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. 17-0372 

MPS PRODUCTS CORP., 

 Respondent. 

 

Appearances:

James Polianites, Esq., 

Office of the Regional Solicitor, Boston, MA 

 For the Complainant 

Paul J. Katz, Attorney

Chestnut Hill, MA 

 For the Respondent 

Before: Carol A. Baumerich

 Administrative Law Judge 

DECISION AND ORDER

 Respondent MPS Products Corp. (Respondent or MPS) is a business engaged in steel 

erection construction. In response to a complaint, the Occupational Safety and Health 

Administration (OSHA) inspected Respondent’s steel erection worksite in Rockland, 

Massachusetts. Following inspection, OSHA issued to Respondent a two-item serious citation and 

a notification of penalty alleging employee exposure to fall hazards, in violation of steel erection 

standard 29 C.F.R. § 1926.760(a)(1) and in violation of section 5(a)(1) of the Occupational Safety 

and Health Act of 1970 (the Act), 29 U.S.C. § 654(a)(1). The Secretary proposed a total penalty 

of $10,140.00 for the citation. 
2

Respondent MPS timely contested the citation, bringing the matter before the Occupational 

Safety and Health Review Commission (Commission) pursuant to section 10(c) of the Act, 29 

U.S.C. § 659(c). A hearing was held in Boston, MA on February 23, and March 15, 2018. 1 Both 

parties were represented by counsel at the hearing. Both parties filed post-hearing briefs. 

Respondent filed a reply brief.

For the following reasons, serious citation 1, item 1 is vacated, serious citation 1, item 2 is

affirmed, and a total penalty of $5,070.00 is assessed. 

JURISDICTION

Based on the record, I find that at all relevant times Respondent MPS was engaged in a 

business affecting interstate commerce and was an employer within the meaning of sections 3(3) 

and 3(5) of the Act. I also find that the Commission has jurisdiction over the parties and subject 

matter of this proceeding. (Tr. 9; Answer; Resp. Br. 4). 

ISSUES

Complainant, the Secretary of Labor (Secretary), contends that Respondent MPS violated 

OSHA steel erection standard 29 C.F.R. §1926.760(a)(1), when employees were exposed to falls 

greater than fifteen (15) feet to the ground, while working on a horizontal steel beam without using 

fall protection. Respondent denies violating the standard cited. Respondent contends that any 

violation found was due to unpreventable employee misconduct? 

The issues are:

1. Did MPS violate steel erection standard 29 C.F.R. § 1926.760(a)(1)? 

2. Did MPS know or with the exercise of reasonable diligence could MPS have known of 

the hazardous worksite condition violative of the standard? 

3. If standard 1926.760(a)(1) was violated, was the violation due to unpreventable 

employee misconduct? 

1 Respondent’s introduction of exhibits at the hearing was disorganized and redundant. (Tr. 145-

54, 174-75, 181-200, 216-18, 227, 255-56, 296-304, 351-54). See Attachment A – Exhibit 

Summary. 

Present both hearing days were OSHA Compliance Officer (CO) Alfonso Leone, MPS 

President Michael Pimental and MPS Foreman Riccardo Servizio. (Tr. 7, 253-54, 260, 265, 393-

94, 411). 
3

The Secretary also contends that Respondent MPS violated section 5(a)(1) of the Act, the 

general duty clause, when an employee was exposed to fall hazards, of up to twenty-nine (29) feet, 

while climbing and standing on the guardrails of an up-right self-propelled scissors lift and when 

exiting the lift to access the structure’s upper level where employees were working. Respondent 

denies violating the general duty clause. Respondent contends that any general duty clause 

violation found resulted from unpreventable employee misconduct. 

The issues are: 

4. Did MPS violate the general duty clause, section 5(a)(1) of the OSH Act? 

5. Did MPS know or with the exercise of reasonable diligence could MPS have known of 

the hazardous worksite condition violative of the general duty clause? 

6. If the general duty clause was violated, was the violation due to unpreventable 

employee misconduct? 

FINDINGS OF FACT

The Company and the Inspected Worksite.

MPS is a steel erection company. MPS works on large projects erecting steel buildings 

and on small, miscellaneous, iron installation projects. MPS has been in business since 

approximately 2014. MPS works on between ten and thirty projects in a year. (Tr. 105, 114, 160-

61, 173, 235, 238, 319). 

Michael Pimental is the President of MPS Products Corporation. (Tr. 113-14). Mr. 

Pimental has been an ironworker most of his life. (Tr. 117, 319-20). Typically, for approximately 

the year before the OSHA inspection, Mr. Pimental worked in the office, estimating, bookkeeping,

and project managing. (Tr. 117). He described himself as stuck in the office. (Tr. 143). 

MPS has approximately eight employees. Employees always work in crews. There is 

always a foreman, also known as a competent person, on each jobsite, working with the crew, 

watching the workers. (Tr. 114, 130-31). MPS has three Foremen, including Riccardo Servizio 

and Jose dos Santos Pais.2 (Tr. 313, 316, 345). MPS foremen have an OSHA-30 card, training in 

2

 Foreman Jose dos Santos Pais is also identified in the record as Jose dos Santos Paris, and Jose 

Dosparis. (Tr. 312-13; Attachment B). 
4

CPR, first-aid, and in key industry hazards, fall protection and connecting. (Tr. 130-31, 232-35, 

361; Ex. R-35(c); Attachment B). 

According to Mr. Pimental the highest risk factor in the steel erection industry is falls. (Tr. 

115-16, 162). Foreman Servizio agreed. Ironwork is a dangerous job. The biggest hazard any 

MPS employee encounters is falling from the steel structure since serious injury or death may

result. (Tr. 317-18, 321-22, 347). 

The MPS Worksite on the Day of the OSHA Inspection 

On the day of the OSHA inspection, January 13, 2017, MPS was engaged in the steel 

erection of a building, at 276 Weymouth Street, Rockland, Massachusetts. (Tr. 319). The project 

was known as “Upper Baby” (Uppa Baby), the name on the plans for the steel building MPS was 

erecting. 3 (Tr. 271-75, 296, 400; Ex. R-40; Ex. R-42). The worksite superintendent was Herb 

Volpe, who worked for Integrated Builders. (Tr. 25). Other than MPS, no other company was on 

the worksite that day. (Tr. 319). 

At this worksite, the MPS competent person was Foreman Riccardo Servizio.4 The crew 

was Foreman Servizio’s responsibility. The foreman is responsible for enforcing MPS’s safety 

rules, including the fall protection rule. (Tr. 350, Ex. R-1, p. 2). Foreman Servizio’s job was to tell 

the employees what to do for the day and to make sure the job flowed. (Tr. 114, 131, 317, 319). 

On the day of the OSHA inspection, Foreman Servizio was the only MPS foreman on site. 

(Tr. 318, 390). There were seven MPS employees under his supervision, including Sabastian dos 

Santos,5 Marcello DaCruz, and Romiro Jorge.

6

 (Tr. 319, 332, 338-40; Ex. R-9; Ex. R-16, Ex. R3

 Work on this project began sometime after January 5, 2017. (Tr. 295-96). 

4 Foreman Servizio worked with MPS since the beginning. (Tr. 115, 132, 316-17). Working with 

MPS, at the time of the Upper Baby project, Foreman Servizio had been an ironworker for nine 

years and a foreman for three years. (Tr. 316-17). 

5 Employee Sebastian dos Santos’s first name also appears in the record as Sebastiao and Sebastio. 

(Ex. R-16; R-35(a); Attachment B). Employee dos Santos worked with MPS since the beginning. 

(Tr. 226). 

6 Foreman Servizio sometimes worked with employees dos Santos, DaCruz, and Jorge. They were 

not part of his usual crew. (Tr. 357). The other MPS employees on the jobsite that day are not 

identified in the record. 
5

33). Foreman Servizio described the work performed that day as routine and repetitive. The work 

was to connect the steel, land the joists, spread them. (Tr. 360). On the day of the OSHA inspection 

the project was on schedule. (Tr. 227). The project was halfway erected. (Tr. 328). 

At the morning meeting that day, Foreman Servizio told worker DaCruz to weld the 

bridging out of the lift. 7

 DaCruz was told to stay in the lift. (Tr. 170, 325-27, 334-36, 344, 388). 

It was anticipated that DaCruz’s work assignment may take him from the first level to the second 

level of the structure. (Tr. 326-27). While not present at the worksite that day, it was Mr. 

Pimental’s understanding that worker Jorge also was assigned to weld the bridging of the structural 

member. (Tr. 144-45). 

Worker DaCruz was assigned to work at a location halfway down the project, about eighty 

to one hundred feet (80 – 100 feet) from where Foreman Servizio was working giving direction to

the connectors and to the workers rigging steel. (Tr. 327-29). Foreman Servizio recalled that 

worker Jorge worked in the vicinity of worker DaCruz.

8 (Tr. 330). The other MPS employees 

7 On a steel structure, joists span across beams. Bridging goes through the joists and ties them

together. (Tr. 325, 382). 

8 Foreman Servizio’s testimony regarding where employee Jorge worked on the morning of the 

OSHA inspection was inconsistent and confused. First, Foreman Servizio testified that Jorge was 

the only employee working near employee DaCruz halfway down the project. (Tr. 330). Foreman 

Servizio later contradicted this testimony, stating employee Jorge worked near Foreman Servizio, 

connecting the bolts behind the connectors. (Tr. 337, 340, 381-82). Thereafter, Foreman Servizio 

confirmed that the inspection photographs taken of employees DaCruz and Jorge, by CO Leone, 

show only part of the jobsite. The other part of the jobsite, where employees worked with Foreman 

Servizio is not shown in the OSHA photographs in evidence. (Tr. 392-93; Ex. C-2). 

Foreman Servizio’s testimony was confused regarding the events on the morning of the 

inspection. Specifically, his testimony was unclear regarding where employee Jorge was working 

and whether employee Jorge had been instructed to weld bridging or connect bolts. (Tr. 330, 337, 

340, 381-82). When shown the OSHA inspection photographs during cross examination, Foreman 

Servizio agreed that employee Jorge appears in a photograph taken by CO Leone. (Tr. 384-85; Ex. 

C-2, p.1). Great weight is given to CO Leone’s testimony that this inspection photograph was taken 

of the worker he observed climb the lift rails to access the structural steel. (Tr. 31-32; Ex. C-2, 

p.1). 

Foreman Servizio’s testimony that employee Jorge worked near him connecting bolts 

behind the connectors is not credited. Foreman Servizio’s inconsistent, confused, testimony 

reveals his poor recollection of the events on the day of the OSHA inspection. 
6

worked near Foreman Servizio. (Tr. 330). That day, employee dos Santos worked as a “connector,” 

connecting the steel.9 (Tr. 332, 338-40). 

The OSHA Inspection. 

On the morning of January 13, 2017, at 9:00 a.m., the OSHA Boston South (Braintree), 

Massachusetts, Area Office received a complaint about possible fall hazards on a steel construction 

worksite in Rockland, Massachusetts. In response to the complaint, that day OSHA Compliance 

Safety and Health Officer (CO) Alfonso Leone traveled to the worksite to conduct an inspection. 

CO Leone arrived at the worksite, located at 276 Weymouth Street, Rockland, Massachusetts, 

around 11:00 a.m. Upon arrival, CO Leone parked on the side of Weymouth Street and observed 

an active construction worksite. Two levels of steel were in place. (Tr. 17-18, 20, 26; Ex. C-1). 

CO Leone observed a worker sitting and standing on a steel beam, on the second level, the 

top level of the structure. The worker wore a harness, but the worker was not tied off using fall 

protection. The worker appeared to be handling a welding lead. CO Leone photographed the 

individual on the second level of the steel, from his location on Weymouth Street, offsite, 

beginning at 11:03 a.m.10 (Tr. 19-23, 63, 66-68, 94; Ex. C-2, pp. 5, 6, 7, 8; Ex. C-5). The worker 

photographed, assigned to do welding, was later identified by Mr. Pimental and Foreman Servizio 

as Marcello DaCruz.11 (Tr. 170, 381-84; Ex. C-2, pp. 6, 7; Ex. R-5(b), p. 3). Worker DaCruz had 

9

 Subpart R – Steel Erection, Section 29 C.F.R. § 1926.751, definitions state, in pertinent part:

Connector means an employee who, working with hoisting equipment, is placing 

and connecting structural members and/or components. 

Hoisting equipment means commercially manufactured lifting equipment designed 

to lift and position a load of known weight to a location at some known elevation 

and horizontal distance from the equipment’s center of rotation. “Hoisting 

equipment” includes but is not limited to cranes, derricks, tower cranes, bargemounted derricks or cranes, gin poles and gantry hoist systems.

10 CO Leone was a credible, forthright, witness who answered questions to the best of his 

recollection on direct and cross examination, without exaggeration. (Tr. 74-75). CO Leone worked 

in construction for 20 years. (Tr. 63). 

11 Employee DaCruz’s name also appears in the record as Marcelo Da Cruz, Marcello Decosta, 

Marcello Cruz. (Ex. R-35(b)); Attachment B). At the time of the inspection employee DaCruz had 

worked for MPS for approximately three years. He was regarded as a safe, dependable ironworker. 

(Tr. 325, 329-30, 346, 358). 
7

been instructed to weld the bridging of the structural steel from the scissor lift. (Tr. 170, 325-27, 

335, 388). 

Mr. Pimental testified that worker DaCruz had a harness and lanyard when photographed. 

He did have a beamer.12 He was not using fall protection. (Tr. 120). Foreman Servizio agreed that 

the OSHA inspection photograph shows worker DaCruz, out of the lift, walking along on the steel 

without being tied off. (Tr. 386, 388-89; Ex. C-2, pp. 7, 8). Foreman Servizio agreed that it would 

have been apparent to him or anyone in authority that worker DaCruz was not working from the 

scissor lift as instructed. (Tr. 388-89). 

CO Leone photographed employees on the worksite for several minutes. He then drove 

onto the worksite and parked. CO Leone entered the office trailer and spoke to worksite 

Superintendent Volpe. Mr. Volpe identified the worker on the steel as employed by MPS. CO 

Leone explained that OSHA received a complaint about an alleged fall hazard on the jobsite and 

he was present to conduct an inspection. At CO Leone’s request, Mr. Volpe contacted MPS to 

have them provide a representative for the OSHA opening conference. (Tr. 24-27, 65; Ex. C-5). 

Superintendent Volpe showed CO Leone the site drawings, indicating the height of the second 

level of steel as twenty-nine (29) feet.13 (Tr. 35, 37-38, 95-96; Ex. C-2, p. 4). Mr. Volpe said he

believed the employees were connecting. (Tr. 61). 

As Mr. Volpe contacted the MPS representative for the OSHA opening conference, before 

the opening conference began, CO Leone stepped outside onto the front platform of the office 

trailer. While on the front platform, CO Leone observed a worker climb out of a red Skyjack 

scissor lift. To exit the red scissor lift, the worker stepped on the lift’s mid-rail and top rail, and 

then pulled himself up onto the steel beam. The worker wore a harness but was not tied off. CO 

Leone observed the worker, on the steel, with a harness and lanyard in hand. Once on the steel 

beam, he still was not tied off. CO Leone photographed the worker on the steel beam at 11:21 

a.m. (Tr. 27-32, 39, 45, 72, 94, 166; Ex. C-2, pp. 1, 2, 3; Ex. C-5). 

12 A beamer is a fall protection device that provides an anchorage point for the worker to tie off to 

the structural steel. (Tr. 119-20, 164, 340-41, 349; Ex. R-4) 

13 CO Leone did not take measurements at the worksite. (Tr. 35, 69). 
8

The worker photographed, who exited the red Skyjack scissor lift by climbing the lift’s 

rails, was later identified by Mr. Pimental and Foreman Servizio as Romiro Jorge.

14 Mr. Pimental 

testified that the OSHA inspection photograph shows worker Jorge on the beam walking, with a 

beamer in his hand. (Tr. 140, 166, 384-85; Ex. C-2, p.1; Ex. 5(b), p. 4). It was Mr. Pimental’s 

understanding that worker Jorge had been assigned to weld the bridging of the structural member. 

According to Mr. Pimental, MPS rents all-terrain scissor lifts so employees can weld bridging out 

of the lift per their usual procedure. Lifts are used on all MPS jobsites. There is no evidence 

Foreman Servizio specifically instructed worker Jorge to work from the lift that day. (Tr. 135, 

144). 

From outside the trailer looking up, CO Leone also observed and photographed Foreman 

Servizio working on the second level of the steel. (Tr. 38). When Foreman Servizio was called to 

the meeting with the OSHA compliance officer, he told the workers to take lunch. (Tr. 387, 390, 

392). Walking to the office trailer for the meeting, Foreman Servizio did not look up to see where 

the workers were working or whether they were wearing their safety equipment. (Tr. 387). 

In the office trailer, before the OSHA opening conference began, CO Leone introduced 

himself to Foreman Servizio and explained the reason for his presence at the worksite, that OSHA 

had received a complaint regarding fall protection. (Tr. 32-34, 391-92; Ex. R-16, pp. 2-3). 

Foreman Servizio said the height of the top portion of the steel was twenty-nine (29) feet. CO 

Leone asked why the worker was not tied off. Foreman Servizio said the MPS worker who was 

working at the height of twenty-nine (29) feet was welding. The workers were not tied off because 

they were connecting. CO Leone asked the current stage of the steel erection. Foreman Servizio 

answered they were in the connecting stage. CO Leone asked at what height fall protection is

required. Foreman Servizio answered thirty (30) feet. (Tr. 32-34, 61-62). 

During the inspection, Foreman Servizio told CO Leone that MPS works with a safety 

consultant. He said MPS holds mandatory safety meetings for all MPS employees, including at 

this worksite. (Tr. 75-77). 

14 Employee Jorge’s first name also appears in the record as Ramiro or Romero. (Ex. R-5(b), p. 4). 

Employee Jorge’s work safety record was pretty good. (Tr. 330). Documents disclose that 

employee Jorge worked for MPS for at least three years. Worker Jorge attended training sessions 

on June 23, 2014 and March 30, 2016. (Ex. R-39, Ex. R-69; Attachment B). Worker Jorge signed 

an MPS Safety Program certification on June 12, 2017. (Ex. R-44, p. 3). 
9

CO Leone conducted the OSHA opening conference, in the office trailer, with Foreman 

Servizio and a representative from Integrated Builders. CO Leone stated that he may interview 

employees and advised of the employee protections stated in section 11(c) of the Act. (Tr. 34-35). 

Following the opening conference, CO Leone conducted a walk-around of the worksite. 

(Tr. 35, 361-62). During the walk-around, CO Leone does not recall observing the welder or other 

employees working on the second level of the steel at twenty-nine (29) feet. (Tr. 36, 53, 362). 

During the walkaround, Foreman Servizio testified the workers were at lunch. (Tr. 390). 

During the walk-around, CO Leone observed that when the MPS employees had been

working at twenty-nine (29) feet, they could have been seen from virtually every angle. Nothing 

interfered with his or Foreman Servizio’s view to the second level of the structure from the ground. 

If Foreman Servizio had looked up when the MPS workers were on the steel, they would have 

been in plain view. (Tr. 38). 

CO Leone noted that the structure appeared to be fully bolted. He walked around the

building perimeter. There was a crane in the back of the building. During CO Leone’s inspection, 

the crane was not in use or positioned to hoist structural components, columns, or beams to the 

next level. During the walk-around, CO Leone inspected the crane. The crane was out of service

for maintenance. There were tools and an oil pan under the crane. (Tr. 36-37, 41-42, 88, 389; Ex. 

R-9, p. 2; Ex. R-33, p. 1). 

On the day of the OSHA inspection, a crane from Chelmsford Crane Service, Inc., was on 

site.

15 (Tr. 244, 332-34, 371, 389; Ex. R-42). During a segment of that day, the crane was not 

15 It is not disputed that a crane was on site on the OSHA inspection day. MPS received an invoice, 

dated January 21, 2017, from Chelmsford Crane Service, Inc., for the week of January 9, 2017, 

including January 13, 2017. The invoice was for “Hook Work,” rental of a crane and operator, on 

the Uppa Baby worksite. (Ex. R-42, p. 1). Hook work describes putting structural members on the 

crane’s hook and swinging the structural members into place to be connected. (Tr. 332-34, 371, 

400-01). The crane rental invoice does not identify, during any specific day, the hours when the 

worksite crane was not operational or temporarily out of service for on-site repair. 

Mr. Pimental testified that the invoice includes a handwritten verification of hours the crane 

was on site and what the crane was doing, signed by the foreman, at the end of the week. (Tr. 400; 

Ex. R-42, p. 2). This description of the invoice is rejected. The copy of the Chelmsford invoice, 

page two, reviewed by Mr. Pimental at the hearing was illegible. (Tr. 400, 403). This likely 

impacted his description of the invoice, page two. In fact, the legible copy of the invoice, page 

two, located before the hearing closed and received in evidence, shows the document date and 

signatures at the beginning of the week, on January 9, 2017. The signature on the document, while 
10

operating, as maintenance was needed.16 CO Leone credibly testified that from the time he arrived 

at the worksite, at approximately 11:00 a.m., until the conclusion of the OSHA inspection, the 

crane was out of service. When CO Leone photographed workers on the structural steel, the crane 

was not operating. (Tr. 36-37, 41-42, 88; Ex. C-2; Ex. R-9, p. 2; Ex. R-33, p. 1). 

CO Leone asked Foreman Servizio to speak to the two workers he photographed during 

the inspection. CO Leone asked to speak to the worker he observed climbing the rails to exit the 

lift onto the steel beam, whom he photographed on the beam. In response to CO Leone’s request, 

one worker came over to speak with him.17 The worker said he received fall protection training 

and lift training. The worker said he climbed out of the lift because there was no place to put a 

ladder on the steel. CO Leone did not speak to the other worker, a welder. (Tr. 37-40, 53; See Ex. 

R-16, pp. 2-3). 

During the inspection, CO Leone recalled seeing a ladder from the ground to the first level 

of the structure. He did not see a ladder from the ground to the second level of the structure. (Tr. 

47. See Ex. R-16, pp. 2-3). 

CO Leone conducted a closing conference. He reminded the participants that the employee 

he interviewed had protections under section 11(c) of the OSH Act. CO Leone reviewed his 

inspection observations regarding the lack of fall protection. CO Leone stated that because the 

not clearly legible, does not match Foreman Servizio’s acknowledged signature, on other 

documents in evidence. (Tr. 408). (Compare Ex. R-42, p. 2 with Ex. R-5(b), p.1; Ex. R-35(c), pp. 

5, 7; Ex. R-40; Ex. R-44, p.1). The invoice, page two, reflects crane work hours anticipated, not a 

verification of hours the crane was operational on any specific day. 

16 Great weight is given to CO Leone’s observation that the crane was out of service when he was 

present at the worksite. CO Leone’s photographs taken while offsite were taken before the lunch 

break that day, which began when Foreman Servizio left the steel structure for the OSHA opening 

conference. (Tr. 36-37, 41-42, 88; Ex. C-2; Ex. R-9, p. 2; Ex. R-33, p. 1). Mr. Pimental’s testimony 

that the crane was in use the entire day is not credited. Mr. Pimental was not present on the 

worksite. He lacks first-hand knowledge. (Tr. 396). Foreman Servizio’s testimony that the crane 

was operational the entire day is not credited. (Tr. 332-34, 371-72, 389-90). Foreman Servizio’s 

testimony disclosed his poor recollection regarding the OSHA inspection day and is not reliable. 

See Note 8. 

17 CO Leone’s handwritten inspection notes record he spoke to an ironworker identified as 

Sabastiao dos Santos. (Tr. 60, 71-72; Ex. R-16, pp. 2-3; Ex. R-33). Ironworker dos Santos was 

assigned to work as a connector on the day of the OSHA inspection. (Tr. 332, 338-40). See Notes 

5 and 9 and accompanying text. 
11

worker was welding and not connecting, and because there was no hoisting equipment being used, 

the worker was required to be protected from falls at fifteen (15) feet. (Tr. 40-41; Ex. R-16, pp. 2-

3.). Foreman Servizio recalled a brief closing conference. 18 (Tr. 339). 

Following the on-site inspection, CO Leone contacted Mr. Pimental to advise of the 

inspection. Mr. Pimental provided training certifications to OSHA. (Tr. 43-44, 70). 

Foreman Servizio testified that at some point on the morning of the OSHA inspection, he 

looked up and observed that workers DaCruz and Jorge were tied off. (Tr. 380-81, 386). Foreman 

Servizio had a clear view to the location where DaCruz and Jorge were assigned to work that 

morning to observe that they were tied off. Later that morning, when DaCruz and Jorge worked 

on the steel without fall protection, Foreman Servizio’s view likewise would have been 

unobstructed. 19 At the hearing, after reviewing the OSHA inspection photographs, Foreman 

Servizio assumed that between 11:00 a.m. and 11:20 a.m. that morning, when CO Leone was 

photographing the worksite, he did not look up to observe the workers. Later that morning as he 

walked to the office trailer to meet with CO Leone, at approximately 11:45 a.m., Foreman Servizio

also did not look up to observe the workers. (Tr. 386-89; Ex. C-2, pp. 1, 6, 7). 

MPS’s Workplace Safety Rules and Safety Training 

From the beginning MPS worked closely with a safety consultant Contractors Risk 

Management (CRM) to put together a safety plan. MPS uses CRM to stay current with safety 

18 Respondent’s representatives state they learned OSHA issued citations based on the inspection 

when the citations were received in the mail. (Tr. 252, 339, 346, 388). Promptly following the 

inspection, Mr. Pimental disciplined the workers photographed and identified during the OSHA 

inspection, as exposed to the worksite fall hazards. (Tr. 170, 190, 313-14, 394-95; Ex. R-5(b), pp. 

3, 4). Worker Marcello DaCruz received a verbal warning for not tying off on January 13, 2017. 

Worker Romero Jorge received a verbal warning for not tying off on January 16, 2017. The 

citation issued on January 24, 2017, eleven days after the inspection. (Complaint, Exhibit A). 

Respondent claims that the OSHA closing conference was inappropriate and prejudicial, 

as the exposed employees were not identified, and no information was provided regarding possible 

violations. Respondent’s claims are rejected, as contrary to the credited record evidence. (Resp. 

Br. 14-18, 21-22, 33, 36; Resp. Reply Br. 5). 

19 Foreman Servizio’s testimony that he had to move or change position from his work location to 

observe whether the employees were working safely is not credited. (Tr. 329). 
12

training and new regulations. Since 2013, CRM provided most of the training sessions for MPS 

employees. (Tr. 104-05, 116, 118, 281, 287-88, 291; Ex. R-1, Ex. R-5(a); Attachment B). 

MPS’s Safety Program has many components, including safety rules, formal and informal 

mandatory training sessions, jobsite hazard analyses for some projects, safety oversight by jobsite 

foremen, safety monitoring inspections conducted by CRM and, when competing work demands 

permit, by Mr. Pimental. Review of the hearing record reveals that, in the period before and during 

the OSHA inspection, there were gaps in the execution of MPS’s Safety Program. The MPS Safety 

Program prepared by CRM includes a progressive disciplinary policy to address safety violations 

and unannounced safety monitoring inspections conducted by CRM. The record reveals that when 

CRM observed and reported unsafe conditions during worksite inspections, MPS did not follow 

through and discipline the workers or foremen who engaged in the observed unsafe actions. In the 

period before and during the OSHA inspection, the record reveals MPS’s Safety Program lacking, 

due to inadequate safety oversight by the worksite foreman and lax enforcement when the safety 

rules were violated. 

Workplace Safety Rules and Disciplinary Policy 

In 2014, CRM prepared MPS’s Safety Program to follow the OSHA Subpart R Steel 

Erection regulations.

20 (Tr. 118-19, 281, 287-88). One chapter in the Safety Program concerns 

fall protection. (Tr. 118-19). The Safety Program states that for general employees, detail crews, 

and deckers “[e]mployees on a walking / working surface with an unprotected edge more than 15 

feet above a lower level must be protected.” (Ex. R-1, p. 45). The Safety Program also includes 

fall protection requirements for employees working as “Connectors – meaning those working with 

a hoisting device.” 21

20 Safety Program excerpts are in evidence. (Ex. R-1, pp. 2, 28, 24, 75; Ex. R-44). 

21 The MPS Safety Program states that for employees working as “Connectors – meaning those 

working with a hoisting device,” employees 

• Must have connector training. 

• No fall protection is required when working less than 15 feet from a surface 

below. 

• When working between 15 – 30 feet – employees must be provided with a 

personal fall arrest system, positioning device system or fall arrest system 

and wear the equipment necessary to be able to be tied off; or be provided 
13

Foreman Servizio stated MPS’s fall protection safety rule provides that a worker, who is 

not connecting, must be tied off if he is on the steel at fifteen (15) feet or higher. If the worker is 

connecting, he is allowed up to thirty (30) feet before being tied off. (Tr. 322, 337). Fall protection 

includes the worker’s harness, lanyard, and beamer to clamp to the steel as an anchor point. The 

workers must wear their fall protection equipment. (Tr. 322-23, 340-41). 

The MPS Safety Program in evidence does not set forth safety rules regarding scissor lifts, 

generally, or exiting scissor lifts, specifically. (Ex. R-1). MPS recognizes that standing or 

climbing lift railings exposes the worker to a fall hazard. This conduct is improper. (Tr. 136-40). 

CRM provides MPS employees lift safety training. (Tr. 139; Attachment B). Foreman Servizio 

testified that MPS has a rule that workers are not to climb the rails of a lift. (Tr. 334-35). 

Foreman Servizio testified that the fall protection rule and the rule that workers are not to 

climb the rails of a lift are very important, because if a worker falls off the steel, the worker could 

be hurt or possibly die. Throughout Foreman Servizio’s employment with MPS, these two rules 

have been active. (Tr. 347). 

MPS has a progressive disciplinary policy regarding safety violations, included in the MPS 

Safety Program, prepared by CRM in 2014. Pursuant to the policy, discipline for safety violations 

will progress as follows: 1st Violation: Verbal Warning, with documentation from the supervisor. 

2nd Violation: Written Warning, signed by you and your supervisor, to be placed in your permanent 

record. 3rd Violation: Up to one-week suspension without pay, with documentation placed in your 

permanent record. 4th Violation: Grounds for termination. (Tr. 167-70, 172, 350-51; Ex. R-1; Ex. 

R-5(a)). The disciplinary policy included in the MPS Safety Program is dated May 2014; however, 

before the OSHA inspection, there are no records supporting Respondent’s claim that MPS 

workers were aware of this policy. Before the OSHA inspection, there are no signed documents 

that MPS employees understand the terms and conditions of the policy. 22 (Compare Ex. R-5(a) 

with other means of protection from fall hazards. This means carrying all 

equipment with you.

• When working over 30 feet – 100 % fall protection required. 

(Ex. R-1, p. 45). 

22 Mr. Pimental testified that MPS has a revised disciplinary policy. (Tr. 154-55). The MPS 

“disciplinary action report” was not provided to the Court or to Counsel for the Secretary until the 

second hearing date, long past the extension of time granted for prehearing exhibit identification. 
14

and Ex. R-44 with Ex. R-5(b) and Ex. R-35(a), pp. 3, 4, 5). There is no evidence that an employee 

was disciplined for a safety violation, pursuant to this disciplinary policy, prior to the OSHA 

inspection. 

Mr. Pimental testified that employees sign a certification located at the back of the Safety 

Program, stating that they read, understand, and will follow the Safety Program. (Tr. 121-22, 128-

29, 357; Ex. R-1; Ex. R-44). The only signed Safety Program certifications in evidence are dated 

June 12, 2017, six (6) months after the OSHA inspection, signed by Foreman Servizio and workers 

DaCruz and Jorge. 23 (Tr. 280-82, 409; Ex. R-44). 

A different progressive discipline policy regarding MPS rules, including safety rules, is set 

forth in the June 11, 2015 letter from Mr. Pimental to employees. In addition to safety, the June 

2015 letter addresses various MPS rules including conduct while on and off the job, approval for 

supply pickup, the responsibility of foremen for assigned trucks after hours, employees not allowed 

in the shop office area, no yelling or profanity, and metal scrapping, among other rules. (Ex. R35(a), pp. 3,4; Ex. R-35(b), pp. 3, 4; Ex. R-35(c), pp. 4, 5). Pursuant to the policy stated in the 

June 11, 2015 letter, discipline for rule violations will progress as follows: first offense - verbal 

warning, second offense - $150.00 fine, third offense - one week off with no pay. There is no 

The disciplinary action report and Foreman Servizio’s testimony that this report has been active 

throughout his employment with MPS are accorded little weight. (Tr. 354-57, 366-68; Ex. R-70).

23 Mr. Pimental asserted that employees sign Safety Program certifications every year. (Tr. 279-

80; Ex. R-44). This assertion, unsupported by documentation, is not credited. Mr. Pimental claims 

he does not have earlier certifications, before June 2017, because when MPS’s office moved stuff 

got lost and mixed-up. (Tr. 280; Resp. Br. 11 n.4, 36-38). This claim is rejected. The MPS office 

move was in approximately 2014. (Tr. 397). The office move does not explain the failure to 

introduce Safety Program certifications signed by MPS employees in 2015 and 2016, if those 

certifications existed. As discussed below regarding the limited CRM training certifications and 

sign-in sheets offered into evidence, Respondent’s claimed reason for the loss of relevant business 

records is not persuasive and is not credited. See Note 26 below. 

Review of the entire record reveals that Respondent “selectively” chose specific records to 

offer into evidence. Respondent requests that the “selected” records be regarded as examples, 

representative of more extensive MPS safety records prepared prior to the OSHA inspection, but 

not offered into evidence. Respondent’s request is rejected. 

It is reasonable to infer that if MPS or CRM had additional records prior to the OSHA 

inspection that supported Respondent’s claim of a comprehensive safety program, that those 

additional records would have been produced and offered into evidence. See Capeway Roofing 

Sys. Inc., 20 BNA OSHC 1331, 1342-43 (No. 00-1986, 2003). 
15

evidence that an employee was disciplined for a safety violation, pursuant to this disciplinary 

policy, prior to the OSHA inspection. (Ex. R-5(b), pp. 1, 2 (written and signed verbal warnings 

issued to foremen). 

Safety Training 

Mr. Pimental testified that he cares about the safety of his employees. “I don’t feel that I 

am lucky because I haven’t had an accident since the start of the company. I feel that I’ve done 

the proper training.” (Tr. 223-24, 225; See Tr. 115, 132, 317). 

All MPS employees receive new safety equipment: harnesses, retractable lanyards, 

hardhats, and beamers. Every employee has a beamer, some employees have two beamers. The 

beamer instruction manual is used in MPS fall protection training. (Tr. 119-20, 164, 341, 349, 164-

66; Ex. R-4). 

During new employee orientation, Mr. Pimental asserts that the MPS Safety Program is 

reviewed with the new employee, pointing out the highest risk factors in the industry. (Tr. 121-

22, 128-29, 135, 163-64, 356-57; Ex. R-1). As part of the new employee orientation program, 

every employee receives CRM training, including fall protection and lift safety training. (Tr. 122, 

135, 159, 347, 361; Attachment B). Following orientation, the new employee is assigned to 

“shadow” a foreman on the jobsite, to familiarize the employee with MPS procedures and safety 

practices. (Tr. 121-23, 159, 337, 347, 356-57, 361). 

CRM provides most MPS employee safety training. (Tr. 116). Except for the very first 

CRM training session at MPS, all subsequent CRM training sessions at MPS were conducted by 

CRM Safety Specialist Armand Bisson.24 (Tr. 238, 268-69; Ex. R-36). Three or four times a year, 

24 Armand Bisson remained employed by CRM at the time of the hearing. (Tr. 396). He was not 

called to testify. His absence was not explained. 

Instead, Respondent called as a witness CRM employee, Brian Stevens, PhD. Prior to the 

hearing, Mr. Stevens spoke on the telephone with Armand Bisson and Respondent Counsel 

regarding MPS. Mr. Stevens had limited familiarity with MPS’s Safety Program. Mr. Stevens did 

not visit MPS’s Upper Baby project, the jobsite inspected by OSHA and by CRM. Mr. Stevens 

never presented a training module to MPS employees. He participated in one unannounced 

inspection of MPS, at Endicott College. Mr. Stevens was not personally involved in any MPS 

disciplinary actions. (Tr. 101-07, 391). 

In response to a leading question from Respondent Counsel, Mr. Stevens answered that 

MPS has an excellent safety program. (Tr. 106). The weight accorded Mr. Stevens’s response is 
16

CRM comes to the MPS office to retrain all MPS employees. These training and refresher training 

sessions are mandatory. (Tr. 142-43, 162-63, 307, 344-45, 365). Prior to the OSHA inspection, 

CRM provided connector, fall protection, boom lift, scissor lift, and controlled decking zone 

training, to MPS employees.

25 (Tr. 104-05, 163, 305-06, 344-45, Ex. R-39; Ex. R-69; Attachment 

B). Following receipt of the OSHA citation in this case, Mr. Pimental had everyone go through 

safety retraining on key points, fall protection, connecting, and ladder safety. The OSHA citation 

revealed refresher training was needed. MPS posted the OSHA citation. (Tr. 136, 141, 235; Ex. 

10(a)). 

CRM documents each training session with a sign-in sheet. All CRM training sign-in sheets 

are on file with CRM for 2014, 2015, and 2016. 26 (Tr. 143, 172-73, 226). CRM prepares and 

issues training certification cards to document the training session topic and the employee who 

attended the training. Mr. Pimental maintains the CRM employee training certification cards. Also 

all CRM training certification cards are on file with CRM. (Tr. 122, 143, 158-59, 163, 304-08, 

344-45, 365; Ex. R-39; Ex. R-69; Attachment B). All the CRM training certification cards that 

predate the OSHA inspection that were in Mr. Pimental’s possession are in evidence. (Tr. 307-08; 

Attachment B). 

A review of the CRM training certification cards during the period prior to the OSHA 

inspection for identified MPS employees working on the Upper Baby worksite discloses the 

following training. Foreman Servizio and workers DaCruz, Jorge, and dos Santos received boom 

lift and scissor lift training on June 23, 2014 and fall protection training on March 30, 2016. 

limited, as he did not know how MPS administered discipline. (Tr. 107). In other words, Mr. 

Stevens did not know how MPS enforced safety rules when employees engaged in unsafe behavior. 

Mr. Stevens’s assessment is based principally on his review of records and telephone 

conversations, rather than direct experience with MPS. 

25 Prior to the OSHA inspection, in 2015 and 2016, MPS paid CRM $5,622.50 for safety training. 

(Tr. 175-79, 226; Ex. R-14). 

26 Respondent introduced into evidence CRM training sign-in sheets for MPS employee training 

conducted in 2017, after the OSHA inspection. Respondent contends these CRM 2017 sign-in 

sheets are representative of the training CRM provided to MPS employees in 2014 and 2015. (Tr. 

236-38, 241; Ex. R-10(a); Resp. Br. 14, 20, 36-38). This contention is rejected. CRM retains 

records of all training it provides to MPS employees. MPS easily could have requested copies of 

the 2014, 2015, and 2016 training records from CRM, prior to the hearing or in the interim between 

the first and second hearing dates. (Tr. 154, 158-59, 172-73, 226). Respondent failed to do so. 
17

Foreman Servizio and worker DaCruz received OSHA Subpart R for controlled decking zone 

training on June 24, 2014. Foreman Servizio and workers DaCruz and dos Santos received 

connector safety training on March 30, 2016. (Tr. 156-58, 223-35, Ex. 35(a)(b)(c); Ex. R-39; Ex. 

R-69; Attachment B). 

There is no evidence that worker Romiro Jorge received connector safety training. Mr. 

Pimental was unable to state the training worker Jorge received. (Tr. 156; Attachment B). 

Respondent highlights MPS’s claimed “excessive” training at hearing and in post hearing 

briefing. (Tr. 226; Resp. Br. 14, 21, 24). Review of the CRM training certification cards in 

evidence disclose that only Foreman Servizio and worker DaCruz attended all CRM training 

sessions, prior to the OSHA inspection. (Attachment B). 

In addition to CRM training, MPS also provides informal employee safety training. Each 

workday before work begins, the MPS foreman conducts a morning meeting at the jobsite. At the 

morning meeting, Foreman Servizio directs the workers regarding their work assignment for the 

day, such as welding or connecting. He also reminds employees who will work on the steel to tie 

off. (Tr. 326, 344-45, 359, 365). On large jobs for which a job hazard analysis (JHA) has been 

conducted, the job foreman will informally communicate the JHA to employees at the morning 

meeting. (Tr. 123-24, 129-30, 159-61, 342-43, 361). 

 Toolbox Talks are conducted by the jobsite foreman, each Wednesday. Different safety 

topics related to commercial construction are presented on a rotating basis, such as housekeeping, 

fall protection, lift safety, ladder safety, and hydration on hot days, among others. Several undated 

Toolbox Talk training records were offered into evidence, as examples. 27 The workers in 

attendance sign the bottom of the Toolbox Talk training sheet. (Tr. 124-25, 141-42, 161-64, 200-

10, 342-43, 345; Ex. R-35(a), pp. 3, 4).

Two days before the OSHA inspection, Foreman Servizio conducted a Toolbox Talk for 

the workers at the Uppa Baby jobsite. Workers DaCruz and Jorge attended the talk. The general 

27 All Toolbox Talk records Mr. Pimental had on file are in evidence. (Tr. 211). It is uncertain 

whether the undated Toolbox Talk records in evidence were presented before or after the OSHA 

inspection. (Tr. 200-10; Ex. R-26; Ex. R-27; Ex. R-29; Ex. R-30; Ex. R-31; Ex. R-32; Attachment 

A). 

Mr. Pimental stated thatsome Toolbox Talk records went missing when he moved his shop. 

Respondent’s claim that when MPS’s office moved, in approximately 2014, records were lost and 

mixed-up is unpersuasive and rejected. See Note 23 above. This is especially so, as Mr. Pimental 

testified he keeps these documents to use in an OSHA proceeding. (Tr. 211; Resp. Br. 15). 
18

training topic was Construction Safety Guidelines. Twenty recommendations to maintain safe 

work practices are listed on the training sheet. (Tr. 270-79; Ex. R-40). Foreman Servizio did not 

testify regarding this Toolbox Talk; therefore, the record is silent regarding the amount of time 

spent discussing this Toolbox Talk and which of the twenty safe work practice recommendations 

were discussed. Generally, Foreman Servizio presented Toolbox Talks by reading “the piece of 

paper,” explaining the paper, and answering any questions asked. (Tr. 342-43). 

Worksite Safety Monitoring and Enforcement 

CRM conducts unannounced worksite safety inspections of MPS’s larger projects to check 

whether MPS employees are compliant with the safety rules. MPS scheduling of the CRM 

unannounced safety inspections is job specific. Mr. Pimental testified that he usually sends CRM 

to a specific worksite every other week. (Tr. 136, 198, 240, 284, 364). 

Following their worksite safety inspection, CRM prepares a written safety report for MPS. 

Once received, Mr. Pimental reviews and files the report. If the report notes deficiencies, Mr. 

Pimental speaks with CRM to find out what they observed at the jobsite. (Tr. 184, 198, 290-91, 

300, 396). Mr. Pimental estimates that he receives a worksite safety report from CRM every other 

week. If this estimate is accurate, for 2015 and 2016, the two years prior to the OSHA inspection, 

MPS would have approximately fifty CRM worksite safety inspection reports. Mr. Pimental 

testified MPS has numerous CRM worksite safety reports on file. (Tr. 284, 290-91, 364). Again, 

Respondent “selected” a small number of CRM Work Site Safety Inspection Reports to offer in 

evidence, as examples.28 (Ex. R-13; Ex. R-20(a); Ex. R-20(b); Ex. R-41; Ex. R-57). 

28 Like the CRM training records, CRM retains copies of the CRM Work Site Safety Inspection 

Reports. MPS could have obtained a copy of any specific CRM Work Site Safety Report 

requested. Respondent Counsel obtained documents from CRM regarding an MPS Work Site 

Safety Inspection Report, with a simple email request. (Ex. R-20(a), p. 5). MPS could have 

obtained any Work Site Safety Inspection Reports for the period prior to the OSHA inspection. 

Respondent chose not to introduce a more complete overview of CRM safety inspection findings 

that a larger, more representative sample of CRM Work Site Safety Inspection Reports would have 

provided. 

Mr. Pimental asserts that the CRM Work Site Safety Inspection Reports show MPS is 

safety compliant. (Tr. 240). Had a more complete, less “selective,” production of the CRM 

inspection reports of MPS worksites supported this assertion of MPS safety compliance, I find that 

the more complete production of CRM inspection reports would have been offered into evidence. 
19

It is notable that CRM inspected MPS’s Upper Baby worksite twice, once before the OSHA 

inspection and once after. (Tr. 391). The Upper Baby CRM Work Site Safety Inspection Reports 

would be most relevant to the fact finding in this case. Respondent did not introduce these reports 

into evidence. 29 

Some of the select reports Respondent placed in evidence show safety compliance and only 

minor safety violations.30 Other reports disclose serious safety violations and safety concerns 

observed by CRM. There is no evidence that MPS disciplined the foremen or workers observed 

violating safety rules noted in the CRM Work Site Safety Inspection Reports. 

For example, CRM inspected the MPS worksite at Herb Chambers Lincoln Volvo, on 

September 17, 2015. The MPS Foreman was Shawn Hysette. See Attachment B. The CRM 

Project Work Site Safety Inspection Report notes “serious” fall protection violations. Workers 

John and Sebastian were observed and photographed not properly tied off. Their lanyards were 

wrapped around steel and tied back to themselves. Also Sebastian was observed walking to the 

work area across steel before tying off. The need to maintain one hundred percent fall protection 

while on steel above fifteen (15) feet was noted. The condition of the fall protection equipment 

available for use was discussed with the foreman. CRM suggested that a thorough inspection be 

done on all fall protection available for use. (Ex. R-13, pp. 1, 4). 

Absent production of this ready and available documentation to support the broad assertion that 

the CRM worksite safety inspections show MPS as safety compliant, this assertion is rejected.

29 As the CRM Work Site Safety Inspection Reports for the Upper Baby jobsite were not 

introduced into evidence, I do not credit Foreman Servizio’s general statement that CRM found 

no safety violations during those inspections. (Tr. 391). When he testified, Foreman Servizio’s 

recollection had faded and was not reliable. See Note 8 above. Further, had these important, 

relevant CRM Work Site Safety Inspection Reports supported Foreman Servizio’s statement, I 

find that Respondent would have offered these reports into evidence. See Capeway, 20 BNA 

OSHC at 1342-43 (the party would have provided the evidence had it been helpful).

30 See August 20, 2015 CRM Project Work Site Safety Inspection Report, concerning the MPS 

worksite at Herb Chambers Lincoln Volvo. (Ex. R-13, pp. 2, 3) (inspection notes no fall protection 

hazards observed); December 6, 2016 CRM Work Site Safety Inspection Report, concerning MPS 

worksite at Mansfield 620 West Street. (Ex. R-20(a)) (inspection notes workers were tied off while 

installing decking and in lifts; January 5, 2017 CRM Work Site Safety Inspection Report, 

concerning MPS worksite at East Pier. (Tr. 293-96; Ex. 57) (inspection noted ironworker detailing 

steel from scissors lift design). 
20

MPS did not discipline Foreman Hysette or workers John or Sebastian for this serious fall 

protection safety violation. (Tr. 300, 377-78; Ex. R-13, pp. 1, 4). 31 Foreman Servizio did not hear 

anything about these employees not being tied off in 2015. The identified employees have worked 

on Foreman Servizio’s crew. Foreman Servizio does not recall either employee receiving 

discipline for not tying off in 2015.32 (Tr. 377-78). 

As a further example, on November 16, 2016, CRM inspected the Parcel 25 Project. The 

CRM client was NEI General Contracting, not MPS. MPS workers were on the worksite at the 

time of the inspection. A steel erector was observed using a beam clamp with PFAS [personal fall 

arrest system]. Also observed was an MPS ironworker engaged in unsafe behavior, having no 

personal protective equipment (PPE), safety glasses / face shield when using a cutoff saw. Mr. 

Pimental recalls following up with CRM regarding this report. (Tr. 283-91; Ex. R-41). There is 

no evidence that the ironworker was disciplined for the safety violation of working without PPE. 

The final example offered details another worksite inspection. On December 13, 2016, 

CRM conducted a work site safety inspection of the MPS jobsite located at 141 Needham Street. 

The Foreman was Jose dos Santos Pais. While the fall hazards are noted as well protected, the 

report also noted that the foreman did not know what an SDS [safety data sheet] was and the safety 

program was not on site. The report noted the unsafe condition of the access ladder to the roof not 

extending three feet above the landing. The CRM inspector specifically included his observation 

that “this crew needs an update in steel erection standards.” (Tr. 191-93, 197-98, 312-13; Ex. R20(b)). 

Regarding MPS jobsite visits, prior to the OSHA inspection, Mr. Pimental had limited 

opportunity to step away from his office responsibilities and make unannounced site visits. 

Typically, beginning approximately a year before the OSHA inspection, Mr. Pimental worked in 

the office, estimating, bookkeeping, and project managing. (Tr. 117). He characterized it as being 

stuck in the office. (Tr. 143). Mr. Pimental testified that it was difficult to say how often he visited 

31 The exhibit Foreman Servizio examined at the hearing is incorrectly identified in the transcript 

as Ex. R-48. The correct exhibit number is Ex. R-47, which exhibit was rejected as a duplicate of 

Ex. R-13 already in evidence. (Tr. 300). 

32 During his employment with MPS, Foreman Servizio had no recollection of any MPS employee 

found not tied off. (Tr. 375). When Foreman Servizio was asked whether the MPS foreman ever 

discussed workers and discipline received, he answered “occasionally.” (Tr. 378). 
21

job sites, “a few times a month, but again, it’s all on my workload.”33 (Tr. 240). Mr. Pimental did 

not visit the Upper Baby worksite during the week of the OSHA inspection. (Tr. 396). 

Respondent issued only two disciplinary notices for safety violations prior to the OSHA 

inspection. These notices were issued to MPS foremen. On October 5, 2016, Foreman Jose dos 

Santos Pais received a verbal warning for not having his retractable lanyard hooked on while in 

the boom lift. On November 14, 2016, Foreman Riccardo Servizio received a verbal warning for 

not having his hard hat. Foreman Servizio had no recollection of receiving discipline for this hard 

hat safety violation. (Tr. 169-70, 190, 313-14, 379; Ex. R-5(b), pp. 1, 2). Mr. Pimental confirmed 

these are the only MPS disciplinary documents prior to the OSHA inspection. (Tr. 173). Notably, 

prior to the OSHA inspection no disciplinary notices were issued to MPS employees. 

The only other disciplinary records in evidence are the verbal warnings given to workers 

DaCruz and Jorge for being on the steel, not being tied off, on the day of the OSHA inspection. 

Worker DaCruz’s verbal warning is dated January 13, 2017. Worker Jorge’s verbal warning is 

dated January 16, 2017. Mr. Pimental and Foreman Servizio testified that worker Jorge was 

disciplined for exiting the lift by climbing the lift railings. The lift rail climbing safety violation 

is not stated on the verbal warning worker Jorge received. (Tr. 140-41, 170, 190, 313-14, 346-47, 

381, 389, 394-95; Ex. R-5(b), pp. 3, 4). Foreman Servizio was not disciplined for the fall 

protection violations observed on the day of the OSHA inspection. (Tr. 379). 

ANALYSIS

Alleged Violations 

a. Serious citation 1, item 2 – alleged violation of standard 1926.760(a)(1) steel erection fall 

hazard. 

The Secretary alleges that MPS violated 29 C.F.R. § 1926.760(a)(1),34 on or about January 

13, 2017 at the inspected worksite, when employees working without fall protection and engaging 

33 Foreman Servizio’s recollection that since approximately 2014, Mr. Pimental conducted surprise 

visits, walking the jobsite, every few weeks, is given less weight. (Tr. 364, 396-97). Foreman 

Servizio’s testimony revealed his poor recollection. He was an unreliable witness. See note 8 

above. 

34 Section 1926.760(a)(1) states: 

Except as provided by paragraph (a)(3) of this section, each employee engaged in 

a steel erection activity who is on a walking / working surface with an unprotected 
22

in steel erection activities, while working on horizontal steel beams, were exposed to fall hazards 

greater than fifteen (15) feet to the ground below. Respondent’s workers were not protected from 

falls by guardrail systems, safety net systems, personal fall arrest systems, positioning device 

systems, or fall restraint systems. (Complaint, Ex. A; Ex. R-9). 

Applicable Law

To establish a violation of an OSHA standard, the Secretary must establish that: (1) the 

standard applies to the facts, (2) the employer failed to comply with the terms of that standard, 

(3) employees had access to the hazard covered by the standard, and (4) the employer had actual 

or constructive knowledge of the violation (i.e. the employer knew, or with the exercise of 

reasonable diligence could have known, of the violative condition). Atlantic Battery Co., 16 BNA 

OSHC 2131, 2138 (No. 90-1747, 1994). 

Applicability and Violation. 

 Respondent was engaged in steel erection work at the inspected worksite. In post-hearing 

briefing, Respondent admits the Secretary proved that the cited fall protection standard was 

applicable to the worksite hazard cited and was violated. (Resp. Br. 27, 38; Resp. Reply Br. 3-4). 

Both workers Romiro Jorge and Marcello DaCruz were observed and photographed by CO 

Leone walking and working on steel beams at a height of twenty-nine (29) feet above the ground 

level without being tied off to an anchor point.35 They were exposed to the hazard of falling from 

that height. The standard requires that employees walking or working on structural steel fifteen 

(15) feet above a lower level be protected from fall hazards.

36 (Tr. 19-23, 63, 66-68, 94, 140, 166, 

170, 325-27, 355, 381-86, 388-89; Ex. C-2, pp. 1, 5, 6, 7, 8). 

side or edge more than 15 feet (4.6 m) above a lower level shall be protected from 

fall hazards by guardrail systems, safety net systems, personal fall arrest systems, 

positioning device systems or fall restraint systems.” 

35 Together with his supervisor CO Leone recommended the citation for the 29 C.F.R 

§ 1926.760(a)(1) violation. (Tr. 44-45, 67, 72). 

36 In post-hearing briefing, Respondent admits the Secretary proved that the cited fall protection

standard applied and was violated. (Resp. Br. 27, 38; Resp. Reply Br. 3-4). Respondent does not 

contend that the connector exception to the Subpart R Steel Erection fall protection requirements 

applied to the MPS employees photographed by the OSHA inspector, who were not tied off while
23

The fall protection standard cited was applicable to the worksite hazards observed. The 

standard was violated. 

Exposure 

The OSHA inspection photographs show workers DaCruz and Jorge exposed to fall 

hazards while walking and working on steel beams at a height of twenty-nine (29) feet above the 

ground level without being tied off to an anchor point. (Ex. C-2, pp. 1, 5, 6, 7, 8). Respondent 

agrees ironwork is a dangerous job. The biggest hazard any MPS employee encounters is falling 

from the steel structure since serious injury or death may result. (Tr. 115-16, 162, 317-18, 321-

working on the steel more than fifteen (15) feet and less than thirty (30) feet above a lower level.

(Resp, Br. 10 n.3, 36). 

The standard regarding employees working as connectors is an exception to the Subpart R 

Steel Erection fall protection requirements. 29 C.F.R. §§ 1926.760(a)(1)(3); 1926.760(b). It would 

be Respondent’s burden to prove the exception applied. Kaspar Wire Works, Inc., 18 BNA OSHC 

2178, 2194 (No. 90-2775, 2000) aff'd, 268 F.3d 1123 (D.C. Cir. 2001) (citations omitted). 

The connector exception applies only to employees who have “completed connector 

training in accordance with § 1926.761.” 29 C.F.R. § 1926.760(b)(2). Respondent produced no 

evidence that worker Romiro Jorge completed connector training. (Attachment B). The connector 

exception does not apply. 

Further, the steel erection standard defines “connector” as “an employee who, working 

with hoisting equipment, is placing and connecting structural members and / or components.” 29 

C.F.R. § 1926.751. The credible record evidence discloses that during the OSHA inspection of the 

Upper Baby worksite the on-site crane was out of service for maintenance. The workers 

photographed by OSHA were not working with hoisting equipment. See notes 15 and 16 and 

accompanying text above. Also, that day workers DaCruz and Jorge had not been assigned to 

work with hoisting equipment. Safety Standards for Steel Erection, 66 Fed. Reg. 5196, 5203 (Jan. 

18, 2001) (to be codified at 29 C.F.R. part 1926) notes a specific definition for this exception in 

the Final Rule:

The [connector] definition is very specific; connecting is distinguished from other 

steel erection activities by the elements in the definition. For example, spreading 

and securing bar joists by hand would not be considered connecting, since that work 

is not done “with hoisting equipment.” Therefore, an employee is a “connector” 

only when working with “hoisting equipment.” 

The connector exception does not apply.
24

22, 347). Workers DaCruz and Jorge were exposed to the hazards the steel erection fall protection 

standard 29 C.F.R. § 1926.760(a)(1) addresses. 

Knowledge 

Respondent’s knowledge of the serious violation may be established by showing that the 

employer knew, or with reasonable diligence could have known of the violative condition. 29 

U.S.C. § 666(k). See e.g., Nat’l Eng’g & Contracting Co. v. OSHRC, 928 F.2d 762, 767 (6th Cir. 

1991); Revoli Constr. Co., 19 BNA OSHC 1682, 1684 (No. 00-0315, 2001). An employer’s 

awareness of the violation may be shown through actual or constructive knowledge of the 

hazardous condition. The actual or constructive knowledge of a supervisor may be imputed to the 

employer. See N & N Contractors, Inc., 18 BNA OSHC 2121, 2123 (No. 96-0606, 2000), aff’d, 

255 F.3d 122 (4th Cir. 2001); Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2069 (No. 96-1719, 

2000); A.P. O’Horo Co., 14 BNA OSHC 2004, 2007 (No. 85-369. 1991). 

To establish constructive knowledge, an employer must fail to exercise reasonable 

diligence in discovering the hazardous condition. Precision Concrete Constr., 19 BNA OSHC 

1404, 1407 (No. 99-0707, 2001). Whether an employer was reasonably diligent rests on a variety 

of factors, “including the employer's obligation to have adequate work rules and training programs, 

to adequately supervise employees, to anticipate hazards to which employees may be exposed, and 

to take measures to prevent the occurrence of violations.” Id.; See Pride Oil Well Serv., 15 BNA 

OSHC 1809, 1814 (No. 87-692, 1992). 

Constructive knowledge is imputed where a supervisory employee knew or should have 

reasonably known about the safety violation. P. Gioioso & Sons, Inc. v. OSHRC, 675 F.3d 66, 73 

(1st Cir. 2012) (Gioioso II), citing Cent. Soya de P.R., Inc. v. Sec'y of Labor, 653 F.2d 38, 40 (1st 

Cir.1981) (where two supervisors in charge of facility knew of the hazard, the supervisory 

employees’ knowledge of the hazardous condition existing within the scope of their supervisory 

responsibility, was properly imputed to the employer). 

The Secretary contends that MPS had constructive knowledge of the violative conduction, 

as MPS failed to exercise reasonable diligence to discover and prevent the fall protection violation. 

Foreman Servizio failed to effectively monitor worker compliance with Respondent’s safety rules. 

Foreman Servizio knew or reasonably should have known of the fall protection safety violations. 

(Sec’y Br. 10-11, 14-15). 
25

Regarding knowledge, Respondent contends that the violation occurred in a matter of 

seconds and could not have been known to the foreman. (Resp. Br. 3, 9). 

MPS had work rules and training programs to address steel erection fall hazards. The MPS 

Safety Program includes a rule requiring employees to wear and use fall protection when working 

at heights fifteen (15) feet above a lower level. (Ex. R-1, p. 45). Both workers DaCruz and Jorge 

received CRM fall protection training. (Appendix B). Foreman Servizio testified that when 

workers are assigned to work on the steel, he reminds the workers to tie off. On the day of the 

OSHA inspection, workers DaCruz and Jorge had not been assigned to work on the steel. The 

Secretary does not dispute that Respondent had work rules that it communicated to its employees. 

(Sec’y Br. 15, n.1). 

MPS’s fall protection rule and CRM fall protection training show that Respondent 

anticipated the fall hazards present for workers engaged in steel erection. Respondent 

acknowledged that the biggest hazard any MPS employee encounters is falling from the steel 

structure as serious injury or death may result. MPS’s fall protection rule was communicated to 

employees during CRM training sessions, new employee orientation, morning meetings with the 

jobsite foreman, and Toolbox Talks. 

Close review of the hearing record reveals that on the Upper Baby worksite on the day of 

the OSHA inspection, Foreman Servizio provided inadequate safety oversight and supervision to 

the MPS employees. That day both workers DaCruz and Jorge were observed and photographed 

by CO Leone walking on steel beams at a height of twenty-nine (29) feet above the ground level 

without being tied off to an anchor point. Both workers were exposed to the hazard of working on 

the structural steel without fall protection. (Ex. C-2, pp. 1, 5, 6, 7, 8). It is the obligation of the 

worksite foreman to supervise the work and call attention to employee safety lapses. (Tr. 31). 

That day, before the workers left the steel structure for their lunch break, Foreman Servizio 

also worked on the second level of the steel. Between 11:00 a.m. and 11:20 a.m. that morning, 

when CO Leone was photographing the worksite, Foreman Servizio assumed that he did not look 

up. That morning as he walked to the office trailer to meet CO Leone at approximately 11:45 a.m., 

Foreman Servizio did not look up to see where the workers were working or whether they were 

wearing their safety equipment. (Tr. 38, 386-89; Ex. C-2, pp. 1, 6, 7). The inspection photographs 

document the violative activity for approximately twenty (20) minutes. (Ex. C-2). 
26

During the OSHA inspection walk-around, CO Leone observed that when the MPS 

employees had been working at twenty-nine (29) feet, they could have been seen from virtually 

every angle. Nothing interfered with his or Foreman Servizio’s view to the second level of the 

structure from the ground. If Foreman Servizio had looked up when the MPS workers were on the 

steel, they would have been in plain view. (Tr. 38). 

Foreman Servizio testified that he directed worker Da Cruz to work from the scissor lift. 

OSHA inspection photographs reveal that workers DaCruz and Jorge were walking and working 

on the steel, not working from the scissor lifts. Foreman Servizio agreed that it would have been 

apparent to him or anyone in authority that worker DaCruz was not working from the scissor lift 

as instructed. (Tr. 386, 388-89; Ex. C-2, pp. 7, 8). 

The safety violations of workers DaCruz and Jorge were readily apparent had Foreman 

Servizio taken steps to observe them. The record reveals that Foreman Servizio’s attention during 

the workday was on the specific tasks in which he was directly engaged, not on ensuring 

compliance with the workplace safety rules generally. Foreman Servizio testified that when he 

has a “moment” to move away from the work he is supervising, he “tries” to look around the 

jobsite to make sure everyone is in compliance. (Tr. 329, 347-48). Foreman Servizio testified that 

he “tries” his best to keep an eye on his crew to make sure everyone is in compliance. “I try to 

stay on them best I can, but I’m very busy.” (Tr. 363). On the morning of the OSHA inspection, 

Foreman Servizio’s attention was on the crane, flying the steel, and giving direction to the 

connectors and the workers rigging the steel. (Tr. 327-28). 

The facts and testimony confirm that Foreman Servizio’s safety oversight and supervision 

was inadequate. Obvious safety violations were in plain view had Foreman Servizio only looked.

See Kokosing Constr. Co., 17 BNA OSHC 1869, 1871 (No. 92-2596, 1996) (“The conspicuous 

location, the readily observable nature of the violative condition, and the presence of [the 

employer’s] crews in the area warrant a finding of constructive knowledge.”); Hamilton Fixture, 

16 BNA OSHC 1073, 1089 (No. 88-1720, 1993) (finding an employer is chargeable with 

knowledge of conditions which are plainly visible to its supervisory personnel), aff’d 28 F.3d 1213 

(6th Cir. 1994); Ted Wilkerson, Inc., 9 BNA OSHC 2012, 2016 (No. 13390, 1981) (the leadman 

“would have been in a position to observe” the employee engaged in the hazardous conduct.). 

Further, it appears Foreman Servizio did not recognize that workers DaCruz and Jorge 

working on the steel at twenty-nine (29) feet without being tied off was a safety rule violation. 
27

Foreman Servizio incorrectly believed that the worker who was welding was “connecting” and the

fall protection requirement to be being tied off was not required below thirty (30) feet.37 (Tr. 32-

34, 61-62, 322, 337). See Note 36 above. The record does not disclose whether Foreman Servizio 

knew worker Jorge had not received connector training. Failure to properly monitor and enforce

the steel erection fall protection rules on this worksite also discloses inadequate supervision.

MPS did not take adequate measures to prevent the occurrence of violations. Review of 

the hearing record reveals that in the period before and during the OSHA inspection, there were 

gaps in the execution of MPS’s Safety Program. The MPS Safety Program prepared by CRM 

includes a progressive disciplinary policy to address safety violations and unannounced safety 

monitoring inspections conducted by CRM. The record reveals that when CRM observed and 

reported unsafe conditions during worksite inspections, MPS did not follow through and discipline 

the workers or foremen who engaged in the observed unsafe actions. In the period before and 

during the OSHA inspection, the record reveals MPS’s Safety Program lacking, due to inadequate 

safety oversight by the worksite foreman, as discussed above, and lax enforcement of worksite 

safety when safety rules were violated. 

MPS has a progressive disciplinary policy regarding safety violations, included in the MPS 

Safety Program. (Tr. 167-70, 172, 350-51; Ex. R-1; Ex. R-5(a); Ex. R-44). The disciplinary policy 

included in the MPS Safety Program is dated May 2014; however, before the OSHA inspection, 

there are no records supporting Respondent’s claim that MPS workers were aware of this policy. 

Mr. Pimental testified that employees sign a certification located at the back of the Safety Program, 

stating that they read, understand, and will follow the Safety Program. However, the only signed 

Safety Program certifications in evidence are dated June 12, 2017, six (6) months after the OSHA 

inspection. (Ex. R-44). See Note 23 and accompanying text above. There is no evidence that an 

37 On December 13, 2016, one month before the inspection that is the subject of this citation, CRM 

conducted a work site safety inspection of the MPS jobsite located at 141 Needham Street. The 

MPS foreman was Jose dos Santos Pais. The report specifically includes the observation of the 

CRM inspector that “this crew needs an update in steel erection standards.” (Tr. 191-93, 197-98, 

312-13; Ex. R-20(b)). MPS employs approximately eight employees. (Tr. 114). Including 

Foreman Servizio there were eight employees working on the Upper Baby worksite. (Tr. 319). It 

is likely MPS employees on the Needham Street crew also worked on the Upper Baby crew. CRM 

did not provide refresher training regarding fall protection, ladder safety, and connecting hazards 

to MPS employees, including Foreman Servizio, until February 6, 2017. (Ex. R-10(a), p. 1). 
28

employee was disciplined for a safety violation, pursuant to this disciplinary policy, prior to the 

OSHA inspection. 

MPS has a different progressive discipline policy regarding MPS rules, including safety 

rules, set forth in the June 11, 2015 letter from Mr. Pimental to employees. (Ex. R-35(a), pp. 3, 4; 

Ex. R-35(b), pp. 3, 4; Ex. R-35(c), pp.4, 5). There is no evidence that any employee was disciplined 

for a safety violation, pursuant to this disciplinary policy, prior to the OSHA inspection. (Ex. R5(b), pp. 1, 2 (verbal warnings issued to foremen); Ex. R-35(a), pp. 3, 4). There is no evidence 

either MPS progressive disciplinary policy was used to enforce safety violation prior to the OSHA 

inspection. 

CRM conducts unannounced safety inspections of MPS’s larger projects to check MPS 

employee compliance with the safety rules, as noted previously. Following the worksite safety 

inspection, CRM prepares a written safety report for MPS, which Mr. Pimental reviews and files. 

If the report notes deficiencies, Mr. Pimental speaks with CRM to discuss their worksite 

observations. (Tr. 184, 198, 240, 290-91, 300, 364, 396). 

Review of the few, select, CRM Work Site Safety Inspection Reports Respondent offered 

into evidence disclose serious safety violations or safety concerns observed by CRM. There is no 

record of MPS issuing discipline to the foremen or workers observed violating the safety rules. 

There is no evidence of safety program enforcement through MPS’s progressive disciplinary 

policies. Respondent witness CRM employee Brian Stevens testified that he did not know how 

MPS administered discipline. In other words, Mr. Stevens did not know how MPS enforced safety 

rules when employees engaged in unsafe behavior. (Tr. 107). See Note 24 above. 

In September 2015 CRM inspected the MPS worksite at Herb Chambers Lincoln Volvo. 

The CRM September 2015 report notes “serious” fall protection violations. MPS did not discipline 

the worksite foreman or workers observed engaging in the serious fall protection safety violations. 

(Tr. 300, 377-78; Ex. R-13, pp. 1, 4). Foreman Servizio did not hear anything about these 

employees not being tied off in 2015.38 (Tr. 377-78).

On November 16, 2016, CRM inspected the Parcel 25 Project. The CRM client was NEI 

General Contracting not MPS. An MPS ironworker was observed engaged in unsafe behavior, no 

38 The Secretary contends that the record “strongly suggests” that when employees were 

disciplined for safety violations, there was no practical follow through by management to ensure 

information regarding safety derelictions was disseminated between foremen. (Sec’y Br. 17). 
29

personal protective equipment (PPE), safety glasses / face shield when using a cutoff saw. (Tr. 

283-91; Ex. R-41). There is no evidence that the ironworker was disciplined for the safety 

violation of working without PPE. 

Respondent issued only two disciplinary notices for safety violations to foremen prior to 

the OSHA inspection. On October 5, 2016, Foreman Jose dos Santos Pais received a verbal 

warning for not having his retractable lanyard hooked on while in the boom lift. On November 

14, 2016, Foreman Riccardo Servizio received a verbal warning for not having his hard hat. 

Foreman Servizio had no recollection of receiving this discipline, showing this warning lacked the 

intended consequence of promoting safety compliance. (Tr. 169-70, 190, 313-14, 379; Ex. R-5(b), 

pp. 1, 2). Mr. Pimental confirmed that these are the only MPS disciplinary documents prior to the 

OSHA inspection. (Tr. 173). Before the OSHA inspection, there is no evidence that MPS issued 

disciplinary notices for safety violations to any MPS employee. 

The only other disciplinary records in evidence are the verbal warnings given to workers 

DaCruz and Jorge for being on the steel, not being tied off, on the day of the OSHA inspection. 

Respondent contends that worker Jorge was disciplined for exiting the lift by climbing the lift rails. 

The lift rail climbing safety violation is not stated on the verbal warning worker Jorge received. 

(Tr. 140-41, 170, 190, 313-14, 346-47, 381, 389, 394-95; Ex. R-5(b), pp. 3, 4). Foreman Servizio 

was not disciplined for the fall protection violations observed on the day of the OSHA inspection. 

(Tr. 379; Sec’y Br. 16-17). 

The record reveals that in the period before and during the OSHA inspection, MPS’s safety 

program was lacking, due to lax enforcement of worksite safety. CF & T Available Concrete 

Pumping, Inc., 15 BNA OSHC 2195 (No. 90-329, 1993) (Employer’s lack of safety enforcement 

program established constructive knowledge.). 

Knowledge Summary 

On the day of the OSHA inspection, the fall protection safety rule noncompliance of 

workers DaCruz and Jorge was in plain view, readily observable by worksite Foreman Servizio. 

The fall protection violations were apparent and should have been known to Foreman Servizio. 

Foreman Servizio’s failure to see the open and obvious fall protection violations, that were in plain 

view, is evidence of Foreman Servizio’s lack of reasonable diligence. I find Respondent, through 

Foreman Servizio, had constructive knowledge that workers DaCruz and Jorge were working on 
30

the structural steel at twenty-nine (29) above the ground without using fall protection. See Simplex 

Time Recorder Co. v. Brock, 766 F.2d 575, 589 (D.C. Cir. 1985) (knowledge found where the 

violations cited were “based on physical conditions and on practices . . . readily apparent to anyone 

who looked and indisputably should have been known to management.”). 

 Respondent also failed to exercise reasonable diligence through its lax enforcement of 

worksite safety when safety rules were violated. Respondent’s failure to exercise reasonable 

diligence establishes constructive knowledge. Respondent had two written progressive 

disciplinary policies concerning safety. These policies remained on paper unused regarding 

observed, reported, MPS employee safety violations. Respondent’s lax enforcement of worksite 

safety discloses Respondent failure take measures to prevent the occurrence of violations. 

Classification

The Secretary characterizes the violation of 29 C.F.R. § 1926.760(a)(1) as serious. A 

violation is “serious” if there is a substantial probability that death or serious physical harm could 

have resulted from the hazardous condition. The OSH Act, section 17(k), 29 U.S.C. § 666(k); Nat’l 

Eng’g & Contracting Co. v. OSHRC, 928 F.2d at 767. Workers DaCruz and Jorge were observed 

and photographed working on structural steel at the height of twenty-nine (29) feet, without using 

fall protection. It is not disputed that a fall from the structural steel at twenty-nine (29) feet could 

result in severe injury or death. (Tr. 54-55, 162, 317-18, 321-22, 347). The citation item is 

properly characterized as serious. 

b. Serious citation 1, item 1 – alleged section 5(a)(1) fall hazard violation. 

The Secretary alleges that MPS violated section 5(a)(1) of the OSH Act, the general duty 

clause,39 on or about January 13, 2017, at the inspected worksite, when an employee was exposed 

to fall hazards of up to twenty-nine (29) feet from the top rails of an up-right self-propelled scissors 

lift, model Skyjack SJ 683 ZRT (Skyjack lift), while climbing and standing on the guardrails and 

exiting the lift to access the structure’s upper level where employees were working. 

39 Section 5(a)(1) states “Each employer shall furnish to each of his employees employment and a 

place of employment which are free from recognized hazards that are causing or are likely to cause 

death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1). 
31

The Secretary alleges that one feasible means to abate the hazard, among others, would be 

to utilize a ladder to access the upper working surface, after the steel decking is put in place and a 

Controlled Access Zone is established. The use of a boom lift of proper size and design for the 

terrain40 would also serve this purpose. 

Further, the Secretary alleges that another feasible means to abate the hazard would be to 

access and egress the upper working surface of the steel beam through the access gate of the aerial 

lift after the employee secures himself to a fall protection system. (Tr. 47-51; Complaint, Ex. A; 

Ex. R-16). 

Applicable Law

To prove a violation of the general duty clause, the Secretary must establish that: (1) a 

condition or activity in the workplace presented a hazard, (2) the employer or its industry 

recognized the hazard, (3) the hazard was likely to cause death or serious physical harm, and (4) a 

feasible and effective means existed to eliminate or materially reduce the hazard. See, e.g., 

Arcadian Corp., 20 BNA OSHC 2001, 2007 (No. 93-0628, 2004) (citation omitted). The Secretary 

must also establish that the employer knew, or with the exercise of reasonable diligence could have 

known, of the hazardous condition. Burford's Tree, Inc., 22 BNA OSHC 1948, 1949 (No. 07-

1899, 2010) (citations omitted) aff’d, 413 F. App’x 222 (11th Cir. 2011) (unpublished). 

Respondent does not contest that the actions of a worker, climbing the scissors lift rails to 

access the upper level of the structure, presented a workplace hazard, recognized by Respondent 

and the steel erection industry, that was likely to cause death or serious physical harm. Respondent 

does not contest that the Secretary proved a feasible and effective means existed to eliminate or 

materially reduce the hazard cited. (Resp. Br. 28, 38; Resp. Reply Br. 3). Respondent contends 

that the Secretary has not proved constructive knowledge regarding the general duty clause 

violation. (Resp. Reply Br. 1-3).

The hazardous workplace activity 

 During the OSHA inspection, CO Leone observed worker Jorge climb out of a red Skyjack 

scissor lift. To exit the scissor lift, worker Jorge stepped on the lift’s mid-rail and top rail, and 

40 At the hearing and in post hearing briefing the Secretary did not contend a feasible means of 

abatement includes use of a boom lift. (Tr. 46-51; Sec’y Br. 5-6). 
32

then pulled himself up onto the steel beam, to access the upper level of the structural steel, at 

twenty-nine (29) feet above the ground. When he exited the lift and pulled himself up onto the 

steel beam, worker Jorge was not tied off. CO Leone photographed worker Jorge walking on the 

steel beam not tied off. (Tr. 27-32, 39, 45, 72, 94, 140, 166, 384-85; Ex. C-2, pp. 1, 2, 3). The 

Secretary asserts that a worker climbing the guardrails to enter and exit an aerial lift, exposes the 

worker to fall hazards, and potentially subjects the lift to destabilizing stresses for which it was not 

designed. (Tr. 50). 

Worker Jorge’s actions of climbing the lift’s mid-rail and top rail to exit the scissor lift to 

access the upper level of the structural steel, at twenty-nine (29) feet above the ground, is a 

hazardous activity. 

Hazard recognition 

There is no dispute, a worker climbing the rails of a scissor lift, raised to the height of 

approximately twenty-nine (29) feet above ground, is a hazard likely to cause death or serious 

physical harm. The MPS Safety Program in evidence does not set forth safety rules regarding 

scissor lifts, generally, or exiting scissor lifts, specifically. (Ex. R-1). MPS recognizes that 

standing or climbing lift railings exposes the worker to a fall hazard. This conduct is improper. 

(Tr. 136-40; Resp. Br. 9, 39). 

Foreman Servizio testified that MPS has a rule that workers are not to climb the rails of a 

lift. A worker climbing the lift rails could slip and fall. Throughout Foreman Servizio’s 

employment with MPS, this rule has been active. (Tr. 334-35, 34, 360; Resp. Br. 9). 

The manufacturer’s Skyjack Operating Manual, in the section entitled Safety Precautions, 

includes a pictogram of an individual climbing on the lift’s guardrails, covered by the universal 

NO sign, a circle with a crossline. The accompanying text states: “DO NOT sit, stand or climb 

on the guardrails.” (Ex. C-4, p. 2, manual p. 15; Tr. 45, 48-49, 137-38). 

Mr. Pimental testified that MPS employees receive CRM lift training that includes the 

Skyjack Operating Manual. Foreman Servizio testified he believes the MPS rule that workers are 

not to climb the rails of a lift was adopted from the lift manufacturer’s operating manual. (Tr. 137-

39, 334-35; Ex. C-4; Attachment B; Resp. Br. 20). 

The construction industry also recognizes the hazard of climbing the mid-rail and top rail 

to exit an aerial lift. The American National Standards Institute (ANSI) standard for self-propelled 
33

elevating work platforms, ANSI/SIA A92.6-2006, also instructs that the railings of an aerial 

platform should not be climbed.41 

Hazard likely to cause death or serious physical harm

There is no dispute, a worker climbing the rails of a scissor lift, raised to the height of 

approximately twenty-nine (29) feet above ground is a hazard likely to cause death or serious 

physical harm. Respondent acknowledged the highest risk in steel erection is falls. Foreman 

Servizio testified that the MPS rule that workers are not to climb the rails of a lift is very important, 

because if a worker falls off the steel, the worker could be hurt or possibly die. (Tr. 162, 347; Resp. 

Br. 38). 

Feasible abatement of the hazard 

Respondent does not contest that the Secretary has proved a feasible and effective means 

existed to eliminate or materially reduce the hazard cited. (Resp. Br. 28, 38). 

The Secretary proposes two feasible means to abate the hazard presented by a worker 

climbing and standing on the lift guardrails to exit the lift to access the structure’s upper level 

where employees were working. First, a feasible means to abate the hazard would be to utilize a 

ladder to access the upper working surface. (Tr. 47, 51; Complaint Ex. A). It is not disputed that 

use of a ladder is a feasible means to abate the hazard. 

Second, the Secretary asserts another feasible means to abate the hazard would be to access 

and egress the upper working surface of the steel beam through the access gate of the aerial lift 

after the employee secures himself to a fall protection system. CO Leone testified that the lift 

could be repositioned, elevated to the working surface level, to enable the worker to exit the lift 

through the lift gate. (Tr. 46-51; Sec’y Br. 10; Complaint Ex. A.). This alternative method to abate 

41 ANSI/SIA A92.6-2006, Section 8.10 Operator warnings and instruction. (9) Personnel 

footing. 

Personnel shall maintain firm footing on the platform floor while working thereon. 

Climbing by occupants on the midrail or toprail of the aerial platform is prohibited. 

The use of planks, ladders, or any other devices on the platform for achieving 

additional height or reach is prohibited. 

(Tr. 45-46; Ex. C-3). 
34

the hazard is rejected, as it is contrary to the safety precautions stated in the manufacturer’s Skyjack 

Operating Manual.42 

Use of a ladder to access the upper level of the structure is a feasible means to abate the 

hazard. It would materially decrease the fall hazard presented by the worker accessing the 

structure’s upper level by climbing the lift’s rails. 

Knowledge of the hazardous workplace activity 

The Secretary contends that MPS had constructive knowledge of the violative conduction. 

In ignoring readily observable hazards, Foreman Servizio had constructive knowledge of the fall 

hazard to which worker Jorge was exposed. (Sec’y Br. 10-11). 

Respondent contends that the Secretary has not proved constructive knowledge regarding 

the general duty clause violation. Respondent’s contends that the violation occurred in a matter of 

seconds and could not have been known to the foreman. (Resp. Br. 3, 9; Resp. Reply Br. 1-3). 

During the OSHA inspection, while standing on the front platform of the office trailer, CO 

Leone observed worker Jorge climb out of a red Skyjack scissor lift. To exit the red scissor lift, 

worker Jorge stepped on the lift’s mid-rail and top rail, and then pulled himself up onto the steel 

beam. In the time it took CO Leone to photograph worker Jorge, he was on the steel, with a harness 

and lanyard in hand. On the steel beam, he was not tied off. CO Leone photographed worker Jorge 

on the steel beam, after he climbed out of the lift at 11:21 a.m. (Tr. 27-32, 39, 45, 72, 94, 166; Ex. 

C-2, pp. 1, 2, 3; Ex. C-5). 

42 The Skyjack Operating Manual includes Safety Precautions that entry and exit from the aerial 

platform should only be done from the ground when the aerial platform is in the fully retracted 

position. The Manual states: 

! Warning.

Entering and Exiting the aerial platform should only be done using the 3 point contact 

system.

• Use only equipped access openings and ladders. 

• Enter and exit only when the elevating aerial platform is in the fully retracted 

position. 

• Do Use Three Point Contact To Enter And Exit The Platform. Enter and 

exit the platform from the ground only. Face the machine when entering or 

exiting the platform. 

(Ex. C-4, p. 3, manual p. 16).
35

MPS did not have actual knowledge of the worker Jorge’s hazardous conduct in climbing 

the lift’s rails. Mr. Pimental and Foreman Servizio had never seen an employee climb out of a lift. 

(Tr. 43-44, 360). 

Whether an employer exercises reasonable diligence involves the consideration of several 

factors, “including the employer’s obligation to have adequate work rules and training programs, 

to adequately supervise employees, to anticipate hazards to which employees may be exposed, and 

to take measures to prevent the occurrence of violations.” Precision Concrete Constr., 19 BNA 

OSHC at 1407. Constructive knowledge may be established from an employer’s failure to exercise 

reasonable diligence in inspecting the worksite. Evaluating the reasonable diligence factors, the 

Commission considers evidence of the violation’s duration when determining whether the 

employer could have known of the conditions with the exercise of reasonable diligence. See 

Thomas Indus. Coatings, Inc., 23 BNA OSHC 2082, 2085 (No. 06-1542, 2012); Kaspar Wire 

Works, Inc., 18 BNA OSHC at 2196-97; Ragnar Benson, Inc., 18 BNA OSHC 1937, 1940 (No. 

97-1676, 1999). 

Here, one worker’s conduct climbing the lift’s rails was very brief. Considering the 

extremely short time during which this violative conduct took place, I find that evidence of what 

MPS’s foreman saw or could have seen, with the exercise of reasonable diligence, does not 

establish MPS’s knowledge of the lift rail exit climbing alleged as a general duty clause violation. 

Therefore, citation 1, item 1, is vacated. 

Respondent’s Affirmative Defense – Unpreventable Employee Misconduct. 

Respondent asserts the affirmative defense of unpreventable employee misconduct to each 

alleged violation. To establish this affirmative defense of unpreventable employee misconduct, 

“an employer must demonstrate that it (1) established a work rule to prevent the reckless behavior 

and / or unsafe condition from occurring, (2) adequately communicated the rule to its employees, 

(3) took steps to discover incidents of noncompliance, and (4) effectively enforced the rule 

whenever employees transgressed it.” P. Gioioso & Sons, 115 F.3d 100, 109 (1st Cir. 1997)

(Gioioso I) (citations omitted); E.g., Manganas Painting Co., 21 BNA OSHC 1964, 1997 (No. 94-

0588, 2007). 

The First Circuit recognized the “OSH Act requires that an employer do everything 

reasonably within its power to ensure that its personnel do not violate safety standards” and that 
36

the employer must prove the affirmative defense of unpreventable employee misconduct to not be 

liable for the violative conduct. Modern Cont’l. Constr. Co., Inc. v. OSHRC, 305 F.3d 43, 51 (1st 

Cir. 2002) citing Gioioso (I), 115 F.3d at 109. 

The factors illustrating Respondent’s constructive knowledge of the worksite hazardous 

condition also show that Respondent’s unpreventable employee misconduct defense fails. 

Burford’s Tree, Inc., 22 BNA OSHC at 1951-52 (the factors for evaluating constructive knowledge 

are the same factors for evaluating the unpreventable employee misconduct defense.

Respondent contends, if the Secretary establishes any violation, it was the result of 

unpreventable / unforeseeable employee misconduct. 43 (Resp. Br. 8-9, 20, 22-27, 34). 

The Secretary contends that Respondent’s unpreventable employee misconduct defense 

fails because Respondent did not establish that Foreman Servizio took sufficient steps to discover 

the safety rule noncompliance of workers DaCruz and Jorge. Respondent’s defense also fails 

because Respondent did not establish that MPS effectively enforced its safety rules when 

employees transgressed the rules. (Sec’y Br. 14-15).44 

MPS’s had fall protection rules designed to prevent the violations cited. The MPS fall 

protection rules were communicated to employees during CRM training sessions, new employee 

orientation, morning meetings with the jobsite foreman, and Toolbox Talks. 

Respondent failed to take steps to discovery incidents of safety rule noncompliance 

As described above, in the discussion regarding Respondent’s constructive knowledge of 

the violation of standard 29 C.F.R. § 1926.760(a)(1), MPS’s worksite supervision of the employees 

on the Upper Baby project was not adequate. On the day of the OSHA inspection, the safety rule 

noncompliance of workers DaCruz and Jorge was in plain view, readily observable by worksite 

Foreman Servizio. The fall protection violations were apparent and should have been known to 

Foreman Servizio. Foreman Servizio’s failure to see the open and obvious fall protection 

43 Regarding citation 1, item 1, the general duty clause violation, Respondent contends that it is 

the Secretary’s burden to prove Respondent’s safety program was inadequate. (Resp. Br. 22, 27-

29, 38-39; Resp. Reply Br. 2, 4). 

44 The Secretary does not dispute that Respondent had safety rules that were communicated to 

Respondent’s employees. (Sec’y Br. 15 n.1). 
37

violations, that were in plain view, is evidence of Foreman Servizio’s failure to take steps to 

discover incidents of safety rule noncompliance.

Also, it appears Foreman Servizio did not recognize that workers DaCruz and Jorge 

working on the steel at twenty-nine (29) feet without being tied off was a safety rule violation. 

Foreman Servizio incorrectly believed that the worker who was welding was “connecting” and the 

fall protection requirement to be being tied off was not required below thirty (30) feet. Failure to 

properly monitor and enforce the steel erection fall protection rules on this worksite also discloses 

a failure to take steps to discover rule noncompliance. 

CRM conducts unannounced safety inspections of MPS’s larger projects to check MPS 

employee compliance with the safety rules. Review of the few, select, CRM Work Site Safety 

Inspection Reports Respondent offered into evidence discloses serious safety violations or safety 

concerns observed by CRM. There is no record of MPS issuing discipline to the foremen or 

workers observed violating the safety rules. There is no evidence of safety program enforcement 

through MPS’s progressive disciplinary policies. 

It is notable that CRM inspected MPS’s Upper Baby worksite twice, once before the OSHA 

inspection and once after. (Tr. 391). The Upper Baby CRM Work Site Safety Inspection Reports 

would be most relevant to the fact finding in this case. Respondent did not introduce these reports 

into evidence. 

In the year before the Upper Baby project, Mr. Pimental had limited opportunity to step 

away from his office responsibilities and make worksite visits. (Tr. 117, 143, 240). This potential 

avenue of safety enforcement was not achieved or effective. 

Respondent contends that the unpreventable employee misconduct defense succeeds where 

the violative conduct is truly idiosyncratic, implausible, and unforeseeable. (Resp. Br. 3, 7, 26, 31, 

38; Resp. Reply Br. 3). Respondent had a safety rule requiring fall protection when working at 

fifteen (15) above a lower level. Respondent provided formal and informal fall protection training 

to employees. That said, Respondent also knew that serious fall protection violations previously 

had been observed on one of its worksites inspected by CRM. Respondent failed to enforce the 

fall protection safety rule and discipline the foreman and workers observed to have engaged in the 

unsafe conduct. The fall hazards cited in this case were known and foreseeable by Respondent. 

The conduct of workers DaCruz and Jorge was foreseeable. It was not idiosyncratic. 
38

In summary, Foreman Servizio failed to effectively monitor MPS’s Upper Baby worksite 

to discovery worker noncompliance with MPS fall protection safety rules. On the OSHA 

inspection day, workers DaCruz and Jorge were observed and photographed by CO Leone walking 

on steel beams at a height of twenty-nine (29) feet above the ground level without being tied off 

to an anchor point. Obvious safety violations were in plain view had Foreman Servizio only 

looked. Foreman Servizio’s safety oversight and supervision was inadequate. 

Respondent did not effectively enforce its safety rules when violations of the rules were 

discovered 

The Secretary contends that MPS’s disciplinary program was haphazard and ineffective in 

its general application and inconsistent in safety rule enforcement when safety violations were 

discovered. (Sec’y Br. 17).

Respondent claims it used a progressive disciplinary system for when employees did not 

follow the safety rules. (Resp. Br. 21). The record shows otherwise. 

Respondent had two written progressive disciplinary policies concerning safety. These 

policies remained on paper unused regarding observed, reported, MPS employee safety violations. 

MPS had a progressive disciplinary policy regarding safety violations included in the MPS Safety 

Program. (Ex. R-1; Ex. R-5(a); Ex. R-44). There is no evidence that an employee was disciplined 

for a safety violation, pursuant to this disciplinary policy, prior to the OSHA inspection. 

MPS had a different progressive discipline policy regarding MPS rules, including safety 

rules, set forth in the June 11, 2015 letter from Mr. Pimental to employees. (Ex. R-35(a), pp. 3, 4; 

Ex. R-35(b), pp. 3, 4; Ex. R-35(c), pp.4, 5). There is no evidence that an employee was disciplined 

for a safety violation, pursuant to this disciplinary policy, prior to the OSHA inspection. (Ex. R5(b), pp. 1, 2 (verbal warnings issued to foremen); Ex. R-35(a), pp. 3, 4). There is no evidence 

either MPS progressive disciplinary policy was used to enforce safety violations prior to the OSHA 

inspection. 

Review of the few, “select,” CRM Work Site Safety Inspection Reports Respondent 

offered into evidence disclose serious safety violations or safety concerns observed by CRM. The 

CRM September 2015 inspection report of the MPS worksite at Herb Chambers Lincoln Volvo 

notes serious fall protection violations. MPS did not discipline the worksite foreman or workers 

observed engaging in the serious fall protection safety violations. (Tr. 300, 377-78; Ex. R-13, pp. 

1, 4). Foreman Servizio was unaware of these fall protection violations. Communication by 
39

Respondent to foremen and employees regarding safety breaches was lacking. The opportunity to 

learn from the safety violation and promote safety compliance in the future was absent. (Tr. 377-

78). 

The only other disciplinary records in evidence are the verbal warnings given to workers 

DaCruz and Jorge for being on the steel, not being tied off, on the day of the OSHA inspection. 

(Ex. R-5(b), pp. 3, 4). As these verbal warnings were issued in response to fall hazards observed 

by the compliance office during the OSHA safety inspection, they are accorded limited weight 

when evaluating MPS’s enforcement of its worksite safety rules. Foreman Servizio was not 

disciplined for the fall protection violations observed on the day of the OSHA inspection. 

In the period before and during the OSHA inspection, MPS did not take adequate steps to 

discover violations of MPS’s fall protection safety rules, and MPS did not effectively enforce the 

safety rules when violations were discovered. For the reasons set forth above, regarding 

Respondent’s constructive knowledge of the violation of standard 29 C.F.R. § 1926.760(a)(1), 

Respondent’s unpreventable employee misconduct defense fails. Respondent failed to meet its 

proof burden regarding this affirmative defense. 

Penalty Determination 

Under section 17(j) of the OSH Act, the Commission has the authority to assess civil 

penalties for the violation of citations. 29 U.S.C. § 666(j). In assessing penalties, the Commission 

is instructed to give due consideration to the size of the employer’s business, the gravity of the 

violation, the employer’s good faith, and its history of previous violations. Compass Envtl., Inc., 

23 BNA OSHC 1132, 1137 (No. 06-1036, 2010) aff’d, 663 F.3d 1164 (10th Cir. 2011). The gravity 

of the violation is generally afforded greater weight in assessing an appropriate penalty. Trinity 

Indus., 15 BNA OSHC 1481, 1483 (No. 88-2691, 1992). 

Regarding citation 1, item 2, CO Leone testified that the gravity assessed was high because 

of the fall hazards to which the employees were exposed and the severity of the injuries that could 

occur. A fall from the structural steel at twenty-nine (29) feet above ground could have resulted 

in death or permanently disabling injuries. The probability was greater as the two exposed workers 

DaCruz and Jorge walked and worked on the steel beams, a very small working surface, without 

fall protection. The workers were exposed to the hazard throughout the time CO Leone was 

present at the worksite photographing the workers. The gravity-based penalty for this citation was 
40

$12,675.00. Respondent was given a sixty (60) percent penalty reduction because of the 

employer’s size. The Secretary proposed penalty was $5,070.00. (Tr. 45, 53-55; Ex. R-9). 

Regarding history, although Respondent had not been previously cited, there is no evidence 

of past OSHA inspections. (Tr. 80-81, 94-95). Therefore, Respondent’s history warrants neither 

an increase nor a decrease in the penalty amount. See M.V.P. Piping Co., Inc., 24 BNA OSHC 

1350, 1352 (No. 12-1233, 2014) (finding that the history factor did not support a low penalty when 

the employer had not been inspected within the past five years). 

In calculating the penalty, Respondent did not receive credit for good faith. (Tr. 80-82, 95; 

See Tr. 212-13; R-34). I find that the high gravity of this citation item warrants that factor receiving 

the most weight. Considering each statutory factor, a penalty of $5,070.00 is affirmed for citation 

1 item 2. 

In Summary 

1. MPS violated steel erection standard 29 C.F.R. § 1926.760(a)(1). 

2. MPS with the exercise of reasonable diligence could have known of the hazardous 

worksite condition violative of the standard. 

3. Standard 1926.760(a)(1) was violated. The violation was not due to unpreventable 

employee misconduct. 

4. MPS did not violate the general duty clause, section 5(a)(1) of the OSH Act. 

5. MPS did not know and with the exercise of reasonable diligence could not have known 

of the hazardous worksite condition violative of the general duty clause. 

6. The general duty clause was not violated. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The foregoing decision constitutes the findings of fact and conclusions of law in 

accordance with Rule 52(a) of the Federal Rules of Civil Procedure. 
41

ORDER

Based on the foregoing decision, it is hereby ORDERED: 

Citation 1, item 2, alleging a serious violation of 29 C.F.R. § 1926.760(a)(1) is Affirmed 

and a penalty of $5,070.00 is assessed.

Citation 1, item 1, alleging a serious violation of the general duty clause is Vacated. 

SO ORDERED. 

 /s/ Carol A. Baumerich 

Carol A. Baumerich

Judge, OSHRC

Dated: October 13, 2020 

 Washington, DC
MPS Products Corp. # 17-0372

OSHA Inspection # 1202721

Inspected worksite: 276 Weymouth Street, Rockland, MA 02370

ATTACHMENT A – EXHIBIT SUMMARY

1

Complainant’s 

Exhibits

Description Received Notes

C-1 OSHA Notice of Alleged Safety or Health 

Hazards. Four pages.

Tr. 18

C-2 OSHA Inspection Photographs. Eight pages. Tr. 43

C-3 ANSI/SIA A92.6 – 2006. Self-Propelled 

Elevating Work Platforms: Standards 8.7 – 

8.10. Three pages. 

Tr. 52

C-4 SKYJACK Operating Manual, including model 

6832, pages 15 and 16. Three pages.

Tr. 52

C-5 Worksite drawing. One page. Tr. 53

Respondent’s 

Exhibits

Description Received Notes

R-1 Select pages from MPS Products Inc. Safety 

Program, May 2014. Pages 2, 28, 45, and 75. 

Five pages. 

Tr. 137

R-4 Guardian Fall Protection Performance Safety 

Gear. Product Name: Beamer 2000. 

Instruction Manual. Consistent with the 

page numbers in the Table of Contents, 

there are 14 pages, with the Manual Cover 

unnumbered. There is a blank page 

between pages 5 and 6. Sixteen pages.

Tr. 167

R-5(a) MPS Disciplinary Policy forms signed on 

07.12.17 by Frank Coughlin; Johnathan Shea; 

Waverson Goml; Sebastiao P. dos Santos; 

Brandon Seibert. Three pages. 

Tr. 172

R-5(b) Records of MPS verbal warnings: 

p. 1 - Foreman Riccardo [Servizio] on 

11.14.16 (no hard hat). 

p. 2 – Foreman Jose [dos Santos Pais] on 

10.05.16 (retractable lanyard not hooked 

while in boom lift).

Tr. 172; 

313-14
MPS Products Corp. # 17-0372

OSHA Inspection # 1202721

Inspected worksite: 276 Weymouth Street, Rockland, MA 02370

ATTACHMENT A – EXHIBIT SUMMARY

2

p. 3 – Marcello [DaCruz] on 01.13.17 (not 

tying off).

p. 4 – Romero [Jorge] on 01.16.17 (not tying 

off). Four pages. 

R-9 OSHA Violation Worksheet, Citation 1, Item 

2, Standard 1926.760(a)(1). Two pages.

Tr. 181

R-10(a) Contractors Risk Management, Inc. - Training 

Seminar – Attendance Sheets, for training at 

MPS, all post-date the OSHA inspection 

(dates 02.06.17; 02.24.17; 08.28.17; 

09.20.17; and 10.04.17). Five pages.

Tr. 241

R-13 Project Work Site Safety Inspection Reports 

for two MPS Products work sites. Four

pages.

Tr. 185, 

218

Note: Ex. R-47 was 

rejected as a 

DUPLICATE of the first 

two pages of Ex. R-13. 

(Tr. 297, 300, 408).

Also: Ex. R-47, on 

occasion in the record, 

is incorrectly 

referenced as Ex. R-48. 

(Tr. 376-77, 408).

R-13, pages -1 

and 4. 

Project Work Site Safety Inspection Report 

for MPS Products Job Site: Herb Chambers 

Lincoln Volvo, date: 2015-09-17. Site 

Foreman: Shawn Hyselle. NOTE: Fall 

protection hazards observed for John, 

Sebastian, and Shawn Hyselle as foreman. 

Tr. 185, 

218

R-13, pages -2 

and 3. 

Project Work Site Safety Inspection Report 

for MPS Products Job Site: Herb Chambers 

Lincoln Volvo, date: 2015-08-20. Site 

Foreman: Shawn Hyselle.

Tr. 185, 

218

R-14 MPS Products Corp. Transactions by 

Account, dated 11.22.17. Received in 

evidence - Closing Entries for 2015 and 2016. 

One page. 

Tr. 179

R-16 OSHA Violation Worksheet, Citation 1, Item 

1, Section (5)(a)(1), general duty clause. 

Three pages.

Tr. 186-

87.
MPS Products Corp. # 17-0372

OSHA Inspection # 1202721

Inspected worksite: 276 Weymouth Street, Rockland, MA 02370

ATTACHMENT A – EXHIBIT SUMMARY

3

R-20(a) Contractors Risk Management Work Site 

Safety Inspection Report. MPS Products. 

Work site: Mansfield 620 West Street. Date: 

2016-12-06. Supervisor: Ricci Servizio. Five

pages. 

Tr. 197-

98; 218

R-20(b) Contractors Risk Management Work Site 

Safety Inspection Report. MPS Products. 

Work site: 141 Needham St. Date: 2016-12-

13. Supervisor: Jose [dos Santos Pais]. Six 

pages. 

Tr. 197-

98, 218, 

312-13.

R-26 Undated Training Record: Toolbox Talk. 

Accident / Incident Reporting. One page.

Tr. 203-

04

R-27 Undated Training Record: Toolbox Talk. 

Listening Safety. One page.

Tr. 205

R-29 Undated Training Record: Toolbox Talk. 

What Does an Accident Cost? One page. 

Tr. 207

R-30 Undated Training Record: Toolbox Talk. 

Shop Safety. One page.

Tr. 210

R-31 Undated Training Record: Toolbox Talk. 

Recognizing Unsafe Conditions. One page.

Tr. 210

R-32 Undated Training Record: Toolbox Talk. 

Why Accidents Occur. One page. 

Tr. 210

R-33 OSHA Compliance Officer handwritten 

inspection notes. Two pages. 

Tr. 98-99, 

407-08.

R-34 OSHA Letter to MPS Products, dated 

01.24.17. Two pages.

Tr. 216

R-35(a) Sabastian dos Santos training records. MPS 

Products Corporation 06.11.15 letter signed 

by Sabastian dos Santos. MPS Products 

Safety and Health Program Certification. 

Sabastian dos Santos. Dated: 06.12.17. Five

pages. 

Tr. 227-

28, 234. 

See Training Summary. 

Attachment B. 
MPS Products Corp. # 17-0372

OSHA Inspection # 1202721

Inspected worksite: 276 Weymouth Street, Rockland, MA 02370

ATTACHMENT A – EXHIBIT SUMMARY

4

R-35(b) Marcello DaCruz training records. MPS 

Products Corporation 06.11.15 letter signed 

by Marcello DaCruz. MPS Products Safety 

and Health Program Certification. Marcello 

DaCruz. Dated: [06.12.17 (Tr. 281)]. Five 

pages. 

Tr. 231, 

234.

See Training Summary. 

Attachment B. 

R-35(c) Riccardo Servizio Hoisting Engineer License; 

training records. MPS Products Corporation 

06.11.15 letter signed by Riccardo Servizio. 

MPS Products Safety and Health Program 

Certification. Riccardo Servizio. Dated: 

06.12.17. Seven pages.

Tr. 234 See Training Summary. 

Attachment B. 

R-36 Contractors Risk Management, Armand 

Bisson, Safety Specialist, letter to MPS 

Products, dated 01.07.15. Two pages. 

Tr. 269, 

409

R-39 Copies of multiple employee training cards. 

Five pages. 

Tr. 309, 

409.

See Training Summary. 

Attachment B. 

[Some cards also 

appear in Ex. R-69.]

Note: Ex. R-59 was 

rejected as a 

DUPLICATE of R. 39, 

with reordered pages. 

(Tr. 303-04)

R-40 Training Record: Toolbox Talk. Topic C001: 

Construction Safety Guidelines. Worksite: 

Uppa Baby. Instructor: Ricci Servizio. Date: 

01.11.17. One page.

Tr. 270-

71, 278, 

408-09.

R-41 Contractors Risk Management Work Site 

Safety Inspection Report. NEI General 

Contracting. [The worksite general 

contractor, not MPS Products] (Tr. 286-87). 

Site: Parcel 25 Project #16-10-0001. Date: 

2016-11-16. Supervisor: The NEI 

Superintendent. Four pages. 

Tr. 291, 

409
MPS Products Corp. # 17-0372

OSHA Inspection # 1202721

Inspected worksite: 276 Weymouth Street, Rockland, MA 02370

ATTACHMENT A – EXHIBIT SUMMARY

5

R-42 Chelmsford Crane Service, Inc. Invoice to 

MPS Products. Typed Invoice date: 

01.21.17. Initial handwritten Invoice dated: 

01.09.17. Job location: Uppa Baby. 276 

Weymouth Street, Rockland, MA. Bill for 

crane and operator. Hook Work. Two pages. 

Tr. 403,

408

R-44 MPS Products Safety and Health Program 

Certification. Three pages. Detailed below.

Tr. 282, 

409

R-44, page 1 MPS Products Safety and Health Program 

Certification. Riccardo Servizio. Dated: 

06.12.17. 

DUPLICATE. See Ex. R35(c) p. 7. 

R-44, page 2 MPS Products Safety and Health Program 

Certification. Marcello DaCruz. Dated: 

[06.12.17 (Tr. 281)]. 

DUPLICATE. See Ex. R35(b) p. 5. (Tr. 282).

R-44, page 3 MPS Products Safety and Health Program 

Certification. Romiro Jorge. Dated: 06.12.17. 

R-57 Contractors Risk Management Work Site 

Safety Inspection Report. MPS Products. 

Work site: East Pier. Date: 2017-01-05. 

Supervisor: Ricci. Three pages. 

Tr. 295, 

409

R-69 Copies of multiple employee training cards. 

Five pages. 

Tr.309, 

409

See Training Summary. 

Attachment B. 

[Some cards also 

appear in Ex. R-39].

Note: Ex. R-50 and Ex. 

R-68 were rejected as 

a DUPLICATES of Ex. R69, with reordered 

pages. (Tr. 303-04)

R-70 MPS Products Corp. Discipline Policy for 

violation of safety rules and procedures. 

Five pages. 

Tr. 368, 

409.

Includes Disciplinary 

Policy dated May 2014. 

See Ex. R-5(a). (Tr. 351-

53).
MPS Products Corp. #17-0372 OSHA Inspection # 1202721

Inspected worksite: 276 Weymouth Street, Rockland, MA 02370

ATTACHMENT B – SUMMARY OF CRM TRAINING CARD RECORDS

(Training prior to OSHA Inspection 01.13.17). Ex. R-35 (a)(b)(c), Ex. R-39, and Ex. R-69.

Trainer: Armand Bisson, Contractors Risk Management (All cards). (Tr. 238, 311-12).

Employee Boom Lift 

Genie S-65 Per 

OSHA 

1926.453 and 

ANSI A92

Date: 06.23.14

Scissor Lift JLG 

3394 RT Per 

OSHA 

1926.451, 

1926.452 (w) 

& 1926.454

Date: 06.23.14

Subpart R 

OSHA for 

Controlled 

Decking Zone 

Training 

Date: 

06.24.14

Connector 

Safety Training 

(2 hours)

Date: 03.30.16

Fall Protection 

Training 

(2 hours)

Date: 03.30.16

Danny Aimole x

Renato Barbosa x x

Fabio Bolarinho x x x x

John Buckley x x

Marcelo DaCruz x x Marcello 

Decosta

Marcello Cruz Marcello Cruz

Jose Dos Santos Paris Jose Dos 

Santos Pais

Jose Dos 

Santos Paris

Jose Dosparis Jose Dosparis

Sebastio Dos Santos x x Sebastian Dos 

Santos

Sebastian Dos 

Santos

Chad Gagnon x

Shawn Hyselle x

Thomas Jayroe x

Romiro Jorge x x x

Garrett Ledwell x x

Robert Ledwell x x

Shawn McGonnigal x

Michael Pimental x x Michael 

Pimento

Patrick J. Ruane x x

Brandon Seibert x

Riccardo Servizio * x x x x x

Jonathan Shea x x

Marco Soares x

Joseph Tobin x

Adam Wetson x

• Riccardo Servizio completed additional training with Contractors Risk Management: 

National Safety Council (NSC) First Aid Course, dated 08.22.16, and NSC CPR and 

AED Course, dated 08.18.16. Ex. R-35(c).