UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

THOMAS E. PEREZ, Secretary of Labor, 

United States Department of Labor,

Complainant,

v. OSHRC DOCKET No. 14-0714

PEPPER CONTRACTING SERVICES, INC.,

Respondent.

DECISION AND ORDER 

COUNSEL: M. Patricia Smith, Solicitor of Labor, Stanley Keen, Regional Solicitor, Rolesia 

Dancy, Acting Counsel, Brooke Werner McEckron, Senior Trial Attorney, for Complainant. 

John M Hament, III, Esquire, and Anne Willis Chapman, Esquire, Kunkel, Miller & Hament, for 

Respondent. 

JUDGE: John B. Gatto. 

I. INTRODUCTION 

Pepper Contracting Services, Inc. (Pepper) was the general contractor on a highway 

construction project in Tampa, Florida, when an employee was struck by a dump truck and died 

eighteen days later. The fatality was reported to the Department of Labor’s Occupational Safety 

and Health Administration (OSHA), and after an investigation was conducted, OSHA issued1

Pepper a citation for violating the Occupational Safety and Health Act of 1970 (the Act), 29 

U.S.C. §§ 651–678. The citation alleged a “serious” violation2 of section 5(a)(1) of the Act, 29 

U.S.C. § 654(a)(1), commonly known as the “general duty clause,” and proposed a penalty of 

$5,670.00. 

After Pepper timely contested the citation, the Secretary filed a formal complaint with the 

Commission charging Pepper with violating the Act and seeking an order affirming the citation 

 

1

 The Secretary of Labor has assigned responsibility for enforcement of the Act to OSHA and has delegated his 

authority under the Act to the Assistant Secretary for Occupational Safety and Health, who heads OSAH. See 65 

Fed.Reg. 50018 (2000). The Assistant Secretary has redelegated his authority to OSHA’s Area Directors to issue 

citations and proposed penalties. See 29 C.F.R. §§ 1903.14(a) and 1903.15(a). Here, the citation and proposed 

penalty were issued by the Tampa, Florida OSHA Area Director. 

2

See Part III, Subpart H for the definition of a “serious” violation classification. 
2 

and proposed penalty. The parties stipulated the Commission has jurisdiction of this action 

under section 10(c) of the Act, 29 U.S.C. § 659(c). (Compl. ¶ I; Answer ¶ I.) A two-day bench 

trial was held in Clearwater, Florida. Pursuant to Rule 52(a) of the Federal Rules of Civil 

Procedure, after hearing and carefully considering all the evidence and the arguments of counsel, 

the Court issues this Decision and Order as its findings of fact and conclusions of law.3

 For the 

reasons indicated infra, the Court concludes all the elements necessary to prove a serious 

violation of the general duty clause have been satisfactorily established. Accordingly, the 

citation is AFFIRMED and Pepper is assessed a civil penalty of $5,670.00.

II. BACKGROUND 

Pepper is a general construction contractor located in Tampa with 230 employees, and on 

October 29, 2013, the day of the accident, Pepper was supervising a highway construction 

“milling” operation on Dale Mabry Highway. (Sec’y Post-Trial Br. p. 2; Pepper Post-Trial Br., p. 

3.) In a highway milling operation, a milling machine is used to remove the existing asphalt 

layer to whatever depth is needed, referred to as “milling,” before new road base and asphalt 

layers are added. (Tr. 277-278, 279, 298-99, 445.) As the milling machine moves forward 

removing the existing asphalt layer, a chute extending forward from the front of the machine 

deposits the milling debris via a conveyor into a dump truck in front of the machine. After the 

dump truck is filled, it leaves to dump the milled material and another dump truck backs into 

place in front of the milling machine. The dump trucks continuously cycle through filling and 

then dumping their loads, allowing the milling operation to proceed uninterrupted. (Tr. 55, 190, 

193, 251, 332-33.) 

The milling operation consisted of Pepper’s crew, and two subcontractors hired by 

Pepper: Turtle Southeast Milling (Turtle), which performed the milling work, and Jason’s 

Hauling, which provided dump trucks for the debris removal. (Tr. 41, 280-81.) Terry Infinger, 

Pepper’s foreman on the project, had a crew consisting of the decedent, a laborer, and Robert 

Bacon, Jr., the finish load operator. (Tr. 280-81, 283.) Turtle operated the milling machine with 

a two-person crew, David Hollister, the foreman or crew chief, and Robert Karre, the milling 

machine operator. (Tr. 338, 343-44.) Jason’s Hauling sent four dump truck drivers to the 

 

3

 If any finding is in truth a conclusion of law, or if any stated conclusion is in truth a finding of fact, it shall be 

deemed so. 
3 

worksite, including Yonnesly Carmenate who is employed by Omar Mendoza, an independent 

contractor, and Alejandro Perez, an independent contractor driving the truck that struck the 

decedent. (Tr. 188-190, 191, 208-09, 213.) 4

Since Infinger assessed the project sites they were planning to mill, he knew there were 

two separate worksites, one on each side of Tampa Bay Boulevard, and knew after they crossed 

Tampa Bay Boulevard, there would be a Verizon vertical pole marker in the direct path of the 

milling operation. (Tr. 288-89.) On the day of the accident, the project began working on the 

east side of Dale Mabry (on the south side Tampa Bay Boulevard). (Tr. 277-278, 279, 298-99, 

444, 445.) The milling operation began around 7:30 a.m. and continued throughout the morning, 

milling “very slow, ten feet per minute.” (Tr. 192, 375.) Later that morning, the milling convoy 

crossed Tampa Bay Boulevard to continue the operation. (Tr. 298, 320-21, 345.) 

During the project sometime the week before the accident, the milling machine clipped a 

telecommunications box overgrown with grass. (Tr. 289, 360.) Although the box had a vertical 

pole marker, the marker indicated the cable was buried. (Tr. 289.) Therefore, immediately after 

crossing Tampa Bay Boulevard, Infinger and the decedent walked to the Verizon pole marker “to 

make sure there wasn’t a box there” but found another partially covered telecommunications 

box. (Tr. 291, 360.) In order to better expose the box, Infinger used a shovel and began 

uncovering the front edge and then instructed the decedent to finish the job. (Tr. 288-90; R-11.) 

Bacon testified “the milling hadn't [restarted] -- we had just crossed over Tampa Bay Boulevard 

with the machines and everything.” (Tr. 321.) “[Infinger] went up to the milling operator to 

show him exactly where to start, where the line would be. And while they were setting up, 

[Infinger] took [the decedent] up to locate a box. I walked in behind [Infinger] to show [the 

decedent] what to do. When I seen that -- what they were looking for right there, I turned around 

and went back to where my position is.” (Tr. 321.) 

Since Infinger anticipated the task would take no longer than a few minutes, he left the 

decedent at the box and walked back to the milling machine. (Id.) After Hollister finished setting 

up the milling machine, the milling operation began again, and a few minutes later the accident 

occurred. (Tr. 321, 326, 346.) Due to the injuries that he suffered when he was hit by Perez’s 

 

4

 Infinger has been in the road construction business for forty years. (Tr. 277.) Perez has been driving dump 

trucks for eighteen years and Carmenate has been driving dump trucks for three years. (Tr. 189, 209.) The decedent 

had eleven years of experience in road crew construction. (Tr. 448.) 
4 

dump truck, the decedent died at the hospital on November 16, 2013. There were no witnesses 

to the accident. However, there is no dispute the decedent was assigned to work near the 

Verizon pole that served as a marker for the telecommunications box, that he was wearing both a 

hard hat and a high-visibility vest, and that he was in this location at the time he was struck by 

Perez’s dump truck. (Tr. 108, 289, 215-17, 301-02, 312; see also J-3). Immediately after the 

accident and again at the hospital before he passed away, the decedent stated Perez was 

speeding. (Tr. 145, Ex. J-l. p. 4.) 

At that time of the accident, Carmenate’s truck was directly in front of the milling 

machine receiving the milling debris deposit and Perez’s truck was waiting its turn directly in 

front of Carmenate. (Tr. 126-27, 128; see also Ex. J-9; J-1l.) Since the milling operation had 

restarted and was slowly moving forward, at some point Carmenate’s truck and Perez’s truck 

were so close Carmenate honked his horn to move Perez forward. (Tr. 195, 353.) Hollister 

testified if Perez “was paying attention, then he would know that [Carmenate’s] truck is right up 

on [his] backside and he should be moving forward. We shouldn't have to stop the milling 

machine, signal our driver to have him honk his air horn to make this truck move up.” (Tr. 358-

59.) “And these guys get in a rush, when they start honking their horns, they're like, oh, it's time 

to move, so we shoot up 20, 30 feet.” (Tr. 359.) 

Perez asserts after crossing Tampa Bay Boulevard he did not see the Verizon post where 

the decedent was working. “I see the post when it’s still over there and I’m coming through 

Tampa Bay [Boulevard]. I see the post, it's far away and there's no person near it. Once I stop, 

the milling machine stops, the first truck stops, I stop, then at that point I am too close to the post 

to be able to see it.” (Tr. 238.) Nonetheless, Perez also admitted “When you’re doing your job, 

you’re not looking at the Verizon post, you’re not paying attention to that. There’s many other 

things to look at. I have to watch the machine.” (Tr. 239.) 

The “at that point” reference by Perez is the point where the milling operation stopped to 

setup again after crossing Tampa Bay Boulevard. However, none of the other witnesses 

corroborate Perez’s assertion that “at that point” he was too close to the post to be able to see the 

Verizon post (and the decedent). Significantly, Fred Sumner, Pepper’s Safety Manager, arrived 

at the worksite a few minutes after the accident and personally measured the distance from the 

point the milling operation had stopped after crossing Tampa Bay Boulevard to the 
5 

telecommunications box, a distance of 210 feet.5 (Tr. 418-19; see also R-1.) Hollister testified 

while he was setting up the milling machine again, he could see the decedent “down the road 

there unshoveling stuff.” (Tr. 321, 360, 361, 363.) Bacon also testified “it was a ways to walk up 

there to where [Infinger] had showed [the decedent] where the box was” and there “was no truck 

close to [Infinger and the decedent] whatsoever.” (Tr. 324, 331.) Likewise, Infinger testified 

when he and the decedent walked up to the telecommunications box, “I didn't see anyone that 

close to me.” (Tr. 314.) 

Hollister testified after they restarted the milling operation, they went “maybe ten, fifteen 

feet. So a couple minutes. We had just set in, so I mean we didn’t go very far before we had to 

stop and idle down.” (Tr. 346; see also Ex. J-11.) Bacon also testified “They probably couldn't 

have gone no more than ten or fifteen feet. I mean it was almost immediate.” (Tr. 321.) 

Likewise, Karre also testified they went “about ten feet” before the accident occurred. (Tr. 373.) 

Therefore, Perez’s assertion “at that point,” the point where the milling operation stopped to 

setup again after crossing Tampa Bay Boulevard, he was “too close to the post to be able to see 

it,” or the decedent, is not supported by the credible evidence in this case. 

Perez also maintains after the milling operation started up again, Carmenate’s truck 

“started to get filled up...they honked the horn for me to move. And as soon as I had moved 

maybe two or three feet I [felt] a weird movement. And that’s when the accident happens.” (Tr. 

215.) Again, none of the other witnesses corroborate Perez’s assertion he drove only two or 

three feet before striking the decedent. Infinger, who has been in the road construction business 

for forty years, testified he would never have placed himself or the decedent a few feet from the 

bumper of a running dump truck. (Tr. 277, 280, 290.) Likewise, Bacon testified “My boss 

wouldn't have never put anybody in front of anything like that. It wouldn't have happened, 

period. Wouldn't have happened.” (Tr. 336.) When Bacon was asked if he walked in front of a 

truck that was close by when he followed Infinger and the decedent to the box, Bacon 

emphatically responded, “No. That would be insane. No . . . . you could either get hit – you’d 

get fired, too. Or you’d get reprimanded. You just don't do things like that. It’s insane to do 

stuff like that.” (Tr. 325.) 

 

5

 Sumner has sixteen years of experience in safety management positions. (Tr. 382.)
6 

The milling machine was thirty-two feet long and each dump truck was thirty feet long. 

There was approximately ten feet separating the receiving dump truck and the milling machine 

and approximately ten feet separating the two dump trucks. (Tr. 150, 151.) Therefore, the 

milling caravan was approximately 112 feet long. After the milling operation restarted it went 

only ten to fifteen feet before the accident occurred. The Court finds the preponderance of 

evidence therefore shows Perez drove between 83 and 88 feet before he struck the decedent (the 

210 feet distance from the point where the milling operation stopped after crossing Tampa Bay 

Boulevard to where the telecommunications box was located, minus the caravan length of 

approximately 112 feet and the ten to fifteen feet the milling operation had milled after it 

restarted before the accident occurred). Thus, the Court finds Perez’s assertion he moved only 

two or three feet is not supported by the credible evidence in this case. 

The fatality was reported to OSHA on its hotline on November 16, 2013, and a fatality 

investigation was initiated on November 18, 2013, by Gerardo Ortiz, an OSHA Compliance 

Safety and Health Officer, which he completed on November 22, 2013. (Tr. 40; see also J-1.) 

By that time, twenty days had passed since the accident occurred and the scene had changed. 

Nonetheless, Ortiz visited the accident scene on November 19, 2013. (Tr. 39.) Ortiz interviewed 

Infinger, Bacon, Carmenate, Perez, Hollister, and Karre. (Tr. 55-57; see also J-9, J-10, J-11, J12.) Ortiz also obtained a copy of the police report. (Tr. 57-58.) After completing the 

investigation, Ortiz determined that Pepper failed to keep employees who worked in the internal 

work zone free from the hazard of being struck by vehicles and equipment because it did not 

have sufficient internal traffic control procedures in place. (Tr. 68; see also J-1, J-2.) Therefore, 

Ortiz recommended the issuance of the citation. (Id.) 

Ortiz admitted prior to the accident he had no experience investigating this type of 

milling operation. (Tr. 95.) Although Ortiz admitted the distance from where the milling 

operation restarted to the telecommunications box was important to help verify Perez’s version 

of events, he admitted he did not know that distance. (Tr. 122, 123.) Nonetheless, relying at least 

in part on Perez’s statement that he drove only two or three feet before striking the decedent, 

Ortiz concluded the decedent was in Perez’s blind spot6

 when the accident occurred and that 

 

6

 Although the citation refers to the “blind area,” both parties also referred to it as the “blind spot” at trial and in 

post-trial briefs. For ease of reference, the Court refers to it as the “blind spot.” 
7 

Perez was not speeding. (Tr. 147.) However, as indicated supra, Perez’s assertion he drove only 

two or three feet before striking the decedent is not supported by the credible evidence and any 

reliance by Ortiz on Perez’s statement was misplaced. 

Further, in concluding the decedent was in Perez’s blind spot, Ortiz also relied in part on 

a Tampa Police Department report, which stated the decedent was 5’2”, even though Ortiz 

admitted the investigation of the Tampa Police Department “was essentially flawed,” and even 

though the medical examiner’s report concluded the decedent was 5’10”. (Tr. 58, 117, 119.) 

Likewise, Ortiz admitted the truck used in his blind spot analysis was not the same model truck 

driven by Perez and admitted if he used the actual measurements from Perez’s truck, he did not 

know if it would have made a significant difference in his calculations. (Tr. 183; see also Ex. J5.) Ortiz also admitted his blind spot calculations were erroneously made in feet since the chart 

he relied on was a metric chart. (Tr. 174, 185.) Thus, Ortiz admitted he could have been 

mistaken in his reliance on this erroneous information in concluding the decedent was in Perez’s 

blind spot and admitted his analysis was not accurate. (Tr. 119, 186.) Ortiz also admitted it was 

possible that Perez was not looking when he struck the decedent. (Tr. 165.) 

The Court finds Ortiz’s conclusions that the decedent was in Perez’s blind spot and that 

Perez was not speeding are not supported by the credible evidence in this case. Rather, the 

preponderance of evidence shows since the decedent was wearing a high-visibility vest, was 83 

and 88 feet from Perez, was in plain sight, and was not in Perez’s blind spot. The preponderance 

of evidence also shows Perez was not paying attention, as evidenced by Carmenate’s need to 

honk his horn to move him forward, and that Perez sped forward striking and fatally injuring the 

decedent.

Credibility

The Court closely observed the demeanor of each witness and assessed their credibility, 

considering their motivation, and whether the testimony was plausible, consistent and 

corroborated. The Court found Bacon, Carmenate, Hollister, Infinger, Karre, and Sumner to be 

candid and responsive to the questions posed to them and found them to be credible, 

straightforward and trustworthy witnesses. Their testimony was plausible, consistent with each 

other, and corroborated with the evidence in the record. Nothing in their demeanor suggested 

any bias or lack of veracity on their part. The Court credits their testimony and gives their 
8 

testimony considerable weight. 

In contrast, the Court found Perez’s demeanor to be cavalier, evasive and defensive and 

his testimony that he drove only two or three feet self-serving. Rather than having been 

motivated by a desire to be truthful, Perez’s testimony appeared to be a deliberate and calculated 

attempt to shift the blame for his careless driving by alleging the decedent was in his blind spot. 

Perez’s testimony that he drove only two or three feet and that the decedent was in his blind spot 

was not plausible and was not corroborated by any credible evidence. The Court does not credit 

Perez’s testimony and accords it no weight, except the one admission he made, “When you’re 

doing your job, you’re not looking at the Verizon post, you’re not paying attention to that. 

There’s many other things to look at. I have to watch the machine.” This statement, which was 

consistent with the corroborated evidence in the record, is given considerable weight. 

The Court also found Ortiz’s testimony related to the purported blind spot was not 

plausible or consistent or corroborated by the credible evidence in the record. Therefore, the 

Court does not credit Ortiz’s testimony that the decedent was in Perez’s blind spot or that Perez 

was not speeding and accords that portion of his testimony no weight. However, as to Ortiz’s 

testimony, infra, regarding the existence of a struck-by hazard and the inadequacy of Pepper’s 

internal traffic control plan, his testimony was plausible, consistent, and corroborated with the 

credible evidence in the record. Therefore, the Court credits that portion of Ortiz’s testimony 

and gives it considerable weight. 

III. ANALYSIS

Congress declared the Act was intended “to assure so far as possible every working man 

and woman in the Nation safe and healthful working conditions and to preserve our human 

resources.” 29 U.S.C. § 654(b). To implement its statutory purpose, “Congress imposed dual 

obligations on employers. They must first comply with the ‘general duty’ to free the workplace 

of all recognized hazards. 29 U.S.C. § 654(a)(1). They also have a ‘special duty’ to comply with 

all mandatory health and safety standards. Id. at § 654(a)(2).” ComTran Grp., Inc. v. U.S. Dep't 

of Labor, 722 F.3d 1304, 1307 (11th Cir. 2013).7

 

 

7

 The alleged violation occurred in Tampa, Florida, which is where Pepper also has its principal office. (Compl. 

¶III 3; Answer ¶3.) Therefore, both parties may appeal the final order in this case to the Eleventh Circuit Court of 

Appeals, and in addition, Pepper may also appeal to the District of Columbia Circuit. See 29 U.S.C. § 660(a) & (b). 
9 

However, courts have consistently held that mandatory health and safety standards 

promulgated by the Secretary under the special duty clause are the preferred enforcement 

mechanism and the general duty clause serves only as an enforcement tool of last resort, as a 

“catchall provision” to cover dangerous conditions of employment not specifically covered by 

existing health and safety standards. See e.g., Roberts Sand Co., LLLP v. Sec’y of Labor, 568 F. 

App'x 758, 759 (11th Cir. 2014) (unpublished)8

 (the Secretary “can only issue general duty 

clause citations where [he] has not promulgated a regulation covering a particular situation at an 

employer's worksite”). In the present case, there is no applicable special duty clause standard 

governing the cited struck-by hazard. Therefore, the Secretary properly charged Pepper under 

the general duty clause. 

Under the general duty clause, each employer must “furnish to each of his employees 

employment and a place of employment free from recognized hazards that are causing or likely 

to cause death or serious injury to the employees.” 29 U.S.C. § 654(a)(1). In Whirlpool Corp. v. 

Marshall, 445 U.S. 1 (1980), the Supreme Court held, “[a]s the legislative history of this 

provision reflects,9 it was intended itself to deter the occurrence of occupational deaths and 

serious injuries by placing on employers a mandatory obligation independent of the specific 

health and safety standards to be promulgated by the Secretary.” Whirlpool, 445 U.S. at 13. 

“To establish a violation of the general duty clause, the Secretary must prove that (1) the 

employer failed to render its work place free of a hazard; (2) the hazard was “recognized”; and 

(3) the hazard caused or was likely to cause death or serious physical harm. [Citation omitted.] 

Moreover, (4) the hazard must be preventable.” Georgia Elec. Co. v. Marshall, 595 F.2d 309, 

320-21 (5th Cir. 1979).10 Accord Roberts Sand, 568 F. App'x 758 at 759 (citing Waldon 

 

The Eleventh Circuit has held that the Commission and its judges “are bound to follow the law of the circuit to 

which the case would most likely be appealed.” ComTran, 722 F.3d at 1307. See also Quinlan Enterprises, 24 BNA 

OSHC 1154, 1155 (No. 12-1698, 2013) (citing Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 

2000)) (stating that Commission generally applies precedent of circuit to which case will likely be appealed “even 

though it may differ from the Commission's precedent”). Therefore, in deciding this case, since it is likely to be 

appealed to the Eleventh Circuit, the Court applies the precedent of the Eleventh Circuit. 

8

See Eleventh Circuit Rule 36-2 (“Unpublished opinions are not considered binding precedent, but they may be 

cited as persuasive authority.”). 

9

 See S.Rep. 9–10, Leg.Hist. 149–150; H.R.Rep. 21–22, Leg.Hist. 851–852. 

10 The Eleventh Circuit was created when the Fifth Circuit split on October 1, 1981. See Fifth Circuit Court of 

Appeals Reorganization Act of 1980, P.L. 96-452, 94 Stat. 1995. The Eleventh Circuit has adopted the case law of 

the former Fifth Circuit handed down as of September 30, 1981, as its governing body of precedent. Bonner v. City 
10

Healthcare Ctr., 16 BNA OSHC 1052, 1060 (No. 89–2804, 1993); National Realty and 

Construction Co. v. Occupational Safety & Health Review Comm'n, 489 F.2d 1257, 1265 (1973). 

The Court concludes the Secretary has satisfactorily established all four elements.

A. Existence of a Hazard

The Secretary’s citation asserts Pepper committed a serious violation of the general duty 

clause “in that employees were exposed to the hazard of being struck by vehicular traffic inside a 

work zone.” (Compl. Ex. A.) The Secretary unfortunately heightens the factual dispute with his 

choice of additional language in the citation’s alleged violation description, which goes further 

and declares: “The box was in the blind area of the operator of a dump truck which proceeded to 

move forward, striking the employee.” (Id.) Both parties spent much of their time at trial and in 

their post-trial briefs offering differing theories attempting to establish or dispute the existence of 

the blind spot. And Pepper argues in its post-trial brief the “recognized hazard” upon which the 

citation is based is the placement of the decedent in the “blind spot” of Perez's truck. (Pepper 

Post-Trial Br., p. 13.) The Court does not agree with Pepper. 

The parties’ blind spot theories miss the point and “unnecessarily complicate an issue that 

is readily resolved by the record.” Jacobs Field Servs. N. Am., 25 BNA OSHC 1216, 1218 (No. 

10-2659, 2015). Because the Act “is designed to encourage abatement of hazardous conditions 

themselves [ ] rather than to fix blame after the fact for a particular injury, a citation is supported 

by evidence which shows the preventability of the Generic hazard, if not [the] particular 

instance.” Champlin Petroleum Co. v. Occupational Safety & Health Review Comm'n, 593 F.2d 

637, 642 (5th Cir. 1979); accord National Realty, 489 F.2d at 1266. Indeed, the purpose of the 

Act is to prevent the first injury, Mineral Industries & Heavy Constr. Co. v. Occupational Safety 

& Health Review Comm'n, 639 F.2d 1289, 1294 (5th Cir. 1981), and a finding of noncompliance 

is not predicated on the accuracy of a post-hoc accident analysis. Concrete Constr. Corp., 4 BNA 

OSHC 1133, 1135 (No. 2490, 1976). 

It is also well settled “that administrative pleadings are to be liberally construed,” which 

is “particularly true for citations issued under the Act, which are drafted by non-legal personnel 

 

of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981). This body of precedent is binding unless and until overruled by 

the Eleventh Circuit en banc. Id. Further, the decisions of the continuing Fifth Circuit's Administrative Unit B are 

also binding on the Eleventh Circuit, while Unit A decisions are merely persuasive. Dresdner Bank AG v. M/V 

Olympia Voyager, 446 F.3d 1377 (11th Cir. 2006). 
11

who are required to act with dispatch. To inflexibly hold the Secretary to a narrow construction 

of the language of a citation would unduly cripple enforcement of the Act.” General Dynamics 

Land Systems Div. Inc., 15 BNA OSHC 1275, 1281 (No. 83-1293, 1991) (citing Donovan v. 

Williams Enterprises, Inc., 744 F.2d 170 (D.C. Cir. 1984) (enforcement of the Act would be 

crippled if the Secretary were inflexibly held to a narrow construction of citations issued by his 

inspectors). The purpose of the Federal Rules of Civil Procedure, which apply to Commission 

proceedings by virtue of section 12(g) of the Act, 29 U.S.C. § 661(f), “reject the approach that 

pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and 

accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.” 

United States v. Hougham, 364 U.S. 310, 317 (1960) (quoting Conley v. Gibson, 355 U.S. 41, 48 

(1957)). 

Thus, the blind spot is a red herring. It does not matter whether a blind spot existed since 

Pepper was charged with violating the general duty clause for “exposing employees to the hazard 

of being struck by vehicular traffic inside a work zone.” Significantly, in the parties’ “Agreed 

Prehearing Statement” outlining their respective positions, neither party identified a blind spot as 

one of the stipulated “contested issues and facts” but rather, stipulated the dispute was whether 

“there was an activity or condition at [Pepper’s] worksite that constituted a hazard to 

employees.”

11

 The stipulated dispute was fully litigated at trial. Although Pepper repeatedly 

attempted on cross-examination to extract an admission from Ortiz that there was no hazard if 

the purported blind spot did not exist, Ortiz steadfastly and repeatedly disagreed. 

For example, when Ortiz was asked on cross examination if it was correct that without 

the blind spot, “there was no hazard and there wouldn’t have been a case today,” he replied, “The 

hazard is still there.” (Tr. 131-32.) When Pepper asserted if the decedent was in plain view, 

there was no hazard, Ortiz again replied, “I disagree. I still think there would be a hazard.” (Tr. 

140.) “The hazard remains because [the decedent] was in the path of the machinery and the 

machine operator had not been notified of the presence and the milling would have been, should 

 

11 In the parties “Agreed Prehearing Statement,” the Secretary enumerated seven contested issues and facts in this 

case, which included “Whether there was an activity or condition at Respondent’s worksite that constituted a hazard 

to employees are as follows.” (Agreed Prehearing Statement, § B, p. 5, ¶ 1.) In addition to the issues of fact and law 

identified by the Secretary, Pepper identified twelve additional issues and facts, none of which included a blind spot. 

(Agreed Prehearing Statement, § B, pp. 5-6, ¶¶ 1-12.)
12

have been, told to stop.” (Tr. 141.) When Pepper asserted Ortiz had “no other evidence of any 

other hazards being created,” other than “the blind spot scenario,” Ortiz again disagreed, 

“There’s a struck by hazard.” (Tr. 169.) 

In view of the unimportance of adhering to strict rules of pleading under the Federal 

Rules generally and especially in administrative proceedings, and having in mind the particular 

course of these proceedings, the Court finds that the citation described the alleged struck-by 

hazard with an accuracy sufficient to enable Pepper to fully litigate the stipulated dispute. Thus, 

the Court has no doubt that Pepper was put on notice as to the nature of the Secretary’s 

complaint. As indicated supra, there is no dispute that the decedent was assigned to work near 

the Verizon pole that served as a marker for the telecommunications box, which was in the path 

of the milling operation. This in and of itself presented the potential for harm. Georgia Electric, 

595 F.2d at 321. The struck-by hazard was a preventable consequence of a work operation over 

which Pepper can reasonably be expected to exercise control. Therefore, the Secretary has 

established the existence of a struck-by hazard. 

B. Recognized Hazard

“[W]hether or not a hazard is ‘recognized’ is a matter of objective determination.” Ed 

Taylor Const. Co. v. Occupational Safety & Health Review Comm'n, 938 F.2d 1265, 1272 (11th 

Cir. 1991). A “recognized hazard” is a condition that is “known to be hazardous.” Georgia 

Electric, 595 F.2d at 321 (citation omitted). “This element can be established by proving that the 

employer had actual knowledge that a condition is hazardous.” Id. (citation omitted). A 

“recognized hazard” may also “be shown by proving that the condition is generally known to be 

hazardous in the industry.” Ed Taylor, 938 F.2d at 1272 (citation omitted).

Employer Knowledge 

Pepper’s Health and Safety Policy clearly recognizes a struck-by hazard since it states 

“[if] there are any questions as to visibility, or when working close to people on the ground, the 

operator should get a signal from someone standing on the ground with good visibility before 

proceeding to move.” (Ex. J-13, § 8.12, p. 93.) Pepper’s Safety Policy also mandates personnel 

“should never approach a piece of construction equipment without the operators’ 

acknowledgment and until the operator stops work, and yields to the employee.” (Id.) Further, 
13

Pepper’s Safety Policy indicates personnel should maintain “visual contact with the operator 

when in close proximity to the equipment.” (Id.) In addition, each morning Infinger conducts a 

“Take 5” safety meeting with the Pepper crew where they “generally discuss who's working with 

us and what's happening.” (Tr. 284.) “We deal with trucks on a daily basis pretty much and we 

deal with traffic on a daily basis and equipment. So basically those are my three points of 

focus.” (Id.) Thus, the Secretary has established Pepper’s recognition of a struck-by hazard. 

Industry Recognition 

The Commission has held industry standards and guidelines, such as those published by 

the American National Standards Institute (ANSI), are evidence of industry recognition. 

Kokosing Constr. Co., Inc., 17 BNA OSHC 1869, 1873 (No. 92-2596, 1996); Cargill, Inc., 10 

BNA OSHC 1398, 1402 (No. 78–5707, 1982). The citation references the relevant national 

consensus standard, ANSI A10.47 (2009), the standard on Work Zone Safety for Highway 

Construction, which “covers workers engaged in construction, utility work, maintenance, or 

repair activities on any area of a highway.” (Ex. J-4, § 1.1.) Under this industry standard, “if 

workers are exposed to traffic or work vehicles/equipment, one or more methods to ensure that 

they are protected or have adequate warning of approaching traffic or equipment shall be used.” 

(Ex. J-4, § 6.1.1) Thus, the Secretary has also established industry recognition of a struck-by 

hazard. 

C. Causing or Likely to Cause Death or Serious Physical Harm 

Although Pepper made much of the lack of struck-by injuries occurring from vehicles 

moving forward rather than from backing up, and that according to Pepper, the ANSI standard is 

“virtually 98% drafted in terms of backing up, not going forward (Tr. 164), that argument is 

immaterial to the finding of a hazard. The Commission does not require there be a significant 

risk of the hazard coming to fruition, “only that if the hazardous event occurs, it would create a 

‘significant risk’ to employees.” Waldon, 16 BNA OSHC at 1060. Thus, the Commission has 

made clear “the criteria for determining whether a hazard is ‘causing or likely to cause death or 

serious physical harm’ is not the likelihood of an accident or injury, but whether, if an accident 

occurs, the results are likely to cause death or serious harm.” Waldon, 16 BNA OSHC at 1063. 

There is no dispute that being struck by a dump truck is likely to cause death or serious 

bodily harm. Further, the death of the decedent constitutes at least prima facie evidence that the 
14

struck-by hazard was likely to cause death or serious injury. See e.g., Usery v. Marquette Cement 

Mfg. Co., 568 F.2d 902, 910 (2d Cir. 1977). Thus, the Secretary has met his burden of proving 

the struck-by hazard was likely to cause death or serious injury. 

D. Knowledge 

In the Eleventh Circuit, “the Secretary can show knowledge based upon the employer's 

failure to implement an adequate safety program[.]”ComTran, 722 F.3d at 1308.12 As indicated 

supra, Pepper knew the telecommunications box was in the direct path of the milling operation 

before it recommenced the milling operation but failed to implement a safety plan that prevented 

the restart up of the milling operation while the decedent was in the path of that milling convoy. 

Pepper had ample opportunity to ensure the operation did not restart until after the 

telecommunication box was uncovered and the decedent was out of the direct path of the milling 

convoy. Further, even though Pepper’s safety policy requires subcontractors to adhere to 

Pepper’s safety policy and requires subcontractors to “coordinate their efforts with Pepper 

project Management” (Ex. J-13, § 5.9, p. 67), there is no evidence Pepper provided the dump 

truck drivers or the milling machine operator with a copy of its safety policy13 and Pepper did 

not include them in its daily “Take 5” safety meetings. Therefore, the Secretary has established 

knowledge based upon Pepper’s failure to implement an adequate safety program.14

E. Feasible Means to Eliminate or Materially Reduce the Hazard

“It has been long-established that OSHA does not impose absolute (or strict) liability on 

employers for harmful workplace conditions; instead, it focuses liability where harm can, in fact, 

be prevented.” ComTran, 722 F.3d at 1306. While courts have emphasized the importance of 

proper instruction and adequate supervision in safety-related matters, “they have consistently 

 

12 The Secretary can also prove employer knowledge by showing “that a supervisor had either actual or 

constructive knowledge of the violation,” which “is generally imputed to the employer.” ComTran, 722 F.3d at 

1307-08. “An example of actual knowledge is where a supervisor directly sees a subordinate's misconduct.” Id. at 

1308. “An example of constructive knowledge is where the supervisor may not have directly seen the subordinate's 

misconduct, but he was in close enough proximity that he should have.” Id. 

13 By way of example, Perez testified Pepper did not provide him with any documents when he arrived for work 

and was not provided with instructions on maximizing the separation of workers on foot from his dump truck. (Tr. 

214.) 

14 While the Secretary asserts he also established actual and constructive knowledge, (Sec’y Post-Trial Br., p. 22), 

since the Court concludes he established knowledge based upon Pepper’s failure to implement an adequate safety 

program, the Court declines to address these alternative bases for establishing knowledge. 
15

refused to require measures beyond those which are reasonable and feasible.” Id. See also Horne 

Plumbing & Heating Co. v. Occupational Safety & Health Review Comm'n, 528 F.2d 564, 569 

(5th Cir.1976) (discussing cases). Therefore, it is the Secretary’s burden to show that 

“demonstrably feasible measures would materially reduce the likelihood that such injury as that 

which resulted from the cited hazard would have occurred.” Champlin, 593 F.2d at 640 (citation 

omitted). 

In the citation, the Secretary suggests an abatement method to correct the cited struck-by

hazard was the development of “internal traffic control plans for inside the work zones to address 

conflicts between workers and work vehicles/equipment and to maximize the separation of 

vehicles and workers on foot.” Pepper argues the Secretary’s suggested abatement method was 

not feasible. (Pepper Post-Trial Br., p. 21.) The Court does not agree. The Supreme Court has 

defined “feasibility” as “‘capable of being done, executed, or effected.” ATMI, 452 U.S. 490, 

508–09 (1981) (quoting Webster's Third New International Dictionary 831 (1976)). The 

Eleventh Circuit has indicated this means “both technologically and economically.” Am. Fed'n of 

Labor & Cong. of Indus. Organizations v. Occupational Safety & Health Admin., 965 F.2d 962, 

980 (11th Cir. 1992). See also National Cottonseed Prods. Ass'n v. Brock, 825 F.2d 482, 487 

(D.C.Cir.1987), cert. denied, 485 U.S. 1020 (1988). 

Thus, under the general duty clause, the Commission has held “an employer is not 

required to adopt measures that would threaten its economic viability.” Waldon, 16 BNA OSHC 

at 1052; see also National Realty, 489 F.2d at 1266 n. 37 (if adoption of the precaution would 

clearly threaten the economic viability of the employer, the Secretary should propose the 

precaution by way of promulgated regulations, subject to advance industry comment, rather than 

through adventurous enforcement of the general duty clause). Here, Pepper has not argued and 

there is no evidence to suggest the Secretary’s first proposed abatement method was not 

technologically and economically feasible. The Court concludes Pepper could have easily 

adopted and absorbed the costs of the Secretary’s first proposed abatement measure with “no 

threat to either its economic viability or the company’s long-term profitability and industry 

competitiveness.” Waldon, 16 BNA OSHC at 1063. 

Pepper argues the Secretary “never proved that [it] did not have a proper traffic control 

plan, as required to support the citation.” (Id.) The Court does not agree with Pepper. Ortiz 
16

testified that during the course of his investigation he asked whether Pepper had an internal 

traffic control plan, and was given several answers but Pepper never indicated it had an internal 

traffic control plan. Instead, “they rely on this Take 5 meeting.” (Tr. 67-68.) Thus, Ortiz 

testified an internal traffic control plan “was absent from the safety management process that 

Pepper Contracting had.” (Tr. 78.) His testimony was corroborated by Sumner, who admitted 

that in lieu of having a written internal traffic control program, “we manage -- pre-manage the 

hazards in our work zones . . . traffic and others.” (Tr. 397.) 

Further, the relevant national consensus standard referenced in the citation, ANSI 

A10.47, requires employers to develop traffic control plans “for inside their work zones to 

minimize backups and other conflicts between workers and work vehicles/equipment and to 

maximize the separation of vehicles and workers on foot.” (Ex. J-4, § 6.3). Under this industry 

standard, the traffic control plan is required to “be communicated to all workers on the site and 

all vehicles entering the site.” (Id. § 6.3.1.) It also requires the onsite supervisor or safety person 

to “modify the plan as the work proceeds and as changes in the work site operations or 

environment dictate” and requires that all workers and drivers “be notified of changes to the plan 

as they are implemented.” (Id. § 6.3.2.) Ortiz testified that the internal traffic control plan 

“should have provisions to communicate the hazards to the contractors and involve them in their 

safety discussions.” (Tr. 89.) Although Pepper asserts it has written traffic control plans relevant 

to the entire project,15 it admits it did not have a separate internal traffic control program specific 

to the worksite, even though Pepper’s own safety policy mandates that site-specific safety plans 

are required for all field projects “to establish requirements for protecting the health and safety of 

personnel while conducting activities at a site.” (Tr. 397, 411; Ex. J-13, § 8.30, p. 103.) 

“To show that a proposed abatement measure will materially reduce a hazard, the 

Secretary must submit evidence proving, as a threshold matter, that the methods undertaken by 

the employer to address the alleged hazard were inadequate.” US Postal Service, 21 BNA OSHC 

1767 (No. 04-0316, 2006). Despite Pepper’s own safety policy requirements, the Court finds the 

Secretary has established the methods actually undertaken by Pepper to address the cited struckby hazard were inadequate. Even though Infinger assessed the sites they were planning to mill 

 

15 Pepper’s purported written traffic control plans are also not in evidence since Pepper withdrew its proffer at 

trial. (Tr. 410, 411, 413.) 
17

and knew there was a Verizon vertical pole marker directly in the path of the milling operation, 

Pepper failed to implement a safety plan to prevent the startup of the milling operation while 

workers were in the path of the convoy. Likewise, even though Pepper’s safety policy requires 

subcontractors to adhere to its safety policy and requires subcontractors to “coordinate their 

efforts” with Pepper, there is no evidence Pepper provide subcontractors with a copy of its safety 

policy. Further, it is clear Pepper excludes them from its daily “Take 5” safety meetings. 

According to Ortiz, the exclusion of the dump truck drivers and the milling machine 

operator from participating in the “Take 5” safety meeting is “a reflection of the absence of 

understanding of basic hazard control inside of a work zone. If a hazard [ ] is created by these 

vehicles in the work zone that Pepper controls, they should be an integral part of the discussion 

about safety– before the beginning of the job– and included along with safety efforts of the 

company ... it’s evidence [of] the flaw [in] the policies and procedures and it's an organizational 

weakness that this ANSI standard is trying to address and to incorporate into a safety program so 

that that situation does not remain any further.” (Tr. 16-67.) The Court agrees with Ortiz. 

The Court finds the decedent’s exposure to the struck-by hazard would not have occurred 

if Pepper had simply implemented a safety plan that prevented the restart up of the milling 

operation while the decedent was in the path of the convoy. Since Infinger assessed the sites 

they were planning to mill, Pepper knew the telecommunications box was in the direct path of 

the milling operation before it recommenced the milling operation and had ample opportunity to 

ensure the operation did not restart until the decedent was out of the direct path of the milling 

convoy. Thus, with the exercise of “reasonable diligence,” Pepper could have not only 

materially reduced the risk of the struck-by hazard, but could have avoided it completely. 

Therefore, the Court finds the Secretary’s proposed abatement method was a feasible and 

acceptable abatement method to correct the struck-by hazard both technologically and 

economically.16

 

16 The Secretary also proposed a second method of abatement, to “assign a spotter to communicate between 

workers on foot and equipment operators to clear paths before equipment is moved.” However, since the Secretary 

is only required to set forth one feasible means of abatement, and the Court finds supra, he did so with his first 

proposed abatement method, it is not necessary for the Court to address the feasibility of the Secretary’s second 

proposed abatement method.
18

F. Employee Misconduct Defense 

The “law provides a complete defense[,] commonly referred to as an affirmative 

defense,” United States v. Mintmire, 507 F.3d 1273, 1293 (11th Cir. 2007), if the violation was a 

result of unpreventable or unforeseeable employee misconduct. Thus, if “the Secretary makes 

out [his] prima facie case with respect to all four elements, the employer may then come forward 

and assert the affirmative defense of unpreventable or unforeseeable employee misconduct.” 

ComTran, 722 F.3d at 1308. However, to reach safe harbor, an employer must demonstrate that 

it “(1) created a work rule to prevent the violation at issue; (2) adequately communicated that 

rule to its employees; (3) took all reasonable steps to discover noncompliance; and (4) enforced 

the rule against employees when violations were discovered.” Id. Sustaining this burden requires 

more than pious platitudes, “the employer must establish that it took all feasible steps to prevent 

the [accident].” CBI Servs., Inc., 19 BNA OSHC 1591, 1602 (No. 95-0489, 2001) (citation 

omitted). 

Although Pepper raised this affirmative defense in its answer, it never asserted that any of 

its employees violated an established work rule. Instead, Pepper asserts Perez, a subcontractor, 

engaged in misconduct and it “was his failure to pay attention . . . that caused the accident.” 

(Pepper Post-Trial, Br. P. 22.) Since neither parties briefed the applicability of this defense to a 

subcontractor, assuming arguendo without deciding, that an employer may raise an affirmative 

defense of unpreventable or unforeseeable employee involving a subcontractor rather than its 

own employee, the Court nonetheless, concludes Pepper has not carried its burden of proof as to 

the first two elements. 

Pepper did not prove it created a work rule to prevent the violation since, as indicated 

supra, it did not have a safety plan to prevent the startup of the milling operation while workers 

were in the path of the convoy. Even assuming arguendo it had such a work rule, Pepper did not 

prove it adequately communicated the work rule. Rather, the evidence shows Pepper did not

communicate its safety policy to the dump truck drivers and the milling machine operator and 

did not include them in its “Take 5” safety meetings, even though they were required to follow 

Pepper’s safety policy. Therefore, Pepper failed to establish the affirmative defense of 

unpreventable or unforeseeable employee misconduct. 
19

G. Isolated Occurrence Defense 

Although not expressly discussed by Pepper in its post-trial brief, Pepper identified as an 

issue in the parties’ “Agreed Prehearing Statement” whether “the underlying incident giving rise 

to the instant citation was unpreventable, unanticipated and isolated.” (Agreed Prehearing 

Statement, p. 6, § B, ¶ 3) Therefore, the Court also briefly addresses the “isolated occurrence” 

affirmative defense. In order to prevail in this defense, an employer must demonstrate that “all 

feasible steps were taken to avoid the occurrence of the hazard[.]” H.B. Zachry Co. v. 

Occupational Safety & Health Review Comm'n, 638 F.2d 812, 818. (5th Cir. Unit A Mar. 1981). 

“This includes the training of employees as to the dangers and the supervision of the work site.” 

Id. The employer must also show “the actions of the employee were a departure from a 

uniformly and effectively communicated and enforced work rule of which departure the 

employer had neither actual nor constructive knowledge.” Id.

As a condition precedent to establishing an isolated occurrence defense, Pepper must first 

prove it had a “uniformly and effectively communicated and enforced work rule” to address the 

cited struck-by hazard. As indicated supra, Pepper did not. Therefore, Pepper failed to 

demonstrate that “all feasible steps were taken to avoid the occurrence of the struck-by hazard. 

Further, Infinger also admitted he had “occasionally” observed unsafe driving habits with the 

dump truck drivers working on his projects. (Tr. 285.) Therefore, Pepper also failed to establish 

it did not have actual or constructive knowledge of the purported departure. Thus, Pepper has 

not established an isolated occurrence defense. 

H. Classification 

Under section 17 of the Act, violations are characterized as “willful,” “repeated,” 

“serious,” or “not to be of a serious nature” (referred to by the Commission as “other-thanserious”). 29 U.S.C. §§ 666(a), (b), (c). Here, the Secretary classified the violation as “serious.” 

A “serious” violation is defined in the statute; the other two degrees are not. A “serious” 

violation is one that carries 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 Commission has concluded a hazard “is likely to cause serious physical harm if the 

likely consequences of employee exposure would be serious physical harm.” Morrison-Knudson 
20

Co./Yonkers Contracting Co., 16 BNA OSHC 1105, 1124 (No. 88-572, 1993). Here, there is no 

dispute death or serious physical harm would be the likely consequence of employee exposure to 

a struck-by hazard from a dump truck. The evidence supporting the finding that the hazard was 

likely to cause death or serious bodily harm also supports the similar requirement of the Act that 

there be a “substantial probability” that death or serious physical harm could result from the 

questioned condition. Georgia Electric, 595 F.2d at 322. Therefore, the Secretary has 

established the struck-by hazard was likely to cause death or serious bodily harm and there was a 

“substantial probability” that death or serious physical harm could result from the questioned 

condition.

Nonetheless, Pepper “cannot be found guilty of a ‘serious' violation unless it did not, and 

could not ‘with the exercise of reasonable diligence,’ know of the presence of the violation.” 

Getty Oil Co. v. Occupational Safety & Health Review Comm'n, 530 F.2d 1143, 1145 (5th Cir. 

1976). However, “an employer's inability to establish the adequacy of the safety instructions to 

his employee shows a failure to exercise reasonable diligence.” H.B. Zachry, 638 F.2d at 819. 

Here, since Pepper failed to establish the adequacy of its safety program, it shows a failure to 

exercise reasonable diligence.” Therefore, the Court concludes the Secretary properly classified 

the violation as serious. 

IV. PENALTY DETERMINATION 

“Section 17(j) of the Act, 29 U.S.C. § 666(j), requires that in assessing penalties, the 

Commission must give ‘due consideration’ to four criteria: the size of the employer's business, 

the gravity of the violation, the employer's good faith, and its prior history of violations.” Revoli 

Constr., 19 BNA OSHC at 1682. “These factors are not necessarily accorded equal weight; 

generally speaking, the gravity of a violation is the primary element in the penalty assessment.” 

J.A. Jones Constr., 15 BNA OSHC 2201, 2216 (No. 87-2059, 1993) (citations omitted).

Pepper is subject to a civil penalty of up to $7,000.00 for the serious violation. 29 U.S.C. 

§666(b). The Secretary proposed a $5,670.00 penalty based upon the gravity of the violation and 

after giving Pepper credit for its size, and lack of history of violations. The Court “consider[s] 

the amount of the Secretary's penalty de novo.” ComTran, 722 F.3d at 1307. The Court agrees 
21

with the Secretary’s proposed reduction in the penalty amount for Pepper’s lack of history of 

violations and for its size. 

“The gravity of a particular violation can range from de minimis, where there is very low 

potential for injury or occupational illness, to severe, where death or serious physical injury 

would be likely.” Nacirema, 1 BNA OSHC at 1002. “In evaluating the gravity of the violation, 

the Commission considers the number of employees exposed, the duration of exposure, the 

precautions taken against injury, and the degree of probability that an injury would occur.” 

Gunite Corp., 20 BNA OSHC 1983, 1990 (Nos. 98-1986, 98-1987, 2004). See also J.A. Jones, 

15 BNA OSHC at 2214; Kus-Tum Builders, Inc., 10 BNA OSHC 1128, 1132 (No. 76-2644, 

1981). Applying the gravity factors, given the fatality, the gravity of the violation was high. 

There is no evidence the Secretary gave a credit for good faith. “[T]he Commission 

focuses on a number of factors relating to the employer's actions, ‘including the employer's 

safety and health program and its commitment to assuring safe and healthful working 

conditions[,]’ in determining whether an employer's overall efforts to comply with the OSH Act 

and minimize any harm from the violations merit a penalty reduction.” Monroe Drywall Constr., 

Inc., 24 BNA OSHC 1209 (No. 12-0379, 2013) (citing Capform, Inc., 19 BNA OSHC 1374, 

1378 (No. 99-0322, 2001)). Accord Nacirema, 1 BNA OSHC at 1002; Elliot Constr. Corp., 23 

BNA OSHC 2110, 2119 (No. 07-1578, 2012). Here, the Court concludes Pepper’s approach to 

safety does not show good faith. 

Pepper failed to implement a safety plan to prevent the startup of the milling operation 

while workers were in the path of the milling operation, which led to the death of Pepper’s 

employee. Pepper also did not communicate its safety plan to all workers onsite, including the 

subcontracting dump truck drivers and milling machine operator. Pepper failed to include its 

dump truck drivers and the milling machine operator, in its “Take 5” safety meetings, even 

though the subcontractors were required to adhere Pepper’s safety policy. Moreover, Pepper 

admitted that it did not provide safety instructions or training to the truck drivers and milling 

machine operator at the worksite. See Capform, 19 BNA OSHC at 1378 (finding a reduction for 

good faith inappropriate when instructions were insufficient). These failures demonstrate a lack 

of good faith. Therefore, a penalty reduction for good faith is not warranted. See Elliot, 23 BNA 
22

OSHC at 2119 (concluding that “significant failings” with respect to employee safety negated a 

penalty reduction for good faith). 

As indicated supra, had Pepper not failed to exercise “reasonable diligence,” it could 

have not only materially reduced the risk of the struck-by hazard, but could have avoided it 

completely, simply by implementing a safety plan to prevent the startup of the milling operation 

while workers were in the path of the milling convoy. Thus, the struck-by hazard was a 

preventable consequence of a work operation over which Pepper can reasonably be expected to 

exercise control. Therefore, having considered Pepper’s size, history of violations, good faith, 

and the gravity of the violation, the Court finds the Secretary’s proposed penalty of $5,670.00 is 

appropriate. Accordingly, 

V. ORDER 

IT IS HEREBY ORDERED THAT the citation is AFFIRMED and Pepper is assessed and 

directed to pay to the Secretary a civil penalty of $5,670.00.17

SO ORDERED THIS 2nd day of November, 2015.

/s/ 

JOHN B. GATTO, Judge 

 

17 See section 17(l) of the Act, which mandates that civil penalties owed under this Act “shall be paid to the 

Secretary for deposit into the Treasury of the United States[.]” 29 U.S.C. §666(l).