United States of America

 OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., 9th Floor 

Washington, DC 20036-3457 

Secretary of Labor,

 Complainant

 v. OSHRC Docket No.: 19-0768 

Turner Construction Inc. of Naples,

 Respondent.

Appearances:

Jeremy K. Fisher, Esq. 

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

 For Complainant 

 Thomas E. Turner, Jr. 

Turner Construction Inc. of Naples, Florida 

For Respondent 

BEFORE: Administrative Law Judge Sharon D. Calhoun 

 DECISION AND ORDER

Turner Constriction Inc. of Naples (Turner Construction), located in Naples, Florida, 

operates a construction company, which performs concrete and masonry services (Tr. 7, 67). On 

January 8, 2019, a Turner Construction employee was exposed to a fall hazard while in the process 

of performing shell work on a new structure at a worksite located at 201 Goodlette Frank Road, 

Naples, Florida (Tr. 4-5, 21-22). In response to the employee’s fall hazard exposure the 

Occupational Safety and Health Administration (OSHA) conducted an inspection at the worksite 

on January 8, 2019. The inspection was led by OSHA Compliance Safety and Health Officer 

(CSHO) Michael Marquez (Tr. 21-24). As a result of OSHA’s inspection, the Secretary of Labor 

(Secretary) issued a Citation and Notification of Penalty (Citation) to Turner Construction on April 

26, 2019, alleging a repeat violation of a standard under the Occupational Safety and Health Act 

of 1970, 29 U.S.C. §§ 651-678 (Act) as follows:

Item 1 alleges a repeat violation of 29 C.F.R. § 1926.501(b)(1) for failing to provide an 

employee with fall protection while working on a surface more than 6 feet above the next lower 

level. The Secretary proposes a penalty of $20,420.00 for item 1.
2 

 JURISDICTION AND COVERAGE

Turner Construction filed a timely notice of contest bringing this matter before the 

Occupational Safety and Health Review Commission (Commission). Thereafter, the Court held a 

hearing on January 28, 2020, in Fort Myers, Florida. Both parties filed post-hearing briefs on 

March 9, 2020. The parties stipulated jurisdiction of this action is conferred upon the Commission 

pursuant to §10(c) of the Act (Tr. 9, 14; Joint Prehearing Statement at pp. 2-3). Turner Construction 

also admits that at all times relevant to this proceeding it was an employer engaged in a business 

affecting interstate commerce within the meaning of § 3(5) of the Act, 29 U.S.C. § 652(5) (Tr. 9, 

14-15; Joint Prehearing Statement at pp. 2-3). Based on the stipulations and the record evidence, 

the Court finds the Commission has jurisdiction over this proceeding under § 10(c) of the Act and 

Turner Construction is a covered employer under § 3(5) of the Act. 

For the reasons that follow, the Court AFFIRMS Item 1 of the Citation as repeat and

ASSESSES a penalty in the amount of $10,210.00. 

 STIPULATIONS

The parties reached the following stipulations which were read into the record: 

1. Turner Construction was previously cited for a Serious violation of 29 C.F.R. § 

1926.501(b)(13) following OSHA’s inspection of a worksite at 901 10th Ave., 

Naples, FL 34101. The Citation was issued on July 18, 2017 and became a final 

order of the Review Commission on August 23, 2017 after Turner Construction 

agreed to an Expedited Informal Settlement Agreement.

2. Turner Construction, at the time of the OSHA inspection, was an employer 

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

the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651, et seq. 

3. OSHA has jurisdiction over Turner Construction as the employer of the 

employees at the worksite. 

4. Turner Construction timely contested the Citation and the proposed penalty, 

pursuant to the provision of Section 10(c) of the Act. 

5. The Citation issued to Turner Construction on July 18, 2017 became a final 

order of the Review Commission on August 23, 2017 after Turner Construction 

agreed to an Expedited Informal Settlement Agreement.

(Tr. 8-9, 14-15; Joint Prehearing Statement at pp. 2-3). 

 BACKGROUND

Turner Construction operates as a concrete and masonry construction company (Tr. 7, 67). 
3 

It employs approximately 28 employees at its Naples, Florida facility (Tr. 65-66). In January 2019, 

Turner Construction was engaged in construction and concrete operations regarding a structure on 

Goodlette Frank Road, Naples, Florida (Tr. 4-5, 21-22). The structure under construction was part 

of a residential project, with the structure designated as a storage facility for the complex (Tr. 50). 

Turner Construction utilized various employees at the worksite. Its worksite management 

consisted of foreman Fernando Moran and project manager Charles Holiday (Tr. 35-37, 40). 

On January 8, 2019, CSHO Marquez1 was driving through the Naples, Florida region as 

part of OSHA’s local emphasis program focusing on falls in construction (Tr. 21-22). As CSHO 

Marquez was driving, he noticed employees conducting concrete set-up work at a worksite (Tr.

21-22). CSHO Marquez specifically noticed one of the employees was performing concrete work 

at significant height with no fall protection (Tr. 21-22; Exs. C-1, C-2, C-3, C-4). From Goodlette 

Frank Road, CSHO Marquez observed and took pictures of a worker moving a concrete hose on 

top of the structure (Tr. 21-23; Exs. C-1, C-2, C-3, C-4). CSHO Marquez estimated that the worker 

was four to six feet from the edge of the structure and approximately twenty to twenty-two feet 

above the ground’s surface (Tr. 25).

Following this observation, OSHA initiated its inspection of the worksite (Tr. 24). CSHO

Marquez drove to another side of the structure and continued to take photographs of the worker 

(Tr. 24-26; Ex. C-2). The worker was moving the concrete hose with his knee while only four to 

six feet from the outer part of the structure (Tr. 27-29; Exs. C-3, C-3A). The surface the worker 

was moving the hose on consisted of a landing approximately one and a half feet wide (Tr. 34). 

CSHO Marquez determined that it would be impossible to work on the landing without fall 

protection and not be exposed to a hazard (55-56). He measured the height between the employee’s 

working area and the next concrete surface to be eleven feet and five inches (Tr. 31; Exs. C-6A, 

C-7). While the employee was working on the structure’s surface, he did not have any form of fall 

protection, he was not wearing a harness, and there was no guardrail system in place (Tr. 34-35).

1 Prior to OSHA, CSHO Marquez was a military policeman in the Army for five years and a Kansas City, Missouri 

police officer for ten years (Tr. 20). CSHO Marquez began working for OSHA in 2009 as a compliance officer in 

Syracuse, New York (Tr. 21-20). Afterwards, CSHO Marquez worked as an OSHA compliance officer in the Ft. 

Lauderdale office for nearly a decade (Tr. 20-21). His duties consist of performing various inspections and 

investigations on behalf of OSHA (Tr. 20-21). He has completed over five hundred inspections on OSHA’s behalf 

(Tr. 21).
4 

During OSHA’s inspection, CSHO Marquez met with Fernando Moran, the foreman at the 

worksite (Tr. 35-37). An opening conference was conducted with Moran who identified himself 

and the crew as working for Turner Construction (Tr. 36). Moran explained that the workers were 

preparing for a concrete pour and that he had directed their tasks (Tr. 36-38). He also 

acknowledged, as the foreman in charge of the worksite and the employees’ tasks, the employee 

with the concrete hose could have fallen and broken bones (Tr. 35-39; Ex. C-8). CSHO Marquez 

then conducted a conference with Charles Holiday, Turner Construction’s project manager, who 

had arrived at the worksite after being informed OSHA was on-site (Tr. 40-41, 92-93).

Upon further investigation, CSHO Marquez learned Turner Construction had been 

previously cited for a fall protection violation (Tr. 42-44). On July 18, 2017, OSHA had issued a 

Citation alleging a serious violation of 29 C.F.R. §1926.501(b)(13) (Ex. C-9). The Citation alleged 

that on May 13, 2017, an employee of Turner Construction was exposed to a 13-foot fall hazard 

while working in Naples (Ex. C-9). During the inspection of this 2017 violation, Thomas Turner, 

Jr., the owner of Turner Construction, was on the worksite and supervising his employees (Ex. C10). The Citation was ultimately resolved through the execution of an informal settlement 

agreement, which became a final order of the Commission on August 23, 2017 (Tr. 15; Ex. C-11).

As a result of CSHO Marquez’s investigation, OSHA issued Turner Construction one 

repeat citation alleging a violation of 29 C.F.R. § 1926.501(b)(1) for failure to provide fall 

protection. 

THE CITATION

The Secretary's Burden of Proof 

In order to establish a violation of a safety standard under the Act the Secretary must prove 

by a preponderance of the evidence: (1) the applicability of the cited standard; (2) the employer 

failed to comply with the terms of that standard; (3) employees had access to the hazardous 

condition covered by the standard; and (4) the employer knew, or with the exercise of reasonable 

diligence could have known, of the violative condition. Astra Pharm. Prods., 9 BNA OSHC 2126, 

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

Item 1: Alleged Repeat Violation of § 1926.501(b)(1) 

Alleged Violation Description 

Item 1 alleges: 
5 

On or about January 8th, 2019, at Goodlette-Frank Road Naples Florida, 34102, an 

employee was exposed to an 11 feet 5-inch fall hazard while in the process of 

performing shell work on a new commercial structure.

Turner Construction, Inc. of Naples was previously cited for a violation of this 

occupational safety and health standard or its equivalent standard 29 C.F.R. 

1926.501(b)(13), which was contained in OSHA inspection number 1237261, 

citation number 1, item number 1 and was affirmed as a final order on August 23, 

2017, with respect to a workplace located at 901 10th Ave. Naples, Florida 34101. 

Section 1926.501(b)(1) 

Section 1926.501(b)(1) provides: 

Unprotected sides and edges. Each employee on a walking/working surface 

(horizontal and vertical surface) with an unprotected side or edge which is 6 feet 

(1.8 m) or more above a lower level shall be protected from falling by the use of 

guardrail systems, safety net systems, or personal fall arrest systems.

(1) Applicability of the Cited Standard

 Subpart M of the Occupational Safety and Health Standards in Part 1926 addresses the 

requirements and criteria for fall protection in construction workplaces. The parties do not dispute

the provisions of the standard are applicable. The evidence adduced at trial shows Turner 

Construction’s employee was standing and working on the edge of an upper level surface within 

the structure under construction (Tr. 28-31; Exs. C-1, C-2, C-3, C-6A, C-7). While working on 

the edge of the upper level surface, there was no guardrail or safety net system in place (Tr. 34-35, 

Ex. C-6A). The employee was not wearing a safety harness or utilizing fall protection lanyards

(Tr. 34-35; Exs. C-2, C-3, C-4). The record further shows the employee was working four to six 

feet from the outer edge of the structure and approximately twenty to twenty-two feet above the 

ground level (Tr. 25; Exs. C-1, C-3). Section 1926.501(b)(1) is therefore applicable to the work

being performed by the employee. 

(2) Compliance with the Terms of the Cited Standard 

The record reveals Turner Construction failed to provide fall protection in violation of § 

1926.501(b)(1). The parties do not dispute the employee was working without fall protection in 

violation of the standard. CSHO Marquez testified the employee was working without any fall 

protection (Tr. 34-35). He further testified there were no guardrail systems, safety nets, or personal 

fall arrest systems in place while the employee worked near the edge of the structure (Tr. 34-35). 

The photographs taken by CSHO Marquez support the employee’s lack of any fall protection 
6 

whatsoever (Exs. C-2, C-3, C-4). The evidence shows Turner Construction’s employee was not 

utilizing any fall protection while he worked four to six feet from the building’s outside edge and

twenty to twenty-two feet above the ground level (Tr. 25, 34-35; Exs. C-1, C-3, C-4). Additionally, 

while the worker was moving the concrete hose, he was working on a landing approximately one 

and a half feet wide and eleven feet and five inches high from the next lower concrete surface (Tr. 

31, 34; Exs. C-6A, C-7). Mr. Turner admits his employee should not have been working near the 

edge without fall protection (Tr. 79). Mr. Turner also admits “the pictures explain themself... if 

you fall, there’s a great chance that you’ll die” (Tr. 85-86). 

The record is clear, the terms of the standard were violated. 

(3) Access to the Violative Condition

The Secretary bears the burden of proving whether employee exposure to the violative 

condition exists. Fabricated Metal Products, Inc., 18 BNA OSHC 1072, 1074 (No. 93-1853, 

1997) (citations and footnotes omitted). The Commission has long held the test for hazard 

exposure requires the Secretary to “show that it is reasonably predictable either by operational 

necessity or otherwise (including inadvertence), that employees have been, are, or will be in the 

zone of danger.” Delek Ref., Ltd., 25 BNA OSHC 1365, 1376 (No. 08-1386, 2015) (citing id.). 

See also Rockwell Intl. Corp., 9 BNA OSHC 1092 (No. 12470, 1980); Gilles & Cotting, 3 BNA 

OSHC 2002 (No. 504, 1976).2

The zone of danger is defined as the “area surrounding the violative condition that presents 

the danger to employees.” Boh Bros. Constr. Co., LLC, 24 BNA OSHC 1067, 1085 (No. 09-1072, 

2013) (citing RGM Constr. Co., 17 BNA OSHC 1229, 1234 (No. 91-2107, 1995)). The zone of 

danger is determined by the hazard presented by the violative condition and is typically the area 

surrounding the violative condition that presents the danger to employees which the standard is 

intended to prevent. RGM Construction, Co., 17 BNA OSHC at 1234; Gilles & Cotting, Inc., 3 

BNA OSHC at 2003. The Commission has further held that access to a fall hazard is reasonably 

predictable where employees are expected to come within twelve feet of an unguarded edge and 

2 In Gilles & Cotting, Inc., the Commission rejected the “actual exposure” test, which required evidence that someone 

observed the violative conduct, in favor of the concept of “access”, which focuses on the possibility of exposure under 

the conditions. See Gilles & Cotting, Inc., 3 BNA OSHC at 2002 (holding “that a rule of access based on reasonable 

predictability is more likely to further the purposes of the Act than is a rule requiring proof of actual exposure”). 
7 

reasonably believe they are permitted in the unprotected area. Phoenix Roofing Inc., 17 BNA 

OSHRC 1076, 1079 (No. 90-2148, 1995).

Turner Construction’s employee was exposed to the hazardous condition while working 

on the upper level of the structure on the worksite. The record reveals the worker was within four 

to six feet of the outside edge of the structure and approximately twenty to twenty-two feet from 

the ground (Tr. 25; Exs. C-1, C-3). Additionally, the record shows the worker was exposed to a 

fall hazard from the inner part of the structure. While the worker was moving the concrete hose, 

he was working on a landing approximately one and a half feet wide and eleven feet and five 

inches from the next lower surface (Tr. 31, 34; Exs. C-6A, C-7). CSHO Marquez testified it would 

be impossible to work on the landing without fall protection and not be exposed to a fall hazard 

(55-56). Turner Construction’s foreman, Moran, admitted the exposed employee could “break 

bones” if he fell (Tr. 39; Ex. C-8). 

The record is clear that the employee was working on the structure’s surface, without any 

form of fall protection, safety harness, or guardrail system in place (Tr. 34-35; Exs. C-1, C-2, C-3, 

C-6A, C-7). By failing to provide fall protection to an employee working near an unprotected 

edge which was more than six feet above a lower level, it was reasonably predictable the employee 

would be in the zone of danger. Therefore, access to the violative condition is established. 

(4) Knowledge of the Violative Condition 

Turner Construction’s knowledge of the violation may be established by showing the 

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

U.S.C. § 666(k); Nat’l Eng’g & Contracting Co. v. Occupational Safety & Health Admin, 928 F.2d 

762, 767 (6th Cir. 1991). An employer’s awareness of the violation may be shown through actual 

or constructive knowledge of the violation. To establish constructive knowledge, an employer 

must fail to exercise reasonable diligence in discovering the noncomplying 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.” Precision Concrete Constr., 19 BNA OSHC at 1407; See Pride Oil Well Serv., 15 

BNA OSHC 1809, 1814 (No. 87-692, 1992). 
8 

Further, in the Eleventh Circuit, where this case arises, “where the Secretary shows a 

supervisor had either actual or constructive knowledge of the violation, such knowledge is 

generally imputed to the employer.” ComTran Crp., Inc. v. U. S. Dep’t of Labor, 722 F.3d 1304, 

1307-08 (11th Cir. 2013). The knowledge of a supervisor is imputed to an employer when the 

supervisor observers an employee violating a safety rule, knows there is a violation, but 

nevertheless permits the violative conduct to continue. Quinlan v. Secretary of Labor, 812 F.3d 

832 (11th Cir. 2016). An employee who has been delegated authority over another employee, even 

if only temporarily, is considered to be a supervisor for purposes of imputing knowledge to an 

employer. American Engineering & Development Corp., 23 BNA OSHC 2093, 2012 (No. 10-

0359, 2012); Diamond Installations, Inc., 21 BNA OSHC 1688 (Nos. 02-2080 & 02-2081, 2006); 

Tampa Shipyards, Inc., 15 BNA OSHC 1533 (Nos. 86-360 and 86-469, 1992). 

The record shows Turner Construction had actual knowledge through its foreman, 

Fernando Moran, who had supervisory authority over every employee on the worksite (Tr. 35-37, 

78). Mr. Turner does not dispute Moran’s supervisory role. He testified Moran was the worksite’s 

foreman and had supervisory authority and responsibility for the worksite employees (Tr. 78). 

Moran had directed the employees’ tasks and could stop unsafe work (Tr. 35-36; Ex. C-8). 

Specifically, Moran had directed the employee to perform the work, of using the concrete pump 

hose on the upper level, that had exposed the employee to the violative condition (Tr. 37-38; Ex. 

C-8). Mr. Turner corroborated that Moran had instructed the employees to use the concrete hose 

on the structure’s upper level (Tr. 76-77). Mr. Turner further testified that the employees had been 

instructed to bring the concrete hose through the completed stairwell, but instead moved the hose 

across the tops of the interior walls (Tr. 75-77). Although the employees failed to perform the job 

in the manner instructed, Moran, who was observing the work, permitted the violative conduct to 

continue (Tr. 35-37, 75-78). 

The record shows Moran knew the employees were engaged in violative conduct which 

exposed them to a fall hazard (Tr. 35-37, 75-78; Ex. C-8). Actual knowledge is established when 

a supervisor directly engages in or sees a subordinate’s misconduct. See, e.g., Secretary of Labor 

v. Kansas Power & Light Co., 5 BNA OSHC 1202, at p. 3 (No. 11015, 1977) (holding because the 

supervisor directly saw the violative conduct without stating any objection, “his knowledge and 

approval of the work methods employed will be imputed to the respondent”). 
9 

Knowledge of the violative condition is established. The Secretary has proven all elements 

of his prima facie case. 

Characterization of the Violation

The Secretary characterized the violation of the standard found at § 1926.501(b)(1) as 

repeat. A repeat violation is committed where both the same standard has been violated more than 

once and there is substantial similarity of violative elements between the current and prior 

violations. 29 U.S.C. § 666(a); D & S Grading Co. v. Sec’y of Labor, 899 F.2d 1145 (11th 

Cir. 1990). Further, the prior citation on which the repeat violation is based must have become a 

final order of the Commission. Id. Once substantial similarity has been proven, the burden shifts 

to the employer to disprove substantial similarity. D & S Grading Co. v. Sec’y of Labor, 899 F.2d 

1145 (11th Cir. 1990). 

On July 18, 2017, OSHA had issued a Citation alleging a serious violation of 29 C.F.R. 

§1926.501(b)(13) (Ex. C-9). The Citation alleged that on May 13, 2017, an employee of Turner 

Construction was exposed to a 13-foot fall hazard while working at a worksite in Naples (Ex. C9). During the inspection, Thomas Turner, Jr., the owner of Turner Construction, was on the 

worksite and supervising the tasks of his employees (Ex. C-10). The Citation was ultimately 

resolved through the execution of an informal settlement agreement, which became a final order 

of the Commission on August 23, 2017 (Tr. 15; Ex. C-11). The parties stipulated Turner 

Construction had previously been cited for a serious violation of 29 C.F.R. § 1926.501(b)(13)

which became a final order of the Commission (Tr. 15; Ex. C-11). 

CSHO Marquez recommended a repeat citation because of the substantially similar 

violative conditions between the current and prior violation (Tr. 51). Both the current and prior 

violations involved employee exposure to a fall hazard while performing concrete work (Tr. 51). 

The prior violation was cited under 29 C.F.R. § 1926.501(b)(13) because the structure was a 

residence under construction (Tr. 51; Exs. C-9, C-10). The current violation was cited under 29 

C.F.R. § 1926.501(b)(1) because the structure itself, while part of a residential housing project, 

was designated as a storage facility for the complex (Tr. 50-51). The Court finds the differences 

in the standards are immaterial for purposes of repeat violation characterization. Both standards 

involve fall hazards and working without fall protection from a structure’s unprotected edge. 

The violation was properly characterized as repeat.
10

Employee Misconduct 

The burden to prove the elements of employee misconduct rests on Turner Construction. 

To establish the affirmative defense of unpreventable employee misconduct, the employer must 

prove: "(1) that it has established work rules designed to prevent the violation; (2) that it adequately 

communicated these rules to its employees; (3) that it has taken steps to discover violations; and 

(4) that it has effectively enforced the rules when violations have been discovered." P. Gioioso & 

Sons, Inc. v. Occupational Safety and Health Review Comm’n, 115 F.3d 100 (1st Cir. 1997); 

Valdak v. OSHRC, 73 F.3d 1466 (8th Cir. 1996); Precast Servs., Inc., 17 BNA OSHC 1454, 1455, 

(No. 93-2971, 1995) aff'd, 106 F.3d 401 (6th Cir. 1997); Hosp. Mgmt., Inc., d/b/a Executive Inn, 

No. 96-1478, 1997 WL 185350 (O.S.H.R.C.A.L.J., Apr. 10, 1997), citing Nooter Constr. Co., 16 

BNA OSHC 1572, 1578 (No. 91-237, 1996). 

The record reveals Turner Construction did not have, enforce, or effectively communicate 

any specific rule, designed to prevent the alleged violation. While Mr. Turner testified his 

employees had taken fall protection classes after the prior violation, he provided no evidence of 

any relevant specific fall protection work rule being communicated to his employees (Tr. 85). 

Instead, the evidence adduced at trial shows no fall protection systems were available at the 

worksite (Tr. 25, 34-35; Exs. C-1, C-2, C-3, C-4). 

Turner Construction failed to show it effectively enforced any rules or disciplined any 

employee when the alleged violation occurred. As Turner Construction has not met its burden in

establishing any of the elements of the above-mentioned affirmative defense, the Court finds 

Turner Construction’s employee misconduct defense fails. 

PENALTY DETERMINATION

Pursuant to Section 666(j) of the Act, the Commission is granted the authority to assess 

civil penalties for the violation of citations. 29 U.S.C. § 666(j). In assessing penalties, the Act 

requires due consideration be given to the size of the employer’s business, the gravity of the 

violation, the good faith of the employer, and any prior history of violations. 29 U.S.C. § 666(j). 

These factors are not necessarily accorded equal weight. J.A. Jones Constr., 15 BNA OSHC 2201, 

2216 (No. 87-2059, 1993) (citation omitted). When applying the penalty assessment factors, the 

Commission need not accord each one equal weight. See, e.g., Astra Pharm. Prods., Inc., 10 BNA 

OSHC 2070, 2071 (No. 78-6247, 1982); Orion, 18 BNA OSHC at 1867 (giving less weight to the 
11

size and history factors). Generally, the gravity of the violation is afforded greater weight in 

assessing an appropriate penalty. Trinity Indus., 15 OSHC 1481, 1483, (1992). A violation’s 

gravity is determined by weighing the number of employees exposed, the duration of said 

exposure, preventative measures taken against injury, and the possibility that an injury would 

occur. J. A. Jones Constr. Co., 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993); Kus-Tum 

Builders, Inc., 10 BNA OSHC 1128, 1132 (No. 76-2644, 1981). 

CSHO Marquez testified how the penalty for the citation item was calculated and proposed 

(Tr. 51-54). He testified a fall from eleven and a half feet onto a concrete surface or a fall from 

approximately twenty to twenty-two feet high to the ground would result in permanent disability 

or death (Tr. 51-52) According to the CSHO, he assessed the gravity of the violation as high 

because of the high likelihood the employee could have sustained severe injuries, multiple broken 

bones, or death from a fall (Tr. 52-53). Probability was assessed as greater because of the amount 

of time the employee was exposed to the hazard (Tr. 52-53). 

The Commission frequently relies on the number of employees to evaluate the merits of 

altering a penalty for size. The Commission has viewed the size factor as “an attempt to avoid 

destructive penalties” that would unjustly ruin a small business. Colonial Craft Reprod., 1 BNA 

OSHC at 1064. See also Intercounty Constr. Corp., 1 BNA OSHC 1437, 1439 (No. 919, 1973), 

aff'd, 522 F.2d 777 (4th Cir. 1975). This concern for small businesses must be tempered with the 

need to achieve compliance with applicable safety standards. Atlas Roofing Co. v. OSHRC, 518 

F.2d 990, 1001 (5th Cir.1975) (OSHA penalties are meant to “inflict pocket-book deterrence”), 

aff'd, 430 U.S. 442 (1977). With respect to the size of the business, the CSHO initially 

recommended a 30% reduction. (Tr. 53-54). The Court concludes considering the small size of 

this company, further reduction of the penalty based on size is warranted. 

The next statutory consideration, history, examines an employer’s full prior citation history, 

not just prior citations of the same standard. Orion, 18 BNA OSHC at 1868; Manganas Painting 

Co., 21 BNA OSHC 2043, 2055 (No. 95-0103, 2007) (Consol.) (history includes prior uncontested 

citations). The penalty was increased by 10% due to Turner Construction’s prior violation history 

(Tr. 53-54). Additionally, a multiplier was applied to the amount because of the citation’s repeat 

classification (Tr. 53-54).

The final factor, good faith, entails assessing an employer’s health and safety program, its 
12

commitment to job safety and health, its cooperation with OSHA, and its efforts to minimize any 

harm from the violation. Monroe Drywall Constr., Inc., 24 BNA OSHC 1209, 1211 (No. 12-0379, 

2013); Nacirema, 1 BNA OSHC at 1002. There was no reduction for good faith due to the 

violation’s repeat classification (Tr. 53-54). 

For repeat Citation 1, Item 1, the Secretary proposed, after adjustments, a penalty of 

$20,420.00. Upon due consideration of section 666 (j) of the Act, with regard given to the 

enumerated penalty calculation factors, the Court assesses a penalty in the amount of $10,210.00.

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. 

ORDER

Based upon the foregoing decision, it is ORDERED that:

Item 1 of the Citation, alleging a repeat violation of § 1926.501(b)(1), is AFFIRMED and 

a penalty in the amount of $10,210.00 is ASSESSED. 

SO ORDERED.

 

/s/___________________________ 

 Sharon D. Calhoun 

Dated: September 29, 2020 Administrative Law Judge, OSHRC 

 Washington, DC