Some personal identifiers have been redacted for privacy purposes

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

THOMAS E. PEREZ, Secretary of Labor, 

United States Department of Labor,

Complainant,

v. OSHRC DOCKET No. 13-1759

BYRD TELCOM, INC.,

Respondent.

DECISION AND ORDER

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

A. Donaldson, Counsel, Lydia J. Chastain Attorney, Melanie L. Paul, Trial Attorney. for 

Complainant. 

Kevin B. Miller, Esq., Mark A. Cevallos, Esq., Matthew J. Olivarez, Law Offices of Miller & 

Bicklein, for Respondent.

JUDGE: John B. Gatto. 

I. INTRODUCTION

Byrd Telcom, Inc. (Byrd Telcom) is a business that provides in-house tower climbing 

services.1 On May 28, 2013, two of Byrd Telcom’s workers were killed at its worksite, a 300-

foot Verizon Wireless cellular tower, in Georgetown, Mississippi. As a result of the two deaths, 

a fatality investigation was conducted at the worksite by John Sauls, Jr., a Compliance Safety 

and Health Officer with the United States Department of Labor’s Occupational Safety and 

 

1 The in-house tower climbing services include the installation and maintenance of equipment such as antennas and 

booms, lines, sweep testing, and gin poles. (Tr. 18, 19, 24, 67, 68, 377, 440; see also Ex. J-6, Ex. J-9, p. 1.) 
2

Health Administration (OSHA), which led to the issuance on October 21, 2013, of a citation and 

proposed penalty to Byrd Telcom by OSHA’s Jackson, Mississippi, Area Director.

2

The citation was issued under the Occupational Safety and Health Act of 1970 (Act), 29 

U.S.C. §§ 651–678 and alleged in two Items serious3violations of section 5(a)(1) of the Act, 

commonly known as “the “general duty” clause,” 29 U.S.C. § 654(a)(1), and proposed penalties 

totaling $14,000.00. (Compl., Ex. A, pp. 1-2.) After Byrd Telcom timely appealed the citation, 

Thomas E. Perez, the Secretary of Labor, filed a complaint in the Commission, which amended 

Instances (b) and (c) of Item 2 and added Instance (d) to Item 2. Prior to trial, the Court granted 

the Secretary’s unopposed motions to withdraw Item 1 and Instances (b) and (d) of Item 2. Still 

pending before the Court are Instances (a) and (c) of Item 2 with a proposed penalty of 

$7,000.00.

As amended, the Secretary asserts Byrd Telcom violated the general duty clause in 

Instance (a) when employees “were exposed to struck-by hazards while raising a gin pole4and 

were not protected by a properly secured top (hook) block used in raising a gin pole,” and in 

Instance (c) when “the gin pole was not permanently marked with an identification number that 

references a specific load chart and gin pole weight, thereby exposing employees on and near the 

tower to struck-by hazards while raising the gin pole.” (Compl. ¶ III.) Byrd Telcom denies the 

 

2 The Secretary of Labor has assigned responsibility to OSHA for enforcement and has delegated his authority under 

the Act to the Assistant Secretary for Occupational Safety and Health, who heads OSHA, and has authorized the 

Assistant Secretary to redelegate his authority. See 65 FR 50017, 50018 (2000). The Assistant Secretary has 

promulgated regulations authorizing OSHA’s Area Directors to issue citations and proposed penalties. See 29 C.F.R. 

§§ 1903.14(a) and 1903.15(a).

3 Under section 17 of the Act, violations are characterized as “willful,” “repeated,” “serious,” or “not to be of a 

serious nature” (referred to by the Commission as “other-than-serious”). 29 U.S.C. §§666(a), (b), (c). A serious 

violation is defined in the statute; the other two degrees are not. Id. §666(k) (see Part III of this decision for the 

definition of a serious violation classification).

4 A gin pole is a lifting device used in tower construction and service to raise tower sections, antennas and other 

items from the ground. (Ex. J-3, p. 1.)
3

Secretary’s allegations and argues the Secretary “failed to establish the creation and/or existence 

of an employer/employee relationship” and further, that “it had no control over the work-site and 

no control over the mechanism of injury sufficient to make [it] and employer under the Act.” 

(Answer ¶ XIII.)

The Commission has jurisdiction of this action under section 10(c) of the Act, 29 U.S.C. 

§ 659(c). (Compl. ¶ I; Answer ¶ I.) Pursuant to Rule 52(a) of the Federal Rules of Civil 

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

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

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

shall be deemed so. For the reasons indicated infra, the Court AFFIRMS amended Instances (a) 

and (c) of Item 2 and ASSESSES a civil penalty of $7,000.00.

II. BACKGROUND

Andrew Systems, Inc. (Andrew) was the prime contractor at the Georgetown, Mississippi 

worksite and Byrd Telcom was subcontracted by Andrew to do an upgrade. (Tr. 408; Ex. C-7, p. 

7.) Sonny Byrd, the company’s current President, was previously a partner in Byrd Telcom’s 

predecessor, Circle B Electric & Tower (Circle B), and at the time of the accident, Byrd Telcom

was using Circle B’s safety manual. (Tr., 19, 24, 42, 377, 440; Ex. C-20, p. 2; see also Ex. J-6, 

Ex. J-9.) At the time of the accident, Sonny Byrd was the company’s Vice-President and his 

wife, Ravan Byrd, was the company’s President. (Ex. C-19, p. 2.) 

The industry practice for safe and proper rigging of gin poles is wrapping two slings or 

chokers, one around each leg of the tower, and connecting them in the center with a shackle to 

create a “V” formation. (Tr. 205, 240, 309-10, 312, 653, 762-63.) However, the week prior to 
4

the accident, rather than using chokers and a shackle, John Davidson, assisted by [redacted], 

attached the rigging of the “jump line”

5

on the tower by placing a carabiner6into a hole in one of 

the top plates.7 (Tr. 544-45.) Unfortunately, they were supervised that day by Claudia 

Trammell, Byrd Telcom’s foreman, who had no experience rigging gin poles, or climbing 

towers, and this was the first time John Davidson personally set up rigging for a gin pole at the 

top of a tower. (Tr. 533-34, 543, 546-447; Ex. C-8C, pp. 10, 13.) 

Although John Davidson had been on jobs before where gin poles were rigged with 

shackles and chokers, he did not use a shackle and choker for this job because he “couldn’t find 

one” and they “had none on the truck.” (Tr. 547.) There were all different types and sizes of 

carabiners and he picked the biggest carabiner and “figured it would be the strongest.” (Tr. 545.) 

John Davidson’s use of the carabiner was inconsistent with the industry practice and its design 

and safety rating. (Tr. 616-17.) The carabiner used in the top plate was PenSafe Model # C775. 

(Tr. 637-38; Ex. J-3, p. 2; J-10, p. 6.) Although PenSafe certifies its carabiners for compliance 

with ANSI, International, and Canadian standards for fall protection, they are not certified for 

hoisting materials. (Tr. 471; Ex. J-10.)On May 28, 2013, the day of the accident, John Davidson, 

[redacted] and [redacted], Wilton Grimes, Allen “BJ” Martin, and Michael Shane Callender were 

 

5 There are two types of “lines” used in gin pole related activities. A “jump line” is used to raise and lower the gin 

pole to the top plate at the top of the cell tower. A “load line” is used after the gin pole is secured at the top of the 

tower to raise and lower the equipment being used, installed, or removed. (Tr. 414, 664; Byrd Telcom’s Post-Trial 

Br., p. 7.)

6 A carabiner is typically used in fall protection equipment. (Tr. 143.) PenSafe, Inc., the manufacturer of the 

carabiner involved in the accident describes a carabiner as a “connector with a trapezoidal or oval body with a selfclosing self-locking gate.” (Ex. J-10, p. 4.)

7 The top plates or “top splices” are the metal squares or “leg flanges” at the top of the tower that “are used to splice 

two sections of the tower together when they’re constructed. A tower section is placed on top and then bolts are 

used to secure the plates together.” (Tr. 427-28; see also Ex. J-1B.) John Davidson referred to the inserting of the 

carabiner through a hole in a top plate as having “hung the block and the carabiner.” (Tr. 546; see also Ex. J-1A.)
5

on the tower during the hoisting or raising of the gin pole up the face of the tower, commonly

known as “jumping the gin pole.” (Tr. 53-54, 222-23, 232-33, 549, 554; see also C-8b, p. 36; Ex. 

J-14, p. 8.) [redacted] and [redacted] were struck and killed by the 40-foot, 1800-pound steel gin 

pole and/or its rigging when the carabiner broke.8(Tr. 405, 644-45; see also Ex. J-3, p. 1.). (Tr. 

405.) The impact of the falling equipment was so great that it ripped the D rings out of the fall 

protection harnesses worn by [redacted] and [redacted] and [redacted] was decapitated. (Tr. 418, 

583; Ex. J-11F.)

Trammell had been the worksite foreman and since she had quit the weekend prior to the 

accident, John Davidson told OSHA investigator Sauls they really didn’t know who was in 

charge the day of the accident but that he was not in charge, and credibly testified he thought the 

foreman that day was either his brother Randy or Callender since they had the most experience. 

(Tr. 456, 558-59.) Randy Davidson echoed John Davidson's sentiments and told Sauls 

“basically, everybody knew what to do and they went about their job and did it.” (Tr. 457.)

Randy Davidson, testified he was Byrd Telcom’s Construction Manager and admitted he 

was acting in a supervisory role the day of the accident, and Sonny Byrd sent him out to the 

worksite that morning to “check on them and see if they’re working,” and in that role, he 

“walked around and talked to the guys, found out what their game plan was, whether they had all 

their JSAs filled out and all that, which they did.” (Tr. 312-13, 314, 315.) The Construction 

Manager, according to Randy Davidson, “goes around, looks at all the jobs, makes sure the job 

progress is going on schedule, and if there's any safety issues, the foreman will tell the CM and 

get it taken care of.” (Tr. 289.) 

 

8 The applied and dynamic force exceeded the material strength of the steel which is estimated to be between 9846 

and 13,192 pounds. (Ex. J-3, p. 6.)
6

With respect to hoisting gin poles, Sauls testified Randy Davidson had the most 

experience on the worksite on May 28, 2013, which was undisputed. (Tr. 458.) On May 20, 

2013, Randy Davidson also signed the “Equipment Basics Checklist” as the Project Manager, 

which indicated the equipment inspected that day. (Ex. J-18.) Since Randy Davidson was the 

worksite Construction Manager/Project Manager and the worker with the most experience 

hoisting gin poles, and Callender had been the foreman before and after the accident, and since 

Trammell, the worksite foreman, had quite the weekend prior to the accident, the Court finds the 

preponderance of evidence shows either Randy Davison or Callender was in charge of the 

worksite the day of the accident, not John Davidson. 

III. ANALYSIS

In the Fifth Circuit, the jurisdiction in which this case arises,9the circuit court noted, 

“[a]s has often been said, OSHA does not impose strict liability on an employer but rather 

focuses liability where the harm can in fact be prevented.” Central of Ga. R.R. Co. v. OSHRC, 

576 F.2d 620, 623 (5th Cir.1978). “It is well-settled that the Secretary has essentially two 

weapons in [his] arsenal of enforcement. First, the Secretary may issue a citation for violations of 

specific standards promulgated (through rulemaking) by the Secretary. Alternatively, where the 

Secretary has not promulgated standards, he may rely on the General Duty Clause as a ‘catchall 

provision.’” Reich v. Arcadian Corp., 110 F.3d 1192, 1196 (5th Cir. 1997) (citation omitted). 

 

9

The worksite is in Georgetown, Mississippi, and Byrd Telcom’s principle place of business is in Baton Rouge, 

Louisiana, both of which are in the Fifth Circuit. Therefore, either party may appeal to the Fifth Circuit Court of 

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

& (b). The Commission has held that “[w]here it is highly probable that a case will be appealed to a particular 

circuit, the Commission generally has applied the precedent of that circuit in deciding the case— even though it may 

differ from the Commission's precedent.” Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000). 

Here, since it is highly probable that any appeal will be to the Fifth Circuit, the Court applies the precedent of that 

circuit.
7

The “general duty” clause provides that each employer “shall furnish to each of his 

employees employment and a place of employment free from recognized hazards that are 

causing or likely to cause death or serious injury to the employees.” Whirlpool Corp. v. 

Marshall, 445 U.S. 1, 13 (1980) (citing 29 U.S.C. § 654(a)(1)). To establish a violation of the 

general duty clause in the Fifth Circuit, “the Secretary must prove that (1) the employer failed to 

render its work place free of a hazard; (2) the hazard was “recognized”; and (3) the hazard

caused or was likely to cause death or serious physical harm.” Georgia Elec. Co. v. Marshall, 

595 F.2d 309, 320-21 (5th Cir. 1979. In addition, “the hazard must be preventable.” Arcadian, 

110 F.3d at 1197 n. 2 (citation omitted). A “serious violation” is one that carries “a substantial 

probability that death or serious physical harm could result.” 29 U.S.C. § 666(k). “The 

gravamen of a serious violation is the presence of a ‘substantial probability’ that a particular 

violation could result in death or serious physical harm.” Chao v. OSHRC, 401 F.3d 355, 367 

(5th Cir. 2005) (citing Georgia Electric, 595 F.2d at 318). Here, the alleged violations were 

serious since they resulted in the death of two workers.

A. Covered Employer

As a condition precedent to citing Byrd Telcom, the Secretary must show the company 

was an employer within the meaning of the Act. See All Star Realty Co., Inc., 24 BNA OSHC 

1356, 1358 (No. 12-1597, 2014) (“[T]he Secretary has the burden of proving that a cited 

company is the employer of the affected workers at the site”) (citing Allstate Painting & 

Contracting Co., 21 BNA OSHC 1033, 1035 (No. 97-1631, 2005) (consolidated)). As the 

Supreme Court noted in Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322 (U.S. 1992), 

courts have “often been asked to construe the meaning of “employee” where the statute 
8

containing the term does not helpfully define it.” Here, the Act defines employer as “a person 

engaged in a business affecting commerce who has employees.” 29 U.S.C. § 652(5). “Employee” 

is defined as “an employee of an employer who is employed in a business of his employer which 

affects commerce.” 29 U.S.C. § 652(6). As the Commission noted in Don Davis, 19 BNA 

OSHC 1477, 1480 (No. 96-1378, 2001), this definition is “unhelpfully circular.” 

Byrd Telcom argues the Secretary “failed to establish the creation and/or existence of an 

employer/employee relationship” and that it “had no control over the work-site and no control 

over the mechanism of injury sufficient to make [it an] employer under the Act.” In determining 

whether the Secretary has satisfied his burden of showing Byrd Telcom was an employer within 

the meaning of the Act, the Commission applies the common law agency doctrine enunciated in 

Darden. See All Star Realty, 24 BNA OSHC at 1358; Allstate Painting, 21 BNA OSHC at 1035

(citation omitted). See also Timothy Victory, 18 BNA OSHC 1023, 1027 (No. 93-3359, 1997) 

(the term “employee” under the Act should be interpreted consistent with common law 

principles). 

As the Fifth Circuit noted, the hiring party's “right to control the manner and means” of 

the work performed is important to determining whether there is employee status. United States 

v. Robinson, 505 F. App'x 385, 387 (5th Cir. 2013) (citing Darden, 503 U.S. at 323). Many 

factors are relevant to this inquiry, including the work location, who set the work hours, who 

provided the tools being used, the duration of the relationship between the parties, and the 

method of payment. Darden, 503 U.S. at 323-24. For the reasons infra, the Court finds Byrd 

Telcom was a covered employer under the Act at the time of the accident. 
9

Darden Factors

Byrd Telcom argues “that under the Darden factors respondent is not an “employer” 

subject to this standard.” (Pretrial Order, Attach. D, ¶ 4.) The Secretary argues, “[e]mployee 

witnesses’ sworn testimony to OSHA and at trial demonstrates [Byrd Telcom’s] control over 

them and supports a finding of an employer relationship under the Darden factors.” (Sec’y’s

Post-Trial, Br. p. 18.) The Court agrees with the Secretary. As the Commission has noted, under 

the Darden analysis, “the primary focus is whether the putative employer controls the workers.” 

Allstate Painting, 21 BNA OSHC at 1035; All Star Realty, 24 BNA OSHC at 1358. 

Work Skills

With regard to the skill required for tower work, the only special training required was 

fall protection and tower rescue. (Tr. 24-25). The work itself was essentially manual labor and

the workers were not required to have a high school diploma or its equivalent. (Tr. 285, 459, 

522). As indicated supra, Sonny Byrd admitted to OSHA during the fatality investigation that 

the company had 6 employees working at the worksite on the day of the accident and had a total 

of 12 employees, which was corroborated by Byrd Telcom’s disclosure in the contract with 

Andrew on April 3, 2013, that it had no subcontractors. Therefore, Byrd Telcom has admitted 

through these documents that its workers were employees rather than subcontractors. 

Not dissuaded, Byrd Telcom asserts at the time of hire each worker was provided a safety 

and health manual and “the language of the manual indicates that if an individual does not follow 

the safety policies and procedures, that it can result in the termination of the relationship between 

Byrd Telcom and the individual.” (Byrd Telcom’s Post-Trial Br., p. 8) (emphasis added). (Id.) 

Byrd Telcom misrepresents the language in the safety manual, which actually states if a worker 
10

does not follow the safety policies and procedures, the worker acknowledges “it can result in my

employment termination.” (Ex. J- 4, p. 164.) 

Equipment

Although Sonny Byrd testified the carabiners on the truck were not owned and supplied 

by Byrd Telcom and belonged to the workers (“they got their carabiners and put them on with 

them” (Tr. 135)), this assertion is contrary to Sonny Byrd’s own admission that the company 

provided the fall protection equipment and his admission that workers would come to the 

warehouse to pick up the equipment that they need for a particular job, that “we furnish all 

materials to do the job with.”

10 (Tr. 46, 74-75.) It is also contrary to Callender’s testimony that 

some of the company trucks had carabiners, which belonged to Byrd Telcom. (Tr. 230.) 

Although some workers brought their own carabiners to worksites, they had them on their own 

personal belts. (Tr. 231.)

At trial Sonny Byrd testified two months before the accident, “we had a directive from 

Andrew to quit using carabiners. And when we got that directive to quit using carabiners, I went 

out there and pulled them all off the trucks. And from that day on, we never used them again.” 

(Tr. 134-135.) Similarly, Randy Davidson testified about the directive from Andrew. As 

indicated supra, the Court does not find Sonny Byrd to be a credible witness. Further, Randy 

Davidson was representing Byrd Telcom at the worksite on May 31, 2013, while evidence was 

being retrieved from the tower. (Tr. 466.) As the company’s owner and its worksite supervisor, 

Sonny Byrd and Randy Davidson, both had self-serving interests to lay blame for the accident 

elsewhere, mainly on John Davidson. Nonetheless, assuming arguendo their testimony was 

 

10 Randy Davidson, John Davidson and Callender all testified that Byrd Telcom provided the gin pole, rooster head, 

bolts, chokers, shackles, trailers, wire rope, carabiners, fall protection equipment, JSA forms, and a winch truck. (Tr. 

214-15, 302-03, 537-38; Ex. C-8A, p. 16; Ex. C-8B, pp. 7, 8, 25; Ex. C-8C, p. 12; see also Ex. J-30.)
11

credible, John Davidson testified that no one gave him that advice about the Andrew directive. 

(Tr. 551.) The Court closely observed John Davidson during his testimony and he was candid 

and responsive to the questions posed to him. Unlike Sonny Byrd and Randy Davidson, John 

Davidson displayed no evasiveness or deflective tactics. He also gave no indication he harbored 

any animus towards the company. The Court finds him to be a credible witness and gives 

considerable weight to his testimony. Therefore, the Court finds even if Byrd Telcom’s assertion 

is plausible, the company nonetheless did not instruct John Davidson to stop using carabineers 

on Andrew jobsites.

Work Location

The Darden factor regarding work location also favors an employer-employee 

relationship. Sonny Byrd arranged for Callender to be picked up and taken to the work site and 

the workers rode in the company’s trucks to get to jobs. (Tr. 148, 215, 221, 304; see also Ex. C8A, p. 17; Ex. C-8B, p. 12.) Byrd Telcom also paid for the workers’ expenses associated with an 

out-of-town job, such as gas and lodging. (Tr. 117, 216, 304, 539; see also Ex. C-8A, pp. 33-34; 

Ex. C-8B, pp. 13-14; Ex. C-8C, p. 29.) Further, Sonny Byrd assigned the individual workers to 

particular crews to work on particular jobs. (Tr. 459, 533; see also Ex. C-8B, p. 11.) 

Duration of Relationship

In addition, the duration of the relationship between the parties favors an employeremployee relationship. Both Davidsons and Callender testified that they worked for Byrd 

Telcom for several years, albeit off and on, including when the company was called Circle B. 

(Tr. 144, 150, 204, 286-87, 528; see also Ex. C-8A, p. 16; Ex. C-8B, p. 18; Ex. C-8C, pp. 6-7.) 

Although workers jumped around from company to company, that is a common practice in the 
12

telecommunications industry. (Tr. 528.) Employees did not, however, work for any other 

employers at the same time that they were working for Byrd Telcom since it was a full-time job

and employees received continuous job assignments. (Tr. 257, 293, 535, 351-52, 454-55, 533;

see also Ex. C-8C, pp. 7, 40.) 

Method of Pay and Work Hours

Byrd Telcom also paid employees a day rate and paid them weekly. (Tr. 34-35, 72, 211, 

213, 295, 453, 532; see also Ex. C-8A, p. 32; Ex. C-8B, p. 9.) Employees had no ability to 

negotiate their pay rates and Sonny Byrd set the pay rates based on a scale relative to experience. 

(Tr. 34, 212, 532.) Although individual workers called in or texted the employees’ daily start 

and stop times to Sonny Byrd or Ravan Byrd, Byrd Telcom also required the foreman to call in 

or texted the employees’ daily start and stop times to Sonny Byrd or Ravan Byrd, or to the 

company’s personnel office. (Tr. 68, 210, 296, 551; Ex. C-8A, p. 33.) The employees could not 

hire or fire other workers; Sonny Byrd was the sole decision-maker on those issues. (Tr. 212, 

298, 534.) Thus, the workers did not have discretion over when they could start and finish jobs. 

The only other variations to the workers’ work schedules were actually due to changing weather 

conditions. (Tr. 68, 211, 295-96, 535). It is undisputed that the company paid the employees a 

day rate; employees were not paid by the job. (Tr. 34-35, 211, 295, 532; Ex. C-8A, p. 32; Ex. C8B, p. 9.) In addition, the company paid the workers on a weekly basis. (Tr. at 34, 72, 213, 

453.) 

In Allstate Painting, the Commission did not find that an employer-employee relationship 

existed since “Allstate did not control the hiring, firing or disciplining of the workers at the site; 

did not supervise their work; and did not supply them with equipment or safety gear.” Allstate
13

Painting, 21 BNA OSHC at 1036. Likewise, in All Star Realty, the Commission concluded that 

an employer-employee relationship did not exist since the record contained “no evidence that the 

company prescribed work hours, work methods, or any other aspect of the activities the [OSHA 

compliance officer] observed.” All Star Realty, 24 BNA OSHC at 1358. “Regarding the 

provision of tools, there [was] no evidence that the ladder or hand tool the brothers used on the 

day of the inspection belonged to All Star—in fact, the [compliance officer] testified that she saw 

no demolition equipment at the site, which is consistent with the company's contention that it had 

not yet begun its work.” All Star Realty, 24 BNA OSHC at 1359. 

Here, unlike in Allstate Painting, Byrd Telcom did control the hiring, firing and 

disciplining of the workers at the site; did supervise their work; and did supply them with 

equipment or safety gear. And unlike All Star Realty, Byrd Telcom did prescribe work hours; 

work methods; and the provision of tools. Further, as indicated supra, there was a long-term 

employment relationship between Byrd Telcom and these workers and Byrd Telcom retained 

control over the manner and means by which they performed their assignments. Vergona Crane 

Co., 15 BNA OSHC 1782, 1790 (No. 88–1745, 1992).

Other Evidence Supporting Employer-Employee Relationship

Sonny Byrd admitted to OSHA in connection with the fatality investigation on May 30, 

2013, that the company had 6 employees working at the worksite and had a total of 12 

employees. (Ex. C-5.) Byrd Telcom is incorporated in the State of Nevada and has its principle 

place of business in Baton Rouge, Louisiana. (Tr. 30-32, 74; Ex. C-19, C-20.) On May 30, 2013, 

the company filed an Amended List of Officers and Directors with the Nevada Secretary of State, 

which changed the name of the company’s President, Secretary, Treasurer and Director to “L. 
14

Sonny Byrd.” (Ex. C-20, p. 2.) Sonny Byrd’s statements made to OSHA during the investigation 

after the accident were made in his capacity as the company’s President, Secretary, Treasurer and 

Director and therefore were party admissions under Rule 801(d)(2). Significantly, at trial, when 

asked if the employee information he provided to OSHA on May 30, 2013 was accurate, Sonny 

Byrd testified, “It was probably accurate at the time.” (Tr. 150.) The company’s Job Safety 

Analysis form completed the morning of the accident also indicated all crew workers listed 

worked for Byrd Telcom and importantly, no subcontractors or independent contractors were 

listed. (Tr. 136-37; Ex. J-13.) Sonny Byrd’s admissions are consistent with similar admissions 

made by Ravan Byrd on April 3, 2013, in her capacity as Byrd Telcom’s President in the 

company’s “Contractor Profile,” that the company had 15 employees and did not have any 

subcontractors. (Ex. J-9, pp. 1, 2.) Ravan Byrd’s statements, made in in her capacity as Byrd 

Telcom’s President, that the company had 15 employees and no subcontractors, were also party 

admission under Rule 801(d)(2). 

The Court observed the demeanor of both Sonny Byrd and Ravan Byrd and assessed their

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

and corroborated. At trial, neither reflected a forthright and truthful demeanor. Rather than 

having been motivated by a desire to be truthful, their testimony appeared motivated by their 

deliberate and calculated attempt to support Byrd Telcom’s defensive posture— that their 

workers were not employees but were independent contractors. Much of their testimony was 

self-serving and clearly contradicted by both the documentary evidence of record and by the 

credible testimony of other witnesses. The Court finds much of their testimony was untruthful 

and an intentional attempt to mislead the Court. 
15

Both Sonny Byrd and Ravan Byrd asserted at trial that she had never been an officer of 

the company and that he was the company’s President at the time of the accident. (Tr. 20, 21-22, 

370-73.) However, Byrd Telcom’s “Initial List of Officers and Directors” filed with the Nevada 

Secretary of State at the time of incorporation on November 14, 2012, was signed by Ravan Byrd 

under penalty of perjury, where she certified that she was the company’s President, Secretary, 

Treasurer and Director. (Ex. C-19, p. 2.) Ravan Byrd also listed Sonny Byrd as the company’s 

“Vice-President” on the April 3, 2013, “Contractor Profile” and “Certificate of Corporate 

Incumbency and Authority.” (Ex. J-9, pp. 1, 2, 5.) As indicated supra, it was not until May 30, 

2013, two days after the accident, that Byrd Telcom filed an “Amended List of Officers and 

Directors” with the Nevada Secretary of State, which changed the name of the company’s 

President, Secretary, Treasurer and Director to “L. Sonny Byrd.” (Ex. C-20, p. 2.) Significantly, 

as indicated supra, less than two months prior to the accident, Ravan Byrd also signed a contract 

with Andrew on April 3, 2013, as the company’s President. (Ex. J-8, p. 5; Ex. J-9, pp. 1-5.) She 

also signed a “Request for Taxpayer Identification Number and Certification” (Substitute Form 

W-9), in her capacity as Byrd Telcom’s President, which certified under penalty of perjury the 

company was more than 50% owned, controlled and actively managed by a woman, which she 

admitted at trial referred to her. (Tr. 376; Ex. J-9, p. 4.) 

Further, although Ravan Byrd asserted at trial she had never worked for the company, she 

admitted she kept the books for Byrd Telcom, and Sonny Byrd referred to her as the company’s 

“bookkeeper.” (Tr. 22, 371.) Ravan Byrd signed many of the employment records on behalf of 

the company and Byrd Telcom required the foreman to text the employees’ daily start and stop 

times to either Sonny Byrd or Ravan Byrd. (Tr. 68, 210, 296, 551; Ex. C-8A, p. 33; see also Ex. 
16

J-19 through Ex. J-26.) Clearly, at the time of the accident, Ravan Byrd was the company’s 

President, Secretary, Treasurer and Director, and contrary to her testimony, she was actively 

involved in the daily operations and management of Byrd Telcom. 

At trial Sonny Byrd attempted to retreat from those party admissions by asserting the 

workers were independent contractors, not subcontractors, which is why, according to him, the 

company did not list any subcontractors in its “Contractor Profile.” (Tr. 52.) The Court does not 

find his testimony credible since he also testified “to me, a subcontractor and an independent 

contractor would be used [] the same,” (Tr. 50), which is corroborated by the company’s own use 

of both a “Joint Agreement to Affirm Independent Relationship for Certain Building and 

Construction Workers” form and a “Subcontractor Original Application” form. (See e.g. Ex. J19, pp. 2, 5.) More importantly, Byrd Telcom admitted in its post-trial brief it “hires 

subcontractors to perform the work on the jobs for which it is awarded contracts.” (Byrd 

Telcom’s Post-Trial Br., p. 3.) 

Further, these party admissions were not consistent with a lawsuit Byrd Telcom 

subsequently filed after the accident against its insurance carriers for cancelling its policies, 

including its worker’s compensation coverage, where the company is seeking a judgment that the 

insurance companies owe a duty to indemnify Byrd Telcom up to the limits of the applicable 

policies in any subsequent lawsuits that may be filed as a result of the deaths of [redacted] and 

[redacted].

11 (Tr. 57-58.) Under the Texas Workers' Compensation Act, Tex. Labor Code Ann. 

§§ 401.001, 401.012(b)(2) (West), the term “employee” expressly excludes “independent 

contractor or the employee of an independent contractor.” 

 

11 In that lawsuit, the insurance carriers have raised a material misrepresentation defense. (Tr. 60.)
17

Further, while it is true under Texas law a general contractor and a subcontractor may

enter into a written agreement under which the general contractor provides workers' 

compensation insurance coverage to the subcontractor and is treated as the employer of the 

subcontractor for the purposes of the Texas Workers' Compensation Act, see Tex. Labor Code 

Ann. § 406.123(a) & (b), Byrd Telcom offered no evidence that it had entered into such written 

agreements with its workers. To the contrary, Byrd Telcom’s “Joint Agreement to Affirm 

Independent Relationship for Certain Building and Construction Workers” with [redacted] and 

[redacted] expressly stated neither were entitled to worker’s compensation coverage by Byrd 

Telcom. (Ex. Ex. J-22, p. 9; J-23, p. 1.) 

Since Byrd Telcom is now seeking workers' compensation insurance indemnification 

coverage, and since the company offered no evidence that it had entered into written agreements 

to provide workers' compensation insurance coverage to either [redacted] and [redacted], the 

Court finds the preponderance of evidence shows it is seeking indemnification coverage because 

at the time of the accident [redacted] and [redacted] were employees. 

Callender’s Purported Subcontractor and Independent Contractor Documents

The day after the crew that had been on the worksite watched their two co-workers die, 

Sonny Byrd required the whole crew to come to the office and sign subcontractor and 

independent contractor documents. (Tr. 247, 253.) Not surprisingly, Callender credibly testified, 

“that day was so messed up, I wasn't in the right frame of mind because of the accident the day 

before, and I didn't even read or remember that stuff that I signed.” (Tr. 252-53.) “I normally 

don't even read those. When somebody gives me something and I’m working for somebody, I 

don’t go into the details of looking at it, I just sign it, you know.” (Tr. 253.)
18

Although the Circle B Electric and Tower Safety and Health Manual was used at the time 

of the accident, Sonny Byrd admitted the receipt Callender purportedly signed indicating he had 

received it, read it and understood it was different than the actual form contained on the last page 

of its manual. (Tr. 41-42; cf. Ex. J-19, p. 4 with Ex. J-4, p. 50.) Callender credibly testified he 

never received a copy of the manual and never saw it until it was shown to him at trial while he 

was on the witness stand. (Tr. 252.) He also testified the handwriting did not look like his and 

the “3” in the date filled in on that receipt form was not how he writes his “3’s.” (Tr. 255; see 

also Ex. J-19, p. 7.)

As to the subcontractor and independent contractor documents purportedly signed by 

Callender on May 29, 2013, there were two different W-9 forms. (Ex. J-19, pp. 1, 8.) Callender 

credibly testified the signature on the first W-9 was not his. (Tr. 246; see also Ex. J-19, p. 1.) 

He also credibly testified the handwriting on the second W-9 was not his, that the “3” in the date 

was different than his, and that where there the “X” appeared next to “Sole Proprietorship,” he 

did not even know what that meant. (Tr. 255-56; see also Ex. J-19, p. 8.) 

Further, Callender credibly testified he did not remember checking the box next to “Sole 

Proprietorship” on the “Subcontractor Original Application” form, and that he again did not even 

know what “Sole Proprietorship” meant. (Tr. 250-51; see also Ex. J-19, p. 2.) He also did not 

mark an “X” next to the box that stated “I am not an employer required to provide coverage 

under the Workers' Compensation Law,” and he credibly testified, “I don’t put “Xs” and “when I 

do something like that, I usually do a check.” (Tr. 251.) 

On the "Joint Agreement to Affirm Independent Relationship for Certain Building and 

Construction Workers" form, Callender admitted the May 29, 2013, signature was his but that 
19

somebody else filled out the section above his signature. (Tr. 253; see also Ex. J-19, p. 5.) As to 

the “Agreement Not to Compete,” Callender again testified he did not know what that was. (Tr. 

254-55; see also Ex. J-19, p. 6.) Therefore, the Court finds the documents signed by Callender

May 29, 2013, which were also signed by Sonny Byrd and/or Raven Byrd, were fraudulently 

altered after he signed them and are given no weight.

Other Purported Subcontractor and Independent Contractor Documents

Randy Davidson also purportedly signed subcontractor and independent contractor 

documents on March 18, 2012, March 15, 2013, and on May 29, 2013. (J-20.) Although Randy 

Davidson testified all of the handwriting and signatures on each of these documents were his, the 

Court does not find him a credible witness, in particular since he also testified he was not given a 

choice about whether or not he could sign these documents and still work for the company. (Tr. 

350-51.) Clearly, the March 18, 2012, and March 15, 2013, signatures do not match his May 29, 

2013, signature. (Cf. Ex. J-20, p. 1 with pp. 2, 3, 4, 5, 6, and 8.) Further, the March 18, 2012, 

documents would have necessarily involved Byrd Telcom’s predecessor, Circle B, and are not 

relevant to establish the type of employment relationship he had with Byrd Telcom on the day of 

the accident. Likewise the May 29, 2013, documents signed after the accident are not relevant to 

establish the type of employment relationship he had with Byrd Telcom on the day of the 

accident. 

The documents purportedly signed by Allen Martin on May 2, 2013, contain a W-9 form 

that was not signed or dated. The remaining documents contained signatures that appear not to 

match. (Ex. J-24, cf. p. 2 with pp. 3 and 6.) Likewise, [redacted] purportedly signed Byrd 

Telcom’s employment application on March 5, 2013, (Ex. J-22, pp. 1-2, 4-6), and that same day 
20

purportedly signed independent contractor and subcontractor documents. (Id., pp. 3, 7-10.) 

However, the Court finds the signature on the W-9 form included as part of the independent 

contractor and subcontractor documents did not match any other signatures purportedly signed 

by [redacted]. (Id., p. 10.) The agreement not to compete was also not a Byrd Telcom form but 

rather was a Circle B form and was not signed by anyone from Byrd Telcom. (Ex. J-22, p. 7.) 

John Davidson purportedly signed employment documents on January 18, 2012, which 

again, would have necessarily involved Byrd Telcom’s predecessor, Circle B, and are not 

relevant to establish any employment relationship with Byrd Telcom on the day of the accident. 

(Ex. J-21, pp. 9-10.) Likewise, records purportedly signed by Claudia Trammell on May 30, 

2012, involving Byrd Telcom’s predecessor, Circle B, are not relevant to establish any 

employment relationship with Byrd Telcom on the day since there is no dispute she was no 

longer employed by Byrd Telcom on the day of the accident. (Ex. J-25.) Finally, the purported 

signatures of the deceased, [redacted], on March 19, 2013, did not match his signature on his 

social security card. (Ex. J-23.) 

Given the Court’s finding supra that Callender’s May 29, 2013, documents, which were 

signed by Sonny Byrd and/or Raven Byrd, were fraudulently altered, the Court accords little 

weight to any of these other purported subcontractor and independent contractor documents, 

which were also signed by Sonny Byrd and/or Raven Byrd. 

Byrd Telcom argues in its proposed Findings of Fact and Conclusions of Law it “did not 

have sufficient control of its subcontractors’ daily activities under the Circuit’s economic 

realities test to justify employer status under the Act.” (Byrd Telcom’s Proposed Findings and 

Conclusions, p. 1 ¶¶ 1, 2.) Byrd Telcom also argues in its post-trial brief that in Hopkins v. 
21

Cornerstone America, 545 F.3d 338, 343 (5 Cir. 2008), the Fifth Circuit “has interpreted the 

Darden factors to evaluate employee status based on an ‘economic-realities’ test.” (Byrd 

Telcom’s Post-Trial Br., p. 29.) Thus, Byrd Telcom asserts “the focus is on whether the worker 

is economically dependent upon the alleged employer or is instead in business for himself.” Id.

The Court finds no merit in these arguments.

Prior to Darden, the Commission applied the “economic realities test,” which was 

premised on the legal proposition that the term “employer” under the Act was not limited to 

employment relationships as defined under common law principles but rather was to be broadly 

construed in light of the statutory purpose and the economic realities of the relationship at issue. 

S & S Diving Co., 8 BNA OSHC 2041, 2042 (No. 77–4234, 1980). However, “the Commission 

modified that proposition” in Vergona “in order to conform Commission precedent to [the]

intervening [Darden] Supreme Court decision[.]” Timothy Victory, 18 BNA OSHC at 1027.

Further, Hopkins was decided applying the definitions contained in the Fair Labor 

Standards Act, not the Occupational Safety and Health Act, and is therefore distinguishable from 

the present case. However, in Equip. Holdings v. O.S.H.C., 203 F.3d 828, (5th Cir. 1999), a case 

that is on point and was decided after the Commission abandoned the “economic-realities” test in 

Vergona and Timothy Victory in lieu of the Darden factors, the Fifth Circuit affirmed the 

Commission’s final order, expressly noting in that case the Commission utilized the Darden

factors to determine employer-employee relationships.

Thus, examining the circumstances of this case in light of the Darden factors, and in 

conjunction with employment records, supra, which are either questionable, were related to 

employment with Circle B, or were dated after the accident, coupled with the use of Circle B’s 
22

safety manual, which references the possibility of termination from employment for safety 

violations, and significantly, the party admissions made by both Sonny and Ravan Byrd, the 

Court concludes the preponderance of evidence shows Byrd Telcom’s workers were employees. 

B. Instance (a) of Item 2

Existence of a Hazard

The Secretary asserts in Instance (a) of Item 2 Byrd Telcom committed a serious 

violation of the general duty clause when employees “were exposed to struck-by hazards while 

raising a gin pole and were not protected by a properly secured top (hook) block used in raising a 

gin pole.” (Compl. ¶ III, a.) 

Ayub, the Secretary’s expert in engineering and structural design, opined “[c]arabiners 

are manufactured to be used in certain manner. The load is in the major axis of the carabiner, 

along the spine of the carabiner.” (Tr. 615-16; see Ex. J-32.) Ayub further explained that “the 

support needs to be right above the load so that the carabiner is subjected to tension, no bending 

and no flexion, always with tension. This is how it is designed to be used.” (Tr. 616-17.) This is 

called “concentric loading,” which is “the only way the carabiner can be used. There is no other 

way it can be used other than you can also pull it in the minor axis but the load and the support 

have to be in the same line.” (Tr. 644; see also Ex. J-14, p.21 Fig. 27, Ex. J-32.) In his expert 

opinion, the manner in which Byrd Telcom’s workers used the carabiner subjected it to flexural 

moment—bending—and resulted in the carabiner breaking, releasing the gin pole and its rigging. 

(Tr. 644-45.) Specifically, the load was pulling downward on the major axis but the support for 

the load was on the side of the carabiner at the gate, which was in the hole of the top plate; there 

was no support concentric with the load, just air. (Tr. 644-45; see also Ex. J-14, p. 22 Figs 28-
23

33.) The non-concentric loading of the carabiner is what caused it to bend and then break. (Tr.

644-45; see also Ex. C-12A-D.)

Further, Ayub and OSHA’s laboratory in Salt Lake City, Utah, calculated that the total 

weight of the load placed on the carabiner, the gin pole and its rigging components, including the 

rooster head and wire rope, was approximately 3600 pounds. (Tr. 650-51; see also Ex. J-3, pp. 4-

5.) The tensile strength is the breaking point—the maximum load should only be about 3300-

3500 pounds, because there needs to be a factor of safety. (Tr. 646-47.) Likewise, although the 

carabiner’s minor axis tensile strength is 3,600 pounds (which might have sustained the load 

being lifted even if the support for the load was directly on the carabiner gate), the tension of the 

load was not directly opposite the carabiner’s gate along the minor axis. (See Ex. J-14, pp. 16-17, 

20; Ex. J-32.) According to Ayub, 3600 pounds is the carabiner’s breaking point—the load 

should not be more than 1000 pounds in order to ensure a factor of safety. (Tr. 647.) 

Further, the intended use of the holes in the top plates of the tower was to bolt the next 

section of the tower when building it upward; a tower section is placed on top and then bolts are 

used to secure the plates together by placing bolts through the holes. (Tr. 428.) Those holes in the 

top plate were neither designed nor intended to hold rigging to hoist heavy steel equipment up 

the tower. Indeed, Ayub testified that when the carabiner was failing, it created indentations in 

the top plate. (Tr. 649-50; see also Ex. J-14, p. 24, Figures 36 and 37.) 

The Court concludes the combination of using the carabiner for hoisting and threading it 

through the hole in the top plate created unsafe nonconcentric loading, which created a struck-by 

hazard from the failure of the carabiner causing the gin pole to release and fall, which occurred 

in this case. Since two employees were killed, the Secretary has shown the cited condition 
24

actually posed a hazard to employees.

Recognized Hazard

Under the second element, a recognized hazard is “a condition ‘that is known to be 

hazardous' ” and “can be established by proving that the employer had actual knowledge that a 

condition is hazardous” or “by proving that the condition is generally known to be hazardous in 

the industry.” Acme Energy Servs. v. OSHRC, 542 F. App'x 356, 363 (5th Cir. 2013). Actual 

knowledge on the part of the employer is not required; rather, “the question is whether the hazard 

is recognized by the industry of which [the employer] is a part.” Arcadian, 110 F.3d at 1197 n. 5 

(citation omitted). As indicated infra, the Secretary has established both employer recognition 

and industry recognition of this hazard. 

Employer Recognition

The Secretary asserts, and the Court agrees, evidence establishes that Byrd Telcom

recognized the hazard. Randy Davidson, the company’s Construction Manager, admitted the use 

of the carabiner to hoist the gin pole was “unsafe.” (Tr. 358.) He also testified that it was 

important for the rigging to be done properly for safety and that he had never hoisted a gin pole 

up a cell tower using a carabiner in lieu of the slings (or choker) and shackle method. (Tr. 312, 

326.) He had 12 years of experience in the industry and had done about 40 gin pole jobs before 

the accident on May 28, 2013, and had been taught to rig the gin pole to the top of the tower by 

wrapping two slings or chokers around two of the tower legs and securing them in the center 

with a shackle, to make a “V” formation. (Tr. 290; see also Ex. J-31.) The top block (hook) is 

then placed into the shackle in the center of the face of the tower. Randy Davidson learned this 
25

technique while employed with two previous tower/telecommunications companies, RP 

Communications, and Baggett Construction. (Tr. 307.) 

Callender, who had 20 years of experience in the tower/telecommunications industry, 

also testified that the use of a carabiner to hoist the gin pole in the manner used was improper 

and unsafe based on his training within this industry. He testified that he was taught how to rig a 

gin pole to hoist up a tower about 17 years ago and “was taught to take two metal slings for one 

on each pole or tower. Put a block in the center [where there is shackle] and raise it like that.” 

(Tr. 205, 240.) Callender performed the work of attaching the rigging to the top of the tower 

numerous times and had always done it that same way—never with a carabiner. (Tr. 219-20.) 

Callender testified that if you rigged the gin pole to the top of the tower by placing a carabiner in 

one leg of the tower, the gin pole would veer off to the side of the tower where the carabiner was 

attached, instead of going up the center of the face of the tower. (Tr. 220.) Moreover, Callender 

said he would never use a carabiner to hoist a gin pole because there would be too much weight 

on the carabiner. (Tr. 240-41; see also Ex. C-8A, pp. 51-52.) Therefore, the Secretary 

established Byrd Telcom recognized the hazard associated with improperly secured rigging. 

Industry Recognition

The Commission has held that expert testimony and other sources such as industry 

publications and standards can demonstrate that the hazard is recognized in the employer’s 

industry. See American Phoenix, Inc., 24 BNA OSHC 2228, 2014 (No. 11-2969, 2014) (citing

decisions that recognize ANSI standards reflect industry consensus). “Where a practice is 

plainly recognized as hazardous in one industry, the Commission may infer recognition in the 

industry in question.” Arcadian, 20 BNA OSHC at 2997. Byrd Telcom’s industry recognizes the 
26

hazard of using a carabiner in the improper manner in which it was used by Byrd Telcom on its 

worksite on May 28, 2013. 

The relevant national consensus standard, ANSI/TIA-1019-A-2012, the American 

National Standards Institute’s (ANSI) Telecommunications Industry Association (TIA) Standard 

for Installation, Alteration and Maintenance of Antenna Supporting Structures and Antennas, 

establishes industry recognition of the hazard. As this ANSI/TIA standard indicates, the 

“[i]nformation contained in this Standard was obtained from available sources and represents, in 

the judgment of the subcommittee, the accepted Industry minimum standard for the installation, 

alteration and maintenance of antenna supporting structures and antennas.” (Ex. R-10, p. 13.) 

Although it defines rigging as “cables, shackles, slings, blocks, gin pole, load line, jump line, tag 

line, etc...used in construction,” carabiners are not included in that definition. (Ex. R-10, p. 16.) 

A relevant expert’s testimony is also sufficient evidence in and of itself to establish that a 

particular industry recognizes a hazard. See Kelly Springfield Tire Co., Inc. v. Donovan, 729 F.2d 

317, 322 (5th Cir. 1984) (holding that expert testimony established recognition of hazard); see 

also National Realty and Constr. Co. v. OSHRC & Secretary, 489 F.2d 1257, 1265 n.32 (D.C. 

Cir. 1973) (noting that recognition standards center on “the common knowledge of safety experts 

who are familiar with the circumstances of the industry or activity in question.”). 

At trial, Vermillion, Byrd Telcom’s own expert, testified that he was a certified rigger 

and “would never use a carabiner to jump a gin pole.” (Tr. 762.) Ayub also testified that the use 

of a carabiner in place of the shackle in the “V” formation would be an unsafe use of the 

carabiner and contrary to its intended use by the manufacturer because it is triaxial loading (the 

load is pulling downward and the support for the load is on two sides of the carabiner and not 
27

concentric with the load), for which the carabiner was not designed. (Tr. 801.) Importantly, 

according to PenSafe, the manufacturer of the carabiner involved in the accident, carabiners are 

certified safety rated for fall protection only and are not intended for hoisting heavy steel 

equipment. (Tr. 471; see also Ex. J-10.) Further, in Ayub’s expert opinion, “there is not one 

manufacturer of the carabiner which will let you use the carabiner in the manner that [Byrd 

Telcom] did.” (Tr. 672.) Thus, it is clear that the telecommunication industry recognizes the 

hazard of using a carabiner for hoisting heavy equipment and that the carabiner manufacturers 

recognize the hazard of non-concentric application of loads with their support. Therefore, the 

Secretary established industry recognition of this hazard. 

Employee Exposure

“The goal of the Act is to prevent the first accident,” Owens-Corning Fiberglass, Corp. v. 

Donovan, 659 F.2d 1285, 1290 (5th Cir. 1981), “not to serve as a source of consolation for the 

first victim or his survivors.” Mineral Indus. & Heavy Constr. Group v. OSHRC, 639 F.2d 1289, 

1294 (5th Cir. 1981). The Secretary “need not prove that a given employee was actually 

endangered by the unsafe condition, but only that it was reasonably certain that some employee 

was or would be exposed to that danger.” Mineral Industries, 639 F.2d at 1294 (citing Gilles v. 

Cotting, Inc., 3 BNA OSHC 2002 (No. 504, 1976)). “Thus, the ‘likely to cause death or serious 

physical harm’ aspect of the General Duty Clause violation does not require the Secretary to 

prove that particular, identifiable employees in fact were exposed to a hazardous condition. It is 

the dangerous condition itself that gives rise to a violation of the Clause.” Arcadian, 110 F.3d at 

1197 n. 5.
28

Here, however, it is undisputed that two workers died as a result of struck-by hazards 

while raising the gin pole and were not protected by a properly secured top (hook) block used in 

raising a gin pole. Additionally, John Davidson was also on the tower at the time of the accident 

and Grimes, Allen and Callender were working on the ground. Therefore, it was reasonably 

certain all of these employees were exposed to death or serious physical harm from the falling 

equipment. Accordingly, the Secretary has proven employee exposure.

Preventable Hazard

The struck-by hazard Byrd Telcom’s employees were exposed to while raising the gin 

pole could easily have been prevented had the company simply followed the industry practice for 

safe and proper rigging of gin poles by wrapping two slings or chokers, one around each leg of 

the tower, and connecting them in the center with a shackle to create a “V” formation. (Tr. 205, 

240, 309-10, 312, 653, 762-63.) Accordingly, the Secretary has proven the cited hazard was 

preventable.

B. Instance (c) of Item 2

Existence of a Hazard

The Secretary asserts in Instance (c) of Item 2 Byrd Telcom committed a serious 

violation of the “general duty” clause when “the gin pole was not permanently marked with an 

identification number that references a specific load chart and gin pole weight, thereby exposing 

employees on and near the tower to struck-by hazards while raising the gin pole.” (Compl. ¶ III, 

c.) Sauls and Ayub testified that the inability to associate a gin pole with its load chart could 

result in struck-by hazards from equipment or the tower failing. As Sauls credibly testified, if 

employees cannot identify the correct load chart for the gin pole they are using, they will not 
29

know how much load it can carry. (Tr. 475, 515, 652). Sauls also testified that in addition, the 

gin pole provides the weight of the rigging as well as the load for raising the load up to the top of 

the tower. Part of the rigging weight is also the gin pole weight, which can be used to determine 

what type of equipment to use to secure the top block at the top of the tower. Therefore, the 

marking of the gin pole to associate it to a specific load chart is important to the jump line and 

raising the gin pole up the tower. (Tr. 515-16). Further, the only reason the workers did not get 

to actually place a load on the load line to hoist up the tower after the gin pole was in place was 

because the initial rigging to jump the gin pole failed. But for the accident, the employees would 

have been exposed to a secondary struck-by hazard from the load line’s potential failure.

Therefore, the Secretary has shown the cited condition actually posed a hazard to employees.

Recognized Hazard

Industry recognition of the hazard of not properly marking the gin pole is again 

evidenced by ANSI/TIA-1019-A-2012, which mandates in section 6.2.6, that identification for a 

gin pole shall be as follows:

a) Each gin pole assembly and associated rooster head shall be permanently marked 

or otherwise clearly referenced for identification to its load chart. 

b) The gin pole installation documents shall identify sections requiring a specific 

installation sequence and the sections shall be appropriately marked.

c) If a track is used to lift, or jump a gin pole, it shall be identified and acceptable 

rigging arrangements shall be included in the installation documents.

(Ex. J- 28, p. 3-4; Ex. R-10, pp. 67-8.) 

Byrd Telcom “claims there were adequate markings related to the Gin Pole and load chart 

of said Gin Pole in question.” (Joint Pretrial Order, Attach. D ¶ 5.) The Court does not agree. 

The gin pole consisted of four sections, one red, one blue, and two white. (Tr. 652, 662.) Byrd 

Telcom argues “[t]he stamp on the gin pole section shown in Exhibits R-7(a) and 7(b) offers a 
30

clear picture of the corresponding serial number[.]” (Byrd Telcom Br., p. 23.) However, both 

exhibits relied on by Byrd Telcom depict a white gin pole section and Sonny Byrd admitted the 

white section was not at the worksite at the time of the accident, which was confirmed by 

Callender. (Tr. 193, 237.) More importantly, Sonny Byrd admitted the red and blue gin pole 

sections that were onsite were not marked at the time of the accident. (Tr. 193-94.) 

Byrd Telcom also argues the load chart does not have to be at the worksite because, “the 

regulation just simply says, ‘it’s stamped.’ So that anybody who wants to know, including 

contractors and employees, could identify this gin pole with this load chart.” (Tr. 191.) Byrd 

Telcom’s argument is not germane to Instance (c) of Item 2, which asserted “the gin pole was not 

permanently marked with an identification number that references a specific load chart and gin 

pole weight.” Further, even if germane, the Court does not agree with Byrd Telcom. The 

ANSI/TIA-1019-A-2012 standard mandates “lifted loads shall be field verified prior to the lift 

unless the weight is confirmed by the Competent Rigger or Qualified Person.” (Ex. R-10, p. 30.) 

Clearly, the lifted loads could not be field verified prior to the lift if the load chart was not onsite.

Accordingly, the Secretary has established industry recognition of the hazard, and further,

with Sonny Byrd’s admission that the red and blue gin pole sections onsite at the time of the 

accident were not marked, the Secretary has established Byrd Telcom failed to comply with that 

national standard. 

Employee Exposure

It is undisputed that two workers died as a result of the company’s failure to permanently 

mark the gin pole with an identification number that references a specific load chart and gin pole 

weight. Additionally, John Davidson was also on the tower at the time of the accident and 
31

Grimes, Allen and Callender were working on the ground. Therefore, it was reasonably certain 

all of these employees were exposed to death or serious physical harm from the falling 

equipment. Accordingly, the Secretary has proven employee exposure. Byrd Telcom did not 

refute this evidence. The Secretary has shown the cited condition actually posed a hazard to 

employees.

Preventable Hazard

The cited hazard could easily have been prevented had the company simply followed the 

industry practice of properly marking the red and blue gin pole sections that were onsite the day 

of the accident with references to a specific load chart and gin pole weight and following the 

industry standard of field verifying the lifted loads prior to the lift “unless the weight is 

confirmed by the Competent Rigger or Qualified Person.” Accordingly, the Secretary has 

proven the cited hazard was preventable.

C. Unpreventable Employee Misconduct Defense

Byrd Telcom asserts the procedures and training in place were within the reasonable 

standards used in the industry, and further, the workers’ own failure to follow the procedures and 

polices put into place by Byrd Telcom was the sole and proximate cause of the accident. (Byrd 

Telcom’s Post-Trial Br. p. 7.) In the Fifth Circuit, the affirmative defense of unpreventable

employee misconduct “requires the employer to show (1) that it has established work rules 

designed to prevent the violation; (2) that it has adequately communicated these rules to its 

employees; (3) that it has taken steps to discover violations; and (4) that it has effectively 

enforced the rules when violations have been discovered.” Sanderson Farms, Inc. v. OSHRC, 
32

348 F. App'x 53, 57 (5th Cir. 2009) (citing W.G. Yates & Sons Const. Co. v. OSHRC, 459 F.3d 

604, 609 (5th Cir.2006). 

Further, “a supervisor's knowledge of his own malfeasance is not imputable to the 

employer where the employer's safety policy, training, and discipline are sufficient to make the 

supervisor's conduct in violation of the policy unforeseeable.” W.G. Yates & Sons Const., 459 

F.3d at 608-09. Byrd Telcom asserts in its proposed Findings of Fact and Conclusions of Law 

that “the law of the 5th Circuit as held in the Horne and WG Yates opinions apply and are 

controlling in this case” and under the controlling case law, the Secretary “has the burden of 

proving constructive notice [through] substantial evidence when [he is] unable to impute the 

knowledge of a supervisory employee on to the employer because the supervisory employee was 

responsible for violative act.” (Byrd Telcom’s Proposed Findings and Conclusions, p. 2 ¶2.)

In Horne, the Fifth Circuit held an employer who had done everything possible to insure 

compliance with the Act short of personally directing the trenching operation himself could not 

be held liable on imputation theory for violation of Act because of conscious violations of Act by 

his experienced foremen who were thoroughly familiar with employer's safety program and 

requirements of Act. Horne Plumbing & Heating Co. v. OSHRC, 528 F.2d 564 (5th Cir. 1976). 

Here, however, unlike in Horne, Byrd Telcom did not do everything possible to insure 

compliance with the Act and John Davidson was not an experienced foreman who was 

thoroughly familiar with Byrd Telcom’ safety program and requirements of Act. 

Likewise, in WG Yates, the Fifth Circuit held a supervisor’s knowledge of his own 

malfeasance is not imputable to the employer where the employer's safety policy, training, and 

discipline were sufficient to make the supervisor's conduct in violation of the policy 
33

unforeseeable. Here, unlike in W.G. Yates, since John Davidson was not a supervisor, the 

Secretary is not imputing a supervisor's knowledge of his own malfeasance. Therefore, neither 

Horne nor W.G. Yates are controlling. 

Further, the Secretary argues, and the Court agrees, there is sufficient evidence of 

constructive knowledge in this case based on Byrd Telcom’s inadequate safety program. Byrd 

Telcom had no work rules regarding the use of gin poles and the proper manner to rig a gin pole 

to a tower. (Ex. C-7, p. 48; see generally Ex. J-4.) The safety manual was similarly silent as to 

carabiners and their appropriate uses. Randy Davidson testified that although he received the 

safety manual he did not read it. (Tr. 352-53). Callender also testified he never received the 

safety manual, but if he did, he did not read it. (Tr. 252). To the extent Byrd Telcom asserts 

someone from Andrew told Byrd Telcom’s workers not to use carabiners, the Court finds it is 

not relevant since, as indicated supra, John Davidson credibly testified that no one gave him this 

directive. Therefore, the Court finds Byrd Telcom did not have work rules designed to avoid the 

cited violations. Thus, the Secretary has also established Byrd Telcom did not effectively 

communicate work rules regarding gin poles and rigging gin poles because it had none. 

Moreover, the Court concludes Byrd Telcom did not adequately train its employees or 

provide them with safe equipment. John Davidson testified had 71⁄2 years of experience in the 

tower industry (as of the date of trial) and 31⁄2 of those with Circle B Towers or Byrd Telcom. 

(Tr. 523, 528). All of his training however, came from other employers. (Tr. 528, 539-40). He 

received gin pole training from a previous employer who taught him to use anything to rig a gin 

pole, including carabiners. (Tr. 541). He did not know the full weight of the gin pole and its 
34

rigging and assumed that a carabiner—that he believed was rated for 3600 pound—rigged to a 

hole in a top plate of one leg of the cell tower was adequate to jump the gin pole. 

Significantly, prior to the Georgetown worksite, John Davidson had worked on “very 

few,” a “handful at the most,” of gin pole jobs and had never personally done the rigging to jump 

the gin pole because someone with more experience rigged the gin poles. (Tr. 524, 540.) 

Although he had done one gin pole job with Byrd Telcom prior to the Georgetown worksite, 

even on that job someone with more experience rigged the gin pole to the tower. (Tr. 541-42.)

The Georgetown worksite was the first time John Davidson had set up the rigging to jump the 

gin pole up the tower. (Tr. 546-47.) He credibly testified he wanted to wait for someone more 

experienced to be able to do the rigging but Sonny Byrd wanted to have the job completed before 

the Memorial Day holiday. (Tr. 559-60.) 

Clearly, John Davidson was not adequately trained and did not appreciate that the use of 

the carabiner was unsafe since he believed all carabiners had a breaking strength of 5500 pounds

(Tr. 542). He also selected the biggest carabiner because he thought it would be the strongest. 

(Tr. 545). He was unaware of the lifting limitations of a carabiner. The week prior to the 

accident when he placed the carabiner in the top plate of one tower leg, Trammell was the 

foreman in charge of the worksite, even though she had no experience in climbing towers and no 

experience in rigging gin poles. (Tr. 533-34, 543, 547). Byrd Telcom put forth no evidence to 

contradict this testimony. 

Byrd Telcom argues “every witness with direct knowledge of the accident testified that 

John Davidson was the foreman of the job with direct supervisory authority over the work being 

performed with the exception of John Davidson himself.” (Byrd Telcom’s Post-Trial Br., p. 16.) 
35

The Court does not agree. Although Callender denied that he was the foreman the day of the 

accident, John Davidson credibly testified he thought the foreman the day of the accident was 

either Callender or his brother Randy since they had the most experience. (Tr. 208, 558-59.)

Callender admitted the day of the accident was his first day back to work at Byrd Telcom,

and that prior to the accident and after the accident, his job title with Byrd Telcom was 

“foreman.” (Tr. 208-09.) He also admitted part of the duties of the foreman at the worksite was 

to conduct the Job Safety Analyses. (Tr. 208.) Importantly, John Davidson’s undisputed 

testimony was that although he signed the “Job Safety Analysis” (JSA) form, he did not do the 

safety meeting the morning of the accident—Callender “did the talking part.” (Tr. 208, 553-54.) 

The Court finds the preponderance of evidence established Callender, not John Davidson, was 

the foreman at the worksite the day of the accident.

Randy Davidson also admitted he was acting in a supervisory role that day, and the Court

concludes he should have known how the rigging had been done, in particular since he signed 

the “Equipment Basics Checklist” as the Project Manager on May 20, 2013, which indicated the 

specific equipment that had been inspected. (Ex. J-18.) He admitted while on site, he did not do 

anything to ensure that the rigging had been done properly and safely and that he left the site 

while the hazardous work was in progress. (Tr. 272). Randy Davidson’s admissions corroborate 

John Davidson’s testimony that during the time that he worked for Byrd Telcom, no one ever 

came to worksites to monitor safety or check for safety issues. (Tr. 569). Ironically, Byrd 

Telcom’s own expert, Vermillion, testified that in a speech he gave at a meeting of the National 

Association of Tower Erectors, he emphasized that contractors need more oversight and 
36

supervision of their workers given that the tower industry had 13 deaths in 2013, and at least 9 in 

2014. (Tr. 761-62). 

Randy Davison testified emphatically that the use of the carabiner was wrong and unsafe. 

(Tr. 318, 358.) His testimony on this point was corroborated by the Secretary’s expert, as well as

by Callender, who had 20 years of experience in the industry. (Tr. 240-41; Ex. C-8A, pp. 45, 51-

52.) Although Byrd Telcom argued John Davidson went rogue and committed misconduct, he 

nonetheless was not disciplined by Byrd Telcom for his use of the carabiner in hoisting the gin 

pole. (Tr. 570). Therefore, the Court finds Byrd Telcom did not correct hazards or enforce safety 

rules through a progressive disciplinary program. 

Moreover, the conflicting testimony about who was in charge at the worksite on the day 

of the accident is further evidence of the company’s inadequate supervision. Further, assuming 

arguendo John Davidson was the foreman at the worksite the day of the accident, Byrd Telcom’s 

placement of an inexperienced supervisor in charge of a worksite is indicative of its lax attitude 

toward safety. Because the Secretary established that Byrd Telcom did not have work rules 

designed to avoid the cited violations, the Secretary also established Byrd Telcom necessarily 

failed to adequately communicate the required rules. Accordingly, constructive knowledge is 

also imputed to Byrd Telcom based on its inadequate safety program.12

 

12 Byrd Telcom pleaded in its Answer that compliance was “infeasible, impractical and contrary to industry 

custom,” the inspection “did not comply with §8(a) of the Act and violated the Fourth Amendment to the United 

States Constitution,” and the “cited regulations and/or Complainant's interpretation of the cited regulations are 

overly ambiguous and insufficient to apprise the Respondent of its legal obligations regarding compliance with the 

Occupational Safety and Health Act of 1970, 29 U.S.C. §651, et seq.” As to Byrd Telcom’s argument that 

compliance was “infeasible, impractical and contrary to industry custom,” the Court disagrees. As indicated supra, 

compliance was clearly feasible, practical and could have been completed according to industry custom. As to the 

remaining defenses, Byrd Telcom waived them since it failed to present any evidence on those defenses. Dole 

Packaged Food Co., 14 BNA OSHC 1368, 1372 (Nos. 88-0665 and 88-2672, 1989).
37

IV. PENALTY DETERMINATION

“The Commission has the exclusive authority to assess penalties once a proposed penalty 

is contested.” Chao v. OSHRC, 401 F.3d 355, 376 (5th Cir. 2005) (citing Arcadian, 110 F.3d at 

1199). See also Hern Iron Works, Inc., 16 BNA OSHC 1619, 1624 (No. 88-1962, 1994). 

“Section 17(j) of the [ ] Act, 29 U.S.C. § 666(j), guides the Commission's assessment of a 

penalty.” Id. (citing J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2216 (No. 87-2059). The 

Commission is to “giv[e] due consideration to the appropriateness of the penalty with respect to 

[1] the size of the business of the employer being charged, [2] the gravity of the violation, [3] the 

good faith of the employer, and [4] the history of previous violations.” Id. “These factors are not 

necessarily accorded equal weight....” Id. (citing J.A. Jones, 15 BNA OSHC at 2216). 

“Gravity of violation is the key factor,” see id., which “is based on the number of 

employees exposed, duration of exposure, likelihood of injuries, and precautions against 

injuries.” Siemens Energy and Automation, Inc., 20 BNA OSHC 2196, 2201 (No. 00-1052, 

2005). The Court has considered Byrd Telcom’s size, history of violations, and good faith, but 

finds the gravity of the serious violation warrant the assessment of the maximum penalty, even if 

Byrd Telcom rated “perfect marks on the other three criteria.” Nacirema Operating Co., Inc., 1 

BNA OSHC 1001, 1003 (No. 4, 1972). 

As to the gravity of the violation, two employees were tragically killed. Given the 

fatalities that did occur, and the high probable extent of physical injuries should future accidents 

occur, the Court finds the gravity of the hazard is high. For the serious violation, Byrd Telcom is 

subject to a civil penalty of up to $7,000.00. 29 U.S.C. §666(b). The Secretary proposed the 

maximum statutory civil penalty of $7,000.00, which the Court finds appropriate. Accordingly, 
38

IV. ORDER

IT IS HEREBY ORDERED THAT amended Instances (a) and (c) of Item 2 are AFFIRMED

and Byrd Telcom is assessed and directed to pay to the Secretary a civil penalty of $7,000.00.

13

SO ORDERED THIS 28th day of September, 2015.

/s/

JOHN B. GATTO, Judge

U.S. Occupational Safety and 

Health Review Commission

 

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

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