

Respondent argues that its safety precautions were adequate. Respondent has admitted

that it did nothing to protect workers from a drowning hazard at the dock at the TCC. During 

C&W's Rule 30(b)(6) deposition, Ms. Diaz admitted that Respondent did not take any measures 

to prevent drowning hazards at all. She said: 

Q: What specific measures did C&W take to prevent drowning hazards at the 

TCC site?

A: Not for drowning hazards. We don't have anything documenting drowning 

hazards. I mean, our jobs and tasks really don't represent a drowning hazard. 

(Ex. 35, at 104).

It is disingenuous for Respondent to allege that its safety precautions were adequate while 

simultaneously admitting that it did nothing to prevent drowning hazards at the boat dock at the 

TCC. 

96 Respondent made it “really clear” that it did not want Awnclean to write up a JHA for work done at the TCC by 

workers on Awnclean’s weekly payroll. (Tr. 199-200). 
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X. FINDINGS OF FACT AND CONCLUSIONS OF LAW

All findings of fact and conclusions of law relevant and necessary to a determination of 

the contested issues have been made above. See Fed. R. Civ. P. 52(a). All proposed findings of 

fact and conclusions of law inconsistent with this decision are denied. 

XI. ORDER

 Based on these findings of fact and conclusions of law, it is ORDERED that Citation 1, 

Item 1, alleging a serious violation of 29 C.F.R. § 1910.132(a) is AFFIRMED and a penalty of 

$12,675 is ASSESSED. 

SO ORDERED.

/s/ 

The Honorable Dennis L. Phillips 

 U.S. OSHRC Judge

Date: February 14, 2020 

 Washington, D.C.