United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

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

Washington, DC 20036-3457 

SECRETARY OF LABOR, 

Complainant, 

v. OSHRC DOCKET NO. 17-0819 

EDWIN TAYLOR CORPORATION, 

Respondent. 

Appearances: 

Kate S. O’Scannlain, Solicitor of Labor 

Stanley E. Keen, Regional Solicitor 

Karen E. Mock, Counsel 

Lydia Chastain, Senior Trial Attorney 

U.S. Department of Labor, Atlanta, GA 

For the Complainant 

Robert Bleakley, Esq. 

Bleakley Bavol & Denman, Tampa, FL 

For the Respondent 

Before: Chief Judge Covette Rooney 

DECISION AND ORDER 

This proceeding is before the Occupational Safety and Health Review 

Commission (Commission) pursuant to sections 2-33 of the Occupational Safety and Health Act 

of 1970, 29 U.S.C. §§ 651-678 (the Act). After the Occupational Safety and Health Administration 

(OSHA) completed an investigation, the Secretary issued a Citation, alleging that Edwin Taylor 

Construction Corporation (Edwin Taylor) willfully violated 29 C.F.R. § 1926.501(b)(13) and 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

proposes a $126,749 penalty. Edwin Taylor filed a timely notice of contest, bringing this matter 

before the Commission. For the reasons that follow, the Citation is AFFIRMED as a willful 

violation of the Act and a penalty of $101,399.20 is assessed. 

JURISDICTION 

Edwin Taylor admits that, as of the date of the alleged violation, it was an employer 

engaged in business affecting commerce within the meaning of section 3(5) of the Act.1 (Ans. at 

1; Stips. A, B.) Based upon the record, the undersigned finds that at all relevant times Edwin 

Taylor was engaged in a business affecting commerce and was an employer within the meaning 

of sections 3(3) and 3(5) of the Act. The undersigned concludes the Commission has jurisdiction 

over the parties and subject matter in this case. 

BACKGROUND 

A laborer fell twenty-two feet through an unguarded opening at residential construction 

site and died as a result on November 3, 2016. (Stip. O.) After learning of the death, OSHA 

commenced an investigation at 349 7th Street S, Saint Petersburg, Florida (the Worksite). This 

investigation led to a Citation alleging Respondent willfully violated 29 C.F.R. § 1926.501(b)(13), 

a construction standard that requires fall protection. 

Edwin Taylor was responsible for constructing the shell for multiple condominium homes. 

It had “general supervisory authority over the [Worksite].” (Stips. C, F, G, H, K.) The project 

called for the construction of five three stories homes. (Tr. 53-54.) As part of its work, Edwin 

Taylor retained a subcontractor Adelo & Fernanda Construction Inc. (Adelo) to perform block and 

1 The parties stipulated that: “Respondent is an employer engaged in business affecting interstate commerce within 

the meaning of § 3(5) of the Occupational Safety and Health Act (the “Act”). (Stip. A.) In addition, they stipulated 

that: “Jurisdiction is conferred on the Commission by § 10(c) of the [Act]. ... Subject to [Commission] and judicial 

review the presiding Administrative Law Judge has the authority to hear the case and issue a decision as prescribed 

by the [Act] and the Administrative Procedures Act.” (Jt. Pre-Hr’g at 11.) 

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framing work.2 (Stip. E; Tr. 196.) Adelo, in turn, retained another subcontractor, Francisco 

Sanchez Hernandez (FSH), to assist with the framing aspect of the work.3 (Stip. I, J; Tr. 126-27, 

196.) The laborer who died was working directly with FSH.4 (Stips. J, O.) 

Three of Respondent’s employees—Paul Barros, Jay Zimmerman, and Bronson 

Ostrander—directed and oversaw Adelo and FSH’s work.

5 (Stips. C, F, G, K; Tr. 152.) Barros 

and Ostrander were superintendents. (Tr. 365, 407; Exs. C-24, C-25.) Zimmerman is the Vice 

President of Operations for Edwin Taylor’s shell construction business and manages the 

superintendents. (Tr. 407; Ex. C-26.) David Patton, one of Respondent’s owners, was also 

regularly sent photographs of and messages about the work occurring through the company’s 

Buildertrend app and through conversations with the direct supervisors. (Tr. 240, 338-39, 423, 

425-26; Ex. C-1.) Respondent’s supervisors had the responsibility to enforce safety policy and the 

authority to require sub-contractors, including FSH and his workers, “to correct safety and health 

violations on the [W]orksite.” (Tr. 169, 423; Stip. K.) 

2 The parties stipulated: “Respondent subcontracted with [Adelo]. to perform block and framing work at the 

[W]orksite.” (Stip. E.) 

3 The parties stipulated: “[Adelo] hired [FSH] and his crew of framers to perform the framing work at the [W]orksite.” 

(Stip. I.) 

4 The parties stipulated: 

J. [FSH] and his framing crew were performing framing work at the [Worksite] on November 3, 

2016. ... 

O. On November 3, 2016 [laborer], an employee of [FSH], fell through an unprotected floor opening 

on the third floor of the townhome unit; [laborer] ultimately died from the injuries he sustained from 

the fall. 

(Stips. J, O.) 

5 The parties stipulated: 

C. Respondent’s employee Paul Barros was capable of identifying existing and predictable hazards 

at the [W]orksite. ... 

F. As of at least November 2, 2016, Respondent’s employee Paul Barros had authorization to take 

prompt corrective measures to eliminate existing hazards at the [Worksite]. 

(Stips. C, F.) 

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The project started in early October 2016 and by October 18, 2016 the workers completed 

the block exterior of the first floor of the townhomes and decking for the second floor. (Tr. 132, 

335; Ex. C-1.) Workers continued to engage in tasks at a height in excess of six feet over the next 

two weeks without any guardrails. (Tr. 39-40, 95, 169-70: Exs. C-2 thru C-9.) On the afternoon 

of November 3, 2016, a worker fell twenty-two feet and was killed. (Tr. 172, 255; Ex. C-1.) Only 

then were guardrails were installed in most areas of the Worksite. (Tr. 61.) However, even a week 

later, on November 10, 2016, the Compliance Officer (CO) again identified a lack of appropriate 

fall protection. (Tr. 199-200.) 

At the close of OSHA’s investigation, the Secretary issued one willful Citation for violating 

26 C.F.R. § 1926.501(b)(13) and proposing a penalty of $126,749. The Citation refers to three 

instances when workers were not protected by adequate fall protection: 

a) ... employees were exposed to a 22 foot fall hazard through the unguarded 

stairwell openings ... and a 22 foot, 7 inch fall hazard from the open sided floors 

when performing floor decking of the townhome units; on or about November 3, 

2016. 

b) ... employees were exposed to an 11 foot fall hazard through the unguarded 

stairwell openings ... and an 11-foot, 7 inch fall hazard from open sided floors 

when performing floor decking and other carpentry work on the decks of the 

townhome units, on or about November 3, 2016. 

c) ... an employee was exposed to an 11 foot fall hazard through the unguarded 

stairwell openings ... and an 11 foot, 7 inch fall hazard from the open sided floors 

when taking photographs of the work in progress, on or about October 22, 2016. 

Thus, the Secretary alleges that an employee was exposed to fall hazards of eleven feet or more on 

October 22, 2016, and that employees were exposed to fall hazards of approximately 11 and 22 

feet on November 3, 2016. The Secretary does not propose separate penalties for each instance. 

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DISCUSSION 

I. Item 1 – Failure to ensure that employees were protected from fall hazards as 

required by 29 C.F.R. § 1926.501(b)(13) 

To establish a violation of a specific OSHA standard, the Secretary must show by a 

preponderance of the evidence that: (1) the cited standard applies; (2) its terms were violated; (3) 

the employer knew, or with the exercise of reasonable diligence could have known, of the violative 

condition; and (4) one or more employees had access to the cited condition. Astra Pharm. Prods., 

9 BNA OSHC 2126, 2129 (No. 78-6247, 1981), aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982). 

A. Applicability & Violation 

The Citation alleges that Respondent failed to ensure its employees were protected from 

fall hazards in violation of 29 C.F.R. § 1926.501(b)(13). This standard addresses residential 

construction and requires fall protection for each employee working at a height of greater than six 

feet: “Each employee engaged in residential construction activities 6 feet (1.8 m) or more above a 

lower level shall be protected from falling by the use of guardrail systems, safety net systems, or 

personal fall arrest systems ... .” 29 C.F.R. § 1926.501(b)(13) 

Respondent stipulated that it “performs residential construction services and admits that 

OSHA’s construction standards, 29 C.F.R. § 1926, et seq., apply to its operations at the 

[W]orksite.” (Stip. B.) It also stipulated that on October 28, 2016, and November 3, 2016, neither 

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guardrails nor other appropriate fall protection had been installed where required.6 (Jt. Pre-Hr’g 

at 9.) However, guardrails were missing as early as October 19, 2016, when two supervisors 

visited the site. (Tr. 333, 335, 367.) The second floor deck of the townhome was complete, but 

there were no guardrails around any of the five stairwell openings or the open edges of the second 

floor. (Tr. 40, 100-1.) 

Three days later, on October 22, 2016, one of the site superintendents, Barros, returned to 

the Worksite. (Tr. 215, 335-6, 338; Ex. C-1.) He climbed a ladder through a stairwell opening to 

the second floor to photograph the work being done. (Tr. 337-38; Ex. C-2.) He sent the 

photographs in real time to other senior employees, including Patton, Zimmerman, and Bronson, 

though the Buildertrend app. (Tr. 336-39; Exs. C-1, C-23 at 3.) These photographs show that 

none of the workers on the upper level were wearing personal fall protection and there were no 

guardrails. (Tr. 338; Exs. C-1, C-2.) At the time, Barros was new to Edwin Taylor, having started 

work on October 19, 2106.7 (Tr. 333.) Still, his supervisor expected him to correct safety 

violations he saw, even on his first days of the job. (Tr. 408-9; Ex. C-24.) Barros’ October 22, 

6 Specifically, Respondent stipulated: 

M. On October 28, 2016, Mr. Barros knew that guardrails or other appropriate fall protection had 

not been installed on the sides and edges of the walking/working surfaces of the second level of the 

townhome unit under construction. 

N. On November 3, 2016, employees of [FSH] working on the third level of the townhome units 

were not protected from falling off the unprotected sides and edges of the walking/working surfaces 

by guardrails or other appropriate fall protection. 

(Stips. M, N.) The Secretary also showed that appropriate fall protection was not in use at the Worksite through the 

testimony of employees and photographs. (Ex. C-1.) 

7 Respondent argues that Barros did not sign an employment contract until October 24, 2016. (Resp’t Br. at 3, 16, 

Resp’t Reply at 5; Ex. R-7; Tr. 372.) It does not allege that Barros was unpaid or had not been hired as of October 

19, 2016. (Resp’t Br. at 3.) He was an employee as of the time of his first visit to the Worksite and remained an 

employee through the end of OSHA’s investigation. 

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2016 visit to the Worksite was for Respondent’s benefit—while there, he checked on the progress 

of Adelo and his workers and spoke with the builder. (Tr. 339-40; Ex. C-1.) 

Barros again took photographs showing no guardrails or anchor points at the Worksite on 

October 28, 2016 and November 3, 2016.

8 (Tr. 342-43, 381; Exs C-1, C-3, C-5 thru C-9, R-14.) 

Like the photographs from October 22nd, the November 3rd photographs also show workers on 

an upper deck without harnesses. (Exs. C-5, C-9.) FSH and another worker also confirmed that 

the Worksite lacked guardrails and that they and others failed to use appropriate fall protection as 

required by the cited standard. (Tr. 40, 100, 197-98, 248.) 

The Secretary established that the cited standard applies, and Respondent violated it. 

B. Exposure 

The Secretary cites three instances when Respondent violated 29 C.F.R. 

§ 1926.501(b)(13). One instance relates to Barros’ October 22, 2016 visit to the Worksite. The 

other two instances relate to fall hazards from the second and third levels of the structure on 

November 3, 2016, the day the laborer fell. 

Barros admitted that he stood next to an unguarded stairwell without wearing fall protection 

on at least two occasions referred to in the Citation, October 22 and November 3, 2016. (Tr. 219, 

256, 338, 356; Exs. C-2, C-9, C-23.) Respondent does not dispute that Barros was present at the 

Worksite on October 22, 2016, that he went near unguarded edges without fall protection, and that 

he took photographs of the violative conditions. (Ex. C-1.) Its argument is that other supervisors 

did not know Barros would be at Worksite on October 22, 2016. (Resp’t Br. at 16-17; Resp’t 

Reply at 14.) 

8 A second supervisor, Ostrander, was also on site on October 28, 2016. (Tr. 134, 341; Ex. C-1.) 

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It does not appear that Barros was specifically directed to work on that day (which was a 

Saturday). But the converse is also true, no one told him not to go nor was he disciplined for 

going. (Tr. 405-6.) While at Worksite, Barros engaged in activities on Respondent’s behalf and 

informed multiple senior employees about his activities. (Tr. 218, 256-57, 336-40; Exs. C-1, C21, C-23.) He was a salaried supervisor and was never precluded from going to the Worksite on 

October 22, 2016, and other workers were also there working for Edwin Taylor. (Tr. 256-57, 335-

36; Exs. C-1, C-23 at 2.) The Secretary established Respondent’s own employee was exposed to 

the cited condition, which was created by its subcontractor and over which Respondent had 

control, on or about October 22, 2016, as alleged. (Stips. C, E, G, H.) 

The Secretary also alleges that workers were exposed to the cited hazard on November 3, 

2016. Respondent does not dispute this. It stipulated that employees of its subcontractor were 

working three stories up on November 3, 2016, and “were not protected from falling off the 

unprotected sides and edges of the walking/working surfaces by guardrails or other appropriate 

fall protection.” (Stip. N.) Besides those workers, Barros also went to the third level of the 

structure on November 3rd without fall protection. (Tr. 216-17, 350-51; Exs. C-1, C-5.) He 

photographed other workers on the upper level not wearing fall protection.

9 (Exs. C-8.) FSH and 

another worker (AM) also confirmed that they and others worked on the second and third stories 

of the townhome on November 3rd without fall protection. (Tr. 40, 52-53, 59-60, 70-71, 95, 100, 

113, 132; Exs. C-12, C-15.) The Secretary showed exposure to the violative condition on the dates 

referenced in the Citation, October 22, 2016, and November 3, 2016. 

9 At the hearing, Barros claimed that workers depicted were not working on November 3, 2016, when he took the 

photographs. (Tr. 356-57.) In one picture, a worker is bent leaning over a partially decked structure and appears to 

be measuring something. (Ex. C-5.) A second worker stands nearby looking in the same direction as the worker who 

is bent over. Id. While the exact nature of the activity is unclear, they do not appear to be “getting all the equipment 

and leaving the site,” as Barros claims. (Tr. 356; Exs. C-5, C-9.) 

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C. Knowledge 

Respondent stipulated that its supervisor knew of the violative condition: “On October 28, 

2016, Mr. Barros knew that guardrails or other appropriate fall protection had not been installed 

on the sides and edges of the walking/working surfaces of the second level of the townhome unit 

under construction.” (Stip. L.) A foreman or supervisor’s actual or constructive knowledge of a 

violative condition satisfies the Secretary’s burden. See e.g., N&N Contractors, Inc., 18 BNA 

OSHC 2121, 2123 (No. 96-0606, 2000) (citation omitted), aff’d, 255 F.3d 122 (4th Cir. 2001). 

Respondent does not allege, nor would the record support, that Barros, who served as a site 

superintendent was not a supervisor whose knowledge can be imputed to Respondent. (Tr. 42, 

103, 150-51, 169, 331.) 

Despite the stipulation, Respondent argues there were guardrails and workers wore fall 

protection. (Resp’t Br. at 3-4.) The Secretary presented ample evidence of Respondent’s 

knowledge about the lack of fall protection at the Worksite. As noted above, two supervisors 

visited the site on October 19, 2016. (Tr. 333-34, 367.) Although the decking for the second floor 

was complete by that time, there were no guardrails.10 (Tr. 196.) A few days later, on October 

22, 2016, Barros returned to the Worksite. (Tr. 215, 336, 338; Ex. C-1.) He climbed up to the 

third level of the building without wearing fall protection even though he knew it was required for 

activity at a height over six feet. (Tr. 331, 335, 337-38; Ex. C-2, C-23; Stip. C.) 

Barros was not the only one on the Worksite not using fall protection on October 22, 2016. 

Several people working with Adelo were also there. (Tr. 256-57; Exs. C-1, C-2, C-23.) Barros 

photographed workers on top of the structure without fall protection and sent the photographs to 

10 The Secretary does not allege any workers were exposed to a hazard on October 19, 2016. 

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Patton and two other supervisors through Buildertrend. (Ex. C-1; Tr. 339.) Patton reviewed the 

photographs and noticed the unprotected floor openings. (Exs. C-23 at 3, C-26, R-14; Tr. 426-27.) 

As discussed above, Respondent argues that Barros was not told to go to Worksite on 

October 22, 2016. (Resp’t Br. at 16-17.) Barros had supervisory responsibility for this Worksite. 

(Tr. 405.) On October 22nd, he took notes and photographs of Worksite conditions and sent them 

to the other supervisors. (Exs. C-1, C-2, C-23, C-26.) The fact that it was a Saturday does not 

permit him and the others from learning about the violative condition. (Tr. 425-26, 456; Ex. C26.) Nor does it provide an excuse to not use fall protection when going above six feet. (Tr. 233-

34.) The lack of a specific instruction to visit the Worksite does not erase the knowledge of the 

conditions observed and his own behavior. (Exs. C-1, C-2, C-23.) 

After October 22, 2016, supervisors continued to routinely visit the Worksite.11 (Tr. 102-

105, 132, 351; Stip. Q; Exs. C-1, C-5, C-23 at 2, C-27.) FSH saw either Ostrander or Barros almost 

every day, including on the upper levels of the structure. (Tr. 102-5, 341; Ex. C-1.) Barros 

confirmed this, explaining that on October 28, 2016, he climbed a ladder to go through an opening 

to take a photograph of the second level of the structure.12 (Tr. 342-43.) Barros then sent the 

photograph showing unprotected openings and no guardrails or anchor points to other supervisors. 

(Tr. 221, 234, 342; Exs. C-3, C-26.) No one ordered the installation of guardrails or other 

appropriate fall protection and no one precluded the supervisors or others from working above six 

feet even after receiving the photograph. 

Barros indicated that during his site visit on November 2, 2016, he phoned Zimmerman 

and told him about the lack of fall protection. (Tr. 347-48.) He claims that on the same day, he 

11 Ostrander was at the Worksite approximately five times between October 22 and November 3, 2016. (Ex. C-1.) 

12 The Citation does not specifically refer to October 28, 2016. 

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and FSH discussed the need to install guardrails. (Tr. 348-49.) He testified that he did not order 

FSH to build the guardrails on November 2nd because the workers were already packing up for the 

day. (Tr. 349-50.) When he arrived back at the Worksite in the afternoon on the next day, there 

were still no guardrails. (Tr. 168-69; Exs. C-5, C-8, C-9; Stips. N, O, P.) 

Witnesses differ as to whether FSH and Barros discussed guardrails on November 1st or 

2nd. FSH first worked at the site between October 11th and the 18th. (Tr. 99.) He explained that 

when he left, the decking for the second level was complete. Id. No one instructed him to install 

guardrails after he completed the decking. (Tr. 101.) In his experience, his crew finishes the 

decking and then another company adds the guardrails. Id. However, when he returned to the 

Worksite on Friday, October 28th, there were still no guardrails. (Tr. 102; Ex. C-3; Stip. M.) FSH 

thought that Edwin Taylor would have installed them in the time since the second level was 

complete. (Tr. 102.) FSH said he discussed the lack of fall protection with Barros on November 

1, 2016.13 (Tr. 107, 131, 136-37.) He told Barros guardrails were needed, but Barros did not direct 

him to install them or agree to pay him for such work. (Tr. 107, 109-10.) 

At the hearing, Barros did not recall going to the site on November 1st but did remember 

going on November 2nd. (Tr. 346-47, 382.) When asked by Respondent’s counsel whether he 

instructed FSH to build the guardrails on that day Barros said “Yes.” (Tr. 383.) This testimony 

differs somewhat from the statement he gave to the CO on November 10, 2016. (Tr. 205; Ex. C22.) At that time, Barros could not remember whether he and FSH discussed the guardrails on 

November 1st or 2nd. Id. He indicated that FSH “mentioned that he needed rails somewhere” and 

he told FSH he could “go ahead.” (Ex. C-22; Tr. 204-7.) He recalled that FSH “complained” 

13 In his interview with the CO, Patton also indicated that the guardrails were discussed on this date, as well as on 

October 31, 2016 and November 2, 2016. (Tr. 169, 188-89; Ex. C-26.) 

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about not getting paid for the work. (Exs. C-22, R-14; Tr. 206.) His statement does not indicate 

that he ordered FSH to install fall protection before the accident or say when he expected the 

guardrails to be in place. (Tr. 206-7; Ex. C-22.) 

Whether FSH and Barros discussed the guardrails on November 1st, or 2nd, 2016, does not 

impact Respondent’s knowledge of the violative condition. Respondent stipulated that it knew 

about the lack of guardrails on October 28, 2016, and that on November 3, 2016, it knew or could 

have known that employees working on the third level of the townhome units were not protected 

from falling off the unprotected sites and edges. (Stips. M, P.) Regardless of whether the 

conversation about building the guardrails occurred on November 1st or 2nd the project lacked 

guardrails until two weeks after the second level of the structure was complete. (Tr. 196, 346-47.) 

Respondent argues that it had no reason to know that FSH would not build the guardrails after the 

discussion on November 2, 2016. (Resp’t Br. at 13.) However, neither Barros, nor any other 

supervisor, undertook any effort to confirm there were guardrails or other appropriate forms of fall 

protection in place at any point between October 19, 2016 and when the worker fell on November 

3, 2016.14 See Caterpillar, Inc., 17 BNA OSHC 1731, 1732 (No. 93-373, 1996) (one supervisor’s 

knowledge of hazardous condition is sufficient), aff’d, 122 F.3d 437 (7th Cir. 1997); Calpine 

Corp., 27 BNA OSHC 1014, 1019 (No. 11-1734, 2018) (actual knowledge of violative condition 

remained with employer even after supervisors left the worksite), appeal docketed, No. 18-60413 

(5th Cir. June 4, 2018). Supervisors visited the site at least six times between October 19 and 

November 2, 2016, and there continued to be no fall protection even though work was being done 

14 Again, Barros also had actual knowledge of the lack of guardrails from his visit to the Worksite on October 22, 

2016. (Tr. 218-19, 232; Exs. C-1, C-23.) And he knew there were still no guardrails on October 28, 2016. (Stip. M.) 

Respondent also knew that workers were at the Worksite at least on October 28, October 31, and November 2, 2016. 

(Exs. C-1, C-26; Tr. 410.) 

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at a height greater than six feet.

15 (Exs. C-1; C-24.) Further, even when he arrived at the Worksite 

after a person fell, Barros went to an upper level without fall protection and photographed other 

workers still on the upper level without fall protection. (Exs. C-5 thru C-9.) 

Respondent also argues (again despite its stipulations) that the workers “sometimes” wore 

fall protection. (Resp’t Br. at 4.) At the hearing, Respondent’s counsel asked Barros if “at some 

point” he saw “a member of the framing crew wearing fall protection.”16 (Tr. 386.) He replied 

that some were “wearing harnesses at some point” and said that this probably occurred on October 

28, 2016, which is not one of the dates referred to in the Citation.17 Id. While one member of the 

framing crew, AM, said on cross-examination that there were times “before the accident” when 

workers put on harnesses, he also acknowledged that he and others worked without fall protection 

on the decking and framing for the second and third levels of the townhomes. (Tr. 40, 66.) He 

explained that there were no guardrails at the Worksite and that the stairwells also lacked 

protection. Id. His supervisor disputed the claim that he or any of the workers ever wore harnesses. 

(Tr. 66, 127-28.) Even fully crediting AM’s statement that sometimes harnesses were worn, he 

specifically denied wearing a fall protection harness on November 3, 2016 and he was not at the 

15 Supervisors logged entries about the Worksite on ten different days between October 22 and November 3, 2016. 

(Ex. C-1.) Barros also indicated that he did not create a log entry every time he went to the Worksite. (Tr. 337.) FSH 

saw Barros or another Edwin Taylor representative “almost every day” between October 18, 2016 and November 3, 

2016. (Tr. 102, 104.) 

16 At the hearing, Barros was not asked whether he ever saw anyone on Adelo’s crew use fall protection. It is 

undisputed that none of this crew was using fall protection on October 22, 2016. (Exs. C-2, C-23 at 2.) 

17 At the hearing, counsel stated that October 28, 2016 was “the only time” that Barros and FSH were at the site at the 

same time before November 2, 2016. (Tr. 366.) The record is more ambiguous. FSH said that Barros was on site 

“almost every day” and believed he was there on October 31 and November 1. (Tr. 102.) Barros indicated that in 

addition to the days in which he sent information through Buildertrend (October 22, October 28, November 2, 

November 3) he also made other site visits. (Tr. 337, 346.) Patton also suggested to the CO that Barros was at the 

Worksite on November 1, 2016. (Ex. C-26.) Thus, the record lacks sufficient evidence to conclude there was only 

one time when Barros and FSH were at the Worksite together during that timeframe. 

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Worksite on October 22, 2016, the other date alleged in the Citation. (Tr. 66,102.) Further, neither 

AM nor Barros claimed that the workers ever attached themselves to anchor points. (Ex. C-24.) 

Accordingly, the Secretary established that Respondent had knowledge of the violative 

condition by October 22, 2016, when Barros visited the site, exposed himself to the violative 

condition, and sent a photograph of it to other supervisors. (Ex. C-1; Tr. 335-6, 339.) Respondent 

continued to know that the violation existed, stipulating that Barros knew there was no appropriate 

fall protection on October 28, 2016, and that it either knew or could have known there was still no 

fall protection as of the date of worker’s fatal fall, November 3, 2016. (Stips. M, P.) Barros also 

had actual knowledge of the cited hazard on November 3rd when he went to the upper level of the 

structure without wearing fall protection and saw at least two other workers unprotected by 

guardrails or other appropriate fall protection. (Exs. C-5, C-9; Tr. 351-52.) Respondent’s 

knowledge about the lack of appropriate fall protection was gained at least by October 22, 2016 

and remained with it through November 3, 2016.18 (Stips. M, P.) See Calpine, 27 BNA OSHC at 

1019 (changing conditions did not erase actual knowledge of violative condition). 

D. Affirmative Defense of Unpreventable Employee Misconduct 

Respondent made no claims that any of its employees engaged in unpreventable employee 

misconduct (UEM) at the hearing or in its opening brief. Yet, in its Reply Brief, Respondent 

attempts to raise the affirmative defense. (Resp’t Reply at 25-26.) The UEM defense requires the 

employer to establish that it has: (1) work rules designed to prevent the violation, (2) adequately 

communicated these work rules to its employees, including supervisors, (3) taken steps to discover 

18 The undersigned notes that Respondent raises some arguments applicable to assessing whether a finding of 

constructive knowledge is appropriate. (Resp’t Reply at 16-17.) The point of engaging in reasonable diligence is to 

discover hazardous conditions, which Respondent did, and to correct them, which Respondent did not. See Calpine, 

27 BNA OSHC at 1019. Engaging in reasonable diligence does not provide a defense against actual knowledge and 

the requirement to correct the hazards identified through such efforts. 

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violations, and effectively enforced rules when violations are discovered. See e.g., Fla. Gas 

Contractors, 27 BNA OSHC 1799, 1807 (No. 14-0948, 2019). 

Whatever rules Respondent had about fall protection, it certainly failed to enforce them 

effectively. As discussed above, its superintendent failed on multiple occasions to use fail 

protection. Neither he, nor any other supervisors, took adequate steps to require its use or 

discipline workers for failing to do so.19 Id. at 1809 (UEM defense not established when employer 

failed to present adequate evidence of enforcement); L.E. Myers Co., 16 BNA OSHC 1037, 1041 

(No. 90-945, 1993) (concluding “where a supervisory employee is involved, the proof of [UEM] 

is more rigorous and the defense is more difficult to establish”). 

E. Characterization 

Having found that the Secretary proved a violation, we turn to whether it should be 

characterized as serious or willful. The Secretary alleges that Respondent’s conduct was willful 

because a supervisor knowingly violated fall protection standards and multiple supervisory 

employees allowed workers to continue to be exposed to fall hazards. (Sec’y Br. at 33.) 

Respondent acknowledges it “should have done more than it did to prevent and detect the 

fall protection violations on the [W]orksite.” (Stip. R.) Still, in its view, the violation should not 

be characterized as willful because it was not previously cited for violating the Act and it took 

actions which show it did not intentionally disregard the fall protection requirements and was not 

plainly indifferent to safety. (Resp’t Br. at 10, 12-15; Resp’t Reply at 18-21.) 

With respect to Respondent’s history, while a prior citation is necessary to characterize a 

violation as “Repeat,” a lack of previous citations does not preclude a finding of willfulness. 29 

19 FSH was neither fined nor asked to leave the Worksite for failing to put up guardrails. (Tr. 361-2, 428.) 

15 
 

 

 

 

 

 

 

 

 

 

 

U.S.C. § 666(a); Woolston Constr. Co., 15 BNA OSHC 1114, 1119 (No. 88-1877, 1991) (“a prior 

citation is not a necessary condition to finding willfulness”), aff’d without published opinion, 1992 

WL 117669 (D.C. Cir. May 22, 1992); Pepperidge Farm, Inc., 17 BNA OSHC 1993, 2000 (No. 

89-265, 1997) (prior inspection’s lack of recordkeeping citations did not mean violation could not 

be willful); Bianchi Trison Corp. v. Chao, 409 F.3d 196, 209 (3d Cir. 2005) (affirming willful 

characterization despite no prior citations when management had experience with regulations and 

worked regularly with lead-based paint). A willful violation is one “committed with intentional, 

knowing or voluntary disregard for the requirement of the Act or with plain indifference to 

employee safety.” A.E. Staley Mfg. Co., 19 BNA OSHC 1199, 1202 (No. 91-0637, 2000) 

(consolidated), aff’d, 295 F.3d 1341 (D.C. Cir. 2002). See also Williams Enters. Inc., 13 BNA 

OSHC 1249, 1256-57 (No. 85-355, 1987) (finding a heightened awareness based on experience 

with steel erection standards). 

In this matter, the Secretary relies on admissions that Respondent knew fall protection was 

required and its supervisors knew it was not being used. (Sec’y Br. at 32-34.) While OSHA had 

not previously inspected Respondent, Patton, Zimmerman, and Barros all acknowledged that, 

before the dates alleged in the Citation, they knew fall protection was required for activities done 

at a height greater than six feet. (Tr. 331, 411; Exs. C-21 at 2, C-24, C-25, C-26; Stip. L.) See 

Thomas Indus. Coatings, Inc., 23 BNA OSHC 2083, 2091 (No. 06-1542, 2012) (heightened 

awareness established by evidence that safety manager discussed the requirement and the 

superintendent’s was familiar with it from a prior project); L.E. Myers, 16 BNA OSHC at 1041 

(finding violation willful where foreman knew requirements but instead “gambled” that it could 

work safely without insulating power lines). Respondent’s enforcement of its hard hat rule does 

not undermine the finding that its supervisors knew fall protection was required and that it was not 

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being used on October 22 and November 3, 2016. (Tr. 250-51; Exs. R-4, C-1, C-22 at 2, C-23 at 

1-2, C-24 at 1, C-26 at 2; Stips. L, P, R.) There is no evidence of discipline related to fall 

protection. (Tr. 361-2, 428.) 

Respondent tries to counter the evidence of its actual knowledge of standard and the lack 

of fall protection at the Worksite by arguing that its superintendent was a new employee. (Resp’t 

Br. at 3, 14; Resp’t Reply at 20-21.) While true, Barros had worked in the industry for nearly 

twenty years and acknowledged knowing OSHA required fall protection at six feet for a long 

time.20 (Tr. 330-31, 408, 430; Exs. C-22, C-23, C-24.) See Fluor Daniel v. OSHRC, 295 F.3d 

1232, 1240-41 (11th Cir. 2002) (upholding willful characterization when supervisor knew of 

requirement for respirators); MJP Constr. Co., 19 BNA OSHC 1638, 1648 (No. 98-0502, 2001) 

(finding supervisors are chargeable with knowledge of the standard's requirements based on their 

prior work experience, wherever that experience occurred), aff'd without published opinion, 56 F. 

App'x 1 (D.C. Cir. 2003). He also knew that working without guardrails was risky. (Tr. 348-49.) 

He had authority to correct violations, and the other supervisors expected he would.21 (Tr. 360, 

408-9; Exs. C-21, C-23, C-24.) FSH and Zimmerman both viewed him as in charge of the 

Worksite and he was immediately responsible for correcting violations at the Worksite. (Tr. 114, 

409; Ex. C-24.) 

Further, as noted above, Barros was not the only supervisor who knew fall protection was 

necessary. (Tr. 170, 411; Ex. C-26.) And Respondent stipulated to knowing “OSHA requires 

20 Respondent argued that Barros was in training for the first two weeks or so of his employment. (Tr. 416.) However, 

when asked by Respondent’s counsel what he was being trained on, his supervisor does not cite safety or fall 

protection. (Tr. 417.) Indeed, Barros already knew OSHA required fall protection for work done over six feet above 

a lower level. (Tr. 330-31.) Respondent also stipulated that Barros “was capable of identifying existing and 

predictable hazards ... .” (Stip. C.) 

21 “As of at least November 2, 2016, Respondent’s employee [Barros] had authorization to take prompt corrective 

measures to eliminate existing hazards at the [W]orksite.” (Stip. F.) 

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employees on walking/working surface with an unprotected edge which is six feet or more above 

a lower level” must be protected by guardrails, safety nets, or fall arrest systems. (Stip. L.) 

Turning to knowing that the standard was being violated, multiple managers visited the 

Worksite and could see there were no guardrails or other evidence of the use of fall protection. 

(Tr. 338-39, 341, 426-27; Stip. M; Exs. C-1, C-2, C-3, C-24, C-26.) Barros certainly realized he 

himself was not wearing a harness and could see there were no nets or guardrails when he went 

to the upper levels of the structure on October 22 and November 3, 2016. (Tr. 338, 344, 352; Ex. 

C-1.) See Altor, Inc., 23 BNA OSHC 1458, 1465, 1467 (No. 99-0958, 2011) (finding violation 

willful when supervisors had actual knowledge of the cited standard and their own 

noncompliance), aff’d, 498 F. App’x. 145 (3d Cir. 2012). His own photographs show what was in 

his view, including workers without fall protection. (Exs. C-2, C-5.) Patton acknowledged 

noticing the unprotected floor openings in the photographs Barros took on October 22 and 28th, 

and he assumed Zimmerman did as well.

22 (Tr. 240, 425-27, 430-31; Ex. C-1, C-26 at 2, R-14.) 

Respondent argues it thought FSH would build the guardrails on November 3, 2016. 

(Resp’t Br. at 13.) The record does not provide a sufficient basis for this belief. Barros does not 

say FSH agreed to build guardrails. (Tr. 358, 389; Exs. C-21, C-22 at 2, C-23.) For his part, FSH 

emphatically denied that he was told to build guardrails before the worker fell. (Tr. 109-11, 117, 

127.) He said that he raised the lack of guardrails with Barros on November 1, 2016 (two days 

22 Patton and Zimmerman received the daily log entries for the Worksite via email and reviewed them, including any 

attached photographs. (Tr. 220, 234, 240, 425-26; Ex. C-23 at 1, 3.) Patton indicated that he did not view the 

photographs from October 22, 2016 on the day they were sent but does not deny that he received them and reviewed 

them at some point. (Tr. 425-27, 430-31; Ex. C-26 at 1-2.) Nor does he assert that he did not review the photograph 

and log entry from October 28, 2016 on the day it was sent. (Tr. 426.) Moreover, he does not dispute that he noticed 

the unprotected floor openings shown in the photographs. (Tr. 240, 426-27, 431; Exs. C-1, C-26, R-14.) See Conie 

Constr., Inc., 16 BNA OSHC 1870, 1872 (No. 92-264, 1994), aff’d,73 F.3d 382 (D.C. Cir. 1995) (finding that the 

knowledge of the foreman and owner about the cited standard is imputable to company when assessing willfulness). 

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before the worker's death) but was not ordered to install any fall protection and was not told he 

would be paid for such work. (Tr. 106, 131, 136-37.) 

Barros acknowledged that FSH complained he was not being paid to install guardrails. (Tr. 

389; Ex. C-22 at 2, C-23 at 3.) He also said, in his first two interviews with the CO, that workers 

had harnesses and it had not been necessary for him to tell workers to put up guardrails. (Exs. C21, C-22; Tr. 189.) Only in a follow up interview when he was confronted with his own 

photographs of the Worksite, did Barros indicate he and FSH discussed guardrails. (Tr. 233-34, 

237-38; Ex. C-23.) During that third interview, Barros said the conversation occurred two days 

before the accident (i.e., on November 1, 2016).

23 (Ex. C-23.) 

Leaving aside these discrepancies, there is no explanation about why Respondent failed to 

take any action to correct fall hazards that existed as early as October 18, 2016 before November 

2, 2016. Decking for the second floor of the units, which was over six feet above the ground, was 

completed on October 18, 2016. (Tr. 335.) There is no evidence that anyone ordered workers not 

to go above six feet until guardrails were in place. (Tr. 349-50; Ex. C-22 at 2.) The day after 

decking for the second floor, Barros and his supervisor, Zimmerman, visited the site and could 

have learned about the lack of guardrails. (Tr. 333, 335, 367, 407.) Even if they missed the lack 

of guardrails on October 19th, Barros returned to the Worksite three days later and saw workers 

on the upper level of the structure without any fall protection. (Exs. C-1, C-2.) He photographed 

this and sent it to the other supervisors on the same day. (Tr. 339, 431; Ex. C-2.) And he knew 

23 In his first interview with the CO, Barros said that he was “probably” last at the Worksite on November 1, 2016. 

(Ex. C-21.) In his second interview; on November 10, 2016, he said he spoke with FSH about guardrails on November 

1st or 2nd. (Ex. C-22 at 2.) Similarly, in his third interview, he said the conversation occurred about two days before 

the accident. (Ex. C-23.) At the hearing, he said he spoke with FSH one day before the accident, on November 2, 

2016, and expected him to put them up the next day (November 3, 2016). (Tr. 346-47.) 

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that “guardrails or other appropriate fall protection had not been installed on the sides and edges 

of the walking/working surfaces” as of October 28, 2016. (Stip. M.) 

So, Barros knew fall protection was required, observed workers at heights above six feet 

not using fall protection, went above six feet without fall protection himself, and distributed 

photographs of such activity to multiple other supervisors. (Tr. 331, 337-39; Exs. C-1, C-23.) And 

yet there is no credible claim that anyone required appropriate fall protection until after a worker 

fell from the third floor. (Tr. 101, 105-6, 109-11, 345; Stip. O.) Zimmerman did not check to see 

if guardrails had been installed or if the framing crew was using fall protection when he visited the 

Worksite on October 31, 2016.

24 (Tr. 409-10; Ex. C-1.) Nor did anyone else take steps at any 

point before the accident to ensure that workers would not be above six feet before the guardrails 

were installed. (Tr. 350, Stip. O, R.) See Sal Masonry Contractors, Inc., 15 BNA OSHC 1609, 

1613-14 (No. 87-2007, 1992) (characterizing a violation as willful when employer knew guardrails 

had not been installed); Fluor Daniel, 295 F.3d at 1240 (conscious disregard found when employer 

knew of OSHA requirement and consciously and voluntarily choose to violate it). 

Respondent makes no claim of any attempt to address the lack of fall protection until late 

in the day on November 2, 2016. Even if Respondent believed that guardrails were going to be 

installed on November 3, 2016, it does not explain why Barros went above six feet without fall 

protection when he arrived at the Worksite after the worker fell. (Tr. 117, 354; Stips. P, Q.) Nor 

does any belief about what Respondent expected would happen mitigate its failure to say anything 

to the workers who remained exposed to the hazard after the accident. (Tr. 117, 216, 350, 352, 

354; Exs. C-5, C-9.) See Sal Masonry, 15 BNA OSHC at 1613 (foreman’s conscious decision to 

24 In his statement to the CO on November 10, 2016, Zimmerman indicated that he did not see fall protection when 

he was at the Worksite on October 31, 2018. (Ex. C-24.) At the hearing, he said he did not recall going into the 

structure on that day. (Tr. 411.) Ostrander was also at the Worksite but neither he nor Zimmerman directed FSH to 

build guardrails on October 31, 2016. (Tr. 111, 411.) 

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continue work without guardrails establishes willfulness). See V.I.P. Structures, Inc., 16 BNA 

OSHC 1873, 1875 (No. 91-1167, 1994) (affirming violation for failure to use safety nets as willful 

and noting: “It makes no difference that the superintendent left it up to the employees to choose to 

do the unsafe work, instead of flatly ordering them to do it.”). The supervisors’ knowledge of the 

hazard and their failure to address it are imputable to Respondent. See Branham Sign Co., 18 BNA 

OSHC 2132, 2134 (No. 98-752, 2000) (knowledge and conduct of supervisory employee may be 

imputed for the purpose of finding a violation willful); Altor, 23 BNA OSHC at 1465, 1467 

(supervisor’s failure to use personal protective equipment is imputable). 

Respondent also argues that its actions were not willful because the general contractors, 

SunQuest Energy, LLC (SunQuest), did not remove it from Worksite for safety violations. (Resp’t 

Br. at 2, 13.) Respondent’s contract with SunQuest specifies that Respondent will be “solely 

responsible for protecting its employees, subcontractors, laborers, suppliers” and that Respondent 

is “solely responsible for ensuring full compliance with all governmental safety and OSHA rules 

and regulations.” (Ex. C-10.) Even if SunQuest attempted to contractually assume some 

responsibility for Respondent’s compliance with the Act, which it did not, the Commission has 

long held that employers cannot contract away such responsibilities. See e.g., Bianchi, 490 F.3d 

at 209; Baker Tank Co., 17 BNA OSHC 1177, 1180 (No. 90-1786, 1995) (employer’s contract 

with another party did not affect its liability for the violation). Respondent oversaw the creation 

of the hazard and was cited for exposing its own employees and those of its subcontractors to it.

25 

S. Pan Servs., 685 F. App’x. 692, 696-97 (11th Cir. 2017) (unpublished) (employer has a duty to 

25 This case does not involve a situation where the hazardous condition was created by some unaffiliated third party 

or where the cited employer lacked control to address the hazard. Adelo and FSH worked on Edwin Taylor’s behalf 

to build the structure up to the point that fall protection was needed. Respondent retained general supervisory authority 

over the Worksite, including the authority to correct health and safety violations. (Stips. G, H.) See McDevitt Street 

Bovis, Inc., 19 BNA OSHC 1108, 1109-10 (No. 97-1918, 2000) (an employer who creates or controls a cited hazard 

must protect its own employees and those of others “engaged in the common undertaking”). 

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comply with a standard when its own employees are exposed to the hazard). As the Commission 

stated in Jim Boyd Constr., Inc., 26 BNA OSHC 1109 (No. 11-2559, 2016), “it is not ‘objectively 

reasonable’ for an employer to ignore a known requirement on the basis that third-party safety 

personnel did not object.” Id. at 1114. 

For the same reasons, Respondent’s 2013 contract with Adelo does not alter Respondent’s 

responsibilities for safety at this Worksite.

26 (Ex. R-2; Tr. 324.) See V.I.P., 16 BNA OSHC at 

1875 (“[r]esponsibility under the Act ... rests ultimately upon each employer”). Respondent 

retained Adelo to assist with the work it agreed to do for Sunquest. (Stip. E; Resp’t Br. at 14.) 

Adelo, in turn, brought in FSH to assist with this work. (Stip. I.) FSH did not have a written 

contract with Respondent. Edwin Taylor had the authority to correct safety violations, including 

those related to fall protection at the Worksite, regardless of whether Respondent or a 

subcontractor directly employed the exposed workers. (Stip. G, H.) Further, neither Adelo nor 

FSH agreed to relieve Respondent of its obligation to provide a safe workplace for its own 

employees. (Ex. R-2.) 

Finally, Respondent points to actions it took after the worker fell as evidence that the 

violation should be serious rather than willful. (Resp’t Br. at 15; Ex. C-26.) This evidence does 

not preclude a willful characterization. Anderson Excavating & Wrecking Co., 17 BNA OSHC 

1890, 1891, n.3 (92-3684, 1997), aff’d, 131 F.3d 1254 (8th Cir. 1997). On the day the worker fell, 

Barros went to the upper level and took photographs without wearing fall protection and did not 

direct the workers he observed on the upper level who were also unprotected to leave the structure. 

(Tr. 337-38, 350-51; Exs. C-2, C-5.) See V.I.P., 16 BNA OSHC at 1875 (employers have a 

26 The contract does not refer to the Worksite. (Ex. R-2; Tr. 464-65.) Patton explained that each project was handled 

with separate purchase orders. (Tr. 464-65.) Respondent did not introduce the purchase order related to the Worksite 

into evidence or give it to the CO during her investigation. (Tr. 465.) 

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responsibility to ensure workers do not put themselves in unsafe positions). While Barros says he 

directed FSH to build guardrails with the available materials on November 3rd after the worker 

fell, the CO still observed fall protection hazards on her second site visit on November 10.

27 (Tr. 

175, 178-79, 199-201; Exs. C-12, C-15, C-17, C-19.) See A. Schonbek & Co., Inc., 9 BNA OSHC 

1189, 1191 (76-3890, 1980), aff’d, 646 F.2d 799 (2d Cir. 1981) (finding a violation of guarding 

standard willful when the machine was used after an amputation). So, Respondent’s post-injury 

actions are not sufficient to characterize the violation as serious instead of willful. See Caterpillar, 

17 BNA OSHC at 1733 (willfulness finding not obviated by inadequate abatement efforts). 

An employer need not act with malice or specific intent to violate the Act. Anderson, 17 

BNA OSHC at 1894. The Secretary can show willfulness by proving an employer is aware of the 

cited standard but allows work to continue over some period without the requirement being met. 

Sal Masonry, 15 BNA OSHC at 1614. In Sal Masonry, the employer argued that its violation was 

not willful because it specifically tasked someone with building guardrails. Id. The Commission 

concluded that this argument lacked merit because although the supervisor knew guardrails were 

required, he failed to ensure the guardrails were actually put in place. Id. Likewise, in the present 

matter, Respondent knew the requirement, knew it was not being complied with, could have 

corrected it, but repeatedly failed to do so. See Caterpillar, Inc. v. Herman, 154 F.3d 400, 402 

(7th Cir. 1998); Jim Boyd, 26 BNA OSHC at 1111 (affirming a violation of trenching standard as 

willful when employer knew the requirements and choose not to follow them). 

27 FSH indicated that another component of the guardrail system was not available at that time and never arrived. (Tr. 

138-39.) 

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II. Penalty 

Section 17(j) of the Act requires the Commission to give due consideration to four criteria 

in assessing penalties: the size of the employer’s business, the gravity of the violation, the 

employer’s good faith, and its prior history of violations. Compass Envtl., Inc., 23 BNA OSHC 

1132, 1137 (No. 06-1036, 2010), aff’d, 664 F.3d 1164 (10th Cir. 2011). When the Citation was 

issued, the maximum statutory penalty for a willful citation was $126,749. 

The Secretary argues that the maximum penalty should be imposed for the violation. 

(Sec’y Br. at 40; Sec’y Reply at 6.) See Eric K. Ho, 20 BNA OSHC 1361, 1379 (No. 98-1645, 

2003) (consolidated) (an extreme lack of good faith may warrant the assessment of the statutory 

maximum penalty), aff’d sub nom., Chao v. OSHRC, 401 F.3d 355 (5th Cir. 2005). He argues that 

the gravity of the violation is high and the hazard was both capable of, and did, result in a worker’s 

death. (Sec’y Br. at 40.) Respondent counters that it should receive reductions for: (1) having 

fewer than twenty employees; (2) having an effective safety and health management system, and 

(3) its safety history. (Resp’t Br. at 11-12, 17-19.) 

First, as to gravity, the undersigned agrees with the CO’s assessment that the violation was 

of “high” gravity with a greater probability of an accident considering the number of people at the 

Worksite and the amount of time the Worksite lacked guardrails or other appropriate fall 

protection. (Tr. 258-59.) 

Turning next to the size factor, Respondent had between fourteen and sixteen employees 

at the start of OSHA’s investigation.

28 (Tr. 259, 437; Stip. D.) However, the Secretary argues that 

no reduction is appropriate, because the violation was so willful and severe. (Tr. 259-60.) Even 

when a proposed penalty is appropriate for the gravity of an offense, size may still be taken into 

28 The parties stipulated that: “Respondent had fewer than 25 total employees at the time of the incident.” (Stip. D.) 

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consideration to avoid destructive penalties for small employers that make significant efforts to 

come into and remain in compliance. Colonial Craft Reproductions, Inc., 1 BNA OSHC 1063, 

1064-65 (No. 881, 1972); Bardav, Inc., d/b/a Martha’s Vineyard Mobile Home Park, 24 BNA 

OSHC 2105, 2109 (No. 10-1055, 2014) (affirming violation as willful and giving reduction for 

size); Jim Boyd, 26 BNA OSHC at 1115 (same). After the accident, Respondent recognized its 

failings and took steps to prioritize safety despite its small size. (Ex. C-26; Stip. R.) For example, 

a dedicated person starting to specifically focus on safety violations in the photographs routinely 

sent to supervisors through Buildertrend. (Tr. 457.) Respondent also required additional training 

and inspections. (Tr. 241, 457; Exs. C-22, C-26.) Accordingly, the gravity-based penalty should 

be reduced by 20% to $101,399.20. 

As for the other penalty factors, the undersigned finds that no reduction is warranted. 

While Respondent had elements of a safety program and showed some evidence of enforcing 

aspects of it, in the context of fall protection, it cannot be considered an effective program. 

Supervisors knew the requirements but failed to address hazards. (Tr. 172; Ex. C-11.) Multiple 

supervisors knew or could have known of the hazard and yet failed to act. See Elliot Constr. Corp., 

23 BNA OSHC 2110, 2119 (No. 07-1578, 2012) (finding, in connection with a willful violation, 

that cooperation during the inspection and other efforts were insufficient to support a penalty 

reduction for good faith). 

In terms of Respondent’s history, there were no records of OSHA inspecting Respondent 

prior to November 3, 2016. (Tr. 241, 260.) As Respondent had not previously been inspected, its 

history is neither positive nor negative. (Tr. 260.) So, neither an increase nor a decrease in the 

penalty is warranted for Respondent’s history. 

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Accordingly, in consideration of the factors set forth in Section 17(j) of the Act, a penalty 

of $101,399.20 is appropriate. 29 U.S.C. § 666(j). 

ORDER 

Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that: 

Citation 1, Item 1 for a willful violation of 29 C.F.R. § 1926.501(b)(13) of the Act 

is AFFIRMED, and a penalty of $101,299.20 is ASSESSED. 

SO ORDERED. 

_/s/Covette Rooney____ 

Covette Rooney, 

Chief Judge, OSHRC 

Dated: June 3, 2019 

Washington, D.C. 

26