United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OSHRC Docket No. 20-0783 Complainant,

 v. 

FRONTERA CONSTRUCTION, LLC,

 Respondent. 

Appearances: 

Felix Marquez, Esq., Department of Labor, Office of the Solicitor, Dallas, Texas 

For Complainant 

Steven McCown, Esq., Littler Mendelson, P.C., Dallas, Texas 

For Respondent 

Before: First Judge Patrick B. Augustine – U. S. Administrative Law Judge 

DECISION AND ORDER 

I. Procedural History 

This proceeding is before the Occupational Safety and Health Review Commission 

(Commission) under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 

§ 651 et seq. (the Act). Respondent, Frontera Construction, LLC (Frontera), is a general 

contractor in the construction industry. (Tr. 22-23, 40; Ex. C-5, at 1). In March of 2019, Frontera 

had contracted with Stat Real Estate II, LLC, for a construction project at a medical emergency 

facility called STAT Emergency Hospital-Laredo (STAT) located at 2502 N.E. Bob Bullock 

Loop in Laredo, Texas (Worksite). (Tr. 21-22; Ex. C-5, at 1). 

On September 18, 2019, an employee of a subcontractor called B.G. Metals was 

performing ductwork at the Worksite when he fell from a ladder, resulting in his injury. After 

receiving a report of the worker’s injury, the United Occupational Safety and Health 

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Administration (OSHA) sent Compliance Safety and Health Office (CSHO) Stephen Garcia to 

conduct an inspection of the Worksite of the accident. (Tr. 19-20). Following the inspection, 

OSHA issued a one-item Citation and Notification of Penalty (Citation) to Respondent alleging a 

serious violation of 29 C.F.R. § 1926.416(a)(1), which prohibits an employer from permitting an 

employee to work in such proximity to any part of an electric power circuit that the employee 

could contact the electric power circuit during the course of work. The Citation proposed a 

penalty of $9,446. (Citation 6). The Citation was issued on February 10, 2020. Respondent 

timely filed a Notice of Contest (Notice) to the Citation. 

A one-day trial was held on October 26, 2021, in San Antonio, Texas under the 

Commission’s Rules for Simplified Proceedings, 29 C.F.R. § 2200.200, et seq.1 Two witnesses 

testified at the trial: 1) CSHO Garcia; and 2) Respondent’s superintendent for the STAT 

Worksite, Isidro “Sid” Rojas. The Parties submitted post-trial briefs. 

Pursuant to Commission Rule 90, after hearing and carefully considering all the evidence and 

arguments of counsel, the Court issues this Decision and Order as its Finding of Facts and 

Conclusions of Law. Based on what follows, the Court VACATES the Citation. 

II. Stipulations 

1 The Commission has adopted Simplified Proceedings, which apply in certain cases. See Subpart M of 29 C.F.R. 

Part 2200 (29 C.F.R. §§ 2200.200 - 2200.211). Under Simplified Proceedings, the “Judge will receive oral, physical, 

or documentary evidence that is not irrelevant, unduly repetitious, or unreliable. Testimony will be given under oath 

or affirmation.” 29 C.F.R. § 2200.209(c). The Parties did not stipulate to the Federal Rules of Evidence applying in 

this case pursuant to 29 C.F.R. § 209(c). See Order dated August 7, 2020. Therefore, hearsay is admissible, 

“[p]rovided it is relevant and material,” and under certain circumstances, “can constitute substantial evidence.” 

Bobo v. United States Dept. of Agriculture, 52 F.3d 1406, 1414 (6th Cir.1995) (citation omitted). However, though 

the Simplified rules may be more permissive, that does not mean that any evidence the parties offer on a particular 

point is automatically deemed persuasive or reliable. 

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The Parties agreed to the following stipulations2: 

1. Jurisdiction of this proceeding is conferred upon the Occupational Safety and Health 

Review Commission by Section 10(c) of the Occupational Safety and Health Act of 

1970, (hereinafter “the Act”), 29 U.S.C. § 659(c). 

2. Frontera Construction, LLC, is an employer engaged in a business affecting commerce 

within the meaning of Section 3(5) of the Act, 29 U.S.C. § 652(5). 

3. As a result of an inspection at the subject multi-employer jobsite, Complainant timely 

issued to Respondent a Serious violation pursuant to Section 9(a) of the Act, as set forth 

in Exhibit A to the Complaint in this proceeding. 

4. As a result of OSHA Inspection no. 1432790, OSHA issued to Frontera Construction, 

LLC one citation on February 10, 2020, alleging a Serious violation of 29 C.F.R. 

1926.416(a)(1) with a total proposed penalty of $9,446.00. Citations were also issued to 

other employers at this jobsite. 

5. Respondent timely filed a notice of intent to contest the aforesaid citations and 

notification of proposed penalty, dated February 27, 2020. 

6. On May 18, 2020, the OSHRC issued a Notice of Docketing and Instructions to 

Employer, which identified OSHRC Docket No. 20-0783 as the proceeding related to 

OSHA Inspection No. 1432790. 

III. Jurisdiction 

The Parties have stipulated, and the record supports, Respondent is engaged in a business 

affecting interstate commerce and is an “employer” within the meaning of section 3 of the Act. 

(Joint Stipulation Statement ¶¶ 1, 2); see also Clarence M. Jones, 11 BNA OSHC 1529, 1530 

(No. 77-3676, 1983) (holding there is an interstate market in construction materials and services 

2 See Joint Stipulation Statement marked as Joint Exhibit 1. 

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and therefore construction work affects interstate commerce). The Commission has jurisdiction 

over this proceeding pursuant to section 10(c) of the Act based on Respondent filing its Notice. 

(Joint Stipulation Statement ¶ 5; Tr. 6-7); Joel Yandel, 18 BNA OSHC 1623, 1628 n.8 (No. 94-

3080, 1999). 

IV. Factual Background 

A. STAT Worksite and Accident Site 

In March of 2019, Frontera was the general contractor for the STAT Worksite.3 (Tr. 21-

22; Ex. C-5, at 1). Frontera, in turn, subcontracted with a company called Bright Star for the 

electrical work required for the STAT project and a company called B.G. Metals for certain 

ductwork required for the project.4

 (Tr. 35, 68, 106, 131). Rojas was superintendent of the STAT 

Worksite on behalf of Frontera and the only Frontera employee at the Worksite on the day of the 

accident. (Tr. 98). As such, his duties included coordinating the work to be done at the Worksite 

amongst the various subcontractors onsite, including B.G. Metals. (Tr. 98-100, 104-08). Rojas 

also oversaw safety at the Worksite. (Tr. 82-83, 116). 

The location where the accident occurred (Accident Site) consisted of a hallway with at 

least two rooms connected to it.5 (Tr. 24-25, 104-05, 107, 131-32; Ex. C-10, at 1-3, 7, 11, 12). 

The entirety of the Accident Site had been divided from the main STAT facility by a plastic 

curtain. (Tr. 25-26, 107; Ex. C-10, at 1). 

3 The exact nature of the construction project is not clear from the record. It appears Frontera was contracted either 

to construct an addition on the STAT facility or else renovate an existing wing of the facility. (Tr. 24-25). 

4

 CSHO Garcia’s understanding was Frontera had subcontracted with Bright Star who in turn had subcontracted with 

B.G. Metals. (Tr. 39-40). The actual subcontract for the HVAC work for the STAT project was submitted as Exhibit 

C-5. That agreement was made directly between Frontera and a company called “Urban Heating & Air 

Conditioning,” an entity which was never mentioned at the hearing. (Ex. C-5, at 1). Thus, it is not entirely clear 

whether B.G. Metals was a direct subcontractor of Frontera or a subcontractor of some other subcontractor for the 

project. In any event, because the Court finds Respondent was the controlling employer of the multi-employer 

worksite at the STAT Worksite (see Section V.A, infra), the exact contractual relationship between Frontera and 

B.G. Metals does not affect the Court’s analysis. 

5 The rooms were connected to the hallway but were not themselves interconnected. (Tr. 71-72). CSHO Garcia’s 

notes suggest the two rooms were intended to be a lab room and pharmacy once finished. (Ex. C-7, at 2). 

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B. The Accident 

On the morning of September 18, 2019, work had commenced at the STAT Worksite. 

B.G. Metals had initially been assigned to a different work area away from the Accident Site. 

(Tr. 105-06, 117-18). Meanwhile, at the Accident Site, a framing company called Ramos 

Construction (Ramos) was laying sheetrock in the hallway while Bright Star was performing 

electrical work in the two adjoining rooms. (Tr. 102, 104-06, 117-18). The breakers had been 

shut off for all the electricity in the two rooms except: 1) a single electrical conduit or “box” 

connected to a work light which had been installed by Bright Star; and 2) the “critical breaker” 

for the medical facility, which could not be turned off without the permission of STAT’s 

doctors.6

 (Tr. 90, 111-12, 119, 129; Exs. C-7, at 1, C-10, at 9). At the time the accident occurred, 

Bright Star had left the electrical box for the work light uncovered; thus, there was a live, 

unprotected electrical current in the room at the time the accident occurred. (Tr. 31-32, 81-82, 

101-02, 127; Ex. C-10, at 14, 15). 

At some point on September 18, 2019, Rojas “escorted” two B.G. Metals employees, 

[redacted] and a supervisor named “Chris,” into the hallway of the Accident Site and directed 

them to remove a certain piece of ductwork so Ramos could “span” the wall. (Tr. 104-08, 132). 

The B.G. Metals employees understood the ductwork was to be limited to the hallway because 

the two adjoining rooms had not been fully de-energized. (Tr. 51, 82-83, 105, 119-23, 131-34; 

Ex. C-7, at 2). Rojas observed the B.G. Metals employees perform most of the removal of the 

ductwork. (Tr. 105, 108, Ex. C-7, at 1). At some point, however, Rojas received a call from an 

individual named “Fred” who had a question about the blueprints for the STAT project. (Tr. 105, 

126). Because all that was left for the removal of the ductwork was for [redacted] to finish 

6 As Rojas explained, this “critical breaker” was connected to certain medical machines that needed a constant 

electrical current to function. (Tr. 111). 

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patching a hole, “come down, grab the ladder and leave,” Rojas left the Accident Site to assist 

Fred. (Tr. 123; Ex. C-7, at 1). 

The B.G. Metals employees were supposed to leave the Accident Site and return to their 

previous worksite after removing the ductwork in the hallway. (Tr. 105, 109, 119). After Rojas 

left, however, [redacted] went into one of the adjoining rooms and began performing ductwork in 

the presence of the uncovered electrical box. (Tr. 28-31, 101-02; Ex. C-10, at 8, 9, 14, 15). The 

ductwork apparently required [redacted] to be standing on a ladder. (Tr. 28-29, 32-34; Ex. C-10, 

at 7, 11, 12, 16-19). For reasons not entirely clear from record, [redacted] fell off the ladder and 

suffered some form of injury.7 

C. OSHA’s Investigation and Citation 

Following a report of the accident, OSHA sent CSHO Garcia to investigate the same day. 

(Tr. 19-21). CSHO Garcia held an opening conference with Rojas, took his statement, and 

walked around the Accident Site. (Tr. 22-24; Ex. C-7). Following his investigation, CSHO 

Garcia concluded Respondent was the “controlling employer” of the multi-employer worksite at 

the STAT facility based on Rojas’s oversight of the project. (Tr. 36-37, 61-64). He further 

7 While it is clear [redacted] received some medical treatment for his injuries, it is not clear whether [redacted] 

simply fell off the ladder and was injured as a result of his fall or whether he actually came in contact with the 

uncovered electrical box and suffered injuries as a result of that contact. CSHO Garcia’s Violation Worksheet 

suggests [redacted] was actually electrocuted, i.e., killed by electricity, and subsequently revived by STAT’s 

medical staff. (Tr. 40-42; Ex. C-6, at 2). At trial, however, CSHO Garcia’s testimony was more ambiguous as to 

whether this was the case. (Tr. 76, 80). Rojas did not believe an electrocution was possible given the only accessible 

source of electricity in the room was the uncovered electrical box for Bright Star’s work light. (Tr. 128-29). 

However, he acknowledged [redacted] was being treated by STAT’s staff by the time he returned to the Accident 

Site. (Tr. 129). At trial, it was suggested that [redacted] simply fell off the ladder because he was using a six-foot 

ladder to reach into the 10-foot ceiling in the room. (Tr. 57-59, 73-74; Ex. C-10, at 13, 20, 21; Resp’t’s Br. 3). 

Because the main dispute before the Court is whether Respondent permitted [redacted] to work in proximity of the 

uncovered electrical box, not [redacted]’s exposure to an electrical hazard, the Court finds it is ultimately immaterial 

what caused [redacted] to fall from the ladder. (Tr. 139-41 (finding there was employee exposure)); see also Ceco 

Concrete Constr., LLC, No. 17-0483, 2021 WL 2311867, at *8 n.4 (O.S.H.R.C., Feb. 26, 2021) (“[D]etermining 

whether the standard was violated is not dependent on the cause of the accident.”). 

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concluded the B.G. Metals employees had been permitted to work in the presence of the 

uncovered electric box in violation of 29 C.F.R. § 1926.416(a)(1). The CSHO’s conclusion in 

this regard was based on Rojas’s alleged failure to remove the B.G. Metal employees from the 

area where they could access the energized rooms by, for example, “hav[ing] them work on 

another day or wait until the electricians got to the area to remove and de-energize that area.” 

(Tr. 85-86). He also believed that, while Rojas had explicitly told the B.G. Metal employees not 

to work in the rooms and to confine their work to the hallway, he then simply left the employees 

to go to another area of the worksite. (Tr. 92-93). Finally, CSHO Garcia faulted Rojas for failing 

to verify the electricians had de-energized the rooms. (Tr. 37-38, 93). Based on the CSHO’s 

investigation, Complainant issued the one-item serious Citation to Respondent. 

V. Discussion 

A. Multi-Employer Worksite Doctrine 

Before turning to the merits of the Citation, the Court will first determine whether 

Respondent was a “controlling employer” for purposes of imposing liability under the multiemployer worksite doctrine. While generally “a business organization is generally only liable 

under the Act for violations that affect the safety and health of persons with whom it has entered 

into an employment relationship,”8 the Fifth Circuit, where this case arose,9 has adopted 

Complainant’s construction of the Act as imposing a duty on an employer at a multi-employer 

worksite to ensure the safety of non-employees in certain situations. See Multi-Employer 

Citation Policy, OSHA Instruction (Dec. 10, 1999); Acosta v. Hensel Phelps Constr. Co., 909 

F.3d 723 (5th Cir. 2018). More specifically, a “controlling employer” of a multi-employer 

8 Van Buren-Madawaska Corp., No. 87-214, 1989 WL 223348, at *1 (O.S.H.R.C., April 21, 1989). 

9 See Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96- 1719, 2000) (“Where it is highly probable that a 

case will be appealed to a particular circuit, the Commission generally has applied the precedent of that circuit in 

deciding the case— even though it may differ from the Commission’s precedent.”). 

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worksite i.e., an employer with “general supervisory authority over the worksite, including the 

power to correct safety and health violations itself or require others to correct them,” has a duty 

to protect more than its own employees working at the worksite. See Hensel Phelps, 909 F.3d at 

729. As is relevant here, the Fifth Circuit in Hensel Phelps held: 

In a place of employment like a construction worksite, populated by 

subcontractors, sub-subcontractors, and their employees performing various (and 

often overlapping) tasks, only the general contractor maintains supervisory 

authority over—and has access to—the entire space. If a general contractor enjoys 

the benefits of project supervision, it follows that he should also bear the burdens, 

by being held to comply—and to direct its subcontractors to comply—with the 

Act’s safety standards. 

Id. at 735. 

Here, Respondent has not contested Complainant’s allegation it was a controlling 

employer for purposes of the multi-employer worksite doctrine, and Complainant has adduced 

sufficient evidence to conclude Respondent was. Rojas, as superintendent of the STAT Worksite, 

oversaw and coordinated the work of the various subcontractors, including the work of B.G. 

Metals. (Tr. 98-100, 104-08). He had the authority to correct safety violations onsite if he 

observed any. (Tr. 36-37, 83, 116). He directly oversaw the ductwork B.G. Metals was 

performing at the Accident Site on the date of the accident. (Tr. 105, 108, Ex. C-7, at 1). Based 

on these facts, the Court concludes Frontera was the controlling employer of the STAT Worksite. 

See Hensel Phelps, 909 F.3d at 729; See Calpine Corp., 27 BNA OSHC 1014, 1021 (No. 11-

1734, 2018) (employer’s correction of safety violations of subcontractors was evidence of its 

status as a controlling employer) aff’d,774 F. App’x 879 (5th Cir. 2019) (unpublished); Summit 

Contractors, Inc., 23 BNA OSHC 1196, 1206 (No. 05-0839, 2010) aff’d, 442 F. App’x 570 

(D.C. Cir. 2011) (unpublished) (general authority over worksite safety suggested employer was a 

controlling employer). 

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B. Applicable Law 

For most standards, including the ones at issue here, Complainant is not required to prove 

the existence of a hazard each time a standard is enforced. Bunge Corp. v. Sec’y of Labor, 638 

F.2d 831, 834 (5th Cir. 1981); Greyhound Lines-West v. Marshall, 575 F.2d 759, 762 (9th Cir. 

1978) (Secretary not required to prove violation related to walking and working surfaces 

constituted a hazard). Instead, the hazard is presumed, and Complainant’s burden to establish a 

violation of a safety or health standard promulgated pursuant to section 5(a)(2) of the Act, us 

limited to whether: (1) the cited standard applies; (2) the terms of the standard were violated; (3) 

employees were exposed to or had access to the violative condition; and (4) the employer knew 

or, with the exercise of reasonable diligence, could have known of the violative condition. Atl. 

Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994). 

Complainant must establish his case by preponderance of the evidence. See Hartford 

Roofing Co., 17 BNA OSHC 1361 (No. 92-3855, 1995). “Preponderance of the evidence” has 

been defined as: 

The greater weight of the evidence, not necessarily established by the greater 

number of witnesses testifying to a fact but by evidence that has the most 

convincing force; superior evidentiary weight that, though not sufficient to free 

the mind wholly from all reasonable doubt, is still sufficient to incline a fair and 

impartial mind to one side of the issue rather than the other. 

Preponderance of the Evidence, BLACK’S AWL DICTIONARY (10th ed. 2014). 

C. Citation 1, Item 1 – The Alleged Electric Power Circuit Violation 

Complainant alleged a serious violation of 29 C.F.R. § 1926.416(a)(a) as follows: 

29 CFR 1910.416(a)(1): Employees were permitted to work in proximity to 

electric power circuits and were not protected against electric shock by deenergizing and ground the circuits or effectively guarding the circuits by 

insulation or other means: 

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At this establishment, an employee was removing duct-work and came into 

contact with energized circuits. 

The cited standard provides: 

No employer shall permit an employee to work in such proximity to any part of an 

electric power circuit that the employee could contact the electric power circuit in the 

course of work, unless the employee is protected against electric shock by deenergizing 

the circuit and grounding it or by guarding it effectively by insulation or other means. 

1. The Standard Applies 

Under Commission precedent, “the focus of the Secretary's burden of proving that the 

cited standard applies pertains to the cited conditions, not the particular cited employer.” Ryder 

Transp. Servs., 24 BNA OSHC 2061, 2064 (No. 10-0551, 2014) (concluding “that the Secretary 

has failed to establish that the cited general industry standard applies to the working conditions 

here”); KS Energy Servs., Inc., 22 BNA OSHC 1261, 1267 (No. 06-1416, 2008) (finding “the 

cited ... provision was applicable to the conditions in KS Energy's traffic control zone”), aff'd, 

701 F.3d 367 (7th Cir. 2012); Active Oil Serv., Inc., 21 BNA OSHC 1092, 1094 (No. 00-0482, 

2005) (finding “that the confined space standard applies to the cited conditions” because “the 

vault was a confined space”); Arcon, Inc., 20 BNA OSHC 1760, 1763 (No. 99-1707, 2004) (“In 

order to establish a violation, the Secretary must show that the standards applied to the cited 

conditions.”) 

Respondent has not contested, and the record supports, the cited standard applied to 

Respondent’s use of electricity during construction activities at the Accident Site. The Court 

finds the cited standard applies. (Tr. 140); see also 29 C.F.R. § 1926.400(b) (“This subpart 

addresses electrical safety requirements that are necessary for the practical safeguarding of 

employees involved in construction work ... Safety-related work practices are contained in [29 

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C.F.R. §§ 1926.416 and .417 and cover] the hazards arising from the use of electricity at jobsites 

...”). 

2. The Standard Was Not Violated 

29 C.F.R. § 1926.416(a)(1) prohibits an employer from “permit[ting] an employee to 

work in such proximity to any part of an electric power circuit that the employee could contact 

the electric power circuit in the course of work ....” The regulation does not define the word 

“permit.” However, as the Commission recently held, “[Commission] precedent makes it clear 

that an undefined term’s meaning can be determined by consulting a contemporaneous 

dictionary.” Roy Rock, LLC, No. 18-0068, 2021 WL 3624785, at *2 (O.S.H.R.C., July 22, 

2021). Dictionaries contemporaneous to this regulation10 define “permit” as “to allow to do 

something”11 “to allow to be done or occur,”12 “to grant permission; allow liberty to do 

something,”13 “to consent to expressly or formally: grant leave for the privilege of: allow, 

tolerate”14 or “to make possible.”15 Thus, the definition of “permit” contemplates either explicit 

or implicit permission given for certain conduct. See 84 Lumber Co., No. 20-0876, 2021 WL 

7208612, at *6 (O.S.H.R.C.A.L.J., Dec. 13, 2021) (concluding similarly for the word “allow,” a 

synonym of “permit”); see also RANDOM HOUSE DICTIONARY, supra note 11 (listing “allow” as 

a synonym of “permit”); WEBSTER’S HIRD T NEW NTI ’L DICTIONARY, supra note 14 (same). 

10 With only minor, non-substantive changes since, the prohibition contained in 29 C.F.R. § 1926.416(a)(1) was first 

promulgated under 29 C.F.R. § 1926.400(c)(1) in 1979. Compare Part 1926 – Occupational Safety and Health 

Standards, 44 Fed. Reg. 8,577, 8,623 (Feb. 9, 1979), with 29 C.F.R. § 1926.416(a)(1). Thus, the Court has consulted 

dictionaries contemporaneous with the original promulgation of the standard. See Roy Rock, LLC, 2021 WL 

3624785, at *3 (consulting a 1986 dictionary for a regulation promulgated in 1988). 

11 Permit, RANDOM HOUSE DICTIONARY OF THE NGLISH E ANGUAGE L 1073 (1971) (definition 1). 

12 Id. (definition 2). 

13 Id. (definition 5). 

14 Permit, WEBSTER’S HIRD T NEW NTI ’L DICTIONARY 1683 (1971) (definition 1:1). 

15 Id. (definition 1:4). 

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Likewise, in Texas where the accident occurred, an employer can be deemed to have 

authorized an employee’s conduct either explicitly or implicitly. See Kennedy v. Am. Nat’l Ins. 

Co., 107 S.W.2d 364, 366 (Tex. 1937) (finding that an employer can be liable for torts 

committed by an employee acting within the scope of employment “if the servant's use of the 

automobile or other vehicle was authorized, either expressly or impliedly.”); Mexico’s Indus., 

Inc. v. Banco Mexico Somex, S.N.C., 858 S.W.2d 577, 583 (Tex. Ct. App. 1993) (finding that, in 

a principal-agent relationship, “actual authority includes both express and implied authority”); 

see also Restatement (Third) of Agency § 2.01 cmt. b (defining “actual authority” to include 

“implied authority,” meaning, in relevant part “to act in a manner in which an agent believes the 

principal wishes the agent to act based on the agent's reasonable interpretation of the principal's 

manifestation in light of the principal's objectives and other facts known to the agent.”). 

Indeed, in Clements Paper Co., No. 419, 1972 WL 4101, at *5 (O.S.H.R.C., June 26, 

1972), the Commission interpreted the term “allowed,” a synonym of “permit,”16 from a different 

but similarly worded regulation17 as follows: 

It seems apparent that the connotation implied from this phrase is that the 

petitioner [Secretary] must prove that responded ‘allowed’ Sells to pass under the 

truck. Section 1910.178(m)(2) is not explicit as to what constitutes ‘allowed’ an 

employee to undertake a certain course of action. It seems axiomatic that the word 

‘allow’ implies permission either implicit or explicit, given by the employer. The 

word permission in turn implies that the employer had knowledge of that act 

which he has given his permission to the employee to do so.” 

Although Clements Paper did not involve the word “permit” or the exact regulation at issue in 

this case, the Court nonetheless finds its interpretation of the synonym “allow” in a similarly 

worded regulation to be instructive and persuasive. Cf. Morrison-Knudsen v. Director, 461 U.S. 

16 See RANDOM HOUSE DICTIONARY, supra note 11 (listing “allow” as a synonym of “permit”); WEBSTER’S THIRD 

NEW NTI ’L DICTIONARY, supra note 14 (same). 

17 The regulation at issue in Clements Paper was 29 C.F.R. § 1910.178(m)(2), which reads: “No person shall be 

allowed to stand or pass under the elevated portion of any truck, whether loaded or empty.” 

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624, 633 (1983) (holding that a word or phrase is presumed to have the same meaning when used 

in different parts of a statute). 

Thus, the Court finds to prove a violation of 29 C.F.R. § 1926.416(a)(1), Complainant 

must prove Respondent either explicitly or implicitly permitted [redacted]’s conduct. Here, 

Complainant has proven neither. 

i. Explicit Permission 

As to explicit permission, CSHO Garcia admitted several times at trial that Rojas had 

not explicitly permitted [redacted] to access the room where the uncovered electrical box was 

located, but rather had instructed both B.G. Metals employees to only work in the hallway where 

no such electrical hazard was present. (Tr. 51, 82-86, 88-89; Ex. C-7, at 2). Rojas likewise 

credibly testified he had escorted the B.G. Metals employees onto the Accident Site, and they 

understood the requested ductwork was to be confined to the hallway because the adjoining 

rooms had not been de-energized. (Tr. 104-08, 119-23, 131-34). 

Complainant makes no persuasive argument that Rojas gave [redacted] explicit 

permission to access the room with the uncovered electrical box. Rather, Complainant cites an 

errant statement from Rojas that “the only ones I told not to go in [the energized room] at the 

time was Ramos Construction.” (Complainant’s Br. 6 (citing Tr. 109)). However, considering 

the totality of Rojas’s testimony, it is clear the B.G. Metals employees knew they were only 

supposed to be working in the hallway of the Accident Site and were to return to their previous 

worksite once their work in the hallway was complete. (Tr. 105, 109, 119-23, 131-34; Ex. C-7, at 

2). The Court does not find Respondent gave explicit permission to [redacted] to work in 

proximity to the uncovered electrical box. 

ii. Implicit Permission 

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As to implicit permission, Complainant makes two arguments in his post-trial brief on 

this point. First, Complainant argues Rojas knew the room in which [redacted] was injured had 

an exposed electrical hazard, and “Frontera could have complied with the cited standard by 

protecting employees against electrical shock had it effectively guarded the circuits by insulation 

or other means, such as requiring that electrical boxes remain covered when not being serviced 

by electricians when other contractors are in proximity.” (Complainant’s Br. 7). Complainant’s 

argument in this regard is simply a restatement of the cited standard, which already recognizes an 

employer can permit employees to work in proximity to an electric power circuit if “the 

employee is protected against electric shock by deenergizing the circuit and grounding it or by 

guarding it effectively by insulation or other means.” 29 C.F.R. § 1926.416(a)(1). 

Complainant’s tautological argument does not demonstrate Rojas implicitly permitted [redacted] 

to work in proximity to the uncovered electrical box. 

Second, Complainant argues “Rojas had the authority to temporarily stop the ductwork 

removal while momentarily away, or simply escort [redacted] to a safer area ....” 

(Complainant’s Br. 7). The cited regulation clearly does not require Respondent to do either of 

these actions. Complainant cites no caselaw to support his arguments in this regard. However, 

Rojas consistently testified he observed the B.G. Metals employees complete the majority of the 

ductwork in the hallway. (Tr. 104, 108; Ex. C-7, at 1). At the point he left to assist another 

contractor onsite, all that was left to do was finish patching a hole, “come down, grab the ladder 

and leave.” (Tr. 123). He estimated the remaining work should have taken a matter of minutes. 

(Tr. 123, 133-34). It was only after Rojas left that [redacted], of his own accord, commenced 

ductwork in the adjoining room in proximity to the uncovered electrical box. (Tr. 28-31, 101-02; 

Ex. C-7, at 2). In this regard, the Commission has held employers do not need to constantly 

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monitor their employees to comply with OSHA’s safety standards. See Manganas Painting Co., 

19 BNA OSHC 1102, 1104 n.5 (No. 93-3362, 2000) (rejecting a “per se rule that a safety policy 

is inadequate unless employees are being constantly monitored for safety violation.”) aff’d, 273 

F.3d 1131 (D.C. Cir. 2001); Ragnar Benson, Inc., 18 BNA OSHC 1937, 1940 (No. 97-1676, 

1999) (employer not required to provide constant surveillance by supervisors); Texas A.C.A., 

Inc., 17 BNA OSHC 1048, 1050 (No. 91-3467, 1995) (employer is not obligated to detect or 

become aware of every instance of existence of a hazard).18 The Court does not find Rojas’s 

actions here constituted implicit permission to work in the room with uncovered electrical box in 

violation of the cited standard. 

Complainant has not proffered any other theory for how Respondent implicitly permitted 

the B.G. Metals employees’ actions on the date of the accident. Accordingly, the Court finds the 

standard was not violated. 

VI. Conclusion 

Complainant has failed to establish Respondent violated the cited standard, and thus failed to 

make out an essential element of his case. Atl. Battery Co., 16 BNA OSHC at 2138. Accordingly, 

the Citation is VACATED. In light of this, the Court need not address the remaining elements of 

Complainant’s prima facie case. 

ORDER 

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. 

18 Though all these cases dealt with the knowledge element of Complainant’s prima facie case, the Court nonetheless 

finds them instructive and persuasive on the issue of whether Respondent permitted the B.G. Metals employees’ 

actions in violation of the cited standard. As noted at trial, the Court finds the “permit” element of 29 C.F.R. 

§ 1926.416(a)(1) to be intertwined with the knowledge element of Complainant’s prima facie case. (Tr. 140-41). 

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Based upon the foregoing Findings of Fact and Conclusions of Law, is it ORDERED that 

Citation 1, Item 1 is VACATED. 

SO ORDERED. 

/s/ Patrick B. Augustine 

Patrick B. Augustine 

First Judge – OSHRC 

Date: May 9, 2022 

Denver, CO 

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