United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

1924 Building – Room 2R90, 100 Alabama Street SW 

Atlanta, Georgia 30303-3104

atlantaoshrcjudges@oshrc.gov

Secretary of Labor,

 Complainant,

 v. OSHRC Docket No. 15-0693

Durco Contractors, Inc., formally J. R. Durham 

d/b/a Durco Contractors, Inc.,

 

 Respondent.

Appearances: 

 

Yasmin K. Yanthis-Bailey, Esquire, U.S. Department of Labor, Office of the Solicitor, Atlanta, Georgia 

For the Secretary 

 No representative appeared for the Respondent 

BEFORE: Administrative Law Judge Sharon D. Calhoun 

DECISION AND ORDER 

Durco Contractors, Inc., (Durco)1 contests a six-item Citation and Notification of Penalty 

issued to it by the Occupational Safety and Health Administration (OSHA) on March 17, 2015. 

The Citation resulted from an inspection conducted by compliance safety and health officer 

(CSHO) James Oglesby in Jackson, Mississippi, in response to a formal complaint (Tr. 19). The 

worksite was a historic hotel, the Edison Walthall, which was being renovated and converted into 

 

1

 OSHA originally issued the Citation and Notification of Penalty to “J.R. Durham, dba Durco Contractors, Inc.,” on 

March 17, 2015. Durco’s articles of incorporation list James Randall Durham Senior as its registered agent and 

incorporator (Exh. C-12). In the notice of contest letter received by the Commission on April 17, 2015, Mr. Durham 

stated, “James R. Durham is not doing business as Durco Contractors, Inc. The Job located at the Edison Walthall 

was a job that was ran [sic] by Durco, Inc.” In response to this information, the Secretary issued an Amended 

Citation and Notification of Penalty on April 22, 2015, citing the business name set forth in the Articles of 

Incorporation. The Amended Citation states: 

The following item(s), as classified in the attached citation, is (are) amended as follows: 

(Establishment name corrected to: Durco Contractors, Inc.). 

(Exh. C-1) On April 28, 2015, the Commission docketed the case under respondent’s name as originally cited by 

OSHA. The Secretary and the Commission continued to caption some case documents with “J.R. Durham, dba 

Durco Contractors, Inc.” The Court now amends the record to reflect the correct name of respondent is “Durco 

Contractors, Inc.” See John Hill, 7 BNA 1485, 1486 (No. 78-0047, 1979) (“We find that the Secretary’s attempt to 

more accurately identify the employer in the complaint was a mere technical misnomer which did not affect the 

nature of the proceedings or the allegations against the employer.”). 
2 

an apartment building. Durco was hired to perform the renovation (Tr. 20). 

 The Citation alleges Durco committed violations of six Construction Standards of the 

Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (Act). Item 1 of the Citation 

alleges a serious violation of 29 C.F.R. § 1926.25(a) for failure to keep debris clear from stairs. 

The Secretary proposes a penalty of $2,040.00 for Item 1. Item 2 alleges a serious violation of 

29 C.F.R. § 1926.1926.56(a) for failure to provide adequate lighting for an interior stairway. 

The Secretary proposes a penalty of $2,400.00 for Item 2. Item 3 alleges a serious violation of 

29 C.F.R. § 1926.403(i)(2) for failure to guard against accidental contact with energized 

electrical wires. The Secretary proposes a penalty of $1,700.00 for Item 3. Item 4 alleges a 

serious violation of 29 C.F.R. § 1926.405(g)(1)(iii) for using an extension cord as a substitute for 

the fixed wiring of a structure. The Secretary proposes a penalty of $2,000.00 for Item 4. Item 5 

alleges a serious violation of 29 C.F.R. § 1926.602(c)(1)(vii) for permitting an unauthorized 

person to ride on a powered industrial truck. The Secretary proposes a penalty of $1,700.00 for 

Item 5. Item 6 alleges a serious violation of 29 C.F.R. § 1926.602(d) for failure to certify each 

operator of a forklift had been adequately trained and evaluated. The Secretary proposes a 

penalty of $2,800.00 for Item 6. 

 Durco timely contested the Citation (Tr. 12). The Chief Judge of the Commission 

designated this case for Simplified Proceedings and assigned the case to the undersigned on May 

21, 2015. The parties entered into preliminary settlement negotiations, with Mr. Durham 

representing Durco pro se. Mr. Durham provided a post office box address, an email address, 

and a telephone number where he could be contacted. At some point midsummer of 2015, Mr. 

Durham broke off all contact with the Secretary’s counsel and failed to return her email 

messages and telephone calls. Mr. Durham failed to appear for the scheduled March 28, 2016, 

prehearing telephone conference and failed to file a prehearing statement as ordered by the Court 

(Tr. 9-10). Commission Rule 6 provides: 

Every pleading or document filed by any party or intervenor shall contain the 

name, current address and telephone number of his representative or, if he has no 

representative, his own name, current address and telephone number. Any change 

in such information shall be communicated promptly in writing to the Judge, or 

the Executive Secretary if no Judge has been assigned, and to all other parties and 

intervenors. A party or intervenor who fails to furnish such information shall be 

deemed to have waived his right to notice and service under these rules.

Mr. Durham never provided updated information indicating he had changed his telephone 

number, his email, or his post office box address. Mr. Durham had responded previously to 
3 

communications transmitted via all three of these channels.2 Despite repeated attempts by 

telephone, regular mail, and email, neither the Court nor counsel for the Secretary has been able 

to get a response from Durco since June 30, 2015.3 The Court and the Secretary provided Durco 

with adequate notice at each step of this proceeding. 

The Court scheduled a hearing in this matter for April 1, 2016. Because it seemed likely, 

based on his past conduct, Mr. Durham would not appear, the Court held the hearing 

telephonically. The Secretary’s counsel and the Court were located in our respective offices in 

Atlanta, Georgia, and the court reporter and CSHO Oglesby were located in the Hinds County 

Courthouse in Jackson, Mississippi. Mr. Durham did not, in fact, appear and the hearing 

proceeded without representation for Durco (Tr. 9-10). CSHO Oglesby was the only witness 

who testified at the hearing. 

 For the reasons that follow, Item 1 of the Citation is VACATED, and Items 2 through 6 

of the Citation are AFFIRMED as serious and a total penalty of $10,600.00 is assessed. 

Background 

 In response to a formal complaint, CSHO Oglesby conducted an inspection of the hotel 

worksite in Jackson, Mississippi.4 Durco had begun working on the site in early October of 2014 

(Tr. 21). Durco “was conducting demolition work, meaning they were gutting the hotel. The 

hotel was going to be converted into apartments, so they [were] taking out the walls, the 

furniture, the wiring, just basic demolition type work.” (Tr. 20-21) 

CSHO Oglesby first arrived at the worksite on November 24, 2014. He held an opening 

conference with Mr. Durham, who identified himself as “the superintendent and also the owner 

of the company.” (Tr. 21) CSHO Oglesby provided Mr. Durham with a copy of the formal 

complaint. Mr. Durham disputed the allegations in the complaint. CSHO Oglesby conducted a 

 

2

 Counsel for the Secretary forwarded a copy of an email thread between her and Mr. Durham to the Court’s Legal 

Assistant. Mr. Durham’s last email communication is dated June 30, 2015. 

3

 In his Post-Hearing Submission, the Secretary states, “It is apparent from its actions that the company has 

abandoned its case. Respondent is in clear defiance of the requirements to follow Commission rules and therefore, a 

full judgment by default or otherwise is appropriate in this case.” (p. 5) Although the Court agrees Durco has 

abandoned its case, the Court declines to enter a default judgment against Durco. There is no pending motion for 

default judgment from the Secretary and the Court has not entered an order to show cause why Durco should not be 

held in default for failure to comply with the Court’s orders. See Commission Rule 101(a). 

4

 CSHO Oglesby has been with OSHA almost eight years. He is a retired Air Force Master Sergeant. While with 

the Air Force, CSHO Oglesby was a safety specialist for thirteen years (Tr. 15). He has conducted approximately 

450 inspections for OSHA’s Jackson, Mississippi, area office. He estimated approximately 80% of his inspections 

were on construction sites (Tr. 18-19). CSHO Oglesby’s testimony was straightforward and responsive to the 

questions. He exhibited a quick recall of details. I find CSHO Oglesby’s testimony to be credible. 
4 

walkaround inspection accompanied by Mr. Durham. After the walkaround inspection, CSHO 

Oglesby began interviewing workers at the site. CSHO Oglesby estimated there were fifteen 

workers on the site and he interviewed four of them (Tr. 54). While interviewing Employee #2, 

CSHO Oglesby repeated to him Mr. Durham’s denial of the complaint’s allegation. CSHO 

Oglesby testified, “[Employee #2] said, well, Mr. Durham didn’t tell me the truth. So he showed 

me around the building, showed me where each one of the complaint items were located.” (Tr. 

22) CSHO Oglesby visited the worksite on two other occasions after the November 29, 2014, 

visit. He took written, signed interview statements from the employees (Exh. C-8 through C-11). 

He also took photographs of the conditions (Exhs. C-3 through C-7). Based on the CSHO’s 

inspection, OSHA issued the Citation in this case to Durco on March 17, 2015. 

Jurisdiction 

Under § 10(c) of the Act, the Commission has jurisdiction when an employer files a 

timely notice of contest. P & Z Co., Inc., 7 BNA OSHC 1589, n. 4 (No. 14822, 1979) (“If a 

notice of contest is filed, then pursuant to Section 10(c) the Secretary must notify the 

Commission and the Commission acquires jurisdiction over the contest.”). Here, the Secretary 

stipulated Durco filed a timely notice of contest (Tr. 12). The Court determines the Commission 

has jurisdiction in this case. 

Coverage 

The Secretary has the burden of proving the company was an employer within the 

meaning of the Act. See All Star Realty Co., Inc., 24 BNA OSHC 1356, 1358 (No. 12-1597, 

2014) (‘“[T]he Secretary has the burden of proving that a cited respondent is the employer of the 

affected workers at the site.’” (citing Allstate Painting & Contracting Co., 21 BNA OSHC 1033, 

1035 (No. 97-1631, 2005) (consolidated)). The Act defines employer as “a person engaged in a 

business affecting commerce who has employees[.]” 29 U.S.C. § 652(5). Employee is defined as 

“an employee of an employer who is employed in a business of his employer which affects 

commerce.” 29 U.S.C. § 652(6). 

In Durco’s notice of contest, Mr. Durham wrote, “[E]ach and every citation that you have 

issued would be the responsibility of the temporary agencies that supplied the employees.” First, 

there is no evidence in the record the workers at the site were supplied by a temporary staffing 

agency. In their written statements, the workers identified Durco as their employer (Exhs. C-8 

through C-11). Second, it is undisputed Mr. Durham was the sole supervisor on the worksite. In 

their written statements, the workers on the site stated Mr. Durham directed their work (Exhs. C-
5 

8 through C-11). The Commission has held where an employer is in control of the workplace, it 

is responsible for complying with OSHA standards with regard to temporary workers. See The 

Barbosa Grp., Inc., 21 BNA OSHC 1865, 1867 (No. 02-0865, 2007) (“[In Froedtert Mem. 

Lutheran Hosp., Inc., 20 BNA OSHC 1500 (No. 97-1839, 2004)], OSHA cited a hospital for 

violations of the [bloodborne pathogens] standard based on the exposure to workplace hazards of 

housekeepers supplied to the hospital by two temporary help agencies. Applying Darden, the 

Commission concluded that the hospital was properly cited under the OSH Act as an employer 

of the housekeepers because the hospital directed and controlled the means, methods, location, 

and timing of their work, and also provided sole on-site supervision and on-the-job instruction. 

[Id.] at 1505-07[.]”); Southern Scrap Materials Co., Inc., 23 BNA OSHC 1596, 1612 (No. 94-

33-93, 2011) (“Although Temp Staffers, a temporary work agency, supplied W.H. to work as a 

burner in the non-ferrous area of Southern’s Thomas Yard, W.H.'s relationship with Temp 

Staffers is not determinative of whether he had an employment relationship with Southern at the 

time of the alleged violations.”). 

The record, although slight, establishes Durco, through Mr. Durham, directed the 

methods and location of the work and provided sole onsite supervision. 

While the Secretary had the burden of proving its case by substantial evidence, 

what constitutes substantial evidence varies with the circumstances. The 

“evidence a reasonable mind might accept as adequate to support a conclusion” is 

surely less in a case like this where it stands entirely unrebutted in the record by a 

party having full possession of all the facts, than in a case where there is contrary 

evidence to detract from its weight. See, e.g., Noranda Aluminum, Inc. v. OSHRC,

593 F.2d 811, 814 & n.5 (8th Cir. 1979) (decision to leave Secretary's case 

unrebutted “a legitimate but always dangerous defense tactic in litigation”); 

Stephenson Enterprises, Inc. v. Marshall, 578 F.2d 1021, 1026 (5th Cir. 1978). 

Thus, thin as the underlying evidence was, we find it sufficient in these 

circumstances. 

Astra Pharm. Products, Inc. v. Occupational Safety & Health Review Comm'n, 681 F.2d 69, 74 

(1st Cir. 1982). The Court determines Durco was the employer of the affected workers on the 

site. 

The Secretary must establish Durco engaged in a business affecting commerce. Here, 

Durco was under contract to demolish and renovate a hotel, which are construction activities 

related to alteration of the structure. Section 1926.12(b) provides, “For purposes of this section, 

‘Construction work’ means work for construction, alteration, and/or repair, including painting 

and decorating.” Commission precedent has long held that construction work necessarily is 
6 

covered by the Act. Clarence M. Jones d/b/a C. Jones Co., 11 BNA OSHC 1529 (No. 77-3676, 

1983) (construction work affects interstate commerce because there is an interstate market in 

construction materials and services). The Court determines Durco’s construction activities affect 

interstate commerce, within the meaning of § 3(5) of the Act. The Secretary has established 

Durco is a covered employer under the Act. 

The Citation 

The Secretary’s Burden of Proof 

To establish a violation of a specific OSHA standard, the Secretary must prove (1) the 

cited standard applies; (2) its terms were violated; (3) employees were exposed to the violative 

condition; and (4) the employer knew or could have known with the exercise of reasonable 

diligence of the violative condition. See Astra Pharm. Prods., Inc., 9 BNA OSHC 2126, 2129 

(No. 78-6247, 1981), aff’d in pertinent part, 681 F.2d 69 (1st Cir. 1982). 

 Applicability of the Construction Standards 

The Secretary alleges Durco violated six standards found in the Part 1926 Construction 

Standards. Durco was engaged in demolition work on the interior of the building, for the 

purpose of renovating the interior and converting the structure from a hotel to an apartment 

building. The Commission has held the demolition and removal activities attendant to the 

conversion of a structure constitute an alteration within the meaning of § 12(b). Ryder Transp. 

Servs., 24 BNA OSHC 2061, 2062 (No. 10-0551, 2014) (“See Active Oil Serv., Inc., 21 BNA 

OSHC 1184, 1186, 2004-09 CCH OSHD ¶ 32,803, p. 52,497 (No. 00-0553, 2005) (concluding 

that building's ‘conversion from oil to gas heat constituted an alteration of [it] and its 

surrounding property,’ and that cited employer's removal of ‘oil tanks and oil-burning equipment 

was an integral part of this alteration’ and, therefore, was construction work)).” Specific 

standards regulating demolition are found in Subpart T of the Part 1926 Construction Standards. 

The Court concludes Durco was engaged in construction and OSHA properly cited the 

employer under the Construction Standards. 

Item 1: Alleged Serious Violation of § 1926.25(a) 

Item 1 alleges: “3rd and 5th floor stairs – On or about November 25, 2014, carpet padding 

was placed on the stairs. The padding was not secured and it created a tripping hazard.” 

Section 1926.25(a) provides: “During the course of construction, alteration, or repairs, 

form and scrap lumber with protruding nails, and all other debris, shall be kept cleared from 

work areas, passageways, and stairs, in and around buildings or other structures.”
7 

CSHO Oglesby testified that Item 1 “involved carpet padding . . . placed on the stairway 

and it wasn’t secured, and it presented a tripping hazard.” (Tr. 25) Exhibit C-3 comprises two 

photographs showing a flight of stairs covered with unsecured carpet padding. Mr. Durham told 

CSHO Oglesby he had placed the carpet padding “on the stairs so he could slide the furniture 

from the upper floors down to the bottom floor.” (Tr. 31)

Applicability of the Cited Standard

The American Heritage Dictionary Second College Edition (1982) defines debris as “1. 

The scattered remains of something broken or destroyed ruins. 2. Geol. An accumulation of 

relatively large rock fragments.” The Commission was not guided by the dictionary definition of 

debris in the two leading cases on the issue.5 In Gallo Mech. Contractors, Inc., 9 BNA OSHC 

1178, 1180 (No. 76-4371, 1980), the Commission held debris does not encompass equipment but 

does include material which may or may not be used in the future.

“[D]ebris” within the meaning of section 1926.25(a) includes material that is 

scattered about working or walking areas. Whether the material has been used in 

the past or can or will be used in the future is irrelevant. We conclude, however, 

that equipment cannot be considered “debris” within section 1926.25(a). The 

linkage of “all other debris” with “form and scrap lumber with protruding nails” 

suggests that only material is covered by the standard. Moreover, the nature of 

construction work would generally preclude keeping work areas and passageways 

entirely clear of equipment. Accordingly, although the materials consisting of 

wood, steel pieces, pipes, and other objects on the first elevation constitute debris 

within section 1926.25(a), the equipment to be installed or removed on both 

elevations involved in this case is not debris. 

In Capform, Inc., 16 BNA OSHC 2040, 2044 (No. 91-1613, 1994), the Commission 

declined to accede to the employer’s argument that “without clear indication from the drafter of 

the standard, the Commission should apply the usual and ordinary meaning of the terms.” The 

Commission stated, 

[Capform] notes that “debris” is defined in Webster's Ninth New Collegiate 

Dictionary (1991) as “the remains of something broken down or destroyed; 

ruins,” which is not what the materials at issue here were. We find no basis for 

disturbing our decision in Gallo. There we considered the meaning of “debris” in 

light of the purpose of the standard (to prevent tripping accidents) and in relation 

to the only items specifically listed in the standard (form and scrap lumber with 

protruding nails). Capform's proposed meaning does not take into account this 

purpose, and Capform does not cite any precedent in support of its view. As for 

Capform's argument that to apply Gallo's definition of “debris” would cripple 

 

5 Commissioner MacDougall discusses the Commission’s expansive interpretation of debris in her dissent in Brand 

Energy Solutions, LLC, 25 BNA OSHC 1386 (No. 09-1048, 2015). 
8 

construction contractors, the definition has been Commission precedent since 

1980, and Capform presents no evidence that it has had that effect. 

Id. 

In this case, the Court determines the carpet padding placed by Durco to cover the stairs 

is not debris, even under the Commission’s broad interpretation of that term. The carpet padding 

was not material Durco had used in the past that now was cluttering up the stairs and it was not 

material it stored on the stairs because it planned to use in the future. Durco was using the carpet 

padding at the time of the inspection in order to facilitate sliding furniture down the stairs. 

Durco had purposefully placed the carpet padding on the stairs with the intention of expediting 

the removal of furniture. Neither Gallo nor Capform indicates material in current use, placed for 

the specified purpose of aiding employees with their work progress, is debris. 

The Court finds the carpet padding was not debris at the time of the inspection and, 

accordingly, § 1926.25(a) does not apply to the cited conditions. Item 1 is vacated. 

Item 2: Alleged Serious Violation of § 1926.56(a) 

 Item 2 alleges: “3rd thru 7th floor internal stairs - On or about November 25, 2014, 

employees were using stairs that had inadequate lighting.” 

Section 1926.56(a) provides: “Construction areas, ramps, runways, corridors, offices, 

shops, and storage areas shall be lighted to not less than the minimum illumination intensities 

listed in Table D-3 while any work is in progress[.]” Table D-3 requires a minimum of 5 footcandles for “General construction area lighting” as well as for “Indoors: warehouses, corridors, 

hallways, and exitways.”

Applicability of the Cited Standard

The cited stairs were in a construction area and constituted an exitway. Section 

1926.56(a) applies to the cited conditions.

Terms of the Standard Were Not Met

CSHO Oglesby testified, “The employees were using a set of stairs that did not have 

lighting; it was dark.” (Tr. 27) He measured the illumination in the stairwell using a calibrated 

light meter. The meter reading “was something like .01, which means almost completely dark.” 

(Tr. 28) CSHO Oglesby stated he attempted to take photographs of the dark stairwell, “but it was 

just a black sheet of paper, because it was . . . completely dark.” (Tr. 28-29) The Secretary has 

established Durco failed to comply with the requirements of § 1926.56(a).
9 

Employee Exposure

Employees used the cited stairs to access the other floors and to move furniture to the 

bottom level (Tr. 27-28). One employee sustained an injury falling down the darkened stairs (Tr. 

28). Employee exposure to the tripping or falling hazard due to inadequate illumination is 

established.

Employer Knowledge

Mr. Durham was the onsite supervisor of the employees. He initially told CSHO 

Oglesby that Durco’s employees did not use the stairs. The employees the CSHO interviewed, 

however, informed him they did use the stairs “and Mr. Durham had told them they could use the 

stairs, to use those stairs.” (Tr. 32) CSHO Oglesby’s testimony establishes Mr. Durham had 

actual knowledge of the violative condition.

As supervisor, Mr. Durham’s knowledge of the inadequate lighting for the stairway is 

imputed to Durco. This case arises in the Fifth Circuit, where the Court of Appeals has held: 

[A] supervisor’s knowledge of his own malfeasance is not imputable to the 

employer where the employer's safety policy, training, and discipline are 

sufficient to make the supervisor's conduct in violation of the policy 

unforeseeable. 

W.G. Yates & Sons Const. Co. Inc. v. Occupational Safety & Health Review Comm'n, 459 F.3d 

604, 608-09 (5th Cir. 2006). This is not a situation for which the Secretary is required to 

establish the supervisor’s conduct was foreseeable by the employer. It was Mr. Durham’s 

responsibility, as supervisor, to ensure there was adequate lighting in the stairwell. However, 

unlike Yates, Mr. Durham was not the sole employee exposed to the hazard created by Durco’s 

failure to adequately illuminate the stairway. His subordinate employees were also exposed to 

the cited hazard. See Quinlan v. Sec'y, U.S. Dep't of Labor, 812 F.3d 832, 841 (11th Cir. 2016). 

Furthermore, Mr. Durham identified himself to CSHO Oglesby as the owner of Durco. 

Durco’s articles of incorporation list Mr. Durham as Durco’s registered agent and incorporator. 

“Knowledge” by a corporate entity is necessarily a fiction; the corporation can 

only be said to ‘know’ information by imputing to it the knowledge of natural 

persons who serve as its agents.” Central Soya de Puerto Rico, Inc. v. Secretary,

653 F.2d 38, 39 (1st Cir.1981). See also Acme Precision Products, Inc. v. 

American Alloys Corp., 422 F.2d 1395, 1398 (8th Cir.1970) (“knowledge of 

officers and key employees of a corporation, obtained while acting in the course 

of their employment and within the scope of their authority, is imputed to the 

corporation itself”). 

Caterpillar, Inc., 17 BNA OSHC 1731, 1732 (No. 93-373, 1996), aff’d 122 F.3d 437 (7th Cir. 
10

1997). As owner of the company, Mr. Durham knew of the violative conditions he failed to 

correct as the onsite supervisor on the project. 

 The Secretary has established Durco had actual knowledge of the violation of § 

1926.25(a). 

Classification of the Violation 

The Secretary classified the violation of § 1926.25(a) as serious. A serious violation is 

established when there is “a substantial probability that death or serious physical harm could 

result unless the employer did not, and could not with the exercise of “reasonable diligence,” 

know of the presence of the violation. 29 U.S.C. § 666(k). The Court finds that serious physical 

harm is the likely result if an employee tripped and fell down the stairs due to inadequate 

illumination. The violation is serious. 

Item 3: Alleged Serious Violation of § 1926.403(i)(2) 

Item 3 alleges: “1st Floor Ballroom – On or about November 25, 2014, employees were 

exposed to energize[d] electrical wiring that protruded from the wall and floor while removing 

carpet from the ballroom floor.” 

Section 1926.403(i)(2) provides: 

Except as required or permitted elsewhere in this subpart, live parts of electric 

equipment operating at 50 volts or more shall be guarded against accidental 

contact by cabinets or other forms of enclosures, or by any of the following 

means:

(A) By location in a room, vault, or similar enclosure that is accessible only to 

qualified persons.

(B) By partitions or screens so arranged that only qualified persons will have 

access to the space within reach of the live parts. Any openings in such partitions 

or screens shall be so sized and located that persons are not likely to come into 

accidental contact with the live parts or to bring conducting objects into contact 

with them.

(C) By location on a balcony, gallery, or platform so elevated and arranged as to 

exclude unqualified persons.

(D) By elevation of 8 feet (2.44 m) or more above the floor or other working 

surface and so installed as to exclude unqualified persons.

CSHO Oglesby testified unguarded energized electrical wires were protruding from the 

floor and walls of the ballroom (Tr. 29). 

Applicability of the Cited Standard

Section 1926.403(i)(2) addresses “guarding of live parts.” CSHO Oglesby took two 
11

photographs of the wires at issue, one of which shows a voltage tester lit up as it touches a wire 

(Exh. C-4). The cited standard applies to the cited conditions.

Terms of the Standard Were Not Met

As is clear from a review of Exhibit C-4, the energized wires photographed by CSHO 

Oglesby are protruding from the floor and the wall of the ballroom and are not guarded. The 

first photograph, which shows the lit up voltage tester touching the wire, is of “a wall where a 

light fixture was at one time, but had been removed and the bare wires just hanging out of the 

wall.” (Tr. 33) The second photograph shows an energized wire lying on the floor.

The Secretary has established the terms of § 1926.403(i)(2) were not met by Durco.

Employee Exposure

CSHO Oglesby testified the employees working in the ballroom were exposed to the 

hazard of electrocution or electrical shock (Tr. 29-30). Through employee interviews, CSHO 

Oglesby learned employees had worked in the ballroom to remove the carpet off the floor (Tr. 

30). Employee exposure to the energized wires is established.

Employer Knowledge

Initially, Mr. Durham denied Durco’s employees were required to enter the ballroom (Tr. 

30). After CSHO Oglesby learned through employee interviews that they were instructed to 

remove the carpet in the ballroom, Mr. Durham conceded, “[O]kay, yeah, they did move some of 

the carpet out of the room.” (Tr. 31) The Secretary has established Mr. Durham had actual 

knowledge of the violative condition.

The violation of § 1926.403(i)(2) is established.

Classification of the Violation 

The Secretary classified the violation of § 1926.403(i)(2) as serious. The Court finds that 

death or serious physical harm is the likely result if an employee made contact with one of the 

unguarded energized wires. The violation is serious. 

Item 4: Alleged Serious Violation of 1926.405(g)(1)(iii) 

Item 4 alleges: “4th floor hallway – On or about November 25, 2014, an extension cord 

was hard wired into the building electrical system. The extension cord grounding wire was not 

connected to the building electrical system.” 

Section 1926.405(g)(1) provides in pertinent part: “[F]lexible cords and cables should not 

be used . . . [a]s a substitute for the fixed wiring of a structure.” 

CSHO Oglesby testified he observed an extension cord “hardwired into the building 
12

electrical system.” (Tr. 33) 

Applicability of the Cited Standard

Section 1926.405(g) addresses “Flexible cords and cables.” The extension cord at issue 

is a flexible cord. The cited standard is applicable.

Terms of the Standard Were Not Met

CSHO Oglesby testified Durco had removed the cover of the junction box in the ceiling 

and “cut the plug off the extension cord and connected the extension cord to the wiring that was 

inside the junction box. And what it shows [in Exhibit C-5] is the extension cord running from 

the junction box down to the floor. . . . And then on the floor, there were other extension cords 

plugged into the cord that was running from the ceiling.” (Tr. 35)

The Secretary has established Durco violated the terms of § 1926.405(g)(1)(iii) by using 

an extension cord as a substitute for the fixed wiring of the building.

Employee Exposure

CSHO Oglesby testified the hardwiring of the extension cord was in place for at least a 

week and Durco’s employees were working in the area. The employees were exposed to 

“electrical shock, possible electrocution from using ungrounded equipment. . . . [T]he extension 

cord is not grounded, so anything that’s plugged into this cord here would be the same thing, it 

won’t be grounded.” (Tr. 36)

Employee exposure to the hazard of electrical shock or electrocution is established.

Employer Knowledge

The extension cord at issue was located on the fourth floor for at least one week. The 

extension cord was connected to other extension cords in use. Mr. Durham walked through the 

building on a regular basis (Tr. 37-38). The Secretary has established Durco, through Mr. 

Durham, had at least constructive knowledge of the hazardous condition.

Classification of the Violation 

The Secretary classified the violation of § 1926.405(g)(1)(iii) as serious. The Court finds 

that death or serious physical harm is the likely result if an employee received a shock from use 

of the ungrounded extension cord. The violation is serious. 

Item 5: Alleged Serious Violation of § 1926.602(c)(1)(vii) 

Item 5 alleges: “Jobsite – On or about November 25, 2014, an employee was riding on a 

pallet that was being carried by a forklift. The employee was supporting a desk that was on the 

pallet and being moved by the forklift operator.” 
13

Section 1926.602(c)(1)(vii) provides: “Unauthorized personnel shall not be permitted to 

ride on powered industrial trucks. A safe place to ride shall be provided where riding of trucks is 

authorized.” 

CSHO Oglesby testified he observed an operator driving a forklift down a ramp. The 

forklift was carrying a pallet on which a dresser was placed. A Durco employee was standing on 

the pallet, holding the dresser to keep it from falling off the pallet (Tr. 38). 

Applicability of the Cited Standard

Section 1926.602(c) applies to “lifting and hauling equipment,” including industrial 

trucks, of which forklifts are a type. The cited standard applies.

Terms of the Standard Were Not Met

CSHO Oglesby observed the Durco employee riding on the pallet being carried by the 

forklift as soon as he arrived at the worksite the first day of his inspection (Tr. 38). The CSHO 

did not take a photograph of the incident as it was happening because he was unable to get his 

camera out in time (Tr. 39). Instead, CSHO Oglesby took a posed photograph showing the 

employee standing next to the dresser on the pallet (Exh. C-6; Tr. 39). The employee admitted to 

the CSHO he was standing on the pallet as it was carried by the forklift “to keep the dresser from 

sliding off the pallet.” (Tr. 40)

The Secretary has established a violation of § 1926.602(c)(1). 

Employee Exposure

CSHO Oglesby testified the hazard created by the employee riding on the pallet as it was 

carried by the forklift was the employee “could have fallen off the forklift and been run over by 

the forklift.” (Tr. 39) Employee exposure is established.

Employer Knowledge

CSHO Oglesby was speaking with Mr. Durham when the operator started coming down 

the ramp with the pallet, dresser, and employee riding on the forklift. Both men observed the 

violative condition together. CSHO Oglesby testified Mr. Durham “really didn’t say anything to 

them until I pointed it out to—until I brought it to his attention.” (Tr. 40) “[B]y the time I 

mentioned that to Mr. Durham, he told them to stop.” (Tr. 39)

CSHO Oglesby did not testify regarding the length of time he and Mr. Durham observed 

the violative conduct before the CSHO pointed out the hazardous nature of the conduct. It is 

plausible Mr. Durham may have testified he had insufficient time to process his observation of 

the violative conduct and instruct the operator to stop or that he was distracted by the presence of 
14

the CSHO. Mr. Durham, however, failed to appear at the scheduled hearing. He did not make 

this argument or provide any other rationale for his failure to immediately correct his subordinate 

employees. 

It is well established that when one party has it peculiarly within its power to 

produce witnesses whose testimony would elucidate the situation and fails to do 

so, it gives rise to the presumption that the testimony would be unfavorable to that 

party. Graves v. United States, 150 U.S. 118, 121 (1893). The Commission has 

also noted that when one party has evidence but does not present it, it is 

reasonable to draw a negative or adverse inference against that party, i.e., that the 

evidence would not help that party's case. CCI, Inc., 9 BNA 1169, 1174, 1981 

CCH OSHD ¶ 25,091, pp. 30,994-95 (No. 76-1228, 1980), aff'd, 688 F.2d 88 

(10th Cir. 1982); see also Woolston Constr. Co., 15 BNA OSHC 1114, 1122 n.9, 

1991-93 CCH OSHD ¶ 29,394, p. 39,573 n.9 (No. 88-1877, 1991) (citing Baxter 

v. Palmigiano, 425 U.S. 308, 316-18 (1976)), aff'd without published opinion, No. 

91-1413 (D.C. Cir. May 22, 1992).

Capeway Roofing Sys., Inc., 20 BNA OSHC 1331, 1342-1343 (No. 00-1968, 2003). 

As the record stands, the Secretary has presented unrebutted testimony establishing Mr. 

Durham had actual knowledge of the violation of the cited standard. Mr. Durham witnessed the 

violative conduct and did not instruct the operator to stop the forklift or the employee to get off 

the pallet until prompted by CSHO Oglesby. Mr. Durham’s actual knowledge of the violation is 

established and is imputed to Durco.

The Secretary has established Durco violated § 1926.602(c)(1)(vii). 

Classification of the Violation 

The Secretary classified the violation of § 1926.602(c)(1)(vii) as serious. The Court finds 

that death or serious physical harm is the likely result if the employee riding the pallet carried by 

the forklift had fallen from the pallet. The violation is serious. 

Item 6: Alleged Serious Violation of § 1926.602(d) 

Item 6 alleges: “Jobsite – On or about November 25, 2014, the employer did not ensure 

that each forklift operator [was] trained and certified to operate forklifts.” 

Section 1926.602(d) provides: “NOTE: The requirements applicable to construction work 

under this paragraph are identical to those set forth at §1910.178(l) of this chapter.” Section 

1926.602(d) makes the training requirements set forth in § 1910.178(l) applicable to operators of 

powered industrial trucks in construction.

Section 1910.178(l) requires that employers “ensure that each powered industrial truck 

operator is competent to operate a powered industrial truck safely, as demonstrated by the 
15

successful completion of the training and evaluation specified in this paragraph (l).” This 

required training must “consist of a combination of formal instruction ..., practical training ..., 

and evaluation of the operator's performance in the workplace.” § 1910.178(l)(2)(ii). The content 

of the required training is prescribed by § 1910.178(l)(3). Section 1910.178(l)(6) provides: “The 

employer shall certify that each operator has been trained and evaluated as required by this 

paragraph (l). The certification shall include the name of the operator, the date of the training, the 

date of the evaluation, and the identity of the person(s) performing the training or evaluation.”

CSHO Oglesby testified the forklift operators “were not certified to operate the forklift.” 

(Tr. 41)

Applicability of the Cited Standard

Section 1926.602(d) addresses “Powered industrial truck operator training.” Section 

1910.178(l), incorporated by reference in the cited standard, lists the requirements for the 

operator training. At least two of Durco’s employees operated the forklifts at the worksite. The 

cited standard applies.

Terms of the Standard Were Not Met

CSHO interviewed the forklift operators, who told him they were not certified to operate 

a forklift (Tr. 41). In a written statement, Employee #1 stated, “I’m not certified to operate a 

forklift. J. R. Durham ask[ed] me could I drive a forklift and I said yes. Forklift certification 

was not checked on. . . . I drove the forklift this morning.” (Exh. C-8). Employee #1 signed this 

statement. Employee #2 stated, “I’m not certified to operate the forklift. I operate the forklift 

daily from 7 AM to 5 PM.” (Exh. C-9). Employee #2 signed his written statement.

The Secretary has established Durco failed to ensure each forklift operator was trained 

and certified to operate the forklifts.

Employee Exposure

 Employee #2 stated he drove the forklift daily for the entire shift. Both the operators and 

other employees are exposed to potential broken bones or other injuries or death when untrained 

operators can strike employees with the forklift or cause material to fall on the operator or others. 

The incident witnessed by CSHO Oglesby where the forklift operator drove the forklift as it 

carried another employee standing on a pallet holding onto a dresser is an example of the 

hazardous behavior in which an untrained operator may engage. 

 Employee exposure is established.
16

Employer Knowledge

It is the employer’s obligation to ensure its forklift operators are trained and certified. 

Employee #1 stated, “Forklift certification was not checked on.” (Exh. C-8) Employee #2 stated, 

“I’m not certified to operate the forklift.” (Exh. C-9) As supervisor, it was incumbent upon Mr. 

Durham to verify the operators were certified to operate forklifts before he instructed them to do 

so. Mr. Durham was aware he did not verify the certification of the employees. He had actual 

knowledge the forklift operators were not certified. His knowledge is imputed to Durco.

The Secretary has established Durco violated § 1926.602(d).

Classification of the Violation 

The Secretary classified the violation of § 1926.602(d) as serious. The Court finds that 

death or serious physical harm is the likely result of untrained employees operating forklifts in 

the presence of other employees. The violation is serious. 

Penalty Determination 

Under § 17(j) of the Act, the Commission must give “due consideration to the 

appropriateness of the penalty with respect to the size of the business of the employer being 

charged, the gravity of the violation, the good faith of the employer, and the history of previous 

violations.” The principal factor in a penalty determination is gravity, which “is based on the 

number of employees exposed, duration of exposure, likelihood of injuries, and precautions 

against injuries.” Siemens Energy and Automation, Inc., 20 BNA OSHC 2196, 2201 (No. 00- 

1052, 2005). 

Durco employed approximately fifteen employees (Tr. 54). There is no evidence in the 

record showing OSHA had previously inspected a Durco worksite. The Court gives Durco no 

credit for good faith based on the awareness of the supervisor that the employees were routinely 

working under hazardous conditions. Gen. Motors Corp., CPCG Okla. City Plant, 22 BNA 

OSHC 1019, 1048 (No. 91-2834E & 91-2950, 2007) (consolidated) (giving no credit for good 

faith when management tolerated and encouraged hazardous work practices). 

 The record established approximately fifteen employees worked on the jobsite for 

approximately one month. No precautions against injury were taken by Durco. The likelihood 

of injuries to the employees was high, given the pervasiveness of the violations. Upon due 

consideration of these factors, the Court determines the violations were of high gravity and 

assesses the penalties as proposed by the Secretary for Items 2 through 6 of the Citation. 
17

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

The foregoing decision constitutes the findings of fact and conclusions of law in 

accordance with Fed. R. Civ. P. 52(a). 

ORDER 

Based upon the foregoing decision, it is hereby ORDERED that: 

1. Item 1 of the Citation, alleging a serious violation of § 1926.25(a), is VACATED and 

no penalty is assessed; 

2. Item 2 of the Citation, alleging a serious violation of § 1926.56(a), is AFFIRMED 

and a penalty of $2,400.00 is assessed; 

3. Item 3 of the Citation, alleging a serious violation of § 1926.403(i)(2), is AFFIRMED 

and a penalty of $1,700.00 is assessed; 

4. Item 4 of the Citation, alleging a serious violation of § 1926.405(g)(1)(iii), is 

AFFIRMED and a penalty of $2,000.00 is assessed; 

5. Item 5 of the Citation, alleging a serious violation of § 1926.602(c)(1), is AFFIRMED 

and a penalty of $1,700.00 is assessed; and 

6. Item 6 of the Citation, alleging a serious violation of § 1926.602(d), is AFFIRMED 

and a penalty of $2,800.00 is assessed. 

SO ORDERED. 

/s/ 

Date: May 18, 2016 SHARON D. CALHOUN 

 Administrative Law Judge 

Atlanta, Georgia