United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

 

 

OSHRC Docket Nos. 15-1645 

 16-0119 

 

Appearances:

Evert H. Van Wijk, Esq., Department of Labor, Office of Solicitor, Kansas City, Missouri

 For Complainant

Mark Bratetic, appearing pro se, Elite Builders, Inc., Papillion, Nebraska

 For Respondent 

Before: Administrative Law Judge Patrick B. Augustine

DECISION AND ORDER

I. Procedural History

Over the course of roughly two months in the summer of 2015, Respondent, a residential 

roofing contractor, was inspected twice by the Omaha Area Office of the Occupational Safety 

and Health Administration (OSHA). The first inspection involved a worksite located at 207th

and Shirley Street, Omaha, Nebraska (First Inspection). The second inspection took place at a 

worksite located at 10518 S. 125th Avenue, Papillion, Nebraska (Second Inspection). In both 

inspections, Compliance Safety and Health Officers (CSHO) observed multiple violations of the 

fall protection standards. Upon being approached for the Second Inspection, Mark Bratetic, the 

owner of Respondent, denied entry and requested Complainant procure a warrant. Complainant 

SECRETARY OF LABOR, 

 

 Complainant,

 

 v. 

ELITE BUILDERS, INC.,

 

 Respondent.
2

served Respondent with both the warrant and the Citation and Notification of Penalty for the 

First Inspection in the early morning of September 3, 2015. (Tr. 285; Ex. R-8). By the time the 

warrant was served, however, Respondent had completed the work on the worksite of the Second 

Inspection and had moved to another project. Nonetheless, CSHO Connett went to the worksite

involved in the Second Inspection and took photos to supplement the photographs CSHO 

Peacock had taken of the worksite before he was rebuffed in his attempt to conduct the Second

Inspection. The Citation and Notification of Penalty for the Second Inspection was issued on 

December 15, 2015.

The First Inspection, which has been labeled Docket No. 15-1645, consists of two serious 

citation items with associated penalties of $5,600. The Second Inspection, labeled Docket No. 

16-0119, consists of four serious and two repeat citation items with associated penalties of 

$20,800. Before the hearing began, Complainant moved to modify the citation items in Docket 

16-0119 labeled as “Repeat”, to change them to “Serious”, and reduce the penalty of those items 

to $2,000 each, which brought the total proposed penalty of Docket No. 16-0119 to $16,800. 

The Court granted Complainant’s unopposed motion to amend the citation classifications. (Tr. 

11–12). 

Respondent filed a Notice of Contest with respect to both Citations. Regarding the 

Second Inspection, Respondent contends the warrant was improperly executed and that

Complainant engaged in vindictive prosecution. In both instances, though, Respondent argues 

that compliance with the fall protection standards cited by Complainant presented a greater 

hazard to his employees. By filing the Notice of Contest, Respondent brought this case before 
3

the Occupational Safety and Health Review Commission pursuant to section 10(c) of the 

Occupational Safety and Health Act of 1970, 29 U.S.C. § 659(c).1

 

The hearing took place on January 24, 2017, in Council Bluffs, Iowa. The following 

witnesses testified: (1) CSHO Michael Connett; (2) CSHO Ricardo Peacock; (3) Area Director 

Jeffery Funke; and (4) Mark Bratetic, owner of Respondent. Both parties timely submitted posthearing briefs. 

II. Stipulations & Jurisdiction

The parties reached the following stipulations, which are also reproduced in 

Complainant’s pre-trial statement: 

A. Elite Builders, Inc. uses goods, equipment and materials shipped from 

outside the state of Nebraska. 

B. Elite Builders, Inc. is engaged in a business affecting commerce.2

C. The Occupational Safety and Health Review Commission has jurisdiction 

over this matter. 

D. Elite Builders, Inc. is a residential framing contractor. 

(Tr. 26–31). The Court read through the foregoing with Respondent to ensure that he, in fact, 

understood the nature of the stipulations. Convinced that he agreed to such stipulations 

knowingly, the Court entered them into the record. (Id.). Based on the parties’ stipulations, the 

Court finds that Commission has jurisdiction over the action pursuant to section 10(c) of the Act. 

Further, the Court finds Respondent was an employer engaged in a business and industry 

 

1. From this point forward, the Court shall simply refer to the foregoing as “the Commission” and “the Act”. 

2. Following the Ninth Circuit in Usery v. Franklin R. Lacy, 628 F.2d 1226, 1226 (9th Cir. 1980) commerce is 

established where it “is in a class of activity that as a whole affects commerce.” Clarence M. Jones d/b/a Jones Co.,

11 BNA OSHC 1529, 1530 (No. 77-3676, 1983). In that case, the Commission went on to find “[t]here is an 

interstate market in construction materials and services and therefore construction work affects interstate 

commerce.” Id., citing NLRB v. Int’l Union of Operating Engineers, Local 571, 317 F.2d 638, 643 n. 5 (8th Cir. 

1963) (judicial notice taken that construction industry affects interstate commerce). Because Respondent is engaged 

in construction work, the undersigned finds it is engaged in a business affecting interstate commerce
4

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

Slingluff v. OSHRC, 425 F.3d 861, 866–67 (10th Cir. 2005).

III. Factual Background

A. First Inspection 

On June 19, 2015, CSHO Michael Connett was driving around a residential

neighborhood in Omaha, Nebraska. Pursuant to Complainant’s Local Emphasis Program (LEP)

on fall protection, CSHO Connett was on the lookout for fall protection hazards. (Tr. 55). As he 

was driving around, he observed two roofers working on the roof of a residential construction 

project, located at 207th and Shirley Street, Omaha, Nebraska without any apparent fall 

protection system in place. (Tr. 56; Ex. C-1 to C-4). After taking photos from a public street, 

CSHO Connett entered onto the worksite, identified himself, and requested to speak with the 

person in charge. (Tr. 59). After meeting with Mark Bratetic, Respondent’s owner, CSHO 

Connett held an opening conference and then proceeded to conduct an inspection. (Tr. 59). 

At the time of the First Inspection, Respondent’s employees were installing floor joists on 

the second floor of the construction project, placing them between 13 and 14 feet above the 

lower level.3 (Ex. C-5 to C-7). The joists, once installed, were spaced approximately 18 inches 

apart, which Respondent’s employees had to maneuver across as more joists were installed.4 (Tr. 

74, C-5, C-6). In some cases, Respondent’s employees were supported by plywood, which was 

suspended between the joists, but no specific work platform appeared to be available. (Tr. 67). 

In addition to the potential fall hazard into the building, Respondent’s employees were also 

 

3. The distance to the floor inside of the building was 13 feet, 2 inches, whereas the floor to the ground on the 

outside of the building was 13 feet, 8 inches. (Tr. 62–64). 

4. CSHO Connett testified that he did not specifically measure the space between the joists, but noted that the 

standard for such an installation is 18-inches wide. (Tr. 74). CSHO Connett’s testimony was more or less confirmed 

by Bratetic, who stated that installed joists left 16 inches of space in between. (Tr. 249). 
5

working within two feet of the roof’s edge, where they were exposed to a fall of nearly 14 feet. 

(Tr. 73; Ex. C-2, C-4). 

Though they were purportedly available on-site, none of Respondent’s employees were

wearing a personal fall arrest system; nor, for that matter, did Respondent install guardrails or a 

safety net system. (Tr. 69–71). Instead, when asked by CSHO Connett, Bratetic stated that his 

employees were uncomfortable using harnesses and tether lines because they presented a tripping 

hazard. Accordingly, Respondent developed a fall protection plan, which assessed the use of 

conventional fall protection systems (guardrails, personal fall arrest systems, and safety net 

systems) and determined that such systems presented a greater hazard or were otherwise 

infeasible. (Ex. R-13). No alternative forms of fall protection, nor any sort of system to abate the 

fall hazard, were implemented as an alternative. (Ex. R-13). 

During the course of his inspection, CSHO Connett also conducted interviews of the 

employees, asking in particular about whether they had received training. (Tr. 68–69, 76). 

According to Connett, the employees said they were basically told to “work safe”. (Tr. 76). 

Bratetic countered, providing documentation of the training he provided and pointing out that 

CSHO Connett’s own notes indicated that Bratetic’s employees told him they discussed fall 

protection/harnesses on a daily basis. (Tr. 261–62; Ex. R-9 at 20). 

B. Second Inspection

A few months later, CSHO Ricardo Peacock was driving around Omaha neighborhoods 

looking for fall hazards pursuant to the LEP he referred to as “Stormcon”. (Tr. 160). According 

to Peacock, construction work spikes after a severe weather event, which activates the Stormcon 

program. (Tr. 161). As he was driving around, CSHO Peacock came upon a residential 

construction worksite located at 10518 S. 125th Avenue in Papillion, Nebraska, where he 
6

observed two of Respondent’s employees working on a roof over six feet in height.5 (Tr. 160). 

Peacock proceeded to take video and photographs of the worksite from a distance of 

approximately 30–40 feet, and contacted his Area Director to inform him he was proceeding 

under the Stormcon LEP. (Tr. 163). 

When Peacock entered the worksite, he showed his identification, asked the employees to 

come down from the roof, and asked to speak to the supervisor. (Tr. 173). The employees exited 

the roof via a forklift with an attached platform. (Tr. 173). Before they could do so, however, one 

of the employees asked the forklift operator to pull the platform closer to the roof, which 

Peacock estimated to be approximately three feet away from the edge. (Tr. 173). Once they 

came down, the employees went inside the building, and when they came out they were 

preparing to leave the worksite. (Tr. 174). Before they left, however, they identified Bratetic as 

the person to whom Peacock should speak. (Tr. 174). Bratetic told Peacock to get a warrant and 

refused to provide any additional information. (Id.). As Bratetic was leaving, Peacock took 

photographs of Bratetic’s vehicle for later identification, but he also noticed Respondent’s trailer, 

which displayed the name “Elite Builders”. (Id.). After he returned to the office, Peacock filled 

out the warrant application and compiled his photographs from his pre-inspection observations, 

which ended his involvement with the case. (Tr. 175).

The warrant application was filed with the United States District Court for the District of 

Nebraska on August 31, 2015, and was approved the same day. (Tr. 283–84; Ex. R-11). 

According to the warrant, the document needed to be served on Respondent within ten days. (Ex. 

R-11). CSHO Connett, who was re-assigned to the case, served Bratetic with both the warrant 

and the Citation and Notification of Penalty from the First Inspection at the Shirley location at 6 

 

5. Although he did not get the chance to take measurements of the roof height, CSHO Peacock estimated the height 

based on the panels on the side of the house, which have a standard measurement of 8 feet. (Tr. 168). 
7

a.m. on September 3, 2015. (Tr. 78–79, 217–18). Although Respondent was no longer 

performing work at the worksite identified in the warrant, CSHO Connett proceeded to the 

worksite, where he took measurements of the roof based on the photographs CSHO Peacock had 

taken when he attempted to conduct an inspection the first time. (Tr. 79–80). 

Based on the information contained in the inspection files, CSHO Connett proposed, and 

Area Director Funke approved of, the issuance of a Citation and Notification of Penalty for each 

of the two worksites discussed above. The Citations will be discussed at length below and are 

separated by inspection number. 

IV. Analysis of Affirmative Defenses

A. The Warrant Was Properly Served

Respondent contends the warrant issued for the Papillion worksite was not served within 

the timeframe set forth in the document and should therefore be voided, along with any evidence 

stemming therefrom. The Court has reviewed the contents of the warrant application and found 

the following: (1) the warrant was issued on August 31, 2015; (2) the warrant required that it be 

served within ten days; and (3) the warrant was served on Respondent on September 3, 2015. 

Based on the foregoing facts, the Court finds Complainant complied with the requirements of the 

warrant, and that Respondent was properly served. Accordingly, Respondent’s arguments 

regarding the validity of the warrant are rejected. 

B. Respondent Failed to Establish Vindictive Prosecution by Complainant

Respondent carries the burden of proof for an affirmative defense. Hamilton Fixture, 16 

BNA OSHC 1073, 1077 (No. 88-1720, 1993) aff’d, 28 F.3d 1213 (6th Cir. 1994). Premised in 

part on the fact he was inspected twice in as many months and that he was served with a warrant 

and the Citation from the First Inspection at an unusually early time in the morning, Respondent 
8

has claimed that—as it relates to the Second Inspection—he is the victim of vindictive 

prosecution. Vindictive prosecution “is a prosecution to deter or punish the exercise of a 

protected statutory or constitutional right.” Nat’l Eng’g and Contracting Co., 18 BNA OSHC 

1075, 1077 (No. 94-2787, 1997) (citing U.S. v. Goodwin, 457 U.S. 368, 372 (1982)) aff’d, 181 

F3d 715 (6th Cir. 1999). The Commission noted, “Although there is no uniform test for proving 

that a prosecution was vindictive, a threshold showing common to all tests is evidence that the 

government action was taken in response to an exercise of a protected right.” Id. (noting the two 

circuit courts—D.C. and Sixth Circuits—to which the particular action could be appealed 

formulated the test differently). A showing of such misconduct warrants dismissing “the 

vindictively motivated charge or the entire action.” Id. (citing U.S. v. Meyer, 810 F.2d 1242, 

1249 (D.C. Cir. 1987). 

In National Engineering and Contracting Co., the respondent asserted the defense of 

vindictive prosecution, claiming OSHA had (1) privately labeled respondent a “bad actor” and 

stated its intent to “get them”; (2) withdrew citations in an unrelated case based on information 

respondent had purportedly learned during the CSHO’s deposition; and (3) taken action based on 

respondent’s previous request for a warrant; amongst other claims. 18 BNA OSHC at 1079. The 

Commission held that National failed to make even the threshold showing. Specifically, it found 

National, though receiving a fair deal of attention from OSHA, did not identify any specific right 

it had exercised that caused OSHA to initiate the inspection or characterize the citation item in a 

particular way. Id at 1078. In fact, even though National had technically exercised a procedural 

right by demanding a warrant during a previous inspection, the Commission, quoting the Ninth 

Circuit, stated, “ “The mere fact that this prosecution followed the exercise of certain procedural 

rights in other, unrelated cases is insufficient to raise the appearance of vindictiveness.” Id.
9

(citing United States v. Robison, 644 F.2d 1270 (9th Cir. 1981)). Further, the Commission noted 

that the alleged statements by OSHA officials, even if true, were insufficient to establish the 

defense, because National needed to prove “that it would not have been cited absent that 

motive.” Id. (citing U.S. v. Benson, 941 F.2d 598, 612 (7th Cir. 1991)).

In this case, the Court finds Respondent did not exercise a statutory or constitutional right 

prior to the initiation of the Second Inspection, which is the basis of the vindictive prosecution 

claim. To clarify, Respondent did exercise two very important rights in this case: his right to 

contest the Citation, and his right to request a warrant. The problem, however, is Respondent did 

not (or could not) exercise those rights until the Second Inspection. Indeed, the Second 

Inspection could not be the result of his decision to contest the Citation from the First Inspection, 

because he had not received that Citation yet.6

 Likewise, Bratetic demanded a warrant during 

CSHO Peacock’s attempt to conduct the Second Inspection, not before. Respondent’s exercise 

of these rights cannot serve as the basis of a claim for vindictive prosecution—there was no 

prosecutorial action taken in response to Respondent’s action, save for procuring the warrant that 

Bratetic requested. 

The Court cannot discern any misconduct on Complainant’s behalf. Although CSHO 

Connett, who performed the First Inspection, was eventually assigned to the Second Inspection, 

the decision to inspect the Papillion worksite was initiated by CSHO Peacock because he saw 

two workers on a roof without fall protection. In fact, both CSHO Peacock and CSHO Connett

had an objectively reasonable basis upon which to initiate an inspection—they saw workers on 

the roof of a residential construction site with no apparent form of fall protection. Further, the 

CSHOs were acting pursuant to a LEP targeting fall hazards. 

 

6. As previously noted in Section I, supra, the warrant for the Second Inspection and the Citation resulting from the 

First Inspection were simultaneously served on Respondent.
10

Respondent was inspected a second time because he allowed his employees to work on 

an elevated surface without fall protection. (Ex. C-8; Tr. 168–73). CSHO Peacock’s attempt to 

initiate an inspection, and the subsequent decision to issue citations, was based on this simple 

fact. Respondent’s affirmative defense of vindictive prosecution is rejected. 

C. Applicable Law

To establish a violation of an OSHA standard pursuant to section 5(a)(2), Complainant 

must establish (1) the standard applies; (2) the terms of the standard were violated; (3) 

employees were exposed to the hazard covered by the standard; and (4) the employer had actual 

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

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

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

Complainant has the burden of establishing each element by a preponderance of the 

evidence. See Hartford Roofing Co., 17 BNA OSHC 1361, 1365-66 (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. 

Black’s Law Dictionary, Preponderance of the evidence (10th ed. 2014) (emphasis added). 

D. Docket No. 15-1645 

1. Citation 1, Item 1

Complainant alleged a serious violation of the Act in Citation 1, Item 1 as follows: 

29 CFR 1926.501(b)(13): Each employee(s) engaged in residential construction 

activities above 6 feet (1.8 m) or more above lower levels were not protected by 

guardrail systems, safety net system, or personal fall arrest system, nor were 

employees provided with an alternative fall protection measure under another 

provision of paragraph 1926.501(b):
11

The employer is failing to protect the employees from fall hazards greater than 6 

feet. Employees performing residential construction activities were expose to falls 

on the exterior and interior of the building being constructed. The workers were 

exposed to falls of over 13 feet to the ground below.

See Citation and Notification of Penalty at 6. 

The cited standard provides: 

Each employee engaged in residential construction activities 6 feet (1.8 m) or 

more above lower levels shall be protected by guardrail systems, safety net 

system, or personal fall arrest system unless another provision in paragraph (b) of 

this section provides for an alternative fall protection measure. Exception: When 

the employer can demonstrate that it is infeasible or creates a greater hazard to use 

these systems, the employer shall develop and implement a fall protection plan 

which meets the requirements of paragraph (k) of § 1926.502. 

29 C.F.R. § 1926.501(b)(13).7

a. The Standard Applies

Respondent is a roofing contractor that was engaged in residential construction activities 

on the date of the inspection. (Stip. No. 4). According to CSHO Connett’s measurements, the 

distance from the roof, where Respondent’s employees were installing joists, to the ground 

below was at least 13 feet. (Tr. 64; Ex. C-7). Thus, by its terms, the standard applies. 

 b. The Standard was Violated

The standard requires one of three forms of fall protection – personal fall arrest systems, 

safety nets, or guardrails – none of which were being used by Respondent’s employees. Thus, 

on the face of the evidence, Respondent violated the terms of the standard.

 

7. The cited standard also includes the following Note:

There is a presumption that it is feasible and will not create a greater hazard to implement at least 

one of the above-listed fall protection systems. Accordingly, the employer has the burden of 

establishing that it is appropriate to implement a fall protection plan which complies with 

§ 1926.502(k) for a particular workplace situation, in lieu of implementing any of those systems. 
12

c. Respondent’s Employees Were Exposed to the Hazard

As noted above, CSHO Connett observed two of Respondent’s employees working on 

the roof of the house on Shirley street. Neither of those employees were wearing fall protection 

nor protected by guardrails or safety nets. (Tr. 60). One employee was working close to the edge 

of the roof, which exposed him to a fall of nearly 14 feet. (Ex. C-3, C-4, C-6). Another 

employee, who was working toward the center of the roof, was exposed to a fall of nearly 13 feet 

to the floor inside of the home. (Tr. 62–63; Ex. C-5). Respondent argued that the joists, when 

laid flat, would mitigate the fall hazard and serve as a sort of platform; however, at the time of 

the inspection, the joists were upright, which exposed gaps of over a foot in width. (Tr. 63; Ex. 

C-6). Further, joists are not designed as platforms, nor, when laid flat, are they secured to the 

roof, which makes them a poor substitute for conventional fall protection. Accordingly, the 

Court finds Respondent’s employees were exposed to a fall hazard. 

d. Respondent Had Knowledge of the Conditions

“To establish knowledge, the Secretary must prove that the employer knew or, with the 

exercise of reasonable diligence, should have known of the conditions constituting the violation.” 

Cent. Fla. Equip. Rentals, Inc., 25 BNA OSHC 2147, 2155 (No. 08-1656, 2016). To satisfy this 

burden, Complainant must show “knowledge of the conditions that form the basis of the alleged 

violation; not whether the employer had knowledge that the conditions constituted a hazard.” Id. 

“When a corporate employer entrusts to a supervisory employee its duty to assure employee 

compliance with safety standards, it is reasonable to charge the employer with the supervisor’s 

knowledge actual or constructive of noncomplying conduct of a subordinate.” Mountain States 

Tel. & Tel. Co. v. Occupational Safety & Health Review Comm'n, 623 F.2d 155, 158 (10th Cir. 

1980). See also Revoli Constr. Co., 19 BNA OSHC 1682, 1685 (No. 00-0315, 2001) (actions 
13

and knowledge of supervisory personnel can be imputed to their employers under the general 

rule when both a supervisor and an employee were engaged in the misconduct).8

 

Bratetic told CSHO Connett that he was fully aware of the fact that his employees were 

working on the roof without fall protection and provided reasons as to why. Thus, Respondent, 

through its principal, had actual knowledge of the violative conditions. 

e. The Violation Was Serious

A violation is “serious” if there was a substantial probability that death or serious 

physical harm could have resulted from the violative condition. 29 U.S.C. § 666(k). 

Complainant need not show that there was a substantial probability that an accident would

actually occur; he need only show that if an accident occurred, serious physical harm could 

result. Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237, 1240 (9th Cir. 1984). If the possible 

injury addressed by a regulation is death or serious physical harm, a violation of the regulation is 

serious. Mosser Constr., 23 BNA OSHC 1044, 1046 (No. 08-0631, 2010); Dec-Tam Corp., 15 

BNA OSHC 2072 (No. 88-0523, 1993).

CSHO Connett testified as to the nature of the injuries that an employee could suffer as a 

result of a fall from the roof of the residential construction site onto the dirt or wood floor below. 

(Tr. 73). Based on his experience conducting construction inspections, CSHO Connett testified 

that an employee could suffer sprained ankles, bruises, and could potentially die if he/she fell 

from 13–14 feet onto the ground below. (Tr. 73). Due to the injuries that an employee could 

 

8. These cases arise in the Eighth Circuit. The Commission will apply the law of the circuit court of appeals to 

which this Decision can be appealed in terms of imputation of knowledge. Thus, this Decision can be either 

appealed to the Eighth Circuit Court of Appeals or the D.C. Circuit Court of Appeals, which have issued no opinion 

on whether constructive knowledge can be imputed to the employer without first analyzing whether the conduct is 

foreseeable. Thus, the Court will follow established Commission case law. In addition, when actual knowledge is 

present, as found here, foreseeability is not an issue. In general, “[w]here it is highly probable that a Commission 

decision would be appealed to a particular circuit, the Commission has . . . applied the precedent of that circuit in 

deciding the case—even though it may differ from the Commission’s precedent.” Kerns Bros. Tree Serv., 18 BNA 

OSHC 2064, 2067 (No. 96-1719, 2000) (citation omitted). 
14

suffer if he fell from the roof, the Court finds Respondent’s failure to require the use of fall 

protection was a serious violation of the Act. 

Accordingly, the Court finds Complainant has established a violation of 29 C.F.R. 

§ 1926.501(b)(13). However, Respondent has asserted the affirmative defenses of greater hazard 

and infeasibility as defenses to compliance and a finding that a violation of the Act has occurred. 

 f. Affirmative Defenses of Greater Hazard and Infeasibility 

The cited standard provides Respondent with an opportunity to show that the use of the 

listed forms of fall protection would create a greater hazard or would be infeasible to implement. 

If Respondent can establish that using conventional fall protection would create a hazard or 

would otherwise be infeasible, the standard requires the employer to “develop and implement a 

fall protection plan which meets the requirements of paragraph (k) of § 1926.502.” 29 C.F.R. § 

1926.501(b)(13). The requirements of paragraph (k) are extensive, and Respondent must first 

overcome the presumption that the listed fall protection systems in 1926.501(b)(13) are both 

feasible and will not create a greater hazard in the context of residential construction activities. 

Respondent attempted, but failed, to meet that burden. 

In order to establish the defense of greater hazard, Respondent must show: “(1) the 

hazards created by complying with the standard are greater than those of noncompliance; (2) 

other methods of protecting its employees from the hazards are not available; and (3) a variance 

is not available or that application for a variance is inappropriate.” Spancrete Ne., Inc., 15 BNA 

OSHC 1020, 1022 (No. 86-521, 1991) (citing Walker Towing Corp., 14 BNA OSHC 2072, 2078 

(No. 87-1359. 1991)). As argued by Complainant, Respondent failed to show that conventional 

fall protection systems actually created a greater hazard; instead, Respondent merely pointed out 

a potential tripping hazard associated with the use of lanyards and safety lines. (Tr. 70–71). 
15

While that is certainly a concern, the Court fails to see how tripping when attached to a fall arrest 

system, which is designed to prevent a fall to the ground below, creates a greater hazard than not 

wearing a harness at all. In addition to whatever tripping hazard is presented by safety lines, the 

installation of joists requires Respondent’s employees to maneuver around upright and flat wood 

planks, each with gaps and holes that go straight to the ground. (Ex. C-5 to C-7). The Court does 

not perceive any greater tripping hazard than already exists at the worksite. 

More fatal to Respondent’s case, however, is the fact that he never applied for a variance, 

nor has he shown that application for a variance would have been inappropriate. According to the 

Commission, that failure is sufficient in and of itself to reject the defense. See Spancrete, 15 

BNA OSHC at 1020 (rejecting greater hazard defense when employer failed to seek variance and 

noting that this element has been recognized and endorsed by several courts of appeal)9

. 

Accordingly, Respondent’s greater hazard defense is rejected. 

Even if Respondent managed to establish the prima facie elements of the greater hazard 

defense, Respondent failed to comply with the requirements of 29 C.F.R. § 1926.502(k). 

Amongst other things, paragraph 502(k) requires: (1) a qualified person to prepare the plan for 

the specific worksite/job; (2) a list of reasons why conventional fall protection is infeasible or 

creates a greater hazard; (3) a written discussion of “other measures that will be taken to reduce 

or eliminate the fall hazard”, such as scaffolds, ladders, or work platforms; and (4) the 

designation of controlled access zones and safety monitors. 29 C.F.R. § 1926.502(k). 

Respondent has a fall protection plan, but the plan does not meet the requirements of 

1926.502(k), nor has Respondent established a sufficient reason for its implementation as an 

alternative to the forms of protection listed in the standard. (Ex. R-13). 

 

9. See, e.g., Dole v. Williams Enters., Inc., 876 F.2d 186, 188 (D.C. Cir. 1989); RSR Corp.v. Donovan, 747 F.2d 

294, 303 (5th Cir. 1984); Diebold v. Marshall, 585 F.2d 1327, 1339 (6th Cir. 1978). 
16

First, Respondent’s plan is not specific to any site; instead, by its own terms, it is 

“specific for residential framing”. (Ex. R-13). In other words, Respondent seeks to except all of 

its residential framing activities from the requirements of the residential construction standard. 

Second, and perhaps even more problematic, is that Respondent’s fall protection plan does not 

provide for an alternative means of fall protection; rather, it appears to justify not utilizing fall 

protection at all10. (Ex. R-13). Instead, Respondent appears to rely almost exclusively on the 

relative experience and training of the employees engaged in a particular framing activity and a 

general admonition to work slowly and carefully. (Tr. 254, 257–58). 

Respondent also failed to prove that the use of conventional fall protection was 

infeasible. In order to establish the defense of infeasibility, Respondent must show: 

(1) the means of compliance prescribed by the applicable standard would have 

been infeasible, in that (a) its implementation would have been technologically or 

economically infeasible or (b) necessary work operations would have been 

technologically or economically infeasible after its implementation, and (2) there 

would have been no feasible alternative means of protection. 

Gregory & Cook, Inc., 17 BNA OSHC 1189, 1190 (No. 92-1891, 1995). 

Although Respondent pointed out problems with the implementation of conventional fall 

protection systems, such as tripping hazards, the Court finds that these do not rise to the level of 

infeasibility. The Commission has stated that it “cannot accept unsubstantiated conclusions as 

proof” of infeasibility. Avcon, Inc., 23 BNA OSHC 1440, 1454 (No. 98-0755, 2011) 

(consolidated) (citing Peterson Bros. Erection Co., 16 BNA OSHC 1196, 1204 (No. 90-2304, 

1993), aff’d 26 F.3d 573 (5th Cir. 1994)). In Avcon, the Commission noted that the employees 

who gave testimony on feasibility were “unfamiliar with OSHA’s fall protection standards” and 

their “opinions were offered without any supporting scientific or professional data or tests.” 

 

10. There does appear to be a limited exception for the use of “sawhorse” scaffolds when installing trusses on the 

interior. (Ex. R-13 at 2). 
17

Avcon, 23 BNA OSHC at 1454. Such a quantum of proof makes sense when one considers the 

scientific or professional data and tests used to establish the need for the regulation in the first 

place. See generally Safety Standards for Fall Protection in the Construction Industry, 59 Fed. 

Reg. 40672 (August 9, 1994) (to be codified at 29 C.F.R. Parts 1910 and 1926). Respondent’s 

conclusions regarding conventional fall protection do not rely on data or tests illustrating their 

infeasibility; instead, they appear to be based on little more than a belief that using conventional 

fall protection would present unique difficulties. According to the Commission, “It is not 

enough to show that compliance is difficult, expensive, or would require changes to operations.” 

Manson Constr. Co., 26 BNA OSHC 1569, 1576 (No. 14-0816, 2017) (ALJ). The affirmative 

defenses of greater hazard and infeasibility are rejected. Therefore, based upon the foregoing, 

the Court finds the terms of the standard were violated. The violation will be AFFIRMED as a 

serious citation. 

 2. Citation 1, Item 2

Complainant alleged a serious violation of the Act in Citation 1, Item 2 as follows: 

29 CFR 1926.503(a)(1): The employer did not provide a training program for 

each employee potentially exposed to fall hazards to enable each employee to 

recognize the hazards of falling and the procedures to be followed in order to 

minimize those hazards:

The employer is failing to provide employees with adequate and effective fall 

training prior to allowing them to work on the second story deck of a residential 

style site. This training would allow each employee to recognize the hazards of 

falling and allow them to understand the proper procedures to be followed in 

order to minimize those hazards. 

See Citation and Notification of Penalty at 7. 

The cited standard provides: 

The employer shall provide a training program for each employee who might be 

exposed to fall hazards. The program shall enable each employee to recognize the 
18

hazards of falling and shall train each employee in the procedures to be followed 

in order to minimize these hazards. 

29 C.F.R. § 1926.503(a)(1).

a. The Standard Applies

Respondent employees install roofing materials on unenclosed, elevated surfaces, which 

exposes them to fall hazards. The standard applies. 

b. Complainant Failed to Prove the Standard Was Violated 

In order to prove a violation of a training standard, Complainant “must show that the 

cited employer failed to provide the instructions that a reasonably prudent employer would have 

given in the same circumstances.” N & N Contractors, Inc., 18 BNA OSHC 2121, 2122 (No. 96-

0606, 2000). Respondent can rebut the allegation “by showing it has provided the type of 

training at issue . . . .” Id.at 2126 (quoting AMSCO, 18 BNA OSHC 1082, 1087 (No. 91-2494, 

1997) aff’d, 255 F.3d 133 (4th Cir. 2001)). In that case, “the burden shifts to the Secretary to 

show some deficiency in the training provided.” Id. 

Complainant focuses on the following facts in support of its claim that Respondent 

violated the training standard: (1) During the inspection, Bratetic told CSHO Connett that he 

conducted fall protection training but apparently did not sufficiently elaborate on the specifics of 

that program; (2) In response to questions about their training, employees told CSHO Connett 

they had been told to “basically work safe”; (3) Respondent’s employees were not using fall 

protection; and (4) Respondent did not possess a proper written certification of the training. The 

Court finds these facts insufficient to establish a violation of the training standard.

First, Complainant did not establish what sort of training a reasonably prudent employer 

would have provided under these circumstances. CSHO Connett testified that he had received 

fall protection training, which included seminars on “harnesses, lanyards, anchorage points”, but 
19

there was no specific testimony as to what Respondent’s fall protection training program should 

have included. (Tr. 54). The fact that Connett testified Bratetic did not elaborate on the type of 

training provided is of dubious value, because the testimony does not make clear whether 

Connett even asked Bratetic about the contents of the program. (Tr. 75). It is difficult to evaluate 

the contents of a training program if there is no standard by which to measure that program. 

Second, while the employees’ statements that they were told to “basically work safe” 

should have given CSHO Connett pause, that was not the only statement given by Respondent’s 

employees. (Tr. 76; Ex. R-9). According to CSHO Connett’s own notes, Respondent’s 

employees also told him that Bratetic “talks about harness[es] every morning.” (Ex. R-9 at 020). 

Further, as the trial proceeded, Bratetic testified as to the contents of the fall protection training 

he provides, including: (1) anchor points, lanyards, and harnesses; (2) communicating hazards; 

(3) handrails on open stairwells; (4) morning safety discussions; and (5) recognizing the need for 

fall protection over six feet. (Tr. 264, 281, 295–299). The only specific training deficiencies 

elicited during Bratetic’s testimony was his apparent failure to understand the concept of shock 

loading and, perhaps, not specifically discussing the maximum load per anchor point. (Tr. 298–

99). According to Bratetic, however, these concerns were minimal because he testified that none

of his employees weighed nearly that much. (Tr. 299). 

Third, even though Respondent’s employees were not wearing fall protection, this does 

not, of itself, establish a training violation. According to the Commission, “The failure to 

enforce compliance with work rules on the job does not establish a failure to train or instruct . . . . 

N & N, 18 BNA OSHC at 2128 (citing Dravo Eng’rs. and Constructors, 11 BNA OSHC 2010, 

2012 (No. 81-748, 1984) (evidence of failure to enforce a safety rule does not prove a training 

violation)). According to the testimony of both CSHO Connett and Bratetic, there appeared to 
20

be a laissez-faire attitude towards actual enforcement of the fall protection rules, with 

Respondent permitting employees to use/not use fall protection based on their own, individual 

safety assessment. (Tr. 70, 257). See Tim Graboski Roofing, Inc., 25 BNA OSHC 1441, 1456 

(ALJ) (No. 14-0263, 2015) (noncompliance to accommodate the crews’ reluctance to use fall 

protection is plain indifference to the safety of its employees). While rampant disregard for the 

rules may indicate a lack of training, it is not sufficient to establish a training violation in and of 

itself. In this case, the Court finds that training took place, notwithstanding Respondent’s failure 

to enforce the principles taught therein. 

Finally, Respondent had written verification of the training provided. Though it may not 

have been technically correct in its specifics, the intent of the document is clear: Respondent and 

his employees certified that training occurred and documented that fact. While a lack of some 

sort of documentation may have been good evidence of a failure to train, Respondent had 

documentation of the training, which preceded the inspection in this case. (Ex. R-7). 

Additionally, the requirement to certify training is separate and apart from the issue of whether 

training occurred in the first instance and Respondent was not cited for lack of documentation. 

Based on the foregoing, the Court finds that Complainant failed to establish a violation of 

the fall protection training standard. Complainant did not establish what a reasonably prudent 

employer would have done under similar circumstances, which sets the standard by which 

Respondent’s training program should be measured. Further, when presented with evidence that 

some fall protection training had taken place, Complainant failed to show the manner in which 

the training received was deficient, other than to point to the existence of violations at 

Respondent’s worksite. In addition, CSHO Connett’s testimony focused on Respondent’s 

employee’s statements that their training basically consisted of “being safe”, notwithstanding the 
21

presence of additional statements in his own notebook indicating the employees also told him 

that they discussed harnesses “every day”. (Ex. R-9). Ultimately, Complainant’s failure is one of 

proof. Accordingly, Citation 1, Item 2 of this docket shall be VACATED. 

E. Docket No. 16-0119 

1. Citation 1, Item 1

Complainant alleged a serious violation of the Act in Citation 1, Item 1 as follows: 

29 CFR 1910.178(l)(1)(ii): The employer did not ensure each operator had 

successfully completed the training required by paragraph (l), except as permitted 

by (l)(5), prior to permitting an employee to operate a powered industrial truck: 

The employer failed to ensure that the employees received the training required 

prior to operating a powered industrial truck. In this case, a Lull Model 944E All 

Terrain Fork truck was being used to elevate a personnel platform and move 

materials. 

See Citation and Notification of Penalty at 6. 

The cited standard provides: 

Prior to permitting an employee to operate a powered industrial truck (except for 

training purposes), the employer shall ensure that each operator has successfully 

completed the training required by this paragraph (l), except as permitted by 

paragraph (l)(5).

29 C.F.R. § 1910.178(l)(1)(ii).

a. The Standard Applies

 According to 29 C.F.R. § 1926.602(d), entitled Powered industrial truck operator 

training, “The requirements applicable to construction work under this paragraph are identical to 

those set forth at § 1910.178(l) of this chapter.” As such, the Court finds that issuing a citation 

pursuant to 1910.178(l) is appropriate. Paragraph 1910.178(a) states that “this section contains 

safety requirements relating to fire protection, design, maintenance, and use of fork trucks . . . .” 
22

29 C.F.R. § 1910.178(a). The vehicle at issue was a gas-powered, all-terrain forklift. Thus, the 

standard applies. 

b. The Terms of the Standard Were Violated

 The Court finds the terms of the standard were violated. According to CSHO Connett, 

the employees told him that at least two people operated the forklift: Bratetic and an employee 

named Ted.

11 (Tr. 102–103). Respondent only produced one training certificate—for Bratetic—

which indicated that he completed a forklift safety training course on September 7, 2015, after 

the inspection took place. (Tr. 101–102; Ex. R-12). Because none of the employees who 

operated the forklift were properly trained before operating it, the Court finds Respondent 

violated the terms of the standard. 

Notwithstanding the above, Respondent contends that the training he eventually received 

was focused on the use of forklifts in an industrial setting and did not address the hazards 

associated with residential construction. There is an entire cottage industry of OSHA training 

programs, and the Court is not in a position to determine the quality of the course Bratetic 

selected and whether its content was directly applicable to the residential construction industry. 

Nor was there any testimony to suggest that the particular course Bratetic took was specifically 

required by OSHA; rather, the onus is on Respondent to assess whether the course selected is 

adequate for the type of work performed and the vehicle selected to perform that job. See 29 

C.F.R. § 1910.178(l)(3) (discussing training program content). More to the point, however, the 

content of what Bratetic learned in the particular training course he attended is irrelevant to the 

question of whether he, or any of his employee-operators, received adequate training on the 

operation of the forklift prior to operating it. They did not. 

 

11. Bratetic later clarified that the employee’s name was “Ed”. (Tr. 102). 
23

Respondent also points out that the same forklift and platform were present at the Shirley 

worksite during the First Inspection, and notes that he did not receive any citations relating the 

platform, the forklift, or any associated training. In other words, Respondent appears to suggest 

that the government should be prevented from pursuing a violation in the Second Inspection that 

it clearly did not pursue in the first, because he did not have fair notice. 

There could be a number of reasons why CSHO Connett did not cite Respondent for the 

platform and forklift, and none of them support dismissal of this citation item. In the First 

Inspection, CSHO Connett may not have seen the forklift and platform, or, since it was not in 

use, it may not have caught his attention. Perhaps the platform was not attached, in which case 

there was no reason to suspect that the forklift and platform were being used as a personnel lift. 

For reasons such as these, the Commission has held that “an employer cannot deny the existence 

of or its knowledge of a cited hazard by relying on the Secretary’s earlier failure to cite the 

condition.” Seibel Modern Mfg. & Welding Corp., 15 BNA OSHC 1218 (No. 88-821, 1991). A 

condition does not cease to be hazardous simply because it was not observed in a previous 

inspection, nor does it cease to be a violation because of that fact. Respondent did not have the 

training required by the standard prior to operating the rough terrain forklift. Accordingly, the 

terms of the standard were violated. 

c. Respondent’s Employees Were Exposed to the Hazard

 “Exposure to a violative condition may be established either by showing actual exposure 

or that access to the hazard was reasonably predictable.” Phoenix Roofing, Inc., 17 BNA OSHC 

1076, 1078 (No. 90-2148, 1995). Regarding access, “the ‘inquiry is not simply into whether 

exposure is theoretically possible,’ but whether it is reasonably predictable ‘either by operational 

necessity or otherwise (including inadvertence), that employees have been, are, or will be in the 
24

zone of danger.” Nuprecon LP dba Nuprecon Acquisition LP, 23 BNA OSHC 1817, 1819 (No. 

08-1037, 2012) (quoting Fabricated Metal Prods., Inc., 18 BNA OSHC 1072, 1074 (No. 93-

1853, 1997)).

The forklift was equipped with a personnel platform, which was used to lift employees 

from the ground level up to the roof. CSHO Peacock observed the employees being lowered 

from the roof when he first approached the worksite, and Bratetic said that he lifted employees to 

the roof during the course of the project. (Tr. 189; Ex. C-8). As will be discussed later, the 

personnel platform was both too wide for the forklift and lacked guardrails. See Section IV.E.2.b, 

infra. As such, both the operators, who were not properly trained, and the employee-roofers, who 

were being lifted on the platform, were exposed to fall hazards, tip-over hazards and potential 

struck-by hazards stemming from an improperly operated forklift. (Tr. 197–98). See, e.g., 

Dierzen-Kewanee Heavy Indus., LTD, 22 BNA OSHC 1656, 1663 (No. 07-0675, 2009) 

(consolidated) (ALJ) (holding that untrained operators exposed themselves and other employees 

to potential broken bones, up to and including death, “when untrained operators can strike 

employees with the forklift or cause material to fall on the operator or others”). 

d. Respondent Had Knowledge of the Conditions

 Bratetic admitted to operating the forklift and using the platform to raise his employees 

onto the roof. He also admitted that he had not taken the training course until after the inspection 

had occurred. Thus, Respondent was directly aware that neither he, nor any of his employees, 

had the training required by the cited standard. 

e. The Violation Was Serious

The forklift in question was being operated by untrained operators, who were lifting 

employees on a non-compliant platform onto an elevated surface. Based on these conditions, 
25

CSHO Connett testified that “[i]f an individual is . . . struck by a large piece of equipment such 

as a forklift or they fall from an elevation, the most likely injury can be death or permanent 

disability.” (Tr. 197). The violation was serious. Accordingly, Citation 1, Item 1 shall be 

AFFIRMED as serious. 

2. Citation 1, Item 2a

Complainant alleged a serious violation of the Act in Citation 1, Item 2a as follows: 

OSH Act of 1970 Section 5(a)(1): The employer did not furnish employment and 

a place of employment which was free from recognized hazards that were causing 

or likely to cause serious physical harm to employees. 

The employer is failing to protect employees from fall hazards while performing 

residential style framing and roofing operations. Employees are being elevated on 

the JG/Lull 944E-42 rough terrain forklift to a height of approximately 15’7” to 

perform work. These employees are exposed to fall hazards from the platform. 

The platform being used was 16 [sic] wide extending outside the vehicles [sic] 

axel [sic] base 46” on each side of the vehicle. The platform itself has no form of 

fall protection (i.e. harness/lanyard, guardrails, etc.). 

Among other methods, feasible and acceptable means of abatement are:

1) Ensure that all employees involved in the operation are trained and briefed 

prior to working with this equipment of the hazards involving elevating 

employees and stability issues involving this piece of equipment. 

2) Ensure that all employees of the company follow both the manufacturers [sic] 

recommendations in the operators [sic] manual and follow the ASME/ANSI 

B56.6 2002 Safety Standards for Rough Terrain Forklift Trucks Sec. 8.24.1 

limitations as to size of platforms to be used. 

3) Ensure the platform being used by the company meets the requirements of 

both the manufacturers [sic] requirements and the above listed ANSI standard.

See Citation and Notification of Penalty at 8. 

The cited standard provides: 

Each employer shall furnish to each of his employees employment and a place of 

employment which are free from recognized hazards that are causing or are likely 

to cause death or serious physical harm to his employees. 
26

29 U.S.C. § 654(a)(1). 

a. Applicable Law

 To establish a prima facie violation of section 5(a)(1) of the Act, also known as the 

general duty clause, Complainant must prove by a preponderance of the evidence that: (1) a 

condition or activity in the workplace presented a hazard to employees; (2) the employer or its 

industry recognized the hazard; (3) the hazard was likely to cause death or serious physical harm; 

and (4) a feasible and effective means existed to eliminate or materially reduce the hazard. 

Kokosing Constr. Co., 17 BNA OSHC 1869, 1872 (No. 92-2596, 1996). The evidence must also

show that the employer knew or, with the exercise of reasonable diligence, should have known 

of the hazardous condition. Otis Elevator Co., 21 BNA OSHC 2204, 2206 (No. 03-1344, 2007). 

b. The Personnel Platform Presented a Hazard

According to the citation, the personnel platform that was attached to the forklift and 

used to elevate employees to the roof of the residential construction site was too wide relative to 

the width of the forklift—as measured between the right and left tires—and lacked the requisite 

fall protection. CSHO Connett testified that an over-wide platform created a tip-over hazard if 

the load being elevated was placed too far outside of the forklift’s center of gravity. (Tr. 115). 

This conclusion is supported by both the Forklift Operator’s Manual and the ANSI B56.6 2002 

Safety Standards for Rough Terrain Forklift Trucks Sec. 8.24.1 Standard, which both indicate

that personnel platforms shall not “have a width greater than the overall width of the truck 

[measured across the load bearing tires plus 10 in. (250 mm) on either side].” (Ex. C-15 at 28). 

Respondent’s platform measured 192 inches from end-to-end, whereas the width of the 

forklift, measured from side-to-side, was only 101 inches across.12 (Tr. 109). This means that the 

 

12. At hearing, Bratetic argued that the calculations were incorrect because the wheel base is 131 inches, meaning 
27

platform extended just a little over 45 inches past both sides of the forklift and roughly 35 inches 

beyond the maximum allowable width. (Tr. 111; Ex. C-22). Further, both the operator’s manual 

and the ANSI standard indicate that “restraining means such as a guardrail or a means for 

securing personnel such as a body belt or lanyard” are required elements for a platform used to 

elevate personnel. (Id.). Implicit in these requirements are the concerns expressed by CSHO 

Connett: an improperly sized, equipped, and loaded platform presents both a tip-over and fall 

hazard. (Tr. 115). 

c. The Hazard Was Recognized

Complainant can establish that the hazard was recognized by “either the actual 

knowledge of the employer or the standard of knowledge in the employer’s industry—an 

objective test.” Kokosing Constr., 17 BNA OSHC 1873 (citing Continental Oil Co. v. OSHRC, 

630 F.2d 446, 448 (6th Cir. 1980)). Industry standards and guidelines such as those published by 

ANSI are evidence of industry recognition. See generally, Cargill, Inc., 10 BNA OSHC 1398, 

1402 (No. 78–5707, 1982). Whether such standards have the force and effect of law does not 

impact whether the relevant industry recognized a workplace hazard. Id. Proper caution must be 

taken, however, to distinguish between mere directions for a product’s use and explicit safety 

warnings about a product. See K.E.R. Enters., Inc., 23 BNA OSHC 2241, 2243 (No. 08-1225, 

2013).

By its very title, the ANSI Safety Standard for Rough Terrain Forklifts is not a mere set 

of directions, but, in fact, lays out specific safety warnings for the use of personnel platforms on 

 

that the overhang is less than that claimed by Complainant. (Tr. 139–143). The Court disagrees. According to the 

vehicle specifications, the wheel base is measured from the front axle to the rear axle; whereas the width of the 

vehicle is measured between the outside of the left and right tires. (Ex. C-22). Discussing the width of the platform 

relative to the wheel base does not make sense given that the platform extends perpendicular to the wheel base, 

which has little impact on lateral stability. Regardless of which measurement one uses, however, Respondent would 

still be in violation of the standard. 
28

rough terrain forklifts. Thus, the ANSI Safety Standard cited by Complainant can serve as 

evidence of industry recognition. Although the ANSI Safety Standard does not specifically state 

that it applies to any particular industry, e.g., residential construction, the Court finds the 

applicable industry in this case to be much larger; namely, those that use powered industrial 

trucks. In support of this, the Fifth Circuit has held that “where a practice is plainly recognized as 

hazardous in one industry, the Commission may infer recognition in the industry in question. See 

Kelly Springfield Tire Co., Inc., 729 F.2d 317, 321 (5th Cir. 1984); see also St. Joe Minerals 

Corp., 647 F.2d 840, 845 (8th Cir. 1981) (finding elevator industry’s recognition of freight 

elevator hazard applies with equal weight to lead smelting plant).13 

The use of powered industrial trucks, and rough terrain forklifts in particular, is not 

limited to any particular industry. There are, nonetheless, safety standards that apply to their use, 

regardless of where they are operated. Those standards have been memorialized in ANSI 

document governing the operation of “Powered and Nonpowered Industrial Trucks.” This 

documents, coupled with the repetition of nearly identical language in the forklift Operator’s 

Manual, indicates that the powered industrial truck industry recognizes a hazard stemming from 

an oversized platform that is also devoid of any form of fall protection. Accordingly, the Court 

finds the hazard was recognized. 

d. The Hazard Was Likely to Cause Death or Serious Physical 

Harm

As discussed earlier in Section IV.E.1.e, supra, CSHO Connett testified that both the

operators of the forklift and the occupants of the lift platform were exposed to potential tip-over, 

 

13. The Eighth Circuit also noted that the employer was “free to offer contrary evidence regarding elevator 

standards in the lead smelting industry and to suggest, as it did, that the Secretary’s evidence lacked probative 

value.” St. Joe Minerals, 647 F.2d at 845. Similar to the employer in St. Joe’s, Respondent has not offered any 

countervailing evidence regarding the residential construction industry. 
29

struck-by, and fall hazards when operators have not been trained in the proper use of the forklift. 

The Court finds that similar hazards are present here, where an oversized platform with no form 

of fall protection had the potential to tip over the forklift. This not only exposed the occupants of 

the personnel platform to potential fall hazards, but also exposed the operator to potential 

crushing/struck-by hazards. Given the height at which the platform was elevated—roughly 14 

feet above the ground—and the size of the forklift, the Court finds that an employee could suffer 

serious injury, up to and including death, if one of those hazards were to come to fruition. For 

these reasons, the violation is also properly characterized as serious. 

e. A Feasible and Effective Means Existed to Eliminate or 

Materially Reduce the Hazard

The means proposed by Complainant to eliminate or materially reduce the hazard are 

fairly straightforward and simple: (1) training regarding the use of personnel platforms on 

forklifts; (2) following the operator’s manual and ANSI standard; and (3) ensuring the personnel 

platform meets the requirements of both the manufacturer and the ANSI standard. Indeed, if 

Respondent merely followed the directions within the operator’s manual, which indicates the 

maximum dimensions of any personnel platform and fall protection requirements, the fall and/or 

tipping hazard would have been materially reduced. (Ex. C-10). Further, the platform itself, 

though inappropriate for the particular forklift Respondent was using, had post inserts at the 

corners, which were presumably designed for the insertion of guardrails. (Tr. 119; Ex. C-9). The 

guardrail (or equivalent “restraining means”) requirement is also included in the referenced 

ANSI standard and the operator’s manual. 

The proposed forms of abatement are pulled directly from the operator’s manual and 

related ANSI standard, lending further credence to their effectiveness at eliminating or materially 

reducing the hazard. Respondent did not proffer any counterargument as to whether 
30

implementing the proposed forms of abatement would be feasible or effective. As such, the 

Court finds that Complainant proved a serious violation of the general duty clause. Accordingly, 

Citation 1, Item 2a shall be AFFIRMED.

3. Citation 1, Item 2b

Complainant alleged a serious violation of the Act in Citation 1, Item 2b as follows: 

29 CFR 1926.451(a)(6): Scaffolds were not constructed in accordance with the 

design by a qualified person: 

The employer is failing to protect employees from fall and platform stability 

hazards while performing residential style framing and roofing operations. 

Employees are being elevated on the JLG/Lull 944E-42 rough terrain forkilift to a 

height of approximately 157 [sic] to perform work. The platform being used was 

16 [sic] wide extending outside the vehicles [sic] axel [sic] base 46 [sic] on each 

side of the vehicle. The operators [sic] manual states specifically Width of the 

platform shall not be wider than the width of the vehicle measured across the load 

bearing tires plus 10 inches (250 mm) on each side. 

See Citation and Notification of Penalty at 9. 

The cited standard provides: 

Scaffolds shall be designed by a qualified person and shall be constructed and 

loaded in accordance with that design. Non-mandatory appendix A to this subpart 

contains examples of criteria that will enable an employer to comply with 

paragraph (a) of this section. 

29 C.F.R. § 1926.451(a)(6).

a. The Standard Applies

 The initial inquiry in this citation item is whether the personnel platform attached to the 

forklift is properly characterized as a scaffold. A “scaffold” is defined as “any temporary 

elevated platform (supported or suspended) and its supporting structure (including points of 

anchorage), used for supporting employees or materials or both.” Id. § 1926.450(b). A 

“platform” is “a work surface elevated above lower levels. Platforms can be constructed using 

individual wood planks, fabricated planks, fabricated decks, and fabricated platforms.” Id. Given 
31

the broad scope of the definitions of platform and scaffold, the Court finds that the standard 

applies. 

b. Complainant failed to prove a violation of the standard

 Complainant did not introduce any evidence regarding how this particular scaffold was 

designed or constructed, and the discussion of this violation encapsulated a sum total of two 

pages of trial transcript. (Tr. 116–17). Similar to his assertion that no training took place, there 

was merely speculation on behalf of Complainant based on the oversize nature of the platform 

relative to the forklift in use. The only concrete evidence Complainant relied on was the fact 

that, contrary to paragraph 8.5.6 of the ANSI standard, Respondent’s platform did not have a 

placard or sticker its capacity or other vital specifications. (Tr. 117). When asked whether he 

was able to determine whether a qualified person had designed the platform, CSHO Connett said 

“No.” (Tr. 118). 

There are a number of problems with Complainant’s evidence. First, it may very well be 

the case that the platform was designed and constructed by a qualified person, but there was no 

evidence tending in either direction. CSHO Connett did not testify that he was able to 

definitively determine that the platform was not designed by a qualified person; rather, his 

testimony was more equivocal: he could not determine whether that was the case. This is a 

failure of proof; the question of whether the platform was properly designed and constructed is a 

question separate and apart from whether the platform itself was compliant. The fact that the 

platform was not appropriate for this particular forklift has nothing to do with whether the 

platform itself was designed or constructed by a qualified person. Further, the presence of a 

sticker or placard to indicate capacity pursuant to an ANSI standard may indicate that the 

platform was designed by a qualified person, but the lack thereof does not establish that it was 
32

not. The Court has already concluded that the platform was noncompliant; however, without 

additional evidence, it is not clear whether that is a result of design, construction, or simply 

implementation. 

Based on the foregoing, the Court finds Complainant failed to establish a violation of the 

cited standard. Accordingly, Citation 1, Item 2b shall be VACATED.

4. Citation 1, Item 3 

Complainant alleged a serious violation of the Act in Citation 1, Item 3 as follows: 

29 CFR 1926.501(b)(13): Each employee engaged in residential construction

activities 6 feet (1.8 m) or more above lower levels was not protected by guardrail 

systems, safety net systems, or personal fall arrest systems: 

The employer is failing to protect the employees from fall hazards greater than 6 

feet. Employees are working from the roof deck of a house being constructed 

without wearing harnesses or lanyards. The workers were exposed to falls of over 

16 feet to dirt below. 

See Citation and Notification of Penalty at 10. 

The cited standard provides: 

Each employee engaged in residential construction activities 6 feet (1.8 m) or 

more above lower levels shall be protected by guardrail systems, safety net 

system, or personal fall arrest system unless another provision in paragraph (b) of 

this section provides for an alternative fall protection measure. Exception: When 

the employer can demonstrate that it is infeasible or creates a greater hazard to use 

these systems, the employer shall develop and implement a fall protection plan 

which meets the requirements of paragraph (k) of § 1926.502. 

29 C.F.R. § 1926.501(b)(13)

a. The Standard Applies

At the Papillion location, CSHO Peacock observed two employees working on the roof of 

a residential construction project without any form of fall protection. Based on observations 

made by CSHO Peacock and subsequent measurements taken by CSHO Connett, Complainant 
33

determined that the employees were working roughly 14 feet above the ground. Thus, the 

standard applies. 

 Respondent contends, however, that the roof was “low-slope” and that 29 C.F.R. 

§ 1926.501(b)(10) is the more applicable standard. That standard states: 

Roofing work on Low-slope roofs. Except as otherwise provided in paragraph (b) 

of this section, each employee engaged in roofing activities on low-slope roofs, 

with unprotected sides and edges 6 feet (1.8 m) or more above lower levels shall 

be protected from falling by guardrail systems, safety net systems, personal fall 

arrest systems, or a combination of warning line system and guardrail system, 

warning line system and safety net system, or warning line system and personal 

fall arrest system, or warning line system and safety monitoring system. 

29 C.F.R. § 1926.501(b)(10). Bratetic testified that he believed the roof pitch was no more than 

“4 in 12”, which describes a roof that rises four feet for every twelve feet of horizontal distance. 

(Tr. 303–304). See also id. § 1926.500 (defining low-slope roof as a roof having a slope of less 

than 4 in 12). According to both CSHOs Peacock and Connett, however, the roof slope was at 

least 5 in 12, if not steeper. (Tr. 136). 

Based on the Court’s review of the photographs, and the collective testimony of both 

CSHOs, who have significant experience in performing residential construction inspections, the 

Court finds that the roof slope was greater than 4 in 12 and, thus, does not qualify for the lowslope roof exception. In addition, the Court finds that the cited standard is the more directly 

applicable standard in that it directly applies to “residential construction”. This is bolstered by 

the fact that there was no attempt by Respondent to comply with either the conventional or 

alternative forms of fall protection listed in § 1926.501(b)(10). Respondent’s arguments 

regarding the applicability of the standard are rejected. 

b. The Terms of the Standard Were Violated

 Respondent did not attempt to argue that it complied with the standard; instead, he 

claims (akin to his argument with respect to Citation 1, 1 in the First Inspection) that the amount 
34

of time to perform the specific task (re-fastening previously applied plywood) was minimal and 

that taking the time to re-install an anchor point would only expose the affected employees to fall 

hazards for longer than was necessary. See Resp’t Br. at 2. The Court disagrees. 

Irrespective of how long Respondent’s employees were scheduled to be on the roof, the 

standard does not make an exception to the fall protection requirements based on how long 

Respondent’s employees were exposed to the hazard.14 In that respect, Respondent’s employees 

were on the roof for a more than negligible amount of time—according to CSHO Peacock the 

employees were on the roof for at least 10 minutes. (Tr. 185). This is more than enough time for 

an employee to slip, trip, or fall off of the roof. The standard’s requirements are clear—if an 

employee is working six feet above the lower level, the employer is required to implement one of 

the conventional forms of fall protection unless the employer can establish that those forms are 

either infeasible or create a greater hazard. As the Court previously found, Respondent has not 

proffered sufficient evidence to establish either defense. See Section IV.D.1.b, supra. Thus, the 

standard was violated. 

c. Respondent’s Employees Were Exposed to the Hazard

 The photographs taken by CSHO Peacock clearly show two of Respondent’s employees 

on the roof of the Papillion construction project without fall protection. According to CSHO 

Connett’s measurements, the roof was over 14 feet above the ground. One employee can be 

observed standing within feet of the roof’s edge. (Ex. C-8). The other employee, who was 

working adjacent to the work platform, was also exposed to the fall hazard, because the platform 

was parked too far from the eave of the roof to serve as an effective catch platform and was 

 

14. Length of exposure is relevant, however, to the question of the violation’s gravity and subsequent penalty 

determination. See Section V, infra. 
35

missing guardrails or other restraining devices that would serve to arrest the falling employee. 

(Tr. 85–88; Ex. C-8). The Court finds Respondent’s employees were exposed to a fall hazard. 

d. Respondent Had Knowledge of the Conditions

 Bratetic testified that he was aware that his employees were working on the roof at the 

Papillion site without fall protection. (Tr. 288). In fact, he also admitted that, at one point or 

another, he operated the forklift to lift his employees onto the roof. (Tr. 292). These admissions 

constitute direct knowledge of the violative conditions. 

e. The Violation Was Serious

For the same reasons discussed above with respect to Citation 1, Item 1 of Docket No. 

15-1645, the Court finds the violation was serious. Respondent’s employees were working 14 

feet above the ground without fall protection. A fall from that height could cause serious injuries 

up to, and including, death. Accordingly, Citation 1, Item 3 shall be AFFIRMED as serious.

5. Citation 2, Item 115

Complainant alleged a serious violation of the Act in Citation 2, Item 1 as follows: 

29 CFR 1926.451(g)(4)(i): Guardrail systems were not installed along all open 

sides and ends of platforms: 

The employer is failing to protect employees from fall hazards in the workplace. 

Employees were elevated on a platform in the air approximately 157” feet [sic] 

without any form of fall protection including but not limited to, guard rail 

systems, safety nets or personal fall arrest systems on all exposed areas of the 

platform. . . . 

See Citation and Notification of Penalty at 11. 

The cited standard provides: 

 

15. Prior to hearing, Complainant moved to recharacterize Citation 2, Item 1 and Citation 2, Item 2 from “Repeat” 

to “Serious”. The Court granted the motion. For the purposes of brevity and clarity, the Court’s reproduction of the 

violation narratives has been abridged to remove the extensive explanation for the Repeat characterization. 
36

Guardrail systems shall be installed along all open sides and ends of platforms. 

Guardrail systems shall be installed before the scaffold is released for use by 

employees other than erection/dismantling crews. 

29 C.F.R. § 1926.451(g)(4)(i).

a. The Citation is Duplicative 

The Commission has held the standard applicable when an employee is being transported 

by an aerial lift to and from a work level. Salah & Pecci Constr. Co., Inc., 6 BNA OSHC 1688, 

1689 (No. 15769, 1978).16 Even though the standard applies to the forklift-operated platform, 

and the terms of the standard were violated, the Court finds that this citation item is duplicative 

of Citation 1, Item 2a. According to the Commission, violations are considered duplicative 

“where the standards cited require the same abatement measures, or where abatement of one 

citation will necessarily result in the abatement of the other item as well.” Rawson Contractors, 

20 BNA OSHC 1078, 1082 n.5 (No. 99-0018, 2003) (emphasis added) (citing Flint Eng’g & 

Constr. Co., 15 BNA OSHC 2052, 2056–57 (No. 90-2783, 1992)). 

Citation 1, Item 2a alleges a violation of the general duty clause based on Respondent’s 

failure to properly size and equip the personnel platform attached to the forklift. In addition to 

alleging the personnel platform was too wide for the forklift, Complainant also alleged 

Respondent failed to include guardrails or other forms of fall protection on the platform. 

Included in the citation narrative, Complainant cited to three separate forms of abatement: (1) 

training regarding the use of personnel platforms on forklifts; (2) following the operator’s 

manual and ANSI B56.6 2002 Safety Standard for Rough Terrain Forklift Trucks Sec. 8.24.1 

limitations as to platform size; and (3) ensuring the personnel platform meets the requirements of 

 

16. The fact it is an older case does not negate or diminish its precedential value. “Judicial decisions, however, are 

not spoilable like milk. They do not have an expiration date and go bad merely with passage of time.” Comtran 

Grp., Inc. v. DOL, 722 F.3d 1304, 1314 (11th Cir. 2013).
37

both the manufacturer and the above-listed ANSI standard. The Court is concerned, in 

particular, with the third proposed form of abatement. 

Although the second proposed abatement measure focuses on the ANSI standard’s 

“limitations as to size of platforms to be used”, the third measure enlarges the scope of the 

abatement by calling on Respondent to adhere to the entire ANSI standard found in Section 

8.24.1. In addition to setting size restrictions on attached personnel platforms, Section 8.24.1 

(and the operator’s manual) requires the attached platform to include “restraining means such as 

a guardrail or a means for securing personnel such as a body belt or lanyard.” (Ex. C-15 at 28). 

Thus, both Citation 1, Item 2a and Citation 2, Item 1 call for the exact same method of 

abatement—the installation of fall protection devices on the personnel platform. As such, the 

citation items run afoul of the restriction against duplicative citations. Accordingly, Citation 2, 

Item 1 shall be VACATED.

6. Citation 2, Item 2 

Complainant alleged a serious violation of the Act in Citation 2, Item 2 as follows: 

29 CFR 1926.454(a): The employer did not have each employee who performs 

work while on a scaffold(s) trained by a person qualified in the subject matter to 

recognize those hazards associated with the type of scaffold being used and to 

understand the procedures to control or minimize those hazards: 

The employer is failing to protect employees from fall hazards. Employees 

working from scaffold platforms are not trained by a person qualified in the 

subject matter to recognize the hazards associated with the type of scaffold being 

used and to understand the procedures to control or minimize those hazards. 

Employees were elevated from the ground to the roof on a platform attached to a 

rough terrain forklift without any form of fall protection.... 

See Citation and Notification of Penalty at 12. 

The cited standard provides: 

The employer shall have each employee who performs work while on a scaffold 

trained by a person qualified in the subject matter to recognize the hazards 
38

associated with the type of scaffold being used and to understand the procedures 

to control or minimize those hazards. The training shall include the following 

areas, as applicable . . . .

29 C.F.R. § 1926.454(a). 

a. Complainant Failed to Prove a Violation of the Standard

 Based on the Court’s previous conclusion that the scaffolding standards apply to 

Respondent’s personnel platform, the Court also finds that the standard cited in Citation 2, Item 

2 applies; however, based on the scant record produced with respect to this particular violation, 

the Court finds that Complainant failed to prove a violation of the standard.

Complainant’s evidence with respect to this item is similar in type and quantity to his 

allegation of a fall protection training violation in Docket No. 15-1645. First, the CSHO 

observed employees using the personnel platform without fall protection. (Tr. 124). Second, 

during an interview with employees, CSHO Connett asked what sort of training they had 

received. (Tr. 126). One employee, named Moises, stated that Bratetic “basically” told him, 

“We’re not here to break any records; take your time; do things safely.” (Tr. 126). He could not 

recall what the other employee said about the training. (Tr. 126). Other than establishing that the 

employees were, in fact, exposed to the hazard by riding on the platform, this represents the sum 

total of the evidence Complainant presented on this citation item. 

As previously noted, in order to prove a violation of a training standard, Complainant 

“must show that the cited employer failed to provide the instructions that a reasonably prudent 

employer would have given in the same circumstances.” N & N, 18 BNA OSHC at 2122. 

Just as the Court found in Citation 1, Item 2 of Docket No. 15-1645, Complainant failed 

to put forth proof sufficient to establish a violation of the standard. To be sure, riding an 

unprotected, overloaded personnel platform is a violation, but not of the training standard. 
39

Moises’ statement that he had only been told to “take your time” is evidence of a training

violation; however, given that Respondent’s employees made similar statements in response to 

questions about their fall protection training, only to have Respondent provide evidence of such 

training, the Court questions the thoroughness of their answers and, perhaps, the diligence with 

which CSHO Connett pursued any follow-up investigation. The fact that CSHO Connett could 

not recall what the other employee said—indeed, the only other employee he interviewed on this 

topic—also calls into question the sufficiency of his investigation on this citation item.17

Nowhere in the record does it show that Bratetic, the person in the best position to discuss the 

content of any of Respondent’s training programs, was asked about the platform/scaffold training 

program; indeed, the purpose of his “informal meeting” with OSHA was to respond to a 

subpoena for documents and testimony related to the first inspection, which occurred at 207th & 

Shirley, and did not involve the platform. (Tr. 90–91, 224–25; Ex. R-10). 

The Court finds Complainant failed to produce evidence sufficient to establish a violation 

of the standard. As with Citation 1, Item 2 in Docket 15-1645, Complainant rested its case 

almost entirely on the CSHOs’ respective observations of fall protection violations. While such 

observations may indicate a lack of training, it is incumbent upon Complainant to do more than 

show the existence of violations at a worksite. See N & N, 18 BNA OSHC 2121 (citing Dravo 

Eng’rs and Constructors, 11 BNA OSHC 2010, 2012 (No. 81-748, 1984) (evidence of failure to 

enforce a safety rule does not prove a training violation)). And, although the statement regarding 

scaffold training attributed to Moises is a possible indication that training was deficient, it could 

 

17. The case file itself is not a model of clarity and thoroughness. The alleged violation description contained in the 

OSHA Violation Worksheet contains a narrative from an entirely different inspection; the citation item narratives 

contain multiple errors (as indicated by the multiple ‘sic’ notations in the Court’s reproduction); and CSHO Connett 

testified that the employees told him they were only told to work safely, but was contradicted by his own notes, 

which documented that they also told him they spoke about harnesses every day. 
40

just as easily mean that Moises was a man of few words. There is no indication in the record 

indicating that either Area Director Funke or CSHO Connett followed up with additional 

requests for Moises to clarify, nor does it appear that any requests or questions were directed at 

Bratetic regarding the training program at issue in this citation item.

In addition, Complainant presented no evidence that the person who conducted the 

training was not qualified. This is a requirement of the plain reading of the regulation to which 

absolutely no proof was offered. 

Finally, Complainant failed to establish what sort of training Respondent should have 

provided. There was no testimony regarding what a reasonable employer, in Bratetic’s position, 

should have instructed his employees to do when using a personnel lift. It is unclear whether the 

fall protection training Respondent provided would encapsulate the training at issue here, or 

whether Complainant contends that full-blown scaffold training is necessary for the use of a 

platform that raises employees and materials roughly 14 feet above the ground onto a residential 

roof. The Court cannot discern whether training is deficient unless a standard is defined. Since 

the standard at issue is a performance standard, it is incumbent upon Complainant to show that 

Respondent’s training regime falls below what is reasonable. See N & N, 18 BNA OSHC at 

2127-28 No such evidence was introduced. 

Based on the foregoing, Citation 2, Item 2 shall be VACATED.

V. Penalty

In determining the appropriate penalty for affirmed violations, section 17(j) of the Act 

requires the Commission to give due consideration to four criteria: (1) the size of the employer’s 

business; (2) the gravity of the violation; (3) the good faith of the employer; and (4) the 

employer’s prior history of violations. 29 U.S.C. § 666(j). Gravity is the primary consideration 
41

and is determined by the number of employees exposed, the duration of the exposure, the 

precautions taken against injury, and the likelihood of an actual injury. J.A. Jones Constr. Co., 

15 BNA OSHC 2201, 2214 (No. 87-2059, 1993). It is well established that the Commission and 

its judges conduct de novo penalty determinations and have full discretion to assess penalties 

based on the facts of each case and the applicable statutory criteria. E.g., Allied Structural Steel 

Co., 2 BNA OSHC 1457, 1458 (No. 1681, 1975); Valdak Corp., 17 BNA OSHC 1135, 1138 

(No. 93-0239, 1995), aff’d, 73 F.3d 1466 (8th Cir. 1995).

At the time of the inspection, Respondent had five employees, including himself. Thus, 

based on his size, Complainant proposed a 60% reduction on all gravity-based penalties, and the 

Court agrees with this assessment. Further, given that Respondent was found to have violated 

the same or similar standards by exposing his employees to fall hazards in consecutive 

inspections, the Court also agrees that no discount should be given for good faith or history. 

With respect to Citation 1, Item 1 of Docket 15-1645, Complainant determined that the 

violation was high gravity. (Tr. 192). In particular, Complainant determined that an employee 

who fell from a height of over 12 feet could suffer broken bones, concussion, and potentially 

death. Further, Complainant also assessed the probability of an accident occurring to be high 

due to the complete lack of any fall protection measures and how close Respondent’s employees 

were to the fall hazard. (Tr. 192–93). The Court agrees with Complainant’s evaluations. 

Accordingly, a penalty of $2,800 shall be ASSESSED.

With respect to Citation 1, Item 1 of Docket 16-0119, Complainant also determined the 

violation was high gravity. (Tr. 197–98). Area Director Funke testified that the forklift training 

violation exposed employees to the potential for an untrained operator to either run into 

employees on the worksite, or to potentially cause them to fall from the personnel platform. (Tr. 
42

197). Given the size of the machine, and the fact that it was being used to transport/lift 

employees, Complainant determined that the likelihood of injury was high, and the Court agrees. 

Accordingly, a penalty of $2,800 shall be ASSESSED.

With respect to Citation 1, Item 2a of Docket 16-0119, Complainant determined that the 

potential for serious injury was high due to the height that employees were lifted to without fall 

protection; however, Complainant also determined that the probability of an accident was lower 

due to the short duration of exposure. Respondent’s employees were only on the platform for as 

long as it took to be elevated to the roof and brought back down again. (Tr. 200). The Court 

agrees with this assessment. Accordingly, a penalty of $2,000 shall be ASSESSED.

With respect to Citation 1, Item 3 of Docket 16-0119, Complainant provided virtually the 

same assessment as it did regarding Citation 1, Item 1 in Docket 15-1645. The only difference 

was the probability of an accident occurring, which Complainant determined to be lesser under 

the circumstances observed at the Papillion worksite. According to Bratetic and the employees, 

they only went onto the roof to secure a few plywood panels that were previously misapplied. 

(Tr. 202). Based on that, Complainant proposed a slightly smaller penalty. The Court agrees 

with this assessment. Accordingly, a penalty of $2,000 shall be ASSESSED.

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. Based upon the foregoing 

Findings of Fact and Conclusions of Law, it is ORDERED that:

1. Docket No. 15-1645 

a. Citation 1, Item 1 is AFFIRMED as serious, and a penalty of $2,800 is 

ASSESSED. 
43

b. Citation 1, Item 2 is VACATED. 

2. Docket No. 16-0119 

a. Citation 1, Item 1 is AFFIRMED as serious, and a penalty of $2,800 is 

ASSESSED. 

b. Citation 1, Item 2a is AFFIRMED as serious, and a penalty of $2,000 is 

ASSESSED.

c. Citation 1, Item 2b is VACATED.

d. Citation 1, Item 3 is AFFIRMED as serious, and a penalty of $2,000 is 

ASSESSED.

e. Citation 2, Item 1 is VACATED.

f. Citation 2, Item 2 is VACATED.

SO ORDERED. 

 /s Patrick B. Augustine 

 ___________________________ 

 Patrick B. Augustine 

 Judge, OSHRC

Date: August 2, 2017

Denver, Colorado