United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v. OSHRC Docket No. 12-2142

MEADOWS CONSTRUCTION COMPANY, 

LLC,

Respondent.

ON BRIEFS:

Amy S. Tryon, Attorney; Heather R. Phillips, Counsel for Appellate Litigation; Ann S. 

Rosenthal, Acting Associate Solicitor of Labor for Occupational Safety and Health; M. Patricia 

Smith, Solicitor of Labor; U.S. Department of Labor, Washington, DC

For the Complainant

Stephen P. Kolberg, Esq.; Kolberg & Schneider, PC, Boston, MA

For the Respondent

DECISION

Before: MACDOUGALL, Chairman; ATTWOOD and SULLIVAN, Commissioners.

BY THE COMMISSION:

Meadows Construction Company provides general contracting and subcontracting 

services, mostly for state, public, and federal housing projects. In July 2012, the Occupational 

Safety and Health Administration conducted an inspection of a Meadows project at a public 

school in Lowell, Massachusetts. Following the inspection, OSHA issued Meadows a sevenitem serious citation and a two-item repeat citation with a total proposed penalty of $32,800. 

Administrative Law Judge Dennis L. Phillips affirmed three of the seven serious citation items

and both repeat citation items, and assessed a total penalty of $24,400. 

The only issue on review is whether the judge erred in denying a motion for summary 

judgment filed by Meadows seeking the dismissal of all citation items because the compliance 
2

officer who conducted the OSHA inspection presented company officials with an expired

credential card.1 We affirm the judge’s decision.

BACKGROUND

On July 10, 2012, OSHA received a complaint, that included photographs, of employees

working on the roof of the Lowell school without fall protection. That same day, the Assistant 

Area Director assigned a CO to inspect the worksite with the assistance of an OSHA safety 

assistant.2 The two OSHA representatives drove to the worksite, parked outside a fenced area, 

and observed and photographed employees working on the roof without fall protection before 

proceeding through the fence and onto the school grounds.

Once through the fence, the CO held up his credential card and asked who was in charge; 

the CO was directed to a co-owner of Meadows and one of the company’s foremen. The CO 

then again presented his credential card, explaining that OSHA was there in response to a 

complaint, and asked to inspect the worksite. Both supervisors agreed to the inspection, and the 

foreman and a second foreman accompanied the CO on his walkaround. At the end of the day, 

after the OSHA representatives had left, the CO’s credential card was found at the worksite. The 

co-owner contacted the CO to return the card, at which point he noticed that the bottom of the 

card’s face read: “Expires: 6/20/2012”—which was almost three weeks before the inspection. 

At some point after the inspection, the CO obtained an updated credential card. 

Before the judge, Meadows argued that because the CO’s credential card was expired at 

the time of the inspection, he lacked the authority to enter the worksite, conduct the inspection, 

issue the citations, and propose the penalties. The judge rejected this argument, agreeing with 

the Secretary that although the credential card was expired, the CO’s actual authorization to 

conduct inspections was never suspended, revoked, or expired.

DISCUSSION

Section 8(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 657(a), 

supplies the Secretary’s authority to conduct inspections of worksites:

 

1

In his decision, the judge reaffirmed his summary judgment ruling and denied Meadows’ 

request for reconsideration.

2

It is undisputed that the safety assistant was not a CO and thus did not have any independent 

authority to conduct the inspection.
3

(a) In order to carry out the purposes of this Act, the Secretary, upon presenting 

appropriate credentials to the owner, operator, or agent in charge, is authorized—

(1) to enter without delay and at reasonable times any factory, plant, 

establishment, construction site, or other area, workplace or environment 

where work is performed by an employee of an employer; and

(2) to inspect and investigate during regular working hours and at other 

reasonable times, and within reasonable limits and in a reasonable manner, 

any such place of employment and all pertinent conditions, structures, 

machines, apparatus, devices, equipment, and materials therein, and to 

question privately any such employer, owner, operator, agent or employee.

(Emphasis added.) The OSHA regulation implementing section 8(a) of the Act provides that 

COs “of the Department of Labor are authorized to enter without delay and at reasonable times 

any . . . workplace . . . ; to inspect and investigate . . . any such place of employment . . . ; to 

question privately any employer, owner, operator, agent or employee; and to review 

records . . . .” 29 C.F.R. § 1903.3(a) (emphasis added). Section 1903.7(a) states, “[a]t the 

beginning of an inspection, [COs] shall present their credentials to the owner, operator, or agent 

in charge at the establishment.” (Emphasis added.) Finally, § 1903.22(d) defines a CO as “a 

person authorized by the Occupational Safety and Health Administration, U.S. Department of 

Labor, to conduct inspections.”

We agree with the judge that the CO was properly authorized to enter Meadows’ worksite 

and conduct the OSHA inspection. The Act as well as the regulations establish that a CO’s 

authority to inspect is delegated from the Secretary through OSHA, and derives from this 

delegation and employment as a CO for the Department of Labor, not from the credential card. 

In other words, the credential card merely functions to inform an employer that OSHA has 

delegated inspection authority to the CO—the card itself does not grant that authority. Here, the 

CO had been employed by OSHA as a CO since 2007 and was so employed by OSHA at the 

time of the inspection. As a CO, he had the authority to inspect worksites on OSHA’s behalf.3 

 

3 Meadows argues that COs must undergo regular, periodic training to remain certified as COs. 

In support of its argument, the company cites an OSHA training directive that went into effect 

over two years after the date of the inspection. See Occupational Safety and Health 

Administration, TED 01-00-019, Mandatory Training Program for OSHA Compliance Personnel 

(2014). This argument lacks merit. First, directives do not have the force and effect of law and 

convey no important procedural or substantive rights to employers or individuals. See, e.g.,

Bethlehem Steel Corp., 10 BNA OSHC 1470, 1473 n.3 (No. 79-310, 1982) (“[T]he Secretary’s 
4

Thus, the underlying authority represented by the CO’s credential card still existed, despite the 

lapsed expiration date listed on the card.4 Therefore, we find that Meadows’ claim that section

8(a) was violated can only relate to the provision’s requirement that the CO “present[] 

appropriate credentials.” (Emphasis added.)

Section 8(a) “provides for the presentation of ‘appropriate credentials’ for the protection 

and assurance it provides to employers.” Usery v. Godfrey Brake & Supply Serv., Inc., 545 F.2d 

52, 54-55 (8th Cir. 1976) (emphasis added); see also Marshall v. C.F. & I. Steel Corp., 576 F.2d 

809, 816 (10th Cir. 1978) (McKay, J., dissenting) (“The presenting of credentials in an OSHA 

inspection . . . gives notice of the inspection’s lawfulness and of the inspector’s right to 

investigate.”). In other words, the Act’s requirement that a CO present “appropriate credentials” 

before entering a worksite provides an employer with the means to ensure that the person 

seeking to inspect the worksite is, in fact, an OSHA CO. Specifically, the employer has an 

 

internal administrative directives lack the force and effect of law and are thus not binding on the 

Secretary or the Commission.”). Second, neither the directive cited by Meadows, nor the 

directive in effect at the time of the inspection, states that a CO’s authorization to inspect will be 

revoked if the required training is not completed within the time specified. See id.; Occupational 

Safety and Health Administration, TED 01-00-018, Initial Training Program for OSHA 

Compliance Personnel (2008). And third, there is no evidence in the record, nor did Meadows 

attempt to discover or elicit any evidence, showing the CO had failed to complete any required 

training. 

4 By contrast, in all of the cases cited by Meadows in support of its position on review, the 

credential or card holder’s underlying authority no longer existed. See United States v. AlHamdi, 356 F.3d 565, 567, 568, 573 (4th Cir. 2004) (25-year-old defendant’s diplomatic 

identification card had expired but he was no longer eligible to claim diplomatic immunity 

through his father because immunity lapses at age 21); Guevara v. Holder, 649 F.3d 1086, 1094-

95 (9th Cir. 2011) (citing Matter of Blancas-Lara, 23 I. & N. Dec. 458 (BIA 2002) (immigrant 

admitted into United States with 72-hour border-crossing card and Board of Immigration 

Appeals determined he was unlawfully present after he remained in country longer than 72 

hours)); Nunez v. Simms, 341 F.3d 385, 386-87 (5th Cir. 2003) (teacher hired with temporary 

three-year teaching permit terminated after permit expired because she did not pass exam 

required to obtain permanent teaching certificate); Sanger v. Geren, 539 F. Supp. 2d 24, 28, 34-

35 (D.D.C. 2008) (Army doctor’s medical credentials revoked and employment terminated 

because he could no longer practice medicine due to medical condition and failed to apply for 

reinstatement); United States v. Hyde, No. 3:10-CR-169-AKK-JEO, 2012 WL 4734583, at *1, *8 

(N.D. Ala. Sept. 27, 2012) (defendant claimed he was “special deputy” with county sheriff’s 

department but defendant was no longer special deputy and “special deputy” card had expired 20 

years ago).
5

opportunity to scrutinize the credential card and determine if the card is “appropriate.” When 

presented with a card bearing an expiration date that has passed, an employer could reasonably 

question whether the person presenting it has authority to inspect. Accu-Namics, Inc. v. OSHRC, 

515 F.2d 828, 833-34 (5th Cir. 1975) (explaining that possible harm from entry by an 

unauthorized individual would be that the individual “looked where he had no right to look” or 

“filched information to which he was not entitled”). At that point, the employer could contact 

the local OSHA office for verification, or even refuse entry,5requiring OSHA to send a CO with 

an “appropriate,” i.e., unexpired, card. See Godfrey Brake, 545 F.2d at 54-55 (employers can 

verify identity of CO before permitting entry and may do so with phone call to local OSHA 

office).

Here, Meadows neither scrutinized the CO’s credential card nor refused entry. The CO 

testified that he “entered the site with [his] credential held up, asking for whoever was in 

charge.” After he was directed to the co-owner and the foreman, he “showed [his] credentials 

and said[] [he was] [t]here for an inspection related to a complaint.” The co-owner claims in an 

affidavit that “[i]nstead of allowing me or anyone else to inspect his credentials, [the CO] 

summarily flashed the card at us from a distance.” But his statement confirms that the card was, 

in fact, presented prior to entry and there is nothing in the record to suggest that the CO gained 

entry through “trickery or fraud.” See United States v. Bednarski, 312 F. Supp. 913, 915 (D. 

Mass. 1970) (search valid in criminal case where IRS special agents “flashed [their] credentials,” 

but made defendant aware he was subject of “tax investigation,” did not engage in trickery or 

fraud, and defendant “did not look at the credentials carefully or ask for an opportunity to read 

 

5 An employer can always refuse entry to a private worksite (which this worksite was not) and 

demand, pursuant to the Fourth Amendment, that OSHA obtain a warrant to enter the worksite to 

conduct the inspection. See Marshall v. Barlow’s, Inc., 436 U.S. 307, 316-20 (1978) (nonconsensual OSHA inspections require warrant); see also 29 C.F.R. § 1903.4(a). Doing so, 

however, would not resolve or affect any alleged violation of section 8(a) given that section 8(a) 

and the Fourth Amendment are not coextensive and that the Act’s presentation requirement 

applies to both public and private worksites. See L.R. Willson & Sons Inc., 17 BNA OSHC 

2059, 2061 (No. 94-1546, 1997), aff’d in relevant part, 134 F.3d 1235 (4th Cir. 1998) 

(explaining that provisions of section 8(a) are not coextensive with those of Fourth Amendment 

because section 8(a) is broader in that paragraph (a)(2) requires an on-site inspection to be 

conducted at reasonable times, within reasonable limits, and in a reasonable manner, and 

narrower in that it applies only to physical inspections on the worksite).
6

them”). Thus, as in Bednarski, the Meadows’ officials had an opportunity to ask to examine his 

credential card upon presentation, but did not do so prior to granting the CO entry. Id.; accord 

Adm’r of FAA v. Glowka, 3 N.T.S.B. 2353, 2359, 2361 (1980) (adopting administrative law 

judge’s finding that party being inspected is responsible for “look[ing] at the credentials with 

more perception” even if inspector initially “flashed” credentials).

Under these circumstances, we find that Meadows validly consented to OSHA’s 

inspection, and just as an employer who consents to the inspection of private property without 

asking for a warrant waives its Fourth Amendment right to privacy, Meadows’ failure to object 

to the CO’s credential card at the time of its presentation constitutes a waiver of the “appropriate 

credentials” requirement under section 8(a).

6

 See Lakeland Enters. of Rhinelander, Inc. v. Chao, 

402 F.3d 739, 745 (7th Cir. 2005) (any Fourth Amendment objection was waived because 

employer did not object to inspection and request warrant at the scene); Kropp Forge Co. v. 

Sec’y of Labor, 657 F.2d 119, 121-22 (7th Cir. 1981) (since employer’s representatives were 

present at all times during inspection and did not raise any objections, any Fourth Amendment 

objection was waived); Lake Butler Apparel Co. v. Sec’y of Labor, 519 F.2d 84, 88 (5th Cir. 

1975) (employer cannot obtain ruling on constitutionality when it did not assert its rights at time 

of inspection and company president accompanied CO during inspection).

Our dissenting colleague construes the employer’s statutory right to demand presentation 

of appropriate credentials to be un-waivable, i.e., that the employer may raise a failure to present 

them as a defense in litigation despite the employer’s failure to invoke this right at the time of the 

inspection. We see no basis for this interpretation of the statute. As our colleague states, the 

evident purpose of the presentation requirement is to “fully arm[]” employers with the ability to 

prevent “individuals who could intend harm to their employees and property” from entering their 

 

6 Citing several Supreme Court decisions, our dissenting colleague concludes that the threshold 

for waiver of the statutory requirement at issue here goes beyond that which is required for 

waiver of a basic right guaranteed by the Constitution. The two cases involving statutory rather 

than constitutional issues (New York v. Hill, 528 U.S. 110, 114 (2000); Oubre v. Entergy 

Operations, Inc. 522 U.S. 422, 427 (1998)) are inapposite. In Hill, the question presented was 

whether a statutory right to trial within 180 days could be waived by counsel or must be waived 

by the defendant. And Oubre stands for the proposition that, where a statute contains a specific 

waiver provision and lists several enumerated requirements that must be satisfied to be 

considered “knowing and voluntary,” a release that does not meet those requirements cannot be 

considered a valid waiver. If anything, Oubre would seem to support our reading of section 8(a).
7

facilities under color of law. But the only way employers can protect themselves from such a 

threat is to demand and scrutinize credentials when someone shows up at their doorstep to 

initiate an OSHA inspection—if the employer fails to make use of this tool conferred by the Act, 

its purpose cannot be effectuated. This is, therefore, hardly the type of right that should be 

treated as exempt from the normal rules of waiver.

Accordingly, we affirm the judge’s decision.7

SO ORDERED.

/s/

Cynthia L. Attwood

Commissioner

/s/

James J. Sullivan, Jr.

Dated: February 26, 2018 Commissioner

 

7 Because Meadows waived any objection to the CO’s credential card by consenting to the 

inspection, there is no need to reach Meadows’ argument that it was prejudiced by OSHA’s 

alleged failure to comply with section 8(a). See L.R. Willson, 17 BNA OSHC at 2061 n.9 

(Commission need not determine “whether it is appropriate to require an employer to show 

actual prejudice before a remedy will be afforded, or to decide what remedy would be 

appropriate for an intentional violation of section 8(a)” given its conclusion that there was no 

violation of either the Fourth Amendment or section 8(a) of the Act). In any event, Meadows’ 

complaints about how the CO “gathered and presented the facts” address the CO’s conduct after

being granted entry to conduct an inspection. Thus, these claims do not bear upon the CO’s 

presentation of an expired credential card or show that the company was prejudiced in its ability 

to present a defense. See Hartwell Excavating Co. v. Dunlop, 537 F.2d 1071, 1073 (9th Cir. 

1976) (declining to dismiss citation for trench hazards where employer’s claim of prejudice was 

based on a conflict in the testimony regarding depth of trench and composition of soil).
8

MACDOUGALL, Chairman, dissenting:

My colleagues make several mistakes along their way to denying an employer its 

statutory right in this issue of first impression before the Commission. Their decision today 

creates the “Rosebud” of Citizen Kane for Commission precedent: it is not as simple as you 

think and upon deeper analysis, there are more questions than answers. While I agree with my 

colleagues that a CO’s credential card itself does not grant a CO the “authority” to inspect, that is 

not the issue before us. In mistakenly focusing on whether a CO is authorized to conduct 

inspections, my colleagues fail to give effect to a statutory predicate for exercising that authority: 

the presentation of “appropriate credentials.”1

DISCUSSION

I. Under the Plain Meaning of the Operative Language of Section 8(a) of the Act, a CO 

with Expired Credentials Lacks “Appropriate Credentials.”

I first note that our job is to apply the language of section 8(a) of the Act; not rewrite it as 

the majority has done. Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 

(2006) (“We have ‘stated time and again that courts must presume that a legislature says in a 

statute what it means and means in a statute what it says there.’ When the statutory 

‘language is plain, the sole function of the courts—at least where the disposition required by the 

text is not absurd—is to enforce it according to its terms.’ ” (citation omitted)); Arcadian Corp., 

17 BNA OSHC 1345, 1347 (No. 93-3270, 1995) (“ ‘In a statutory construction case, the 

beginning point must be the language of the statute, and when a statute speaks with clarity to an 

issue[,] judicial inquiry into the statute’s meaning, in all but the most extraordinary 

circumstances, is finished.’ ” (citations omitted)), aff’d, 110 F.3d 1192 (5th Cir. 1997). 

Section 8(a) plays a critical role in OSHA enforcement—it outlines the ground rules 

Congress requires OSHA to follow in order to conduct an inspection of an employer’s premises:

(a) In order to carry out the purposes of this Act, the Secretary, upon presenting 

appropriate credentials to the owner, operator, or agent in charge, is authorized—

(1) to enter without delay and at reasonable times any factory, plant, 

establishment, construction site, or other area, workplace or environment 

where work is performed by an employee of an employer; and

 

1 Since the relevant facts are largely undisputed and are set forth in my colleagues’ majority 

opinion, I will not repeat them here.
9

(2) to inspect and investigate during regular working hours and at other 

reasonable times, and within reasonable limits and in a reasonable manner, 

any such place of employment and all pertinent conditions, structures, 

machines, apparatus, devices, equipment, and materials therein, and to 

question privately any such employer, owner, operator, agent or employee.

29 U.S.C. § 657(a) (emphasis added). The central question presented here is not who is 

“authorized”—an issue upon which my colleagues mistakenly place undue focus—but rather the 

statutory requirement that the authorized person enter the cited employer’s premises only “upon 

presenting appropriate credentials.” Just because a CO is authorized by the Secretary to 

conduct inspections does not mean the CO is authorized to conduct inspections under any 

circumstances. Congress expressly placed several limitations on the exercise of that authority, 

such as “at reasonable times,” and “in a reasonable manner,” and—the very first of these 

limitations as set out in the structure of the statute—the presentation of appropriate credentials.

See Gen. Motors Corp., 17 BNA OSHC 1217, 1218 (No. 91-2973, 1995) (consolidated) (finding 

standard unambiguous based in part on its structure) (citing Estate of Cowart v. Nicklos Drilling 

Co., 505 U.S. 469, 477 (1992)), aff’d, 89 F.3d 313 (6th Cir. 1996).

It cannot be reasonably disputed that the CO in the instant case lacked “appropriate 

credentials.” In considering the plain meaning of this operative language, the Secretary himself 

has determined what information is “appropriate” to include on a CO’s credentials and chose to 

include an expiration date. Accordingly, once a CO’s credentials have expired, it is 

unreasonable, if not impossible, to conclude that this meets any ordinary definition or common 

usage of the term “appropriate,” as the majority implicitly acknowledges in its decision.2 That 

 

2 When words used in a statute are not specifically defined, they are generally given their plain or 

ordinary meaning rather than some obscure usage. E.g., Sebelius v. Cloer, 569 U.S. 369, 376 

(2013); Carcieri v. Salazar, 555 U.S. 379, 388 (2009); Engine Mfrs. Ass’n v. S. Coast Air 

Quality Mgmt. Dist., 541 U.S. 246, 252 (2004); BedRoc Ltd. v. United States, 541 U.S. 176, 184 

(2004). One commonsense way to determine the plain meaning of a word is to consult a 

dictionary. E.g., Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 

2671 (2015); Carcieri, 555 U.S. at 387-88; Mallard v. U.S. Dist. Ct. for S.D. of Iowa, 490 U.S. 

296, 301 (1989); Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 10-11 (1989). 

Today, as it was in 1971 when section 8(a) became law, “appropriate” is defined as: “suitable, 

acceptable or correct for the particular circumstances,” https://www.oxfordlearnersdictionaries

.com/us/definition/english/appropriate_2; “correct or right for a particular situation or occasion,” 

https://dictionary.cambridge.org/us/dictionary/english/apropriate; “suitable or proper in the 
10

should end our inquiry on whether the terms of section 8(a) were violated in this matter.3 See 

Alaska Dept. of Envtl. Conservation v. EPA, 540 U.S. 461, 489 n.13 (2004) (a statute should be 

construed so that, “ ‘if it can be prevented, no clause, sentence, or word shall be superfluous, 

void, or insignificant’ ” (citations omitted)).

While I need not go further since the plain meaning of section 8(a) compels the 

conclusion that a CO with expired credentials lacks “appropriate credentials,”4the legislative 

history further illustrates that Congress intended the “appropriate credentials” requirement as a 

prerequisite to a lawful inspection: “[U]ntil the inspector has presented his credentials, he is not 

empowered to enter a business or workplace.”

5

 116 Cong. Rec. H10687 (daily ed. Nov. 24, 

 

circumstances,” The New Oxford American Dictionary 76 (2d ed. 2005); and “specially 

suitable,” Webster’s Third New International Dictionary 106 (1971).

3 Whether one calls it an impermissible interpretation of the term “appropriate” at Chevron step 

one (in other words, the statute resolves the question), or an unreasonable interpretation or 

application of the term “appropriate” at Chevron step two (in other words, the agency’s answer is 

based on an impermissible construction of the statute), or an unreasonable exercise of agency 

discretion under State Farm, the key point is the same: it is entirely unreasonable for the 

Secretary to conclude that “appropriate credentials” encompass credentials that have expressly 

expired. See Chevron U.S.A. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984); Motor Vehicle 

Mfrs. Ass’n of the U. S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-43 (1983).

4

“When determining the meaning of a standard, the Commission first looks to its text and 

structure.” Jesco, Inc., 24 BNA OSHC 1076, 1078 (No. 10-0265, 2013) (citing Superior 

Masonry Builders, Inc., 20 BNA OSHC 1182, 1184 (No. 96-1043, 2003)). “If the wording is 

unambiguous, the plain language of the standard will govern, even if the Secretary posits a 

different interpretation.” Id. (citing Superior Masonry, 20 BNA OSHC at 1184; Blount Int’l 

Ltd., 15 BNA OSHC 1897, 1902 (No. 89-1394, 1992)); see also Consumer Prod. Safety Comm’n 

v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980) (“Absent a clearly expressed legislative 

intention to the contrary, [a statute’s] language must ordinarily be regarded as conclusive.”); 

United States v. Ron Pair Enters., 489 U.S. 235, 242 (1989) (“The plain meaning of legislation 

should be conclusive, except in the ‘rare cases [in which] the literal application of a statute will 

produce a result demonstrably at odds with the intentions of its drafters.’ ” (quoting Griffin v. 

Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982))). “The plain meaning of the 

statutory language being clear, we look to the legislative history only to determine whether there 

is ‘clearly expressed legislative intention’ contrary to that language ‘which would require us to 

question the strong presumption that Congress expresses its intent through the language it 

chooses.’ ” Arcadian Corp., 17 BNA OSHC at 1348 (quoting INS v. Cardoza-Fonseca, 480 U.S. 

421, 432 n.12 (1987)).

5 The phrase “appropriate credentials” in section 8(a) has only been addressed very briefly by the 

circuit courts; two courts have explained that the purpose of this language is to assure employers 
11

1970) (statement of Rep. Galifianakis) (emphasis added). While statements by individual 

legislators should not be given controlling effect, when they are consistent with the statutory 

language and other legislative history,6they stand as evidence of Congress’ intent. Grove City 

College v. Bell, 465 U.S. 555, 567 (1984). Here, Congress was concerned enough about 

employers being subjected to unlawful inspections that it sought, in enacting this provision, to 

provide employers “protection and assurance” through the requirement of appropriate 

credentials. Godfrey Brake, 545 F.2d at 54-55; see also Marshall v. Barlow’s Inc., 436 U.S. 307, 

333 (1978) (Stevens, J., dissenting) (“The OSHA inspector’s statutory right to enter the premises 

is conditioned upon the presentation of appropriate credentials.” (citing section 8(a) of the Act, 

29 U.S.C. § 657(a)(1))).

My colleagues have chosen instead to leap straight to the provision’s use of “authorized” 

without first giving due effect to the operative phrase “upon presenting appropriate credentials” 

in section 8(a).7 By mistakenly focusing on this other language in section 8(a)—“the Secretary 

upon presenting appropriate credentials to the owner, operator, or agent in charge, is 

authorized”—the majority fails to interpret the statutory language as a whole and erroneously 

concludes that the CO was authorized to conduct an inspection even though he failed to satisfy 

 

that the individual attempting to gain entry to inspect the worksite is “lawful.” See Usery v. 

Godfrey Brake & Supply Serv. Inc., 545 F.2d 52, 54-55 (8th Cir. 1976) (“The statute provides for 

the presentation of ‘appropriate credentials’ for the protection and assurance it provides to 

employers.”); Marshall v. C.F. & I. Steel Corp., 576 F.2d 809, 816 (10th Cir. 1978) (McKay, J., 

dissenting) (“The presenting of credentials in an OSHA inspection likewise gives notice of the 

inspection’s lawfulness and of the inspector’s right to investigate.”). 

6

See also S. Rep. 91-1292, at 11 (1970) reprinted in Subcommittee on Labor and Public 

Welfare, United States Senate, Legislative History of the Occupational Safety and Health Act of 

1970, at 151 (“In order to carry out an effective national occupational safety and health program, 

it is necessary for government personnel to have the right of entry in order to ascertain the safety 

and health conditions and status of compliance of any covered employing establishment. Section 

8(a) therefore authorizes the Secretary, upon presenting appropriate credentials, to enter at 

reasonable times the premises of any place of employment covered by this act.”) (emphasis 

added).

7 My colleagues frame the issue and resolve it as such: “We agree with the judge that the CO was 

properly authorized to enter Meadows’ worksite and conduct the inspection” and then proceed to 

discount the issue of whether his credentials were “appropriate.” (Emphasis added).
12

this express precondition to the exercise of his authority.8 In disregarding operative language, 

my colleagues, instead, are persuaded by the Secretary’s red herring and analyze the separate 

issue of the CO’s status—his authority in general to inspect. However, the issue of status 

addresses whether the CO may be given appropriate credentials and what the CO can do during

the inspection after he has crossed the threshold of presenting “appropriate credentials”—not 

whether he has crossed that threshold in the first place. 

More specifically, as set forth in OSHA’s implementing regulations on inspections, 29 

C.F.R. § 1903.3 (Authority for inspection), COs have the authority “to inspect and investigate,” 

“to question privately,” and “to review [required] records.” But what the CO can lawfully do 

during an inspection does not address the statutory prerequisite that “appropriate credentials” 

must be presented in order to be empowered. Indeed, only upon this showing, which was not 

made here, does one even reach the second prong of section 8(a)—what the CO may accomplish 

during the inspection. The majority’s interpretation of section 8(a) violates the well-settled rule 

that a statute must be read as a whole and construed to give each word operative effect. United 

States v. Nordic Village, Inc., 503 U.S. 30, 36 (1992). In sum, my colleagues’ reading of the 

statute, which deprives the requirement to present appropriate credentials of its effect as a 

prerequisite to the exercise of a CO’s authority, results in an interpretation unsustainable under 

rules of statutory construction. 

Certainly, any concerns that Congress had nearly 50 years ago about the fraudulent entry 

of a person onto an employer’s premises, which it sought to address through the protection and 

 

8

In interpreting a statute, it “must be read as a coherent whole and, if possible, construed so that 

every word has some operative effect.” Jesco, 24 BNA OSHC at 1078 (citing Am Fed’n of 

Gov’t Emps., Local 2782 v. FLRA, 803 F.2d 737, 740 (D.C. Cir. 1986); E. Smalis Painting Co., 

22 BNA OSHC 1553, 1580 (No. 94-1979, 2009); Summit Contractors, Inc., 23 BNA OSHC 

1196, 1202-03 (No. 05-0839, 2010), aff’d per curiam, 442 F. App’x 570 (D.C. Cir. 2011) 

(unpublished)); see also Am. Tobacco Co. v. Patterson, 456 U.S. 63, 71 (1982) (“Statutes should 

be interpreted to avoid untenable distinctions and unreasonable results whenever possible.”);

Boise Cascade Corp. v. EPA, 942 F.2d 1427, 1432 (9th Cir. 1991) (statute should not be 

construed in a manner that renders it meaningless); Hughes Bros., Inc., 6 BNA OSHC 1830, 

1833 (No. 12523, 1978) (reading standard “as a whole” and construing its provisions all 

together).
13

assurance provided in section 8(a), are only greater today.9 One only has to consider too 

frequent media accounts of workplace violence, stolen identity, and even threats to homeland 

security, to conclude that employers must be fully armed with the means to detect and prevent

unauthorized entry by individuals who could intend harm to their employees and property. 

Thus, I would find that the operative language of section 8(a)—“upon presenting appropriate 

credentials”—operates as a precondition to a lawful inspection of a place of employment; 

without it, section 8(a) is violated and OSHA’s inspection is unlawful.10

II. Since Section 8(a) Is a Statutory Right, the Affirmative Defense Was Permitted to 

Be Asserted by the Employer in Its First Responsive Pleading and Was Not Waived.

In seeking to bolster their conclusion, my colleagues’ decision claims reliance upon 

Commission and other precedent, which address a Fourth Amendment right. However, as the 

majority acknowledges, the Commission has determined that the rights of section 8(a) are not 

coextensive with the Fourth Amendment. L.R. Willson & Sons Inc., 17 BNA OSHC 2059, 2067 

(No. 94-1546, 1997), aff’d in relevant part, 134 F.3d 1235 (4th Cir. 1998). By treating this issue 

as one analogous to the Fourth Amendment, my colleagues reach the conclusion that Meadows 

waived any right it had by allowing the inspection to proceed. What the majority fails to 

acknowledge is that section 8(a) provides an express statutory right, not a constitutional one. 

 

9 OSHA’s internal directive, OSHA Instruction: “Credential Cards Program”—which states that 

the purpose of the directive is to “establish[] revised policy and procedures for issuing, updating, 

and controlling OSHA credential cards”—acknowledges that expired cards are not appropriate 

credentials and sets forth the policy that “[i]t is essential that all old cards are taken out of 

circulation” and “[o]ld credential cards must be destroyed.” Occupational Safety and Health 

Administration, OFF 1-6.2, OSHA Credential Cards Program at Abstract, ¶ X (Policies). 

Further, the directive defines “credential” as “the card that is issued to either Compliance Safety 

and Health Officers, OSHA Officials, or Investigators,” id. at XII (Definitions), while saying 

nothing about the “authority” of the inspector once he is appropriately credentialed (i.e., his 

authority to inspect and investigate, to question privately, and to review required records, etc.). 

10 Therefore, it is irrelevant for the purposes of determining whether there was a violation of 

section 8(a) to find, as do my colleagues, that “the employer has an opportunity to scrutinize the 

credential card and determine if the card is ‘appropriate.’ ” When presented with a credential 

card bearing an expiration date that has passed, the CO has not presented “appropriate 

credentials” before conducting an inspection under section 8(a)—OSHA is in violation of the 

Act. It may be that the employer’s consent to the inspection when it accepted the “flash” of the 

CO’s card bears upon whether it was prejudiced by any violation, if this showing is deemed 

necessary for relief from the unlawful inspection.
14

While both a constitutional right and a statutory right can be waived, how that waiver is 

accomplished is not one and the same, and it is dependent upon the nature of the right at issue.

11

Indeed, a party asserting an affirmative defense is required to assert it in its first 

responsive pleading (and it need not be asserted prior to the inspection), as Meadows did here by 

raising the validity of the CO’s inspection in its Answer.12 See Commission Rule 34(b)(3)-(4), 

29 C.F.R. § 2200.34(b)(3)-(4) (requiring answer to “include all affirmative defenses being 

asserted,” and stating that failure to do so may “result in the party being prohibited from raising 

the defense at a later stage in the proceeding”). Commission Rule 34(b)(3)’s reference 

to affirmative defenses is to those recognized as such at common law—in other words, assertions 

raising arguments or new facts that, if proven, defeat a plaintiff’s claim even if the allegations in 

 

11 My colleagues state that I am mistaken on this point. However, the Supreme Court has often 

discussed that “[w]hat suffices for waiver depends on the nature of the right at issue.” New York 

v. Hill, 528 U.S. 110, 114 (2000) (“ ‘[W]hether the defendant must participate personally in 

the waiver; whether certain procedures are required for waiver; and whether the defendant's 

choice must be particularly informed or voluntary, all depend on the right at stake.’ ” (quoting 

United States v. Olano, 507 U.S. 725, 733 (1993))). Compare Schneckloth v. Bustamonte, 412 

U.S. 218, 219 (1973) (“[O]ne of the specifically established exceptions to the requirements of 

both a warrant and probable cause is a search that is conducted pursuant to consent.” (citations 

omitted)); with Oubre v. Entergy Operations, Inc., 522 U.S. 422, 427 (1998) (finding that the 

Older Workers Benefit Protection Act implements Congress’ policy of protecting rights and 

benefits of older workers “via a strict, unqualified statutory stricture on waivers” and that “[a]n 

employee ‘may not waive’ an ADEA claim unless the employer complies with the statute” 

including that the waiver be “voluntary and knowing” and be subject to a disclosure requirement, 

a waiting period, and a rescission period). These are just two examples that demonstrate the 

different procedural safeguards applicable to the waiver process, depending upon the right or 

privilege at issue. See generally Jessica Wilen Berg, Understanding Waiver, 40 HOUS. L. REV.

281, 282-283, 340-344 (2003) (noting different specific requirements that must be met for a 

waiver to be considered valid across various contexts, such as “criminal law, . . . insurance law, 

labor and employment, mediation, property law, civil procedure, contract law, tort law, and 

fiduciary law” and that with a statute the balance of rights has been determined legislatively) 

(footnotes omitted); Thomas G. Kelch & Michael K. Slattery, The Mythology of Waivers of 

Bankruptcy Privileges, 31 IND. L. REV. 897, 918-926, 924 (1998) (discussing the law of waiver 

in both constitutional and statutory contexts and noting that a “statutory privilege may not be 

waived when there is a strong public policy for the benefit of the general public underpinning the 

provision”). My colleagues fail to accurately apply this concept as demonstrated by their 

mistaken focus on distinguishing the specific facts of the cases cited in this footnote from the 

facts in the case before us.

12 Meadows’ asserted affirmative defense was also the subject of its motion for summary 

judgment and post-hearing brief. 
15

the complaint are true. U.S. Postal Serv., 24 BNA OSHC 2067, 2068 (No. 08-1547, 2014) 

(“An affirmative defense raises matters extraneous to the plaintiff’s prima facie case.” (quoting 

Ford Motor Co. v. Transp. Indem. Co., 795 F.2d 538, 546 (6th Cir. 1986))); 5 Charles Alan 

Wright & Arthur R. Miller, Federal Practice and Procedure §§ 1270-1271 (3d ed. 2004); 61A 

Am. Jur. 2d Pleading § 279).13 Thus, I fail see how there has been any waiver of Meadow’s 

affirmative defense that the CO’s physical inspection of the worksite was unlawful because he 

lacked appropriate credentials. 

III. The Issue of Prejudice Should Be Remanded to the Judge for Further 

Consideration.

Turning to the final issue that must be addressed: if the defense was not waived, must 

Meadows show prejudice to prevail? Because my colleagues treat the waiver issue as one akin 

to a waiver of a Fourth Amendment constitutional right, they have chosen to duck the issue of 

whether Meadows must show it was prejudiced by OSHA’s failure to comply with section 8(a) 

or the judge’s finding that prejudice was not shown. It is true that two circuit courts have held

that a violation of section 8(a) is a procedural or technical violation of the statute and excluding 

the evidence or vacating the citation is not an appropriate remedy absent a showing of prejudice 

by the employer. Pullman Power Prod., Inc. v. Marshall, 655 F.2d 41, 42, 44 (4th Cir. 1981); 

Accu-Namics, Inc. v. OSHRC, 515 F.2d 828, 833-34 (5th Cir. 1975).14 However, federal case 

 

13 There is another interesting question, which I note but decline to delve into today, of whether 

it is appropriate to consider the failure to comply with the “appropriate credentials” requirement 

of section 8(a) as an affirmative defense, rather than a defense that, once invoked, shifts the 

burden to the Secretary to establish that the statutory prerequisite has been met. See generally

Gad v. Kan. St. Univ., 787 F.3d 1032, 1042 (10th Cir. 2015) (citations omitted) (discussing 

difference between affirmative defense and condition precedent and finding that affirmative 

defense concedes “that there has in fact been discrimination and then justif[ying] this admitted 

discrimination”; while with a condition precedent, conversely, the flaw is procedural, not 

substantive, and it addresses a party’s failure to properly comply with the requirements Congress 

and the agency established); 2 Cal. Affirmative Def. § 47:1 (2d) (“Waiver is an affirmative 

defense that may be urged against many disparate causes of action since it asserts that the 

plaintiff has waived whatever right or privilege is essential to the plaintiff’s claim. With equitable 

roots, the concept of waiver is embodied in a number of . . . statutes, reflecting the variety of 

circumstances in which a waiver may be alleged.” (footnote omitted)).

14 In Pullman Power, where there was a dispute about whether the CO had presented his 

credentials, the Fourth Circuit held that the CO’s failure to comply with section 8(a) was a 

procedural violation that did not operate to exclude evidence or vacate the citation where the 
16

law discussing the issue of prejudice when a party fails to meet a statutory requirement has been 

inconsistent and taken various approaches: requiring a showing of prejudice when the violation 

is technical or procedural and not intentional;15 refusing to permit a lack of prejudice to be shown 

when the violation is substantive;16 finding Congress’s intent in the statutory requirement was to 

 

employer could not show prejudice. Pullman Power, 655 F.2d at 42, 44. In Accu-Namics, the 

CO verbally identified himself but never presented his credentials to the employer. AccuNamics, 515 F.2d at 831. The Fifth Circuit declined to decide whether the CO’s actions violated 

section 8(a), but it held that “even if the Secretary [had] conducted an illegal inspection (which 

we assume only for argument’s sake), under the circumstances here these violations cannot 

operate to exclude evidence obtained in that inspection where there is no showing that the 

employer was prejudiced in any way.” Id. at 833. The court also refused to “adopt an 

exclusionary rule which would exclude all evidence obtained illegally, no matter how minor or 

technical the government violation, and no matter how egregious or harmful the employer’s 

safety violation” because “[t]he manifest purpose of the [OSH] Act, to assure safe and healthful 

working conditions, militates against such a result.” Id. at 833. 

15 See Hartwell Excavating Co. v. Dunlop, 537 F.2d 1071, 1073 (9th Cir. 1976) (holding, where 

there was “substantial compliance” with sections 8(a) and (e), that “technical violations of the 

statute, assuming that such violations existed, do not justify any sweeping exclusionary rule in 

the absence of a showing of substantial prejudice by the petitioner”); Chicago Bridge & Iron Co. 

v. OSHRC, 535 F.2d 371, 377 (7th Cir. 1976) (holding in section 8(e) case that an employer must 

show prejudice where there has been substantial compliance with the Act and there is only a 

procedural or technical violation on the part of the Government); Accu-Namics, 515 F.2d at 833-

34 (same).

16 In Am. Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 538-39 (1970), the Supreme 

Court held that an agency’s failure to follow its own rules and regulations does not always 

require reversal of the agency’s actions. The Court determined that an agency’s failure to follow 

regulations promulgated for the primary purpose of providing the necessary information for the 

agency’s decision did not require reversal of the agency’s decision absent a showing of 

substantial prejudice by the affected party. Id. at 538-39; see also Waldron v. INS, 17 F.3d 511, 

518 (2d Cir. 1993) (concluding “that when a regulation is promulgated to protect a fundamental 

right derived from the Constitution or a federal statute, and the INS fails to adhere to it, the 

challenged deportation proceeding is invalid and a remand to the agency is required. This may 

well be so even when the regulation requires more than would the specific provision of the 

Constitution or statute that is the source of the right. On the other hand, where an INS regulation 

does not affect fundamental rights derived from the Constitution or a federal statute, we believe 

it is best to invalidate a challenged proceeding only upon a showing of prejudice to the rights 

sought to be protected by the subject regulation.” (citation omitted)).
17

presume prejudice;17 and finding Congress’s intent was to presume prejudice but allowing a 

party to rebut the presumption.18 

One would have to wonder if an employer could ever show prejudice where it consented 

to the CO’s entry after being presented with inappropriate credentials; if not, is this not an 

indication that Congress intended for the Commission to impose an appropriate sanction for a 

violation of section 8(a) without a showing of prejudice? See, e.g., Conroy v. Aniskoff, 507 U.S. 

511, 514 (1993) (member of armed services need not show that his military service prejudiced 

his ability to redeem title to his property before he could qualify for the statutory suspension of 

time; finding that “statutory command in [statutory provision] is unambiguous, unequivocal, and 

unlimited”); see also Hartwell, 537 F.2d at 1073 (Kennedy, J., concurring) (while agreeing that 

CO had complied with both sections 8(a) and (e), stating that he did “not believe that OSHA 

investigators are free to ignore sections 8(a) and (e) of the Act” and that any “[f]ailure to follow 

these provisions is always prejudicial to the property and privacy rights of businessmen, whether 

or not it is ‘prejudicial’ in the sense of providing evidence necessary to prove a violation of the 

Act”); L.R. Willson, 17 BNA OSHC at 2067 (Montoya Comm’r, concurring) (suggesting that 

where a CO deliberately failed to present any credentials prior to initiating inspection, the 

employer was prejudiced per se; so no showing of prejudice was required); W. Waterproofing 

Co., 4 BNA OSHC 1301, 1305-07 (No. 1087, 1976) (finding that failure to comply with section 

8(e) walkaround right was prejudicial and granting motion to suppress evidence resulting from 

inspection; noting, in enacting provision, that Congress intended to confer a substantial right on 

employers, and the failure of OSHA to comply with the right “distracted from the objectives of 

the Act”), rev’d on other grounds, 560 F.2d 947 (8th Cir. 1977).

19

 

17 See, e.g., Leslie v. Attorney General of the U.S., 611 F.3d 171, 178 (3d Cir. 2010) (finding that 

violations of regulations promulgated to protect fundamental statutory or constitutional rights 

need not be accompanied by a showing of prejudice to warrant judicial relief and that “some 

regulatory violations are so serious as to be reversible error without a showing of prejudice”).

18 See, e.g., Baumgardner v. Secretary, U.S. Dep’t of Housing & Urban Dev., 960 F.2d 572, 577-

78 (6th Cir. 1992) (agency’s failure to follow statutory notice provision did not require reversal 

when complaining party not substantially prejudiced).

19 In the Western Waterproofing case, Commissioner Montoya drew a distinction between such 

deliberate conduct and “other cases involving “technical” violations of section 8 that require a 
18

If a showing of prejudice is not required, or if Meadows can meet its burden regarding 

prejudice, what would be the appropriate sanction?20 Is the remedy limited to the inspection, not 

the citation? As stated above, two circuit courts have refused to adopt an exclusionary rule that 

would exclude all evidence obtained during such an unlawful inspection. Pullman Power, 655 

F.2d at 44; Accu-Namics, 515 F.2d at 833-34. One option might be to exclude the CO’s 

testimony as it relates solely to what he observed following entry with an inappropriate 

credential. This would permit the CO to testify about any observations of alleged violations 

made before entry (which are not covered by section 8) and any evidence he gathered after the 

inspection (e.g., employee interviews, subpoenaed documents). See L.R. Willson, 17 BNA 

OSHC at 2061 (“[Section 8] applies only to physical inspections on the worksite, while the 

Fourth Amendment may apply to an off-site observation.”). 

Unlike my colleagues, I would remand this case to the judge for further consideration of 

these issues and to determine if the requested relief, or any other relief, should be granted for 

what is a clear violation of section 8(a). 

/s/

Heather L.MacDougall

Dated: February 26, 2018 Chairman

 

showing of actual prejudice before any type of sanction can apply. Id. Here, there is no 

evidence in the record as to whether the CO was aware his credentials had expired.

20 There is some Commission precedent, in the context of whether searches were improper, 

discussing the exclusionary rule and the appropriateness of suppression of evidence. See, e.g., 

Smith Steel Casting Co., 12 BNA OSHC 1277 (No. 80-2069, 1985) (consolidated) (suppression 

of evidence may be appropriate sanction where suppression can be expected to deter the 

Secretary from engaging in similar misconduct in the future; however, evidence from ex parte 

warrant not suppressed), aff’d in relevant part, 800 F.2d 1329, 1334 (5th Cir. 1986) (holding that 

“the exclusionary rule does not extend to OSHA enforcement actions for purposes of correcting 

violations of occupational safety and health standards,” but does apply “where the object is to 

assess penalties against the employer for past violations of OSHA regulations” unless “the good 

faith exception can be applied to the Secretary’s actions in obtaining the tainted evidence”); 

Penn. Steel Foundry & Mach. Co., 12 BNA OSHC 2017 (No. 76-638, 1986) (balancing test 

applied to determine that there should not be suppression of evidence), aff’d, 831 F.2d 1211 (3d 

Cir. 1987).
 United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

 Washington, DC 20036-3457

:

SECRETARY OF LABOR, :

: 

Complainant, :

:

v. : OSHRC DOCKET NO. 12-2142

:

MEADOWS CONSTRUCTION :

 COMPANY, LLC, :

 :

 :

Respondent. :

:

Appearances: Kevin E. Sullivan, Esquire

U.S. Department of Labor, Office of the Solicitor, Boston, Massachusetts

For the Secretary

Stephen P. Kolberg, Esquire

Kolberg & Schneider, PC, Boston, Massachusetts

For the Respondent

Before: Dennis L. Phillips

Administrative Law Judge

DECISION AND ORDER

This proceeding is before the Occupational Safety and Health Review Commission (“the 

Commission” or “OSHRC”) pursuant to § 10(c) of the Occupational Safety and Health Act of 

1970, 29 U.S.C. § 659(c) (“the Act”). On July 10, 2012, upon being notified by email of 

alleged safety violations by a third party, unidentified complainant (“informer”), the 

Occupational Safety and Health Administration (“OSHA”) inspected a multi-employer worksite 

at 158 Rogers Street, Lowell, Massachusetts, 01852 (“worksite”) where Meadows Construction 

 
2

Company, LLC (“Respondent” or “Meadows”) was performing roofing work on a public school 

building.1 As a result of the inspection, OSHA issued Respondent one six-item serious Citation 

and one two-item repeat Citation, alleging one violation of the Act’s general duty clause as well 

as several violations of OSHA’s construction standards, and proposing a total penalty of 

$32,800.

2

 Respondent filed a timely notice of contest, bringing this matter before the 

Commission. 

After the Secretary filed his initial complaint in November 2012 and Respondent filed its 

answer, the Secretary filed an unopposed motion in March 2013 to amend the complaint with 

regard to the standard cited in Repeat Citation 2, Item 2, and also to amend the complaint to 

reflect Respondent’s operation of its general construction business as a limited liability company 

(“LLC”) (“First Motion to Amend”).

3

 The First Motion to Amend was granted, the Secretary 

filed a second complaint and Respondent filed a second answer. Subsequently in June 2013, 

the Secretary filed another motion to amend the complaint, this time with regard to the alleged 

 

1 The informer’s email reported to OSHA that he or she had taken photographs of the worksite at about 10:15 a.m., 

July 10, 2012, and that he or she had observed two men working at a roof opening without tying off. (Ex. R-M, at 

4.) The photographs taken by the informer were admitted into the record for the sole purpose of being evidence of 

what CO Naim and OSHA considered before initiating OSHA’s inspection of the worksite. These five 

photographs were not admitted to establish violations of the citation items at issue in this case. (Tr. 102-122; Exs. 

CX-21, CX-46, CX-48, CX-63, CX-67.) 

2 Serious Citation 1, Item 1 alleged a violation of § 5(a)(1) (“the general duty clause”), unattended industrial truck, 

and proposed a penalty of $2,800; Serious Citation 1, Item 2 alleged a violation of 29 C.F.R. § 1926.300(b)(1), 

machine guarding, and proposed a penalty of $2,800 ; Serious Citation 1, Item 3 alleged a violation 29 C.F.R. 

§ 1926.404(b)(1)(i), ground fault circuit interrupter protection, and proposed a penalty of $2,000; Serious Citation 1, 

Item 4 alleged a violation of 29 C.F.R. § 1926.451(f)(6), close proximity to energized power line, and proposed a 

$2,800 penalty; Serious Citation 1, Item 5a alleged a violation of 29 C.F.R. § 1926.453(b)(2)(iv), standing on lift 

railing, and proposed a penalty of $2,800; Serious Citation 1, Item 5b alleged a violation of 29 C.F.R. 

§ 1926.453(b)(2)(v), no body belt with lanyard; Serious Citation 1, Item 6 alleged a violation of 29 C.F.R. 

§ 1926.25(a), debris in the work areas, and proposed a penalty of $1,600; Repeat Citation 2, Item 1 alleged a 

violation of 29 C.F.R. § 1926.403(b)(2), relocatable power tap, and proposed a penalty of $4,000; Repeat Citation 2, 

Item 2 alleged a violation of 29 C.F.R. § 1926.501(b)(1), unprotected side or edge fall protection on a 

working/walking surface, and proposed a penalty of $14,000.

3 The Secretary sought to amend Repeat Citation 2, Item 2 to instead allege a violation of 29 C.F.R. 

§ 1926.501(b)(10), unprotected side or edge fall protection on a low-sloped roof.
3

general duty clause violation in Serious Citation 1 Item 1, alleging in the alternative a violation 

of a specific standard (“Second Motion to Amend”).

4

 The Second Motion to Amend was 

granted, and the Secretary filed a third complaint and Respondent filed a third answer. In all of 

its answers, Respondent set out the same 14 affirmative defenses.

5

 The hearing in this case 

took place on July 16 and 17, 2013, in Boston, Massachusetts. Both parties have filed 

post-hearing briefs and Respondent filed a reply brief. 

Jurisdiction

Respondent stipulates that it was a general contractor engaged in interstate commerce at 

the Lowell worksite. (Resp’t Br. at 1; Answer at ¶¶ 2-3.) Based upon the record, the Court 

finds that Respondent, at all relevant times, was engaged in a business affecting commerce and 

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

The Court concludes that the Commission has jurisdiction over the parties and the subject matter 

in this case. (Answer at ¶ 1, where Respondent admits to jurisdiction.) 

 

4 The Secretary sought to amend Serious Citation 1, Item 1 to allege, in the alternative, a violation of 29 C.F.R. 

§ 1926.602(c)(1)(vi), requirements of industrial trucks.

5 The 14 affirmative defenses are summarized as follows: (1) the inspection was conducted without legal 

authorization or credentials; (2) the alleged violations were due to subcontractor or employee error; (3) the alleged 

violations were due to subcontractor or employee failure to follow instructions; (4) the alleged violations were by 

others for whom Respondent was not legally responsible; (5) compliance with standards was infeasible under the 

circumstances; (6) the alleged violations were due to isolated subcontractor or employee misconduct; (7) 

Respondent neither caused the alleged hazards to exist, nor did it directly control conditions causing the hazard; (8) 

compliance was functionally impossible under the circumstances or would preclude performance of required work, 

and alternative means of protection were unavailable or in use; (9) Respondent did not have knowledge of the 

alleged violations; (10) the cited equipment was not in use; (11) Respondent’s employees did not have exposure to 

the alleged hazard; (12) a direct and immediate danger to employees or subcontractors did not exist; (13) the correct 

employer was not cited; and (14) Respondent has been singled out from other employers at the instigation of union 

representatives, in an ongoing pattern of harassment which has effectively led to repeated OSHA inspections and 

selective enforcement against the Respondent. 
4

Background

 Meadows is a construction company that provides general contracting and subcontracting 

services for state, public, and federal housing projects. (Tr. at 386.) In July 2012, Meadows 

had a contract with the city of Lowell, Massachusetts, and was the general contractor replacing 

the slate roof at Moody Elementary School, which was occupied with teachers and 

administrators preparing for the upcoming school year.6 (Tr. at 77, 392-93; Ex. CX-1 at 2.) 

At this time, Meadows employed 50-60 people divided among several worksites. (Tr. at 441.) 

According to Meadows, only two of its supervisory employees and one of its owners were on the 

Lowell worksite on the day of the OSHA inspection. These individuals were: Michael 

Meadows, Respondent’s joint owner,

7

his son, Jared Meadows, one of the company’s 

supervisors,

8

and Gilson Oliveira, a Meadows foreman.

9

 (Tr. at 359-360, 375, 377, 382, 386,

389, 392; Exs. CX-1 at 2, R-G, at 5.) The rest of the workers on the worksite, according to 

Respondent, were subcontractors to Meadows, and were contracted under the “Massachusetts 

 

6 The contract, entered into on April 3, 2012, called for Respondent to “furnish all the necessary labor, equipment, 

tools, appliances and materials for replacement of the roof at Moody Elementary School in the City of Lowell, ....” 

(Exs. CX-16, at 1, R-B, at 1). Respondent started working at the worksite on June 26, 2012. (Tr. at 413-414.) 

On September 11, 2012, Respondent applied for its final payment due under the contract that resulted in total 

payments made to Respondent by the City of Lowell for the project amounting to $928,369.50. (Exs. CX-20, R-J.)

7 Michael Meadows testified that his duties included attending kickoff and construction meetings. He also stated 

that he has, or had, construction supervisor licenses in Massachusetts, Florida and North Carolina. (Tr. at 

386-387.) He also testified that he would go to the worksite every other day. (Tr. at 437.)

8

Jared Meadows testified that he worked for Respondent for nearly 10 years and held a construction supervisor 

license for 7 years. He also testified that he was a licensed asbestos contractor, a hoisting engineer, and a master 

sheet metal worker. He stated that his supervisory duties included coordinating the crews, organizing setups and 

deliveries, arranging for dumpsters and pickups, and operating equipment. Jared Meadows further testified that he 

was the supervisor on site for the job’s duration and was at the worksite for eight hours every day. (Tr. 359-360.) 

Michael Meadows testified that Jared Meadows was also responsible for coordinating with the subcontractors and 

contractors working directly for the city of Lowell, Massachusetts at the worksite. (Tr. at 393-394.) 

9

Jared Meadows testified that Mr. Oliveira served as a project manager for the job who oversaw some of the 

workers, including carpenters and roofers employed by LN Construction Co. (Tr. at 380-381.) Michael Meadows 

testified that Mr. Oliveira was a foreman at the worksite in charge of deliveries, coordinated with Mr. Black, and 

lifted “stuff up to the guys on the roof.” (Tr. at 392.)
5

file sub-bid law,” which filtered the possible subcontractors that Meadows could choose from 

when awarding its subcontracts. (Tr. at 77-80; Exs. R-D, R-E, R-F.) Netco Management 

employee, Harold “Bud” Black, contracted by the city as Lowell’s “Clerk of Works,” would 

regularly be present on the worksite to observe the work being performed on behalf of the city.

(Tr. at 80-81, 317.) Mr. Black was usually present at the worksite for four hours per day, but 

the record does not establish that he was on the worksite on the day of the OSHA inspection.10 

(Tr. at 318.) 

Compliance Officer (“CO”) Donald Naim11 and Safety and Health Assistant Adam 

Henson12 arrived at the worksite in the early afternoon around 1:00 p.m., and parked on an 

unidentified street west of the building. (Tr. at 95, 338.) They walked to the entrance to the 

worksite and along the way observed workers on the roof of the school building and on an

adjacent yellow-in-color, Caterpillar TH83 telehandler’s (telehandler) platform without fall 

protection.13 (Tr. at 123-128, 225, 229, 275, 282, 290, 296, 407; Ex. CX-23.) The building 

was four stories high, and 100 feet long by 60 feet wide. (Tr. at 125.) The building’s roof had 

numerous dormers attached to it, and portions of it were steep-sloped and portions were 

 

10 Because the record does not establish that Mr. Black was at the worksite on the day of the OSHA inspection, the 

Court will not consider his testimony as conflicting evidence to what the OSHA inspectors directly observed. The 

Court finds that Mr. Black was mistaken when he testified that he believed that the only time a lift to house people 

was being used by Respondent was on the south side of the school building. The Court finds that Respondent used a 

telehandler to lift workers to the roof on the school building’s north side on July 10, 2012. (Tr. 327-328.)

11 CO Naim testified that he has served as an OSHA compliance officer for six years and before that he was 

employed as a safety and health inspector with various companies for twenty years. (Tr. at 93-94.) 

12 When he testified at the trial, Mr. Henson was an OSHA Compliance Safety and Health Officer. (Tr. 275.)

13 The Court uses the term “telehandler” here because that was how it was referred to by Respondent’s supervisors 

at trial. The telehandler was also referred to as a “powered industrial truck,” “lull,” “rough-terrain forklift,” or a 

“big forklift.” This telehandler is the subject of Citation 1, Item 1, and Citation 1, Items 5a & 5b. Respondent 

owned the telehandler. (Tr. 361; Ex. R-M, at 7.) 
6

low-sloped.14 (Tr. at 125.) The workers who were on the roof and the telehandler’s platform

were approximately 60 feet above the ground. (Tr. at 126.) At the time of the OSHA 

inspection, the workers were accessing the roof from the platform of the telehandler, which was 

located on the north side of the building. (Tr. at 266; Ex. CX-52.) On the west side of the 

building, in an alcove, a single power cable was attached to the building about 20 feet below the 

roof line. (Tr. at 178, 413; Ex. CX-41.) Also near the west alcove was a blue-in-color, Genie 

telescopic boom lift – Model S-65 (telescopic boom lift) - that Respondent rented from NES 

Rentals.15 (Exs. CX-3, CX-12, at 2, CX-41, CX-49, R-L, at 3, R-M, at 8.)16 

The OSHA inspectors entered the worksite on the east side of the building that was 

“fairly close” to the telehandler that was around the corner on the north side. (Tr. at 132, 291.)

CO Naim held up his credentials and asked to meet with those in charge. (Tr. at 127-128.) 

CO Naim testified that “every employee that I saw, I asked who was in charge and I was pointed 

to Michael Meadows and Jared Meadows.” (Tr. at 128.) Michael Meadows and Jared 

Meadows met with the OSHA inspectors by the telehandler.

17

 (Tr. at 292, 401.) CO Naim 

testified that Michael Meadows and Jared Meadows also told him that “they were in charge.” 

(Tr. at 130, 197-198.) He testified that Michael Meadows told him that “I’m responsible for all 

the employees on the site.” (Tr. at 198, 224, 251.) 

 

14 Low-slope roof means a roof having a slope less than or equal to 4 in 12 (vertical to horizontal). See 29 C.F.R. 

§ 1926.500(b).

15 Michael Meadows testified that the telescopic boom lift had a “60-foot lift.” (Tr. at 422; Ex. CX-49.)

16 The Secretary referred to this piece of equipment as an “aerial lift scaffold.” (Sec’y Br. at 17; Tr. at 184-185; 

Ex. CX-41.)

17 CO Naim testified that he informed them that he was at the worksite to perform an inspection related to a 

complaint received by OSHA and that OSHA had a fall emphasis program. He also testified that he told them that 

he was there to address fall hazards and any other possible hazards that he observed. (Tr. at 129.) 
7

When entering the worksite and during their meeting with Michael and Jared Meadows, 

CO Naim and Henson observed workers using an unguarded power table saw near the entrance 

to the worksite on the school building’s east side. (Tr. at 132, 145, 283-285.) CO Naim then 

toured the worksite with Jared Meadows and foreman Gilson Oliveira.

18

 (Tr. at 131-132.) 

During this time, CO Naim noted that the power table saw was plugged into an extension cord 

that did not have ground fault circuit interrupter (“GFCI”) protection, and that a separate 

relocatable power tap, which was not intended for use at construction sites, was on the worksite 

and two items, one of which was an extension cord that ran up to the roof of the building, were 

plugged into it.19 (Tr. at 170-173, 204-207.) Mr. Henson observed workers on the ground 

stepping through debris that had protruding screws.20 (Tr. at 275-276, 281.) 

Threshold Issues

Respondent’s Request for Reconsideration of the Court’s Denial of its Motion for 

 

18 Although CO Naim referred to the Meadows foreman as Luis Oliveira, the record shows that he also was known 

as Gilson Oliveira. (Tr. at 391 (Michael Meadows referring to his foreman on the Lowell worksite); Exs. CX-13, 

R-G (Respondent’s payroll records indicating that the foreman at the Lowell worksite was known as Gilson N. 

Oliveira).) CO Naim also testified that Michael Meadows may have accompanied him at times during his inspection. 

(Tr. 197.) 

19 CO Naim testified that GFCI protects electrical equipment users from electrical shocks and burns in the event of 

an equipment malfunction or cut in an electrical cord. (Tr. at 173.) 

20 Mr. Henson testified that another Meadows supervisor, Brian Dias, was at the worksite and that he toured the 

worksite with him. (Tr. at 289; 296.) Mr. Dias was a supervisor at the worksite and joint-owner of Meadows, 

but, according to Jared Meadows, was not at the worksite at the time of the inspection. (Tr. at 360, 381, 385.) 

CO Naim did not mention meeting Mr. Dias, only Messrs. Michael Meadows, Jared Meadows, and Gilson Oliveira. 

It is possible that Mr. Henson confused foreman Oliveira with Brian Dias. Mr. Henson testified:

Q. Were you present when Mr. Naim was interviewing Mr. Oliveira?

A. No.

Q. Did you walk the project site with Mr. Naim?

A. With Mr. Naim for a portion of it and I was with Mr. Dias from Meadows Construction for a 

portion of it on my own. 

(Tr. at 296.) The record does not resolve this apparent discrepancy, but neither party raises any issue 

associated with it. Accordingly, the Court finds that the discrepancy is harmless. 
8

Summary Judgment

In its post-hearing brief, Respondent asserts “that a post-trial reconsideration of 

Meadows’ motion [for summary judgment] is warranted” because the Secretary disclosed for the 

first time at trial that Mr. Henson was not an OSHA compliance officer on July 10, 2012. 

(Resp’t. Br. at 2-3.) In its reply brief, Respondent alleges that the Secretary “clearly and 

intentionally” used “chicanery” to “deceive this Court” as to Mr. Henson’s status at the time of 

the OSHA inspection. Respondent argues that such chicanery should result in the dismissal of 

the amended complaint and all citations. (Resp't. Reply Br. at 9-10.) 

A motion for reconsideration does “not necessarily fall within any specific Federal Rule” 

and, therefore, in such motions the movant “rel[ies] on ‘the inherent power of the rendering 

district court to afford such relief from interlocutory judgments ... as justice requires.”21 See 

Greene v. Union Mut. Life Ins. Co., 764 F.2d 19, 22 (1st Cir.1985) (citation omitted); Bowater 

Inc., No. Civ. 03-227-B-C, 2005 WL 3021979, at *1 (D. Me. Nov. 10, 2005). A motion for 

reconsideration should not give a motion’s losing party the opportunity to simply reargue losing 

points. Moreover, revisiting issues already addressed or advancing new arguments or 

supporting facts which were otherwise available when the original motion was under 

consideration by the Court are not valid purposes of a motion to reconsider and are likewise 

inappropriate. Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.1991) (citation 

omitted); see also Frietsch v. Refco, Inc., 56 F.3d 825, 828 (7th Cir.1995) (“It is not the purpose 

 

21 While the federal rules do not recognize a “motion for reconsideration” in those exact words, Rule 59(e) 

governs motions for the alteration or amendment of judgments. See Mass. Elec. Constr. Co., 16 BNA OSHC 1023, 

1024 (No. 91-2111, 1992). Under Rule 59(e) the movant must demonstrate an intervening change in the law, the 

discovery of new evidence, or a clear error of law in order to prevail. The Court finds that Respondent has not 

demonstrated any intervening change in the law, the discovery of new evidence, or clear error of law.
9

of allowing motions for reconsideration to enable a party to complete presenting his case after 

the court has ruled against him.”). The broad “interests of justice” standard, which helps guide 

the Court's analysis, is highly discretionary. See Greene, 764 F.2d at 22; United States v. 

Roberts, 978 F.2d 17, 22 (1st Cir.1992) (noting that the interests of justice test “covers 

considerable ground”). In conducting this analysis, this court may consider the following, 

nonexhaustive list of factors: (1) the nature of the case, (2) the degree of tardiness, (3) the 

reasons underlying the tardiness, (4) the character of the omission, (5) the existence vel non of 

cognizable prejudice to the nonmovant in consequence of the omission, (6) the effect of granting 

(or denying) the motion on the administration of justice, and (7) whether the belated filing 

would, in any event, be more than an empty exercise. Winters v. FDIC, 812 F.Supp. 1, 3 

(D.Me.1993) (quoting Roberts, 978 F.2d at 21-22).

Here, the record shows that the date on CO Naim’s credential card had expired June 20, 

2012 prior to the inspection of the Lowell worksite. (Tr. at 224-225; Ex. R-A.) Before the 

trial, Respondent filed a Motion for Summary Judgment based on Naim’s expired credential 

card. See Respondent Meadows Construction Co. LLC’s Motion for Summary Judgment 

Against Complainant under F.R.C.P. 56(2), Or Alternatively, Its Motion in Limine (June 21, 

2013)(“Motion for Summary Judgment”). The Motion for Summary Judgment was denied. 

See Order Denying Respondent’s Motion for Summary Judgment, or Alternatively, its Motion In 

Limine (June 28, 2013). In its post-hearing briefs, Respondent requests that its Motion for 

Summary Judgment be reconsidered because: (1) OSHA had misled the Court regarding Mr. 

Henson’s “true status” as a safety assistant during the inspection, and (2) Mr. Henson’s 

“presence at the site did not raise a genuine issue of material fact.” (Resp’t Br. at 2-3, 30-32; 

Resp’t Reply Br. at 9-10.
10

According to Respondent, OSHA, in an “untimely disclosure” at the hearing, revealed 

Mr. Henson’s “true status” as a safety assistant at the time of the Lowell inspection. (Resp’t Br. 

at 2-3.) In doing so, Respondent claims that OSHA misled the Court in its response to 

Respondent’s Motion for Summary Judgment by submitting a “brief and affidavit to this Court 

which misleadingly assert[ed] that Adam Henson’s presence on the worksite create[d] a genuine 

issue of material fact with respect to the credentials issue.” (Resp’t Reply Br. at 9.) 

First, the Court was not misled. OSHA never asserted that Mr. Henson was a 

credentialed Compliance Officer at the time of the Lowell inspection. Second, at the time of 

Respondent’s summary judgment motion, Mr. Henson’s presence at the worksite was a material

fact in dispute, not because he was a safety assistant and not a credentialed Compliance Officer, 

but because, according to the affidavit submitted by Michael Meadows in support of 

Respondent’s Motion for Summary Judgment, Meadows asserted, and OSHA disputed, that CO 

Naim “was the sole individual that interviewed people and investigated the Project site.” See

Michael Meadows Affidavit dated June 20, 2013; Complainant’s Memorandum In Opposition 

To Respondent’s Motion for Summary Judgment at 2 (June 27, 2013) (“OSHA employee Adam 

Henson was also at the project site assisting in the investigation and interviewing workers.”). 

Third, Respondent has not provided any support, legal or otherwise, as to how it is appropriate 

under the Federal Rules of Civil Procedure or Commission rules for a party, in its post-hearing 

brief, to make a post-trial request for the Court to reconsider its ruling denying a motion for 

summary judgment. Finally, any such motion is untimely per the Court’s Scheduling Order 

requiring all motions, including in limine, to have been submitted no later than 25 days before 

the commencement of the hearing. See Notice of Hearing and Scheduling Order (Jan. 23, 
11

2013). 

After weighing the factors suggested in Roberts, the Court is persuaded that the interests 

of justice do not justify the Court granting the requested reconsideration. Respondent’s Motion 

for Reconsideration is without merit regardless of whichever legal standard applies to its 

disposition. The Court finds that there is no evidence that the Secretary used chicanery to 

deceive the Court as to Mr. Henson’s status at the time of the OSHA inspection. The issue has 

been reviewed by the Court given the development of the record during the trial and 

Respondent’s request in its post-hearing brief. For the reasons already set forth in the Order 

denying the Motion for Summary Judgment and herein, the Court affirms its denial of 

Respondent’s Motion for Summary Judgment and denies Respondent’s Motion for 

Reconsideration of the Court’s denial of its Motion for Summary Judgment based on CO Naim’s 

expired credentials. 

Multi-Employer Doctrine

The Secretary claims that Meadows was the general contractor on the Lowell worksite and 

was therefore responsible for ensuring that the work done on the worksite was “conducted in a safe 

manner.” (Sec’y Br. at 12.) The Secretary’s claim falls under the multi-employer worksite 

doctrine, which is set forth in Summit Contractors, Inc., 23 BNA OSHC 1196 (No. 05-0839,

2010). In Summit, the Commission held that “an employer who either creates or controls the cited 

hazard has a duty under § 5(a)(2) of the Act . . . to protect not only its own employees, but those of 

other employers ‘engaged in the common undertaking.’ ” Summit, 23 BNA OSHC at 1205

(citations omitted). The Commission explained that a “controlling” employer is one in the 

position “where it could reasonably be expected to prevent or detect and abate the violations due to 

its supervisory authority and control over the worksite.” Id. A “creating” employer is one that 
12

“creates a violative or hazardous condition [and] is [therefore] obligated to protect its own 

employees as well as employees of other contractors who are exposed to the hazard.” Id.

Of the fourteen affirmative defenses Respondent raised in its Answers to the Secretary’s 

Complaints, the following relate to the multi-employer doctrine that: (4) it was not legally 

responsible for those who allegedly violated the cited standard, (7) it neither caused the alleged 

hazards to exist nor did it directly control the conditions causing the hazard, and (13) the correct 

employer was not cited. In its prehearing statement, Respondent set forth the factual bases for 

these affirmative defenses: Mr. Ederson Pinto, thought by CO Naim to be a worker at the 

worksite, was not on any of the subcontractor payrolls; a subcontractor who was cited, LN 

Construction Co., was not directed or directly supervised by Meadows; and the power table saw 

and power tap at issue in the citation items were not Meadows’ property. (Resp’t Pre-Hr’g 

Statement at 6, 8.) In its post-hearing briefs, Respondent further claims: (1) Masonworks, LLC, 

the subcontractor who operated the power table saw at issue in Citation 1 Item 2, was not a “filed 

sub-bidder which Meadows could vet, select or reject depending on its safety record, experience 

and qualifications, per the normal procedures of the Massachusetts bid law,” and (2) the 

relocatable power tap at issue in Repeat Citation 2 Item 1 was most probably owned by either the 

window or the asbestos abatement contractors, neither of which subcontracted with Meadows.22 

(Resp’t Br. at 13-14, 23.) 

It is undisputed that Meadows was the general contractor on the Lowell worksite and that 

subcontractors were also present during the OSHA inspection. With respect to these 

subcontractors and the worksite as a whole, the Court finds that the record shows that Meadows 

 

22 Michael Meadows testified that an asbestos abatement contractor was assisting the window contractor at the 

worksite. (Tr. at 406.)
13

had overall supervisory authority and control of the work functions being performed. General 

contractors at construction sites, who have the ability to do so, must prevent or abate hazardous 

conditions created by subcontractors, through the reasonable exercise of supervisory authority, 

regardless of whether the general contractor created the hazard or whether the general contractor’s 

own employees were exposed to the hazard. See Solis v. Summit Contractors, Inc., 558 F.3d 815 

(8th Cir. 2009). First, the record shows that Meadows was in charge of safety.23 Meadows 

required its own employees and subcontractors to follow its safety program specifically developed 

for the project, which was kept on site for everyone to use and follow. (Tr. at 435-437; Ex. 

R-O).24 The safety program plainly states that all subcontractors must follow it. (Ex. R-O at 

“Responsibilities: Subcontractors and Suppliers”; “Subcontractors/Outside Service Providers.”) 

The record also shows that Meadows communicated its safety rules, using an interpreter if 

necessary, to everyone on the worksite during daily coffee breaks. (Tr. at 435-437.) The 

safety program included topics such as fall protection and electrical safety. It also included a 

disciplinary program. (Ex. R-O at “Disciplinary Program.”) Additionally, Bud Black, who 

represented the city of Lowell, testified that he reported any safety concerns directly to 

Respondent. (Tr. at 319-320, 330-331.) Safety Net, Respondent’s safety consultant, 

developed Meadows’ safety program and provided it to Meadows. (Tr. at 433-435.) Netco 

employee, Thomas Kondol, served as the city of Lowell’s project manager (“PM”). Mr. Black 

 

23 In its interrogatory responses to the Secretary, Respondent identified Messrs. Michael Meadows, Jared Meadows, 

Brian Dias and Victor Andrade, all either owners or employees of Meadows, as persons in charge of safety at the 

worksite. (Ex. CX-1, at p. 3.) 

24 Meadows claims that the Massachusetts contracting bid requirements shield it from responsibility on its worksite, 

claiming that Meadows could not select some subcontractors based on their safety record. (Resp’t Br. at 13-14.) 

The record shows, however, that Meadows knew about this requirement before it contracted with the city of Lowell. 

(Tr. at 80.) Meadows then required all subcontractors, including the ones it was allegedly required to hire, to conform 

to its safety program. 
14

worked for PM Kondol. PM Kondol testified that as the worksite PM he was the “interface 

between the contractor, the designer, and the school district, which is – who the work was being 

performed for.” He also testified that the subcontractors to Respondent at the worksite performed 

“work as directed by the general contractor [Respondent].” (Tr. at 77, 80.) 

Second, the record shows that Respondent was in charge of the flow of work being done

on the Lowell worksite. Michael Meadows and Jared Meadows testified that Jared Meadows 

coordinated all of the work being done by the subcontractors. (Tr. at 359; 393-395.) Michael 

Meadows testified that foreman Gilson Oliveira was in charge of deliveries, and would “lift[] stuff 

up to the guys on the roof,” who were, according to Jared Meadows, employees of subcontractors 

Masonworks, LLC and LN Construction Co. (Tr. at 375, 392.) Michael Meadows also testified 

that Jared Meadows would coordinate the work of non-subcontractors; including the work of the 

window and asbestos contractors. (Tr. at 393.) CO Naim also asserted that Michael Meadows 

also told CO Naim that he [Michael Meadows] “controlled the work activities of the employees 

(Means and manner by which the work is accomplished) that are the subject of each of the citations 

issued. He [Michael Meadows] also indicated that he [Michael Meadows] gives additional 

projects to these workers, controls their hours and has the authority to remove or discipline these 

workers.” See Secretary’s Response to Interrogatory No. 10, at Ex. R-M, at 7.)

Finally, the record shows that the subcontracted workers viewed the Meadows 

supervisors as those that controlled the project. CO Naim testified that all the workers on the site 

that he spoke to indicated that Michael Meadows and Jared Meadows were “in charge.” The only 

supervisors at the worksite at the time of the OSHA inspection were Meadows’ supervisors. (Tr. 

at 128, 142-143.) This testimony was unrebutted. Based on the above facts, the Court finds that 

Respondent in general controlled the worksite in such a way as to be able to detect and abate any 
15

violative conditions that developed on the worksite. Consistent with Summit, the Court finds 

Respondent to be a “controlling” employer that had a duty under the Act to protect not only its own 

employees, but those of LN Construction Co., Masonworks, LLC and the window and asbestos 

abatement contractors that were also working at the worksite. Centex-Rooney Constr. Co., 16 

BNA OSHC 2127, 2130 (No. 92-0851, 1994) (“An employer is responsible for violations of other 

employers where it could reasonably be expected to prevent or detect and abate the violations due 

to its supervisory authority and control over the worksite.”). With respect to the individual 

citation items where a Meadows subcontractor was involved with or exposed to the alleged hazard, 

the Court also specifically finds, as discussed below in the sections devoted to the specific citation 

items, that the record supports that Respondent had control over the working conditions 

surrounding the alleged violations, but failed to abate them.25 

Selective Prosecution

In its answers, Respondent claimed that OSHA had engaged in selective enforcement 

against Meadows due to ongoing issues Respondent had with union representatives. See

Fourteenth Affirmative Defense in Resp’t Answers, Respondent’s response to the Secretary’s 

Interrogatory No. 22. (Ex. CX-1, at 10.) The Commission places the burden of showing 

selective prosecution on respondents. Altor Inc., 23 BNA OSHC 1458, 1460 n.2 (No. 99-0958, 

2011). Respondent alleges that union harassment has “effectively led to repeated OSHA 

inspections and selective enforcement.”26 Fourteenth Affirmative Defense in Resp’t Answers. 

 

25 These citation items include Citation 1, Items 2, 3, 5 and 6, and Citation 2, Items 1 and 2. The multi-employer 

doctrine does not apply to Citation 1, Items 1 and 4, in which a Meadows employee was undisputedly involved. 

26 Michael Meadows testified that unions have “been using thuggery tactics against me” since he was not a 

signatory contractor for unions. He also testified that Respondent has been a victim of vandalism at worksites 

where a telehandler and sixteen skylights were smashed. (Tr. at 390.) 
16

Respondent alleges that OSHA selected it for inspection merely because the company was 

non-union. When a Respondent raises the spectre that it has been a victim of selective 

enforcement of the Act, it is alleging that it has been deprived of its right to due process under 

the law. Relief is available only if the decision to prosecute is shown to have been deliberately

based upon an unjustifiable standard, such as race, religion, or other arbitrary classification. 

Cuyahoga Valley Ry. v. United Transp. Union, 474 U.S. 3 (1985).27 Relief may also be available 

if the prosecutorial decision was vindictive and unreasonably initiated with the intent to punish 

the employer for its exercise of a constitutionally protected right.28 See Altor, Inc., No. 99-0958, 

2001 WL 36358380, at **32-33 (O.S.H.R.C.A.L.J. December 17, 2001).

There is nothing in this record to support the conclusion that the Secretary’s conduct with 

regard to OSHA’s July 10, 2012 inspection or the issuance of the two citations at issue was

based on an illegal premise or Respondent’s non-union status, discriminatory, unreasonable or an 

attempt to prevent Respondent from exercising a protected right, or to punish Respondent for 

exercising any such rights.29 The record does not establish that OSHA was aware, before 

 

27 See Dekalb Forge Co., 13 BNA OSHC 1146, 1153(No. 83-299, 1987) (selective enforcement is judged “by 

ordinary equal protection standards, under which it must be shown that the alleged selective enforcement had a 

discriminatory effect and was motivated by a discriminatory purpose” (footnote omitted); see also United States v. 

Torquato, 602 F.2d 564, 569 n.8 (3d Cir. 1979) (defendant claiming selective prosecution “ ‘bears the heavy 

burden’ ” of proving that claim (citation omitted)).

28 Vindictive prosecution requires Respondent to show: (1) an exercise of a protected right; (2) OSHA's stake in the 

exercise of that right; (3) the unreasonableness of OSHA's conduct; and (4) that the prosecution was initiated with 

the intent to punish the Respondent for the exercise of the protected right. Nat’l Eng’g & Contracting Co., 18 

BNA OSHC 1075, 1077 (No. 94-2787, 1997), aff'd, Nat’l Eng’g and Contracting Co. v. Herman, 18 BNA OSHC 

2114, 2119-20 (No. 97-4362, 1999)(6th Cir. 1999). Likewise, Respondent "must produce evidence tending to 

show that it would not have been cited absent that motive." (Nat’l Eng’g & Contracting Co., 18 BNA OSHC at 

1078).

29 In this case, Respondent has failed to establish that any government officials engaged in any misconduct. To 

the contrary, the actions of OSHA personnel have been in support of the public interest to ensure employee safety. 

Fluor Daniel, 19 BNA OSHC 1529, 1533 (No. 96-1729, 2001)(consolidated), aff’d, 295 F.3d 1232 (11th Cir. 2002). 
17

deciding to conduct its inspection, of the absence of any union personnel at the worksite.30 The 

record fails to establish that the choice of Respondent’s worksite for inspection on July 10, 2012 

was based on anything other than a routine decision to investigate for fall protection violations in 

response to OSHA’s receipt of a complaint and in accordance with OSHA’s fall emphasis 

program.31 Respondent's has not met the standard required by the selective prosecution or 

vindictive prosecution affirmative defenses. It produced no credible evidence at the hearing 

that OSHA violated its rights, due process or otherwise, by conducting an inspection of 

Respondent’s worksite on July 10, 2012, or that OSHA's July 10, 2012 inspection was 

unreasonable. Respondent has not demonstrated that OSHA acted with any discriminatory or 

retaliatory motive in citing Respondent for violations observed by CO Naim and Mr. Henson on 

July 10, 2012. The Court finds that no such motive existed. Nothing in the record identifies 

who submitted the anonymous complaint to OSHA. Similarly, nothing in the record establishes 

that the Secretary was not within his prosecutorial discretion when he issued the citation items in 

this case. Altor Inc., 23 BNA OSHC at 1460 n.2. The Secretary has demonstrated the 

hazardous conditions that existed at the worksite on July 10, 2012 for which Respondent is 

responsible with regard to Citation 1, Items 2, 3 and 6, and Citation 2, Items 1 and 2. It was 

entirely proper for the Secretary to cite Respondent for these violations that CO Naim and Mr. 

Henson observed on July 10, 2012. Respondent has not demonstrated selective or vindictive 

prosecution. Accordingly, the affirmative defenses of selective or vindictive prosecution are

rejected.

 

30 See A.A. Beiro Constr. Co., Inc., 11 BNA OSHC 1662, 1665 (No. 81-1177, 1983) (Selective enforcement defense 

based upon a company’s non-union status rejected where OSHA unaware of the absence of a union at the worksite.).

31 There is also no evidence of any irregularities by OSHA personnel directed toward Respondent occurring either 

prior to or during the actual OSHA inspection conducted on July 10, 2012. 
18

Finally, the Court makes note that the record calls into question Respondent’s level of 

cooperation during the OSHA inspection. The record shows that neither OSHA inspector was 

able to meaningfully interview any non-supervisory worker on the worksite, except for perhaps 

Mr. DaSilva. (Tr. at 142-143, 289-290.) As an example, CO Naim testified that as he attempted 

to interview a worker, Jared Meadows got upset and intimidating, and stated that the worker

“need[ed] to get back to work. I’m paying him $50/hour.” As a result, CO Naim had difficulty 

interviewing that worker. (Tr. at 222.) Additionally, when all the workers “left the yard” during 

the OSHA inspection, Mr. Henson testified that no reason was given to him.32 (Tr. at 289-290.) 

Secretary’s Burden of Proof

In order to establish a violation of a safety or health standard, the Secretary must prove 

by a preponderance of the evidence: “(1) that the cited standard applies; (2) that there was a 

failure to comply with the standard; (3) that employees had access to the violative condition; and 

(4) that the employer had actual or constructive knowledge of the violation.” P. Gioioso & 

Sons, Inc. v. Occupational Safety and Health Review Com'n,, 675 F.3d 66, 72 (1st Cir. 2012) 

(citation omitted); see also Astra Pharm. Prod., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981), 

aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982). 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). “A violation is repeated under section 17(a) of the Act if, at 

the time of the alleged repeated violation, there was a Commission final order against the same 

employer for a substantially similar violation.” Potlatch Corp., 7 BNA OSHC 1061, 1063 (No. 

16183, 1979). 

 

32 Mr. Henson’s attempt to gather the names and contact information of the workers at the worksite during the 

inspection were unsuccessful. He did not conduct any interviews of the workers during the OSHA inspection. 

(Tr. 290.)
19

Discussion

Citation 1, Item 1

This citation item alleges a violation of the general duty clause, or in the alternative, a 

violation of 29 C.F.R. § 1926.602(c)(1)(vi). Respondent initially argues that the alleged § 

5(a)(1) violation should be dismissed because a violation of a specific standard is alleged. 

(Resp’t Br. at 32.) The Court does not need to address Respondent’s argument because the 

Secretary has not addressed the general duty clause theory in his post-hearing brief. The 

Secretary’s allegation regarding the general duty clause violation is deemed abandoned. L&L 

Painting Co., 23 BNA OSHC 1986, 1989 n. 5 (No. 05-0055, 2012) (item not addressed in 

post-hearing briefs deemed abandoned), Midwest Masonry Inc., 19 BNA OSHC 1540, 1543 n. 5 

(No. 00-0322-2001) (arguments not raised in post-hearing briefs generally deemed abandoned). 

The Secretary alleges in the alternative a violation of § 1926.602(c)(1)(vi), which states 

in pertinent part: “All industrial trucks in use shall meet the applicable requirements of design, 

construction, stability, inspection, testing, maintenance, and operation, as defined in American 

National Standards Institute B56.1-1969, Safety Standards for Powered Industrial Trucks.” The 

Secretary alleges that Meadows violated this standard when Jared Meadows, the operator of the 

telehandler on the north side of the building, left the telehandler “unattended.” (Sec’y Br. at 

15-16.) Respondent claims that the Secretary failed to establish applicability, noncompliance 

and exposure.33 (Resp’t Br. at 9-12, 32-40; Resp’t Reply Br. at 5, 7.) 

 

33 The Secretary’s Violation Worksheet for Citation 1, Item 1 (General Duty Clause), states that “an employee were 

[sic] exposed to falls and equipment malfunction while the operator of the powered industrial truck was not at the 

controls when the employees were working out of the platform at an elevated position.” The worksheet identifies 

Mr. Ederson Pinto as being exposed to the general duty clause violation for 30 minutes. (Ex. R-R.) CO Naim 

also identified Mr. Pinto as the worker who he observed operating the table saw without a guard on the ground, 

conduct which is the subject of Citation 1, Item 2, discussed below. Mr. Pinto testified that he was not at the 

worksite during the OSHA inspection. (Tr. at 137-139.) Whether or not Mr. Pinto or his imposter, or any other 
20

Merits

With regard to applicability, Respondent argues that the cited standard applies only to 

“earthmoving equipment,” pointing to § 602(a), and claims that the telehandler is actually a 

“rough terrain forklift.” (Resp’t Br. at 33; Resp’t Reply Br. at 5.) Respondent’s argument is 

misplaced because the cited standard does not fall under § 602(a), it falls instead under § 602(c), 

“Lifting and hauling equipment (other than equipment covered under subpart N [Helicopters, 

Hoists, Elevators, and Conveyors] of this part). (1) Industrial trucks shall meet the requirements 

of § 1926.600 and the following: ....” 29 C.F.R. § 1926.602(c). OSHA has issued a standard 

interpretation letter explaining that § 602(c) applies to rough-terrain forklifts and powered 

industrial trucks.

34

 OSHA Standard Interpretation Letter, “Applicable Standards to Lifting 

Personnel on a Platform Supported by a Rough Terrain Forklift: Re: §§ 1926.451(c)(2)(iv) and 

(v) and 1926.602(c),” (Nov. 27, 2001). (Ex. CX-25.) Both parties therefore agree that the 

telehandler was a rough-terrain forklift (powered industrial truck). See Complainant’s 

Memorandum In Support Of Motion To Amend Citation And Complaint (June 11, 2013) 

(referring to the machine in question as a “powered industrial truck” and “industrial truck.”). 

The Court finds that the cited standard applies.35 

 

worker was exposed to a violation of Citation 1, Item 1 (29 C.F.R. § 1926.602(c)(1)(vi)), is not determined since the 

Court found that the Secretary has failed to establish non-compliance with the alternatively cited standard. 

 

34 The OSHA Standard Interpretation letter states, in part: 

In short, requirements for the use of lifting and hauling equipment for material handling in construction, 

such as rough-terrain forklifts are set out in § 1926.602(c). ... In construction, powered industrial trucks, which 

include rough terrain forklifts, are “similar pieces of equipment” to forklifts and front end loaders in this context. 

... (CX-25.)

35 Also in the standard interpretation letter, OSHA states that the corresponding standards protecting workers in a 

platform elevated by a rough-terrain forklift are found under the scaffold standards, specifically §§ 451, 452 and 

454. OSHA Standard Interpretation Letter, “Applicable Standards to Lifting Personnel on a Platform Supported by 

a Rough Terrain Forklift: Re: §§ 1926.451(c)(2)(iv) and (v) and 1926.602(c),” (Nov. 27, 2001). The workers in the 
21

Respondent next argues that the Secretary failed to establish non-compliance with the 

cited standard. (Resp’t Br. at 35-40; Resp’t Reply Br. at 7.) The cited standard incorporates 

by reference ANSI Standard B56.1-1969, subsection E of section 603, which states that “[w]hen 

leaving a powered industrial truck unattended, load engaging means shall be fully lowered, 

controls shall be neutralized, power shut off, brakes set, key or connector plug removed.” (Ex. 

CX-26 at 2) (emphasis added). Respondent argues that the machine’s “outriggers [] were fully 

down, with wheels off the ground,” claiming essentially that the brakes were set. (Resp’t Br. at 

36.) Even assuming so, and assuming that the controls were neutralized, power was shut off, 

and the key or connector plug was removed, the record still shows that the load engaging means, 

i.e., the personnel platform, was undisputedly extended all the way to the roof of the building, 

and so it was not fully lowered. Therefore, the issue is whether the telehandler was left 

“unattended.”36 

The Secretary claims that Respondent left the telehandler unattended because Jared 

Meadows, the operator of the telehandler, was 25 feet or more away from the telehandler. 

(Sec’y Br. at 15-16.) This distance, according to the Secretary, violated Review Commission 

precedent, which has interpreted the word “unattended” in the context of the cited standard as 

being 25 feet or more away. See A.L. Baumgartner Constr., Inc., 16 BNA OSHC 1995, 2001

 

elevated platform of the telehandler are the subject of Citation 1, Items 5a & 5b, which allege violations of the aerial 

lift standards at § 1926.453. 

36 Respondent argues that CO Naim prepared the worksheet for the alleged violation in about August, 2012 because 

no one was at the controls of the telehandler when workers were on the platform, and that CO Naim was then 

unaware that the operator needed to only be within 25 feet of the telehandler. (Tr. at 462-463; Exs. CX-24, R-R, at 

1.) Instructions posted on the telehandler platform stated: “forklift operator must remain at the controls and stay 

alert when personnel are on the platform.” (Tr. 164-167; Exs. CX-23, CX-24.)
22

(No. 92-1022, 1994).

37 Consistent with the decision in A.L. Baumgartner, the Court relies upon 

the general industry standard at 29 C.F.R. § 1910.178(m)(ii) for the definition of “unattended.”38

In A.L. Baumgartner, the Review Commission stated that a CO’s testimony of his observation 

and estimate of distance is enough to establish non-compliance, in the absence of rebutting

evidence. A.L. Baumgartner, 16 BNA OSHC at 2001. In contrast to A.L. Baumgartner, the 

Court finds that the testimony of Michael Meadows and Jared Meadows “specifically rebutted” 

the observations and estimates by CO Naim and Mr. Henson that Jared Meadows was about 30 

feet from the telehandler.

39

 

According to CO Naim, Jared Meadows first approached him from the direction of the 

west side of the building and was more than 25 feet away from the telehandler. (Tr. at 128; 

237; 447-448; 452.) CO Naim also testified that the telehandler was blocking his field of view, 

and so, because he could not see Jared Meadows definitively, he assumed that Jared Meadows 

was initially on the other [west] side of the building before approaching him.

40

 (Tr. at 452.) 

 

37 See also ASME/ANSI B56.6-1987 Interpretation: 6-7 that states “A rough terrain forklift truck is attended when 

the operator is less than 25 ft (7.6 m) from the truck, which remains in his view.” (Ex. R-P.) 

38 29 C.F.R. § 1910.178 Powered industrial trucks.

....

(m) Truck operations.

....

(5)(ii) A powered industrial truck is unattended when the operator is 25 ft. or more away from the vehicle which 

remains in his view, or whenever the operator leaves the vehicle and it is not in his view.

39 See A.L. Baumgartner, 16 BNA OSHC at 2001 (CO’s estimate of distance from a truck “might easily” be 

specifically rebutted by the testimony of a nearby foreman.).

40 CO Naim testified:

Q. So you didn’t see him on the other side of the building?

A. No. I’m – I’m assuming where he was because he wasn’t in view.

(Tr. at 452.)
23

According to Mr. Henson, Jared Meadows approached them from approximately 30 feet away,41

but “was on the same [north] side of the building as the truck [telehandler].” (Tr. at 292.) The 

Court finds Mr. Henson’s testimony that Jared Meadows was at the Building’s north side to be 

significant and corroborates the testimony of Messrs. Jared and Michael Meadows. Mr. Henson 

testified that Jared Meadows told him that he was appropriately monitoring the telehandler and 

the men up on the roof.42 (Tr. at 293.) According to Jared Meadows, he was 10-15 feet away 

from the telehandler, and he was not “on the other [west] side of the building,” because he 

worked where the workers were, on “just the two sides” [north and east] of the building.43

Jared Meadows testified that he could see both the telehandler and its platform from where he 

was positioned. Mr. Henson also testified that there was no work being done along the 

building’s west side at the time the OSHA inspection began. Michael Meadows also testified 

that there was no work for Jared Meadows to do on the ground on the opposite [west] side of the 

school.44 (Tr. at 279-280, 361-363, 408). And according to Michael Meadows, who was 

standing next to the telehandler, Jared Meadows was “touching the tire” of the telehandler when 

CO Naim first approached them. (Tr. at 400-401.) The evidence shows that the north side of 

 

41 Mr. Henson testified:

Q. What would you guestimate it to be?

A. Thirty-ish feet. 

(Tr. at 292).

42 Jared Meadows testified that he needed to be outside the telehandler’s cab because it was “tough to hear” the 

workers, while in the cab, who were 40 to 45 feet up and needed to be moved every ten minutes or so. He also 

testified that he needed to be able to see the workers give him “hand signals” in order to adjust their location. (Tr. 

at 361-363.) 

43 CO Naim testified that he was not sure whether there was any work on the ground on the building’s west side that 

workers could be doing at the time he first encountered Jared Meadows. (Tr. at 237.) 

44 The Court credits this testimony by Jared Meadows, Michael Meadows and Mr. Henson and finds that at the time 

CO Naim and Mr. Henson first met Jared Meadows at the building’s north side there were no workers working on 

the building’s west side. 
24

the building was about 60 feet in length. The Court infers that the width of the telehandler was 

between about 7 to 8 feet.45 Photograph exhibit CX-5 shows that the telehandler was positioned 

more toward the western portion of the north side of the building. The Court finds the 

testimony of both Michael Meadows and Jared Meadows that Jared Meadows was within 15 feet 

of the telehandler and not coming from the opposite, west side of the school when CO Naim first 

approached him, to be credible based upon their demeanor during their testimony on this matter 

and their basis of knowledge; they knew best where they were standing when the OSHA 

inspectors first came upon them. Mr. Henson confirmed that Jared Meadows was positioned at 

the building’s north side. CO Naim’s testimony that Jared Meadows was at the building’s east 

side was based upon a mere assumption on his part. The Court further finds that the telehandler 

and its platform remained in Jared Meadows’ view when he was first approached by CO Naim 

and Mr. Henson.46 (Tr. at 362.) 

The record shows that CO Naim’s field of view of the direction where Jared Meadows 

was coming from was blocked by the telehandler. The record also shows that CO Naim and 

Mr. Henson turned the building’s northeast corner together, calling into question whether the 

 

45 Reducing the width of the building’s north side but the width of the telehandler leaves about 26 feet on either side 

of the telehandler to the building’s edge. Jared Meadows was permitted to be within a distance of less than 25 feet 

of the telehandler. The Court finds that since the telehandler was positioned more toward the western portion of 

the building’s north side Jared Meadows was less than 25 feet from the building’s northwest corner and the 

telehandler, and the telehandler itself, at the time the OSHA personnel came upon him. 

46 Mr. Henson initially testified that he did not know whether Jared Meadows could see the telehandler and the lift 

from where Jared Meadows was standing. Mr. Henson later acknowledged that he met Jared Meadows at the 

telehandler, a place from which Mr. Henson could obviously see the telehandler and also observe the workers up on 

the lift. Mr. Henson also testified that Jared Meadows told him that he [Jared Meadows] was following standard 

procedure monitoring the workers while standing by the telehandler. (Tr. 292-293.) Mr. Jared Meadows testified 

that when CO Naim first approached him at the worksite he [Jared Meadows] was “next to the telehandler” and 

“monitoring the workers.” (Tr. at 361.) Michael Meadows also testified that Jared Meadows was near the

telehandler in order to lower the workers or raise equipment up, such as a pallet of synthetic slate for the roof or to 

remove the box. (Tr. at 408.) 
25

telehandler also blocked Mr. Henson’s view.47 The Court finds that the obstructed view may 

have affected their estimates of how far they believed Jared Meadows was from the telehandler

when they first came upon him during the inspection. In view of the above, the Court finds that 

the Secretary has failed to establish non-compliance with the standard. This citation item is 

vacated. 

Citation 1, Item 2

This citation item alleges a violation of 29 C.F.R. § 1926.300(b)(1), which states in 

pertinent part: “When power operated tools are designed to accommodate guards, they shall be 

equipped with such guards when in use.” The Secretary claims that Respondent violated this 

standard because workers used a power table saw without a guard.48 (Tr. at 132-133; Sec’y Br. 

at 6-8, 16.) Respondent does not deny that its workers were using an unguarded power table 

saw, but argues that the given guard would not fit on the table saw for “bevel cuts” or “angle 

cuts” that were required for the job. (Resp’t Br. at 41.) 

Multi-Employer Doctrine

As noted above, the Court considers Meadows a controlling employer of this 

multi-employer worksite. As a controlling employer, Meadows had the responsibility of 

monitoring potential hazards with reasonable diligence on the worksite and correcting them. 

Centex-Rooney Constr. Co., 16 BNA OSHC at 2129-30. The Court notes that photographs from 

the inspection show that the worker operating the table saw was wearing a “Meadows” t-shirt, 

suggesting that the unknown worker actually worked for Meadows. (Tr. at 141-142; CX-7.) 

 

47 There is no evidence that Mr. Henson ever measured the distance from where he first met Mr. Jared Meadows to 

the telehandler. 

48 The power table saw was a DeWalt DW745 Heavy-Duty 10” (254 mm) Compact Worksite Table Saw. (Ex. 

CX-34.) 
26

The Court also notes that Jared Meadows referred to the guard and the use of the table saw as if he 

had some say in the matter as follows:

Q: Was there a guard nearby, do you know?

A. Yes, we did have the guard.

Q. And what was the purpose of having the guard nearby?

A. It just -- well, we needed to take the guard off so we could make the bevel cuts 

because it, obviously, doesn't fit on –

Q. Okay.

A. -- when you're making the angled cuts.

Q. And if there were straight cuts to be performed -- Were there straight cuts to be

performed with this saw or not?

A. Not that I know of. We probably used the skill saw if we needed to do some 

straight cuts.

(Tr. at 365-366.) CO Naim was also told by one of Respondent’s supervisors that Respondent 

directed the work of the workers operating the table saw. (Ex. R-M, at 7.) The Court finds that 

these facts support a determination that Meadows was a controlling employer with regard to this 

citation item.

Merits

With regard to applicability, the record shows that the piece of equipment at issue, a 

power table saw, was a power operated tool. Exhibit CX-34 is a portion of the table saw’s 

instruction manual, the pertinent part of which states that the saw comes with a “guarding 

system.” (Tr. at 151-158; Ex. CX-34 at 2.) The table saw was designed to accommodate a 

guard. The cited standard is applicable.

With regard to non-compliance, it is undisputed that the power table saw was in use 

without a guard in place.49 CO Naim testified that during his inspection “he saw an unguarded 

saw blade being used.” (Tr. 144-145.) Mr. Henson also testified that he observed that the table 

 

49 Respondent’s Safety Program for the project stated that “Power tools that are designed to be used with a guard 

will be used in this manner.” (Tr. at 436; Ex. R-O at 1 of Hand and Power Tools section.)
27

saw was “being used to rip lumber for fascia boards.”50 He further testified that he observed 

two workers using the table saw without using a guard. (Tr. at 283-285; Exs. CX-27, CX-29.) 

The Court finds that the type of cut that the workers were making during the OSHA inspection is 

not dispositive with regard to the citation. The standard explicitly states that if the saw was 

designed to accommodate a guard, that guard must have been in place when the saw was in use. 

The Court also credits CO Naim’s testimony - over the conflicting testimony of Mr. Jared 

Meadows - that he observed the workers doing straight cuts with the table saw.51 (Tr. at 

445-446.) Throughout both of its post-hearing briefs, Respondent attacks CO Naim’s 

credibility as a witness in this case. (Resp’t Br. at 12-13, 15-16, 19, 24, 27, 38, 46, 50; Resp’t 

Reply Br. at 4, 7.) Respondent claims that CO Naim intentionally misrepresented and “shaded” 

facts, and provided false testimony, in his zeal to “make the citations stick.” (Resp’t Br. at 12; 

38.) The Court finds these arguments unpersuasive and without merit. The Court observed 

the demeanor of CO Naim during his testimony and found him to be credible with regard to his 

testimony concerning Citation 1, Items 2, 3 and 6, and Citation 2, Items 1 and 2.52 Respondent 

 

50 Mr. Black testified that he had observed workers at the worksite use a table saw to form building “rafter tails.” 

The workers were making 40 degree, 45 degree and regular square cuts without using a guard, which the workers 

had nearby. Mr. Black also testified the he believed that this was allowed based upon his past experience with an 

OSHA inspector on another job. (Tr. 322-323.) Mr. Black further testified that he also saw workers use the table 

saw to rip pressure treated “two bys” [wood] into strips and he did not know whether that cutting required angled 

cuts. (Tr. 334.) Mr. Jared Meadows testified that “rafter tails” were three-foot pieces of wood tails, two and a 

half inches thick, that were attached underneath the fascia going out on the ridge. Jared Meadows further testified 

that the workers needed to make bevel cuts for those rafter tails. (Tr. at 364-365.) Michael Meadows testified 

that Masonworks, LLC employees were using the table saw because they were doing the carpentry on the facia, 

soffits, and rafter tails. (Tr. 409.) 

51 Jared Meadows testified that he was closer to the telehandler [at the building’s north side] when workers were 

using the table saw that was located mid-way on the building’s east side. (Tr. at 365.) The Court finds that CO 

Naim was in a better position than Jared Meadows to observe what type of cuts the workers were making using the 

table saw during the OSHA inspection. As indicated above, Mr. Jared Meadows speculated that workers “probably 

used” a skill saw to perform straight cuts. (Tr. at 366.)

52 The fact that the Court is vacating the remaining citation items is not an adverse reflection upon CO Naim’s 

credibility; but is instead a Court finding of a lack of sufficient evidence to support affirming the vacated citation 
28

argues that the worker who it says was operating the power table saw, Mr. Pinto, was not on its 

payrolls or any of its subcontractor’s payrolls.53 (Resp’t Pre-Hr’g Statement at 6.) The name 

and address of the worker that CO Naim observed operating the table saw was misrepresented to 

CO Naim during the course of the OSHA inspection. CO Naim testified that he believed that the 

name of one of the workers who he observed operating the table saw was Ederson Pinto. 

However, Mr. Pinto testified that he was not present at the worksite during OSHA’s inspection. 

Mr. Pinto further testified that he did work at the worksite sometimes for a company he did not 

know the name of. ((Tr. at 133-134, 137-139, 141-142; Ex. CX-7.) The Secretary also 

asserted that Respondent refused to identify employees to CO Naim. (Ex. R-M, at 10.) 

Whether Mr. Pinto was on Respondent’s or its subcontractor’s payrolls is not dispositive. 

Respondent was responsible under the Act for the workers CO Naim and Mr. Henson observed 

operating the unguarded table saw, whoever they were. The Court finds that Respondent was 

not in compliance with the cited standard. 

With regard to exposure, Respondent claims that the Secretary failed to show how the 

operators of the table saw were exposed to any type of hazard, “likely because long boards can 

be handed off between two men so as to avoid either being in close proximity to the blade.” 

(Resp’t Br. at 42.) “[I]n order for the Secretary to establish employee exposure to a hazard [he]

must show that it is reasonably predictable either by operational necessity or otherwise 

 

items.

53 Jared Meadows testified that he believed that the men operating the table saw were employees of Respondent’s 

subcontractor, D&S Commercial Masonry, Inc. He was unable to identify the names of these workers. (Tr. at 

375, 378-379.) Payroll records for Masonworks, LLC show that Messrs. Arlen Souza, Bruno Camara, Ekel 

DaSilva, and Jose Vital were paid for 40 hours as carpenters or carpenter tenders for the week ending July 13, 2012 

under the Moody School project. (Tr. at 402; Exs. CX-14, at 13, R-H, at 13.) Michael Meadows testified that 

D&S Commercial Masonry, Inc. was at the worksite repointing the building’s brick chimney. (Tr. at 405-406.) 
29

(including inadvertence), that employees have been, are, or will be in the zone of danger.” 

Fabricated Metal Prods., Inc., 18 BNA OSHC 1072, 1074 (No. 93-1853, 1997). CO Naim 

testified that he “saw three employees exposed to an unguarded saw blade.” The CO testified 

that the hazards associated with this table saw included laceration, cut, amputation, kickbacks 

and flying debris. (Tr. at 145-148; Exs. CX-31, CX-32.) Kickbacks, according to the CO, occur 

when the material to be cut “gets bound up” in the saw and the “blade [pushes] the material back 

towards the operator” causing “struck-by injury, impalement, eye injuries, and so forth.” (Tr. at 

148.) This testimony was unrebutted during the trial. The record does not establish how close 

the workers hands were to the unguarded saw blade, however, Respondent’s claim does not 

address the hazard of flying debris or kickbacks. The Court therefore finds that the Secretary 

showed that the workers operating the unguarded table saw were exposed, at a minimum, to the 

hazards of flying debris and kickbacks. 

With regard to knowledge, Respondent argues that the Secretary failed to “furnish any 

evidence that Meadows knew or could have known of the alleged straight cuts the men were 

making without the guard.” (Resp’t Br. at 42.) As noted above, the issue of the type of cut is 

not dispositive. Even so, both Michael Meadows and Jared Meadows testified that they 

observed the workers using the unguarded table saw. (Tr. at 364-366; 408-409.) Also, CO 

Naim testified that Messrs. Michael Meadows and Oliveira were both in the vicinity of the saw 

when it was being used in an unguarded condition. (Tr. at 149-150.) The record therefore 

establishes that Respondent had actual knowledge of the cited condition. P. Gioioso, 675 F.3d 

at 73 (“an employer can be charged with constructive knowledge of a safety violation that 

supervisory employees know or should reasonably know about.”).
30

Respondent raises the impossibility defense claiming that it would have been impossible 

to use a guard on that table saw to make the bevel cuts necessary for the job.54 (Resp’t Br. at 

44.) To prove infeasibility, however, Meadows has the burden to show, by a preponderance of 

the evidence, that “ ‘(1) literal compliance with the terms of the cited standard was infeasible 

under the existing circumstances, and (2) an alternative protective measure was used or there 

was no feasible alternative measure.’ ” Westvaco Corp., 16 BNA OSHC 1374, 1380 (No. 

90-1341, 1993) (citation omitted) (emphasis added). Meadows has not met this burden. CO 

Naim testified that was not permissible for workers to make angle or other cuts on the power 

table saw without the saw guard in place. (Tr. at 151; Ex. CX-34.) The DeWalt DW745 

manufacturer’s instructions state: 

Important Safety Instructions

· TO REDUCE THE RISK OF KICKBACK AND OTHER INJURIES, use all 

components of the guarding system (blade guard assembly, riving knife and 

anti-kickback) for every operation for which they can be used including all through 

cutting.

(Ex. CX-34 at 2.)

The manufacturer’s instructions rebut the testimony by Messrs. Jared Meadows and Michael 

Meadows that it is impossible to use the guard on the table saw.55 Even if it were infeasible to 

use a guard on the table saw to make bevel cuts, the record shows that no alternative protective 

measures were being used. The record also fails to show whether Respondent had attempted to 

use a feasible alternative measure of protection for making these bevel cuts, such as using a 

 

54 Jared Meadows testified that “it’s impossible” to use the guards on the table saw. (Tr. at 376.) Michael 

Meadows also testified that it was impossible to use the table saw to make 45 degree bevel cuts on two and one-half 

inch wood being used for fascias because the saw blade would hit the guard. (Tr. at 409.) 

55 The Court also rejects Michael Meadows’ testimony that the instruction manual states that guards cannot be used 

on bevel cuts.
31

different saw that was designed to accommodate a guard while making bevel cuts. The Court 

therefore rejects Respondent’s impossibility defense. 

Respondent also raises the unpreventable employee misconduct (“UEM”) defense with 

regard to the worker operating the saw. (Resp’t Br. at 43.) To be successful in its UEM 

defense, Respondent has the burden to show that it: “(1) established a work rule to prevent the 

reckless behavior and/or unsafe condition from occurring, (2) adequately communicated the rule 

to its employees, (3) took steps to discover incidents of noncompliance, and (4) effectively 

enforced the rule whenever employees transgressed it.” P. Gioioso & Sons, Inc. v. 

Occupational Safety & Health Review Comm'n, 115 F.3d 100, 109 (1st Cir.1997). With regard 

to machine guarding, the record shows that Respondent has a work rule in place as shown in its 

safety manual. See Ex. R-O at “Hand and Power Tools.” The rule states that “[p]ower tools 

that are designed to be used with a guard will be used in this manner.” Ex. R-O at “Hand and 

Power Tools.” The record also shows that Meadows communicated safety rules daily in its 

morning “coffee talks.” (Tr. at 435-437.) Additionally, the record shows that Meadows took 

steps to detect noncompliance with safety rules. Meadows contracted a safety company, Safety 

Net, to develop the safety plan for this worksite and Safety Net had visited the worksite twice 

since the project began. (Tr. at 433.) Mr. Black, who was there four hours per day, also 

testified that Meadows was very responsive whenever he saw incidents of noncompliance. (Tr. 

at 330-331.) 

However, the record does not show whether and how effectively Respondent enforced its 

machine guarding rule. Although its safety manual indicated that Meadows had a progressive 

disciplinary policy toward those who violated the work rules, Respondent produced no 

documentation showing that it implemented the progressive disciplinary policy in general or with 
32

regard to machine guarding specifically. There was also no testimony as to whether and how 

Respondent implemented the progressive disciplinary policy. The Court therefore finds that 

Meadows failed to carry its burden of establishing the UEM defense with regard to this citation 

item. 

The violation is affirmed.

Characterization

The Secretary alleges a serious violation of the cited standard. The Court agrees with 

CO Naim’s testimony that the injuries associated with the violation of this standard include 

laceration, cut, amputation and impalement, and views these injuries as serious physical harm.

(Tr. at 148.) The violation is properly characterized as serious. 

Citation 1, Item 3

This citation item alleges a violation 29 C.F.R. § 1926.404(b)(1)(i), which states in 

pertinent part: “The employer shall use either ground fault circuit interrupters as specified in 

paragraph (b)(1)(ii) of this section or an assured equipment grounding conductor program 

[“AEGCP”] as specified in paragraph (b)(1)(iii) of this section to protect employees on 

construction sites.” Section b(1)(ii) states in pertinent part: “All 120-volt, single-phase 15- and 

20-ampere receptacle outlets on construction sites, which are not a part of the permanent wiring 

of the building or structure and which are in use by employees, shall have approved ground-fault 

circuit interrupters for personnel protection.” The Secretary claims that CO Naim determined 

that the “unguarded saw was plugged into an extension cord, which was neither part of the 

building’s permanent wiring nor protected by any GFCI[.]” (Sec’y Br. at 16-17.) In the 

citation, the Secretary claims that Respondent did not have an AEGCP. Respondent claims that 
33

the Secretary did not establish non-compliance with the cited standard. (Resp’t Br. at 45-46.) 

Respondent also raises the infeasibility defense. (Resp’t Br. at 46.)

Multi-Employer Doctrine

As noted above, the Court considers Meadows a controlling employer of this 

multi-employer worksite. As a controlling employer, Meadows had the responsibility of 

monitoring potential hazards with reasonable diligence on the worksite and correcting them. 

Centex-Rooney Constr. Co., 16 BNA OSHC at 2129-30. The unguarded table saw, used by 

Meadows’ subcontractors as discussed above in Citation 1 Item 2, was in turn plugged into the 

extension cord at issue in this GFCI citation violation. (Tr. at 170-171.) The record shows that, 

just as the power table saw was visible to Respondent’s supervisors and the OSHA inspectors, so 

was the non-GFCI extension cord that was used to power the table saw. Respondent had the 

power to detect this violative extension cord as it was being used to power the table saw, and also 

had the power to correct the violative condition. The Court finds that Meadows is responsible for 

the alleged violations in this citation item. 

Merits

With regard to applicability, the record shows that workers on this construction site used 

a power table saw that was connected “by cords” to an interior, non-GFCI outlet in the school 

building. (Tr. at 170-172; Exs. CX-36, CX-37, R-M, at 7-8.) According to CO Naim, he 

“followed the cords to its originating outlet to see if there was any GFCI connected to the 

originating outlet, and there was not.” (Tr. at 170.) The outlet at issue was therefore on the 

power saw’s extension cord, which was in use and not part of the permanent wiring of Moody 

Elementary School. Otis Elevator Co., 17 BNA OSHC 1166, 1168 (No. 90-2046, 1995)

(holding that an extension cord plugged into a building’s permanent wiring falls under the 
34

requirements of ground-fault circuit protection in 29 C.F.R. § 1926.404(b)(1)(i)). Additionally, 

it is general knowledge that the two types of circuits in the United States are 120 volts and 240 

volts. The instruction manual associated with the table saw states that it is intended for use on a 

circuit less than 150 volts. (Ex. CX-34 at 2.) The outlet illustrated on the same page shows a 

standard 120v/15-20amp outlet. (Ex. CX-34 at 2.) The record shows that the extension cord 

at issue was plugged into the same type of outlet as that illustrated in the power saw’s instruction 

manual. (Exs. CX-36 through CX-38.) It is inferred that the extension cord provided a 

120-volt/15 or 20 ampere circuit for the table saw. New England Synthetic Sys., Inc., 18 BNA 

OSHC 1818, 1820 (No. 97-1843, 1999) (ALJ Yetman). Respondent does not argue against the 

applicability of the cited standard. The Secretary has shown that the standard applies.

With regard to non-compliance, CO Naim testified that by “tracing the cords” of the 

energized table saw, he determined that the power saw was not GFCI protected. (Tr. at 

170-172.) The Court interprets this testimony to mean that if there were GFCI protection along 

any part of “the cords,” including the cord outlets, CO Naim would have noted it. Respondent 

argues that (1) the only way to determine whether an outlet was GFCI protected is to check the 

panel box, and (2) neither CO Naim nor Mr. Henson checked the panel box during the 

inspection. (Resp’t Br. at 45.) It is undisputed that neither CO Naim nor Mr. Henson checked 

the panel box during the inspection.56 Under Commission precedent, however, extension cords 

themselves should be equipped with GFCI protection. Otis Elevator, 17 BNA OSHC at 1167. 

 

56 CO Naim testified that Michael Meadows told him that he [Michael Meadows] did not know where the breaker 

panels were. Michael Meadows also testified that there was no GFCI [at the worksite]. (Tr. 449.) See also 

Respondent’s response to Secretary’s Interrogatory No. 13, which asserted that the school’s electrical power did not 

have ground fault circuit breakers. (Ex. CX- 1, at 5.) See also Secretary’s response to Respondent’s Interrogatory 

No. 10, at 7-8, that stated that Jared Meadows told CO Naim that he [Jared] did not know if there was GFCI at the 

worksite. (Ex. R-M.) 
35

Respondent does not claim that CO Naim missed any GFCI protection along the length of “the 

cords.”57 The Secretary has shown non-compliance. 

With respect to exposure, the record shows that workers were using the table saw, which 

was energized by “cords” that were not GFCI protected. (Tr.at 170-173.) The Secretary has 

established exposure.

With respect to knowledge, the record shows that Messrs. Michael Meadows and Jared 

Meadows assumed that the originating interior power outlet was GFCI protected because the 

building was a schoolhouse. (Tr. at 373; 411-412.) The question, however, is not whether the 

schoolhouse’s power supply was GFCI protected, but whether the outlets on “the cords” running 

the power equipment on the worksite were GFCI protected. The Court finds that Respondent’s 

supervisors knew or should have known that the “cords” themselves were not GFCI protected. 

This became readily apparent to CO Naim during the course of his inspection. It was a 

condition that was readily discernible to Respondent’s supervisors who were regularly present at 

the worksite. Ignorance of the requirements of the standard is no defense. Manganas 

Painting Co., Inc., 21 BNA OSHC 1964, 1985 n.24 (No. 94-0588, 2007) (“It is well-settled that 

any misunderstanding about a respondent’s legal obligations would not be relevant to whether it 

violated the standard.”) 

Respondent raises the infeasibility defense by arguing that it was contractually obligated 

to use the school’s power supply and that it had no alternative power supply. (Resp’t Br. at 44.) 

Despite its obligation to use the school’s power supply, Respondent does not argue that it was

restricted in the type of extension cords it could have used on the worksite. Respondent has 

 

57 Respondent also does not dispute the Secretary’s allegation in the citation that it does not have an AEGCP. 
36

failed to show that it was impossible to use a different extension cord with GFCI protection on it. 

Westvaco Corp., 16 BNA OSHC at 1380 (infeasibility defense fails when employer fails to show 

alternative protective measures were used or did not exist). The violation is affirmed. 

Characterization

The Secretary alleges that serious violation of this standard. According to CO Naim, 

workers were exposed to electrical shock and burn by using power equipment that was not GFCI 

protected. (Tr. at 173.) The citation is properly characterized as serious.

Citation 1, Item 4

This citation item alleges a violation of 29 C.F.R. § 1926.451(f)(6), which states in 

pertinent part: “Scaffolds shall not be erected, used, dismantled, altered, or moved such that they 

or any conductive material handled on them might come closer to exposed and energized power 

lines than [3 feet for insulated lines up to 300 volts].”58 29 C.F.R. § 1926.451(f)(6) (emphasis 

added). The Secretary bases this citation item on conversations between CO Naim and foreman 

Oliveira and CO Naim and Mr. DaSilva during their tour of the worksite. CO Naim testified to 

the following: Mr. Oliveira told him that he had previously operated a piece of equipment to 

elevate himself up to arm’s length distance of the live power cable in the alcove on the west side 

of the building, and draped rubberized material over it in an attempt to insulate it so that they 

could remove a catch platform above it without risk of being injured by electric shock. CO 

Naim testified that by doing so Mr. Oliveira brought the “scaffold” less than ten feet from the 

energized line. (Tr. at 174-181, 188-189; Exs. CX-40, CX-41.) The citation alleges that the 

elevated work occurred on about July 10, 2012. Respondent claims that the Secretary failed to 

 

58 At trial, the Secretary stated that the power line at issue was less than 300 volts, and so the minimum safe 

distance was 3 feet. (Tr. at 66.)
37

show applicability and non-compliance of the cited standard. (Resp’t Br. at 46-50.) 

Merits

With regard to applicability, Respondent argues that the cited standard does not apply to 

the piece of equipment at issue because it is an “aerial lift” and not a scaffold.59 (Resp’t Br. at 

16; Resp’t Reply Br. at 5.) The Secretary, on the other hand, calls this piece of equipment an 

“aerial lift scaffold,” and claims it “constitutes a powered wheel-mounted supported scaffold 

within the ‘mobile scaffold’ definition set forth in 29 C.F.R. § 1926.450.” (Sec’y Br. at 17 

fn25.) The Court agrees with Respondent. 

Section 1926.450 defines “mobile scaffold” as a “powered or unpowered, portable, caster 

or wheel-mounted supported scaffold.” 29 C.F.R. § 1926.450. A supported scaffold is 

defined as “one or more platforms supported by outrigger beams, brackets, poles, legs, uprights, 

posts, frames, or similar rigid support.” 29 C.F.R. § 1926.450. In contrast, an “aerial lift” is 

defined as a type of “vehicle-mounted aerial device[] used to elevate personnel to job-sites above 

ground.” 29 C.F.R. § 1926.453(a) (emphasis added). Aerial lifts include “extensible boom 

platforms” and “articulating boom platforms.” 29 C.F.R. § 1926.453(a)(i) & (iii). Exhibits

CX-3, CX-41 and CX-49 show the platform at the end of the telescopic boom lift. (Tr. at 

184-185; Exs. CX-3, CX-41, CX-49, R-L at 3.) Together, the three photographs show that the 

platform is attached to the end of a mechanized arm of the telescopic boom lift. (Tr. at 185; 

Exs. CX-3, CX-41 marked “B”, CX-49.)60 Exhibit CX-40 also helps to clarify. Exhibit 

CX-40 is the warning instructions associated with this particular piece of equipment. (Tr. at 

 

59 The beginning of the cited standard explicitly states that it “does not apply to aerial lifts, the criteria for which are 

set out exclusively in § 1926.453.” 29 C.F.R. § 1926.451.

60 This is in contrast to a scissor-lift, which is covered by the mobile scaffold definition. See OSHA Standard 

Interpretation Letter, “§§ 1926.452(w) and 1926.453; scissor lifts and aerial lifts,” June 10, 2002.
38

183; Ex. CX-40.) The instructions denote that the piece of equipment at issue is a “machine” 

and has a “boom,” which is more consistent with the description stated above of an aerial lift 

than a wheel-mounted scaffold. (Ex. CX-40).

The testimony surrounding the telescopic boom lift is also illuminating. The CO 

referred to the unit as an “aerial lift” throughout his testimony, and also testified that he 

considers an “aerial lift” the same thing as a “scaffold.” (Tr. at 176-191, 241.) The fact that 

the CO considered an “aerial lift” the same thing as a “scaffold” leads the Court to believe that 

he did not distinguish between the two in terms of regulatory requirements. According to the 

CO, Oliveira “raised” the elevation unit, and “operated” it to do work “adjacent to [the] 

energized electrical line.” (Tr. at 181; 186.) This description of the use of the telescopic 

boom lift is more consistent with the definition of an aerial lift rather than with the definition of a 

scaffold as it shows that it was available to allow Mr. Oliveira to elevate himself to any work 

related task above ground. See 29 C.F.R. § 1926.453(a) (an “aerial lift” is “used to elevate

personnel to job-sites above ground”) (emphasis added). 

Although the aerial lift standard falls under the scaffold subpart, the requirements for 

aerial lifts are explicitly set apart from scaffolds. 29 C.F.R. § 1926.451. In order for the 

Secretary to show that the cited standard applied, he must have established how the piece of 

equipment at issue was a scaffold and not an aerial lift.61 The evidence in the record does not 

establish that; if anything, the evidence supports Respondent’s claim that the telescopic boom lift

is an aerial lift. As this burden falls on the Secretary, the Court finds that he has failed to prove 

applicability for this citation item. 

 

61 Mr. Jared Meadows testified that Respondent did not erect any scaffolding on the building’s west side. (Tr. at 

369.)
39

With regard to non-compliance, Respondent argues that the evidence relied upon by the 

Secretary was “unreliable” and “second-hand.”62 (Resp’t Br. at 17-18; 48-50; Resp’t Reply Br. 

at 8.) The Court agrees and finds that the evidence that the Secretary relied upon to attempt to 

prove this citation item is flimsy, at best. Mr. Oliveira’s account was admitted into the record 

as an admission by a party opponent under Federal Rules of Evidence 801(d)(2)(D).

63

 Mr. 

Oliveira was not called as a witness at the trial. Mr. Henson testified that he had nothing to do 

with Citation 1, Item 4, had no information to share about it, and was not present when CO Naim 

spoke with Mr. Oliveira. (Tr. 285, 296.) Admissions admitted under Rule 801(d)(2)(D) are 

not inherently reliable. Several factors affecting the trustworthiness of any such admissions 

should also be considered; e.g. timing of admission, relationship of statement to declarant’s 

work, and employer’s access to evidence rebutting the matter asserted. Regina Construction 

Co., 15 BNA OSHC at 1048. Here, there is doubt cast on Mr. Oliveira’s alleged admissions. 

The CO did not observe Mr. Oliveira’s alleged violative actions and relied solely on Oliveira’s 

statement to him as support for the citation. The record shows that Oliveira may have had a 

language barrier to an unknown extent.64 The CO also did not testify as to when Mr. Oliveira 

allegedly used the telescopic boom lift to elevate himself to come within an arm’s length of the 

live power cable. CO Naim testified that he was not sure when that event happened, or if Mr. 

 

62 Respondent’s argument seems to take exception that OSHA violations cannot be charged unless a compliance 

officer actually observes the violation. See contra Gateway Concrete Forming Servs., Inc., 11 BNA OSHC 2188, 

2189 (No. 83-855, 1984) (“Numerous citations are issued by OSHA charging violations which are proven by 

evidence other than the eyewitness testimony of the compliance officer.”).

63 See Regina Constr. Co., 15 BNA OSHC 1044, 1047 (No. 87-1309, 1991) (Compliance officer’s testimony 

concerning statements made to him by non-supervisory employee during the inspection not hearsay and admissible 

under Rule 801(d)(2)). 

64 Mr. Jared Meadows testified that Mr. Oliveira did not speak English very well. (Tr. at 367.) Michael Meadows 

also testified that “there’s some language barriers that he [Mr. Oliveira] doesn’t understand.” (Tr. at 418.) The 

Court gives little weight to CO Naim’s testimony as to what Mr. Oliveira told him on July 10, 2012 as CO Naim did 

not take any notes of the interview. (Tr. 230.)
40

Oliveira told him that it happened on July 10, 2012.65 CO Naim also testified that Mr. Oliveira 

did not tell him how long the rubberized material that he had draped over the wire remained on 

the wire, or if the rubberized material had been removed. CO Naim testified that Mr. Oliveira 

did not identify any other workers who were with him when he placed rubberized material over 

the wire, or to what extent the wire was covered. CO Naim stated that he had not seen, and no 

photographs showed, any covering on the wire. (Tr. at 176; 178, 223, 228-230, 240, 264-265, 

367, 418, 436.) Also, Mr. Jared Meadows testified that Respondent, or its subcontractors, did 

not put any type of rubber insulation on the wire leading to the west side of the building. He 

also testified that he never observed Respondent’s employees, or its lifts, working within feet of 

the live wire.66 He further testified that Respondent was waiting for the electrical company, 

that it identified as Nstar, to put a boot on the wire, so Respondent was not working near it at the 

time of the OSHA inspection.67 He stated that Nstar, without the involvement of Respondent’s 

workers or subcontractors, installed a rubber boot on the wire a few days after the OSHA 

inspection.68 (Tr. at 366-369.) The Court finds that the Secretary also failed to establish 

 

65 The Court finds CO Naim’s testimony as to when Mr. Oliveira allegedly came within an arm’s length of a live 

power cable to be inconclusive. CO Naim testified that all he knew was that it occurred “prior to the inspection. I 

may have assumed it was the day of the inspection. I can’t remember if he [Mr. Oliveira] was specific....” (Tr. 

264.) 

66 Michael Meadows also testified that Respondent did not place any type of protective covering over the wire while 

waiting for Nstar to do so. He also testified that Respondent did not operate any lifts near the wire. (Tr. at 414, 

419.) 

67 On July 16, 2012, citing to a work order created on July 6, 2012, Respondent sent an email to Mr. Black that 

stated that National Grid was contacted on July 6, 2012 to put a boot on the feed at the school. (Tr. 413-418; Ex. 

R-U.) The Court does not view Jared Meadows and Michael Meadows’ referral during their testimony to Nstar 

versus National Grid as significant. 

68 During his testimony, Jared Meadows acknowledged that Respondent’s May, 2013 response to an interrogatory, 

made under oath by his father, Michael Meadows, stated that “Meadows repeatedly contacted Nstar to request the 

shutoff of the power line, and Nstar repeatedly failed and refused to do the same.” (Tr. at 377-378; Ex. CX-1, at 

7.) Michael Meadows testified that Respondent probably got in touch with Nstar three or four times to see if they 

could install a pipe boot over the electrical wire. He also testified that there was no covering on the wire before 
41

non-compliance.

This citation item is vacated.

Citation 1, Item 5(a) and 5(b)

This citation has two sub-items, both of which allege violations of OSHA’s aerial lift 

standards at 29 C.F.R. § 1926.453. Item 5(a) alleges a violation of 29 C.F.R. 

§ 1926.453(b)(2)(iv), which states in pertinent part: “Employees shall always stand firmly on the 

floor of the basket, and shall not sit or climb on the edge of the basket or use planks, ladders, or 

other devices for a work position.” Item 5(b) alleges a violation of 29 C.F.R. 

§ 1926.453(b)(2)(v), which states in pertinent part: “A body belt shall be worn and a lanyard 

attached to the boom or basket when working from an aerial lift.” 

Multi-Employer Doctrine

As noted above, the Court considers Meadows a controlling employer of this 

multi-employer worksite. As a controlling employer, Meadows had the responsibility of 

monitoring potential hazards with reasonable diligence on the worksite and correcting them. 

Centex-Rooney Constr. Co., 16 BNA OSHC at 2129-30. The workers on the elevated platform 

in this citation item were elevated to the roof by Jared Meadows, the operator of the telehandler. 

Respondent’s Safety Program for the worksite stated that the aerial lift operator is responsible for 

ensuring that “all personnel in the platform are wearing fall protection devices and other safety 

gear as required at all times (100% fall protection). Tie off only to manufacturer provided 

anchorage point and not handrails.” (Ex. R-O, Aerial Lifts section, at 4.) The Court therefore 

 

Nstar (also referred to as National Grid) placed the protective boot over the wire after the OSHA inspection. (Tr. at 

414, 417; Ex. R-U) Despite this interrogatory response, the Court credits Jared Meadows’ testimony that he never 

observed Respondent’s employees, or its lifts, working within feet of the live wire and the testimony of both Jared 

and Michael Meadows that Nstar, or National Grid, eventually put a rubber boot on the wire after the OSHA 

inspection. 
42

finds that Meadows was also a “creating” employer in terms of responsibility for safety under the 

multi-employer doctrine at this worksite on July 10, 2012 wherever non-compliance with a 

standard is demonstrated. Summit, 23 BNA OSHC at 1205. 

Merits

The Secretary bases the alleged violations of these standards on the observations of the 

OSHA inspectors of Meadows’ workers in the telehandler’s elevated platform.

69

 (Sec’y Br. at 

19.) According to Mr. Henson, he observed workers “climbing over the rails ... to access the 

roof and vice versa, off the roof into the basket.” (Tr. at 286.) Mr. Henson testified that those 

same employees were accessing the roof and the platform “without being tied on to the basket or 

the roof.” (Tr. at 286.) Similarly, CO Naim testified that he believed that the men on the 

platform were not using fall protection because he observed them exiting the platform and 

walking onto the roof without “pulling anything,” i.e., “there was no lines.” (Tr. at 267.) CO 

Naim testified that he observed employees stepping on the telehandler’s platform’s midrails 

climbing out of the telehandler’s platform, and standing on the telehandler’s platform’s toe 

boards. CO Naim also testified that he observed workers in the telehandler’s platform wearing 

harnesses that were “not attached to anything.”70 (Tr. at 192-199; Ex. CX-52.) 

 

69 The telehandler was also the piece of equipment at issue in Citation 1, Item 1. The platform attached to the 

telehandler has been termed differently throughout the case. These terms include platform, basket, box, and lift. 

The Court uses the term “platform” for ease of reference in this discussion. See 29 C.F.R. § 1926.450(b).

70 In the Secretary’s response to Respondent’s Interrogatory No. 10, CO Naim stated that he had “observed and 

photographed an employee, standing on the railing of an aerial lift, who was working on the roof” and “two 

employees in an aerial lift basket (that was a lift different from the lift in Item 5a) who did not have their lanyards 

attached or secured to prevent a fall.” (emphasis added) CO Naim alleged more in the Secretary’s response to 

Interrogatory 10 than he could, or did, deliver at trial through his testimony or photographs. CO Naim was unable 

to point to or identify any worker shown on photograph exhibit CX-52, or any other photograph that he took, that 

was not properly tied off or shown standing on the lift’s railings. (Tr. 199; Exs. CX-52; R-M, at p. 8.) 
43

Respondent claims that the Secretary failed to establish non-compliance with the cited 

standard, any exposure to a hazard, or knowledge. (Resp’t Br. at 50-54.) Respondent is 

correct. The photographs in evidence do not support the Secretary’s allegations in Citation 1, 

Item 5. When shown photograph exhibit CX-52, CO Naim testified that he could not say that 

the photograph showed that lanyards were not attached to the platform. He further testified that 

he was not sure whether there were any photographs showing workers on the platform that were 

not attached to the platform. He also acknowledged that photograph exhibit CX-52 did not 

show workers’ feet; therefore the photograph does not show workers standing on the platform’s 

midrails or toe boards. (Tr. at 257-258, 266.) Mr. Jared Meadows testified that he did not 

observe any workers standing on the platform’s railings on July 10, 2012. He further testified 

that on that date all of the workers on the roof were wearing harnesses and lanyards that they 

were using to tie off. He also testified that he did not observe any workers not clipping onto the 

telehandler’s platform. (Tr. at 371-375.) Michael Meadows also testified that he did not see 

any workers standing on the platform’s railings on July 10, 2012. (Tr. at 405.) The Court 

credits the testimony of Messrs. Jared and Michael Meadows over that of CO Naim and Mr. 

Henson with regard to whether or not workers climbed over platform rails, or accessed the roof 

from the platform without being tied off. Mr. Jared Meadows was watching the workers in the 

platform while standing within 25 feet of the telehandler. CO Naim and Mr. Henson were 

further away and their ability to see the entire body of the workers within the confines of the 

platform was more limited by comparison.

71 The Secretary has failed to prove non-compliance

with the standard. Complainant has also not shown that workers were actually exposed to the 

 

71Monroe Drywall Constr., Inc., 24 BNA OSHC 1111, 1114 (No. 12-0379, 2012) (credibility finding must be made 

by taking the record as a whole). 
44

hazard alleged in the Citation, Items 5(a) and 5(b), and Respondent had no knowledge of any 

such alleged violations because they did not exist. For these reasons, both of these citation 

sub-items are vacated. 

Citation 1, Item 6

This citation item alleges a serious violation of 29 C.F.R. § 1926.25(a), which states in 

pertinent part: “During the course of construction, alteration, or repairs, form and scrap lumber 

with protruding nails, and all other debris, shall be kept cleared from work areas, passageways, 

and stairs, in and around buildings or other structures.” The Secretary claims that the OSHA 

inspectors observed “debris, including wood containing protruding nails and screws,” in plain 

view in a work area at the building’s west side in the original vicinity of the telescopic boom 

lift.

72

 (Sec’y Br. at 19; Tr. 200-202; CX-41, CX-54, CX-55.) Mr. Henson testified that the 

debris included material from a dismantled catch platform. (Tr. at 276-277; Ex. CX-54.) 

Respondent claims that it complied with the standard, and that no worker was exposed to any 

hazard. (Resp’t Br. at 56, 58; Resp’t Reply Br. at 9). Respondent also raises the infeasibility 

defense. (Resp’t Br. at 56-57.)

Multi-Employer Doctrine

This citation item concerned debris that was generated on the worksite by roofers, and it 

was on the ground for any and all workers to navigate through. As Meadows was the controlling 

employer of the entire worksite, the Court finds that Meadows had the ability, with reasonable 

diligence, to detect this hazard and abate it. Centex-Rooney Constr. Co., 16 BNA OSHC at 

2129-30. The Court also finds that Meadows is responsible under the creating employer theory 

 

72 The OSHA Violation worksheet stated that the debris was in plain sight predominantly at the building’s corner 

and near the platform of an aerial lift [telescopic boom lift at the building’s west side]. (Ex. R-S at 2.)
45

of the multi-employer doctrine. Summit, 23 BNA OSHC at 1205. The debris was generated by 

the roofers, who were doing the work under Respondent’s supervision that Meadows was 

specifically contracted to perform, replacing the roof on the Moody Elementary School. The 

Court finds that Meadows is responsible for the alleged violations for this citation item.

Merits

With regard to applicability, it is undisputed that Meadows was engaged in the course of 

construction, and that Henson observed workers walk over debris in a work area around the 

school building. (Tr. 200-202, 275-281; Exs. CX-41, CX-42, CX-53, CX-54 and CX-55.) To the 

extent that Respondent’s argument that the debris did not contain nails reaches applicability, the 

Court disagrees. The Commission has broadly interpreted the term “debris” as “matter that is 

scattered about working or walking areas.” Gallo Mech. Contractors, Inc., 9 BNA OSHC 

1178, 1180 (No. 76-7371, 1980); see also Capform, Inc., 16 BNA OSHC 2040, 2044 (No. 

91-1613, 1994) (affirming “debris” interpretation in Gallo). The record shows that plywood 

and other pieces of wood were scattered about the work area of the Lowell worksite. The Court 

finds that the cited standard applies.

With regard to noncompliance, the record shows that the debris was in a walkway as 

evidenced by the undisputed fact that workers walked over it. Respondent argues that it 

“reasonably” complied with the standard by keeping some of the debris in “attachment boxes” 

and removing the debris on the ground once a day.73 (Resp’t Br. at 56-57.) The standard 

explicitly states that debris “shall be kept cleared from work areas,” not “reasonably clear.” 29 

C.F.R. § 1926.25(a). The Secretary has established non-compliance. 

 

73 Mr. Black testified that he had instructed Respondent that the worksite was to be cleaned at the end of the day. 

(Tr. 319.) The Court finds that such an instruction did not permit Respondent to allow workers to be exposed to 

unsafe debris on the ground surrounding the school building throughout the work day. 
46

With regard to exposure, Respondent claims that the debris did not contain nails, only 

screws, “such that no hazard was created for men in rugged work boots.” (Resp’t Reply Br. at 

9). The Court denies this unsupported claim. Photographs at exhibits CX-54, CX-55, and 

CX-56 show pieces of wood with protruding nails. (Tr. at 278.) Additionally, the 

Commission has also held that the hazards associated with this standard include tripping and 

falling. Gallo, 9 BNA OSHC at 1180. Despite Respondent’s argument that men in “rugged 

boots” were not exposed to any hazard because screws, as opposed to nails, were protruding out 

of the wood, the men were still exposed to the hazard of tripping and falling.74 The record 

evidence establishes that workers actually walked over the debris.75 Mr. Henson testified that 

he also observed a Meadows employee, who he identified as Brian Dias, walk through the debris

at the building’s west side.

76 (Tr. at 279-281; Ex. CX-56.) The Court therefore finds that the 

Secretary established exposure. 

With regard to knowledge, the record shows that Respondent was aware of the debris 

throughout the workday and that workers supervised by Respondent cleared it once at the end of 

each work day. (Tr. at 319-320, 369, 419-420.) The Court finds that the Secretary established 

actual knowledge of the cited condition. 

Respondent raises the infeasibility and greater hazard defenses to this citation item

 

74 Mr. Jared Meadows acknowledged during his testimony that Respondent “had ground workers at all times [at the 

worksite] ,....” (Tr. at 369.) 

75 CO Naim testified that workers were also exposed to the debris when exiting the telescopic boom lift at the 

building’s west side. (Tr. 202; Exs. CX-54 through CX-56.) Mr. Henson testified that photograph exhibit 

CX-53 showed a worker stepping over a piece of plywood debris with screws in it [near the telehandler at the 

building’s north side]. (Tr. 276; Ex. CX-53.) Jared Meadows testified that he was unable to identify the name of 

the worker shown in photograph exhibit CX-53. (Tr. at 379.) 

76 Mr. Henson testified that he was with the Meadows employee when the employee walked through the debris at 

the building’s west side on July 10, 2012. (Tr. 279-281.) Whether that worker was Mr. Dias is not dispositive.
47

claiming that the nature of slate roof replacement caused a continuous “rain” of debris onto the 

ground below that would have been hazardous to workers had they continually cleared it from 

the work area. (Resp’t Br. at 57-58.) To establish the infeasibility defense, Meadows must 

show that “(1) literal compliance with the terms of the cited standard was infeasible under the 

existing circumstances, and (2) an alternative protective measure was used or there was no 

feasible alternative measure.” Westvaco Corp., 16 BNA OSHC at 1380 (citation omitted) 

(emphasis added). To establish the greater hazard defense, the employer has the burden of 

showing “that the hazards of compliance with the standard are greater than noncompliance; that 

alternative means of protecting employees were either used or not available; and that an 

application for a variance under section 6(d) of the Act would be inappropriate.” Hackensack 

Steel Corp., 20 BNA OSHC 1387, 1391 (No. 97-0755, 2003) (emphasis added). Respondent 

claims that the measures it took to minimize the debris, and its daily clean-up routine, were 

“prudent and reasonable under all the circumstances.” (Resp’t Br. at 57.) The Court finds, 

however, that Respondent has failed to show that it took any alternative measures to protect its

employees from tripping and falling over the debris, such as cordoning off the area. Indeed, the 

record shows that employees felt comfortable enough to walk over the debris in front of the 

OSHA inspectors, suggesting that supervisors had even failed to caution the workers about the 

debris. Respondent has therefore not met its burden of establishing either defense. The 

citation is affirmed.

Characterization

The Secretary alleges a serious violation of the cited standard. The hazards associated 

with this standard include tripping and falling. Gallo, 9 BNA OSHC at 1180. It is undisputed 

that screws protruded from the debris. The Court finds that tripping or falling onto a protruding 
48

screw would likely cause serious physical harm. The violation is properly characterized as 

serious. 

Citation 2, Item 1

This citation item alleges a repeat violation of 29 C.F.R. § 1926.403(b)(2), which states 

in pertinent part: “Listed, labeled, or certified equipment shall be installed and used in 

accordance with instructions included in the listing, labeling, or certification.” The piece of 

equipment at issue here was a relocatable power tap that was not rated for use on a construction 

site. (Tr. at 346-349; Exs. CX-57-59, CX-60 at 2-3.) The Secretary claims that the CO saw 

the relocatable power tap “being used” on the construction site, which was contrary to its listing 

and was therefore a violation of the cited standard. (Sec’y Br. at 19-20.) Respondent claims 

that the Secretary failed to establish non-compliance, exposure, and knowledge. (Resp’t Br. at 

58-60.) 

The power tap was “located outside on the construction site” near a microwave that had a 

beverage sitting on it. (Tr. at 204-206, 287; Exs. CX-57 at A, CX-58.) The microwave was 

located on the east side of the building. (Ex. CX-39.) The power tap had two electrical cords 

plugged into it, but the tap itself was not plugged in. (Tr. 204-206, 287, 294-295, 370, 427; Ex. 

CX-57.) One of the electrical cords plugged into the tap was an extension cord that ran to the 

roof. (Tr. 204-205, 287; Exs. CX-39, CX-58.) The other cord plugged into the tap was for 

either the microwave, or for a portable battery charger for an electric drill. (Tr. 205-206; Ex. 

CX-57.) CO Naim testified that he was told by one of Respondent’s employees that he did not 

know who owned the power tap. The name on the back of the tap was “Hoberth Air 

Renovation,” which Michael Meadows testified was not one of the subcontractors on the job.

(Tr. 250, 428; Ex. CX-59.) 
49

Multi-Employer Doctrine

As noted above, the Court considers Meadows a controlling employer of this 

multi-employer worksite. As a controlling employer, Meadows had the responsibility of 

monitoring potential hazards with reasonable diligence on the worksite and correcting them. 

Centex-Rooney Constr. Co., 16 BNA OSHC at 2129-30. Despite Respondent’s assertion that 

the power tap was located away from Respondent’s work, and that it did not own it or know 

what company “Hoberth Air Renovations” was, the extension cord originating from it ran up the 

side of the building to the roof, where Meadows’ subcontractors were working under 

Respondent’s supervision. The Court finds that, due to its controlling authority over the Lowell 

worksite and the roofers in particular, Respondent was reasonably expected to “prevent or 

detect” the electronic source of the equipment used on the roof, and that it had the authority to 

use a proper source. Respondent is therefore liable under the multi-employer doctrine for this 

citation item. 

Merits

With regard to applicability, the record shows that the power tap at issue is a “listed, 

labeled, or certified” piece of equipment with instructions. (Tr. at 346-349, Ex. CX-60 at 2-3.) 

OSHA Assistant Area Director (“AAD”) Robert Carbone testified that the power tap at issue was 

certified by Underwriters Laboratory (“UL”), an independent testing laboratory.77 (Tr. at 

347-348.) He further testified that the instructions issued by UL stated that the power tap was 

not intended for use on construction sites.78 (Tr. at 347-348; Ex. CX-60 at 3.) The Secretary 

 

77 AAD Carbone testified that he is an electrician who has held a master’s contractor’s license as an electrical 

contractor in Ohio. (Tr. 346.)

78 The UL Product Guide Information for Electrical Equipment, The White Book 2012, states in part:
50

has established that the cited standard applies.

With regard to non-compliance, the Secretary alleges that the cited standard prohibited 

the power tap from being used at the Lowell worksite. (Sec’y Br. at 19-20.) The Court agrees 

that the power tap was a non-compliant piece of equipment under the terms of the cited standard. 

Respondent argues, however, that the power tap was not “in use,” as stated in the standard, 

because it was not plugged in and because no tools or machinery were plugged into it at the time 

of OSHA’s inspection. (Tr. at 370.) Although the male end of the power tap was not plugged 

into anything at the time of OSHA’s inspection, the overall record undermines this claim that the 

power tap was not “in use.” The instructions associated with this relocatable power tap, under 

the heading “Use and Installation,” state that the power tap is “intended ...to supply [energy and] 

to provide outlet receptacles[.]” (Tr. 287; Ex. CX-60 at 3.) The record shows that the power 

tap provided two outlet receptacles to items on the worksite. One of the items, the extension 

cord, ran up to the roof where the roofing work was being performed.79 The power tap was 

therefore both available for use and actually in use at the worksite.

80

 

The Secretary has therefore established non-compliance. 

 

RELOCATABLE POWER TAPS (XBYS)

USE AND INSTALLATION

This category covers relocatable power taps rated 250 V ac or less, 20A or less. They are intended for 

indoor use as relocatable multiple outlet extensions of a single branch circuit to supply laboratory equipment, home 

workshops, home movie lighting controls, musical instrumentation, and to provide outlet receptacles for computers, 

audio and video equipment, and other equipment. ... Relocatable power taps are not intended for use at construction 

sites and similar locations.

(Ex. CX-60, at 3.) 

79 The Court notes that the instructions also prohibit extension cords from being plugged into the power tap. (Ex. 

CX-60 at 3.)

80 The Court finds little merit in Respondent’s argument that no tools or machinery was plugged into the power tap 

because the instructions prohibited anything to be plugged into this power tap while it was located on a construction 

site.
51

Respondent next argues that the Secretary has not established exposure. (Resp’t Br. at 

59.) As noted above, the Secretary establishes exposure to a hazard by showing that “it is 

reasonably predictable either by operational necessity or otherwise (including inadvertence), that 

employees have been, are, or will be in the zone of danger.” Fabricated Metal, 18 BNA OSHC 

at 1074 citing Gilles & Cotting, Inc., 3 BNA OSHC 2002 (No. 504, 1976). “[A] rule of access 

based on reasonable predictability is more likely to further the purposes of the Act than is a rule 

requiring proof of actual exposure.” Id. at 2003. The record shows that it is reasonably 

predictable that workers on the Lowell worksite used or would have had access to the violative 

power tap. Not only were two items already plugged into the non-compliant power tap, 

showing that workers had used the tap, but the tap was also near a location where workers 

travelled, as evidenced by the microwave with a beverage sitting on it. Additionally, the 

extension cord ran up to the roof, where it was undisputed that Meadows’ subcontractors were 

working. Even though it was not plugged in at the time of the OSHA inspection, the Court 

finds the evidence noted above shows that the power tap was intended to be energized. It is 

therefore reasonably predictable that the workers on the site either had been using or had access 

to the violative power tap. The Secretary has established exposure.

Respondent finally argues that it did not have knowledge, nor could it have known, of the 

violative power tap because it did not belong to Respondent or any of its subcontractors, none of 

the workers claimed it as theirs, and it was located away from Respondent’s work. (Tr. at 370; 

Resp’t Br. at 59.) The evidence in the record does not establish that Respondent had actual 

knowledge of the existence of the power tap. Michael Meadows testified that the power tap did 

not belong to his company or any of his subcontractors. (Tr. at 428.) Jared Meadows testified 

that he never saw anyone use the power tap. (Tr. at 370.) Neither Michael Meadows nor 
52

Jared Meadows confirmed or denied that they knew that the power tap was on the worksite 

before or during the inspection. 

The evidence in the record, however, shows that Respondent had constructive knowledge 

of the existence of the power tap. “[A]n employer can be charged with constructive knowledge 

of a safety violation that supervisory employees know or should reasonably know about.” P. 

Gioioso, 675 F.3d at 73; see also Hamilton Fixture, 16 BNA OSHC 1073, 1089 (No. 88-1720, 

1993) (finding constructive knowledge when “a physical condition or practice is ‘readily 

apparent to anyone who looked’ ”) (citations omitted). Michael Meadows testified that he 

knew that a power tap, like the one at issue here, was not supposed to be used on a construction 

site. (Tr. at 437-438.) Respondent’s supervisors, Messrs. Michael Meadows and Jared 

Meadows, testified that they were at the worksite on the day of the inspection. The record 

shows that the power tap was in plain view of the OSHA inspectors during their inspection and 

that it was in an area travelled by workers on the site given its proximity to the microwave with 

the beverage sitting on it. (Tr. at 204; 287, 360; Ex. CX-39.) The record also shows that the 

extension cord originating from the power tap ran up the side of the building to the roof where it 

was undisputed that Respondent’s workers were working. (Tr. 205, 287, 375; Exs. CX-39, 

CX-58.) The Court finds that if the OSHA inspectors could see the power tap and the extension 

cord running up to the roof, then Respondent’s supervisors could have observed it too. The 

Secretary has shown that Respondent had constructive knowledge of the violative power tap. 

The violation is affirmed.

Characterization

The Secretary claims that this violation should be characterized as a repeat violation 

based on Respondent’s previous violation of the same standard. (Sec’y Br. at 20; Ex. CX-61.) 
53

“[A] violation is repeated if, at the time of the alleged repeated violation, there was a 

Commission final order against the same employer for a substantially similar violation. Under 

this doctrine, the Secretary establishes a prima facie case of similarity by showing that both 

violations are of the same standard.” Capform, 16 BNA OSHC at 2045 (citations omitted). 

The record shows that Meadows received a citation in December 2011 for violating the 

same standard on a job at Woburn, Massachusetts. (Tr. at 215-217, 437-439; Ex. CX-61.) 

Meadows never contested the citation because it reached an informal settlement agreement with 

OSHA, conceding the violation, on January 30, 2012. (Ex. CX-61.) Nevertheless, because a 

citation was issued and Respondent did not contest it, the citation of the same standard became a 

final order of the Commission under § 10(a) of the Act, 29 U.S.C. § 659(a), before the violation 

occurred here. Potlatch, 7 BNA OSHC at 1062. Respondent has not attempted to show any 

dissimilarity between the cited citation at issue and the previous violation that was not contested 

and has become a final order. Capform, 16 BNA OSHC at 2044-2045 (once prima facie

showing of similarity has been shown, burden shifts to employer to show dissimilarity). The 

Court therefore rejects Respondent’s claim that the Secretary incorrectly attempted to draw an 

“adverse inference” from the previous citation regarding a power tap.81 (Resp’t Reply Br. at 6.) 

The citation is properly characterized as repeat.

Citation 2, Item 2

This citation item alleges a repeat violation of 29 C.F.R. § 1926.501(b)(10), which states 

in pertinent part: “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 

 

81 Michael Meadows testified that Respondent previously had a repeat citation, where CO Naim was also the OSHA 

inspector, for an improper power tap on a job at Woburn, Massachusetts . (Tr. 437-438.) 
54

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.” The Secretary claims that a violation was established based on “the observations by 

both OSHA inspectors of workers on the low-sloped roof area of the building without secured 

lanyards to prevent their falling.” (Sec’y Br. at 21.) Respondent claims that the Secretary 

failed to show non-compliance. (Resp’t Br. at 60-63.) Respondent also raises the UEM 

defense with respect to this citation item. (Resp’t Br. at 63-64.)

Multi-Employer Doctrine

As noted above, the Court considers Meadows a controlling employer of this 

multi-employer worksite. As a controlling employer, Meadows had the responsibility of 

monitoring potential hazards with reasonable diligence on the worksite and correcting them. 

Centex-Rooney Constr. Co., 16 BNA OSHC at 2129-30. The roofers on this project were doing 

the work that Meadows was specifically contracted to perform – replacing the roof of the Moody 

Elementary School.82 (Tr. at 403.) The Court finds that, due to its controlling authority over 

the Lowell worksite and the roofers in particular, Respondent was reasonably expected to 

“prevent or detect” the roofers’ adherence to fall protection safety measures, and that it also had 

 

82 Jared Meadows testified that he believed that the workers on the roof were employees of Respondent 

subcontractors, Masonworks, LLC, D&S Commercial Masonry, Inc., and LN Construction Co. (Tr. at 375.) He 

was unable to identify the names of any of the: a) four workers shown on or near the roof in photograph exhibit

CX-52, b) two workers shown on the roof in photograph exhibit CX-64, and c) two workers shown on the roof in 

photograph exhibit CX-65. (Tr. at 379-383.) Payroll records for LN Construction Co. show that Messrs. Wesley 

Rocha, Carlos Claros, Juan Alvarez, Dione Lima, Manuel Guevara, and Elliott Burgos were paid for 8 hours as 

roofers for July 10, 2012 under the Moody Elementary School project. (Tr. at 402-403; Exs. CX-15, at 10-11, R-I, 

at 10-11.) These payroll records also show that Messrs. Clayton Ladeira, Weuler Pavao, and Eliezer Melott were 

paid for 8 hours as carpenters for July 10, 2012 under the Moody Elementary School project. (Tr. at 402-403; Exs. 

CX-15, at 10, R-I, at 10.) Michael Meadows also testified that there were window trade workers at the worksite on 

July 10, 2012 working under a separate contract with the city of Lowell, Massachusetts. (Tr. 393-394.) 
55

the authority to correct any deficiency. Id. Indeed, Meadows had a safety program that 

required its subcontractors to use fall protection, and which also included a disciplinary program 

designed to effectuate that requirement. Respondent is therefore liable under the 

multi-employer doctrine for this citation item.

Merits

With regard to applicability, CO Naim and Mr. Henson testified that when they

approached the site, they observed workers on the roof who were not tied off.83 (Tr. at 126, 

213; 282, 288.) CO Naim testified that he “observed workers on a roof 60 feet high that were 

exposed to fall hazards that were not protected from falls.” He further testified that there were 

“no guardrails” and “no netting” for these workers. He also testified that these workers on the 

roof were wearing harnesses that were not attached to anything. CO Naim stated that he told 

one of Respondent’s supervisors that he had observed these fall hazards when he opened his 

investigation at the worksite. (Tr. 207-210; Exs. CX-64 at A, CX-65, CX-66.) Henson 

testified that he observed two individuals “on the top of the roof, which is the flat part, without 

being tied off with – by means of a lanyard or otherwise.” (Tr.at 288.) The record shows that 

the workers on the roof were engaged in roofing activities on the low-sloped portion of the roof 

 

83 Specifically, CO Naim testified:

Q. And what did you observe?

A. I observed employees not attached while they were exposed to falls.

Q. Describe what you saw. Give us a little more - - flush out some of the details of what you saw.

A. I saw employees exposed on a roof, and in aerial lifts, and working out of man-baskets that were not 

secured with a lanyard.

(Tr. at 123-124.) 

Mr. Henson also testified:

Q. Can you tell me, when you first arrived at the site, what observations you made of any conditions that 

might have been cited in this citation? Did you observe any conditions that were cited? 

A. Observed individuals along the top of the roof, the flat portion specifically, without fall protection. 

(Tr. at 282.)
56

and were more than 60 feet above the ground. (Tr. at 124-126; Exs. CX-64, CX-65, CX-66.) 

The Secretary has shown that the cited standard applies.

With regard to non-compliance, the Court accepts CO Naim’s and Mr. Henson’s

testimony that they could see that the workers on the roof, even though they were wearing 

harnesses, were not tied off. Respondent argues that (1) the Secretary cannot establish a 

violation without conclusive photographic evidence, (2) the photographs show that the workers 

were wearing lanyards, and (3) Henson was too far away to see whether the workers were tied 

off. (Resp’t Br. at 60-61.) The Court is not persuaded. The Court accepts the Secretary’s 

photographic exhibits CX-64, CX-65 and CX-66, coupled with the testimony of CO Naim and 

Mr. Henson, as conclusive evidence that the men on the flat part of the roof were not tied off. 

(Tr. 267-268.) Unlike the lack of photographic evidence to support a violation of Citation 1, 

Item 5(a) and (b), here the Secretary provided photographic evidence that shows workers on the 

roof that are not tied off. Additionally, personal eyewitness accounts have been held sufficient 

to establish violations before the Commission. See, e.g., A.L. Baumgartner; 16 BNA OSHC at 

2001; see also Suttles Truck Leasing, Inc., 20 BNA OSHC 1953, 1974 (No. 97-0545, 2004) 

(consolidated) (holding that industrial hygienist’s uncontradicted personal observation was 

sufficient to establish a violation). Respondent has not provided sufficient evidence that CO 

Naim or Mr. Henson, based on distance, could not tell that the workers were not tied off on the 

roof. The Court finds CO Naim a credible witness in this regard. The Court also observed 

Mr. Henson’s demeanor as he was testifying and found him to be credible, honest, impartial, 

well-meaning, confident, direct, and persuasive with regard to Citation 1, Items 1 through 3, and 
57

6 and Citation 2, Items 1 and 2.84 Respondent does not even question Mr. Henson’s credibility.

Finally, the issue is not whether the workers were wearing lanyards, but whether the lanyards 

were tied off while on the roof. Respondent’s arguments regarding witnesses who saw the 

workers wearing lanyards are not dispositive.

85

 The Secretary has established non-compliance.

With respect to exposure, the record shows that the workers were not tied off while 

working on the roof over 60 feet high. The Secretary has established exposure to the hazard of 

falling.

With respect to knowledge, the Secretary alleges that Respondent should have known 

that workers on the roof worked with unsecured lanyards. (Sec’y Br. at 12.) The Secretary 

claims that Meadows did not reasonably supervise the workers on the roof, and so did not 

“confirm whether effective fall protection was established.” (Sec’y Br. at 12.) Respondent 

relies on Bud Black’s testimony to show that Meadows properly supervised its workers. 

(Resp’t Reply Br. at 2-4.) Under Commission precedent:

the Secretary must prove that a cited employer either knew, or, with the exercise 

of reasonable diligence, could have known of the presence of the violative 

condition ... Reasonable diligence requires the formulation and implementation 

of adequate work rules and training programs to ensure that work is safe, as well 

as adequate supervision of employees.

Summit, 23 BNA OSHC at 1207 (citations omitted). The Court finds that the record supports 

the Secretary’s claim that Meadows inadequately supervised the workers on the roof. 

Jared Meadows testified that he was the project supervisor on the worksite, but he did not 

 

84 Mr. Henson’s testimony concerning Citation 1, Item 1, with regard to the distance Jared Meadows was away 

from the telehandler was an estimate. Mr. Henson offered no testimony with regard to Citation 1, Item 4. The 

fact that the Court is vacating Citation 1, Items 5(a) and 5(b), is not an adverse reflection upon Mr. Henson’s 

credibility; but is instead a Court finding of a lack of sufficient evidence to support affirming these two sub-items. 

85 Similarly, Michael Meadows’ testimony regarding using a lanyard to “traverse” the 60 degree pitch of the roof is 

also unpersuasive for this citation item because the allegation is that workers were already on the flat part of the 

roof, not traversing the steep 60 degree part of the roof. (Tr. 403-404; Resp’t Br. at 62.)
58

state that he would go up to the roof. (Tr. at 360.) He further testified that no Meadows 

employees were on the roof, and that Meadows’ foreman Oliveira stayed on the ground. (Tr. at 

375.) It has not been established, therefore, that any Meadows supervisor ever effectively 

monitored the workers’ use of lanyards up on the roof. Instead, Respondent relies on Bud 

Black’s testimony to show that Meadows properly supervised the worksite. (Resp’t Br. at 62.) 

As noted above, it was not established that Mr. Black was on the worksite during the OSHA 

inspection. Additionally, Mr. Black testified that he was not responsible for safety at the 

Lowell worksite. (Tr. at 328-329.) The Court notes that Mr. Black did not state whether he 

ever saw Jared Meadows or any other Meadows supervisor on the roof. The Court also notes 

that while Mr. Black testified that he observed the workers wearing lanyards on the roof, he did 

not testify that he observed those workers tied off. (Tr. at 327.) The Court therefore finds that 

Jared Meadows did not exercise reasonable diligence with regard to supervising the workers on 

the roof. His constructive knowledge can be imputed to Respondent based on his supervisory 

status. P. Gioioso, 675 F.3d at 73 (“an employer can be charged with constructive knowledge 

of a safety violation that supervisory employees know or should reasonably know about.”) The 

Secretary has established knowledge.

Respondent raises the UEM defense with regard to its workers using fall protection on 

the roof. (Resp’t Br. at 63-64.) With regard to fall protection, the record shows that 

Respondent has a work rule in place as shown in its safety manual. See Ex. R-O at “Safety 

Rules and Regulations.” The rule states, in pertinent part, that “A means of fall protection will 

be utilized for anyone working over six feet in height.” Ex. R-O at “Safety Rules and 

Regulations.” The safety manual’s fall protection section also states that its fall protection plan 

was “adopted to meet the requirements of 29 C.F.R. § 1926.500.” Ex. R-O at “Fall Protection 
59

Program.” The record shows that Meadows communicated safety rules daily in its morning 

“coffee talks.” (Tr. at 435-437.) The record also shows that Meadows contracted Safety Net 

to develop the safety plan for this worksite and also to monitor this worksite, presumably in an 

effort to discover incidents of noncompliance. (Tr. at 433.) Since Meadows had been on the 

worksite at Lowell, Safety Net had been there twice. (Tr. at 433.) Bud Black, who was there 

4 hours per day, also testified that Meadows was very responsive whenever he saw incidents of 

noncompliance with safety rules. (Tr. at 330-331.) 

The Court finds, however, that Respondent failed to take steps to discover incidents of 

noncompliance by inadequately supervising the roofers while they were on the roof, and that it 

failed to effectively enforce its rule. P. Gioioso, 115 F.3d at 109 (four prongs of UEM defense 

employer must show are: (1) work rule, (2) communication of work rule, (3) take steps to 

discover incidents of noncompliance, and (4) effective enforcement.) As noted above, despite 

the progressive disciplinary policy set forth in its Safety Manual, Respondent has not shown 

proof of how and whether it disciplined its workers in general or with regard to fall protection 

specifically. The Court therefore finds that Meadows failed to carry its burden of establishing 

the UEM defense with regard to this citation item. The violation is affirmed.

Characterization

The Secretary claims that this violation should be characterized as a repeat violation 

based on Respondent’s previous violations of a substantially similar standard at 29 C.F.R. 

§ 1926.501(b)(13), “Residential Construction,” that occurred with a year and two months before 

the inspection in this case. (Sec’y Br. at 21; Exs. CX-61, CX-62, CX-68.) “[A] violation is 

repeated if, at the time of the alleged repeated violation, there was a Commission final order 

against the same employer for a substantially similar violation.” Capform, 16 BNA OSHC at 
60

2045 (citation omitted). “The principal factor in determining whether a violation is repeated is 

whether the two violations resulted in substantially similar hazards.” Amerisig Se., Inc., 17 

BNA OSHC 1659, 1661 (No. 93-1429, 1996).

The informal settlement agreements proffered by the Secretary show that Meadows

waived its right to contest violations of 29 C.F.R. § 1926.501(b)(13) in June, 2011 that occurred 

at Woburn, Massachusetts and again in January, 2012 that occurred at Beverly, Massachusetts.

86

 

(Tr. at 339-345, 439-440; Exs. CX-61, CX-68.) These two citations, therefore became final 

orders order of the Commission under § 10(a) of the Act, 29 U.S. C. § 659(a), before the 

violation occurred here. Likewise, the Secretary relied upon the violation summary of OSHA’s 

database to show that Respondent was previously cited for another violation of 29 C.F.R. § 

1926.501(b)(13) contained within OSHA Inspection Number 314605072 issued on July 28, 2010 

with respect to a workplace in Malden, Massachusetts that was resolved through an informal 

settlement agreement before the violation occurred here. (Ex. CX-11 at 3-4.) Potlatch, 7 

BNA OSHC at 1062. Respondent has not attempted to show any dissimilarity between the 

cited violation of 29 C.F.R. § 1926.501(b)(10) and the previous violations of 29 C.F.R. § 

1926.501(b)(13). The Court finds that the hazards associated with both the cited standard at 

issue here, and in § 1926.501(b)(13), are substantially the same if not the same: falling from a 

high distance. Amerisig Se., Inc.. 17 BNA OSHC at 1661. The Court therefore rejects 

Respondent’s claim that the Secretary incorrectly attempted to draw an “adverse inference” from 

 

86 CO Naim was also the OSHA inspector at Respondent’s worksite at Beverly, Massachusetts. (Tr. 440.) 
61

the previous citations regarding “an 8-foot roof on another project.”87 (Resp’t Reply Br. at 6.) 

The citation is properly characterized as repeat.

Penalties

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

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

gravity of the violation, good faith, and prior history of violations.” Hern Iron Works, Inc., 16 

BNA OSHC 1619, 1624 (No. 88-1962, 1994). The Secretary did not present any testimony at 

the trial as to how the proposed penalties were calculated. (Tr. at 351-353.) But the 

Commission is the “final arbiter” of penalties. Id. at 1622 (citation omitted). The Court has 

taken into account Respondent’s size of 50-60 employees, and prior history of violations 

submitted into evidence, for each of the affirmed violations. (Tr. at 441.) Due to Respondent’s 

lack of cooperation during the OSHA inspection as discussed above, no credit is given for good 

faith for the affirmed violations. (Tr. at 289.) 

The Court has also considered the gravity of each violation. When determining gravity, 

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

whether precautions could have been taken against injury, and the likelihood of injury. 

Capform, Inc., 19 BNA OSHC 1374, 1378 (No. 99-0322, 2001). Gravity is typically the most 

important factor in determining penalty. Capform, Inc., 19 BNA OSHC at 1378. 

For the affirmed Serious Citation 1, Item 2, the unguarded table saw, the Secretary 

proposed a penalty of $2,800. The Court has considered the seriousness of the potential 

injuries, including impalement, associated with this violation, combined with the fact that, at 

 

87 Michael Meadows also testified that Respondent was previously cited, where CO Naim was the OSHA inspector, 

for a fall protection violation at Woburn, Massachusetts where workers were working on a roof over six feet high 

without wearing a harness or lanyard. (Tr. at 438.)
62

least, two employees were exposed until the OSHA inspectors pointed out the condition, and that 

no precautions were taken to prevent injury while the violative condition was directly in front of 

the Respondent’s supervisors and the OSHA inspectors. The proposed penalty of $2,800 is 

assessed. 

For the affirmed Serious Citation 1, Item 3, no GFCI protection, the Secretary proposed a 

penalty of $2,000. The Court has considered the seriousness of the injury, including electronic 

shock and burn, combined with the fact that multiple workers were exposed to the hazard until 

the OSHA inspectors pointed out the condition, and that no precautions were taken to prevent 

injury. The proposed penalty of $2,000 is assessed. 

For the affirmed Serious Citation 1, Item 6, debris in the work area, the Secretary 

proposed a penalty of $1,600. The Court has considered the seriousness of injury, including 

puncture from falling on protruding screws, combined with the fact that at least two employees 

were exposed during the OSHA inspection, and that no precautions were taken to prevent injury. 

The Court notes again that, despite Respondent’s clean-up at the end of the work day, its workers 

were not warned of the hazard associated with the debris as evidenced by the workers walking on 

the debris in front of the OSHA inspector. The proposed penalty of $1,600 is assessed. 

For the affirmed Repeat Citation 2, Item 1, the relocatable power tap, the Secretary 

proposed a penalty of $4,000. The Court has considered the fact that at least two employees 

were exposed during the OSHA inspection, and that no precautions were taken to prevent injury. 

The proposed penalty of $4,000 is assessed. 

For the affirmed Repeat Citation 2, Item 2, unprotected side or edge fall protection on a 

low sloped roof, the Secretary proposed a penalty of $14,000. The Court has considered the 

seriousness of injury, including death from falling more than 60 feet, combined with the fact that, 
63

at least, two workers were exposed up until the OSHA inspectors pointed out the condition. 

The court has also considered that Respondent took precautions to prevent injury by requiring 

fall protection and communicating its fall protection rule daily. The proposed penalty of 

$14,000 is assessed. 

Findings of Fact and Conclusions of Law

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

accordance with Federal Rule of Civil Procedure 52(a).

ORDER

Based upon the foregoing findings of fact and conclusions of law, it is ordered that:

Item 1 of Citation 1 is VACATED.

Item 2 of Citation 1 is AFFIRMED as Serious and a penalty of $2,800 is assessed.

Item 3 of Citation 1 is AFFIRMED as Serious and a penalty of $2,000 is assessed.

Item 4 of Citation 1 is VACATED.

Item 5a of Citation 1 is VACATED.

Item 5b of Citation 1 is VACATED.

Item 6 of Citation 1 is AFFIRMED as Serious and a penalty of $1,600 is assessed.

Item 1 of Citation 2 is AFFIRMED as Repeat and a penalty of $4,000 is assessed.

Item 2 of Citation 2 is AFFIRMED as Repeat and a penalty of $14,000 is assessed. 

/s/

The Honorable Dennis L. Phillips

United States OSHRC Judge

Date: May 6, 2014

Washington, D.C.