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. 16-2022 

TONY WATSON, d/b/a Countryside 

Tree Service, 

Respondent. 

APPEARANCES: 

For the Complainant: 

Terrence Duncan, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

New York, New York 

For the Respondent: 

William Fanciullo, Esq. 

Fanciullo Law Firm 

Slingerlands, New York 

BEFORE: William S. Coleman 

Administrative Law Judge 

DECISION AND ORDER 

Countryside Tree Service is a sole proprietorship of the Respondent, Mr. Tony Watson, 

that is engaged in the tree service business in Schenectady, New York. On May 4, 2016, a fiveperson crew that Watson led was removing trees in a residential area when a new employee – his 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

first day on the job in the tree service industry – got ensnared in the Respondent’s woodchipper1 

and was killed. Officials from the Albany area office of the Occupational Safety and Health 

Administration (OSHA) conducted an inspection and investigation, after which on November 2, 

2016, OSHA issued the Respondent a one-item willful citation and a four-item serious citation. 

OSHA proposed the then maximum permissible penalty for the willful citation of $124,709, and 

proposed penalties totaling $17,102 for the four serious citation items. 

The willful citation alleged that on the day of the fatality the Respondent violated section 

5(a)(1) of the Occupational Safety and Health Act of 1970. 29 U.S.C. §§ 651-678 (the Act). 

Section 5(a)(1) is commonly known as the “general duty clause” and requires that each employer 

“furnish to each of his employees employment and a place of employment which are free from 

recognized hazards that are causing or are likely to cause death or serious physical harm to his 

employees.” 29 U.S.C. § 654(a)(1). The willful citation alleged that on the day of the fatality, 

the Respondent violated section 5(a)(1) at three separate worksites (each worksite being alleged 

as a separate instance of the alleged violation) in the following manner: 

On or about May 4, 2016, employees were exposed to rotating blades 

and moving parts while feeding tree limbs into the Bandit Hand Fed 

Wood Chipper (Model # 250, Serial # 19349) in that the employer failed 

to ensure that only employees trained in safe operation operated chippers 

and that only safe operating practices and techniques were used for 

feeding the chipper. 

The four-item serious citation alleged violations of certain personal protective equipment 

(PPE) standards codified in subpart I of 29 C.F.R. pt. 1910. The serious citation items alleged 

that at three separate worksites on the day of the fatality there were failures (1) to wear leg 

protection while operating chainsaws, (2) to use protective eyewear during tree removal, tree 

1 This piece of equipment is referred to in the hearing record variously as a “woodchipper” or 

“wood chipper,” “brush chipper,” and simply “chipper.” All similar references in this decision 

pertain to that single item of equipment. 

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trimming, and feeding a wood chipper, (3) to wear protective helmets during overhead crane 

operations and tree trimming from height, as well as for protection from struck-by hazards while 

loading a wood chipper, and (4) to train employees on certain PPE that employees were required 

to use. 

The Respondent filed a timely notice of contest and thereby invoked the jurisdiction of 

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

of the Act. 29 U.S.C. § 659(c). The Commission docketed the matter on December 5, 2016, and 

the Secretary thereafter filed his formal complaint wherein the Secretary re-alleged the 

allegations set forth in the citations, to which the Respondent filed an answer denying the alleged 

violations and interposing certain defenses. The Commission’s Chief Judge assigned the matter 

to the undersigned for hearing and decision. The hearing was conducted in Albany, New York, 

on October 25-27, 2017. Post-hearing briefing was completed on March 19, 2018. 

The principal issues for decision are as follows: 

• Did the Secretary prove by a preponderance of the evidence that Watson violated 

the PPE standards respecting leg protection, eye protection, protective helmets, 

and the training requirement for those items of PPE? (Citation 1, items 1 through 

4) 

Decision: Yes. The Secretary proved all four alleged PPE violations. 

• Did the Secretary prove by a preponderance of the evidence that inadequately 

trained workers were feeding the chipper, and that workers were feeding the 

chipper using unsafe practices, at any of the three worksites on May 4, 2016? 

(Citation 2) 

Decision: Yes. The Secretary proved all elements of the alleged general duty 

clause violation. 

• Did the Secretary prove by a preponderance of the evidence that the violation of 

the general duty clause was willful within the meaning of section 17(a) of the 

OSH Act? (Citation 2) 

Decision: Yes. 

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• What are the appropriate penalties for the five established violations for the 

Commission to assess de novo under the criteria of section 17(j) of the Act? 

Decision: Penalties totaling $66,986 are assessed. 

FINDINGS OF FACT 

The following facts were established by at least a preponderance of the evidence: 

1. The Respondent, Tony Watson, owns and operates a sole proprietorship in the tree 

service industry based in Schenectady, New York, that he started around 1995. (T. 470). 

Watson does business as “Countryside Tree Service.” Watson’s sole proprietorship is in an 

industry that affects interstate commerce, and it employs employees. 

2. On the day of the fatality, May 4, 2016, the Respondent provided tree care services at 

three different single-family residences in the following sequence: Church Road, DiBella Drive, 

and Placid Drive. Each of these three jobs required the use of a mobile crane, so Watson 

arranged with another company to provide a crane and operator for the three jobs. The crane 

operator that day had operated a crane on the Respondent’s jobs about 30 to 35 times before. (T. 

444). 

3. For that day’s work, Watson lined up a crew of five persons comprised of himself and 

four employees to work at all three worksites. Two of the employees were experienced workers 

in the tree service industry, and both had prior experience working for Watson. One of the 

experienced employees was Brendon Andres (Andres), who had worked for Watson 

intermittently for a total of about nine months over the preceding two years. The other 

experienced employee was Robert Burton (Burton), who had worked for Watson intermittently 

for a total of about nine months over the preceding four years. (T. 106, 501-503). 

4. The other two employees had no prior experience in the tree service industry and 

were both newly employed by Watson. (T. 473). One of the new employees was John Ciaccio 

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(Ciaccio), who was a friend of Andres. (T. 116). The day of the fatality was Ciaccio’s third day 

working for the Respondent and likewise his third day of work in the tree service industry. (Ex. 

C-25, p. 55). Watson knew that both Ciaccio and the decedent had no prior experience in the 

tree service industry, and he knew that they “definitely [did] not know how to run the chipper.”2 

(T. 473). 

5. The decedent was age 23 and he had no prior experience working in the tree service 

industry. The day he was killed was his first day working for the Respondent. (T. 137). 

6. The decedent and Burton were friends. Before hiring the decedent, Watson had 

previously become acquainted with the decedent through Burton, and it was Burton who had 

asked Watson to hire the decedent. (T. 156; Ex. C-25, pp. 30-31). In part as a favor to both 

Burton and to the decedent, Watson hired the decedent to begin working on May 4, 2016. 

7. Watson later told OSHA officials that he knew the decedent was “green” and “never 

had any experience in doing ... tree work,” and that “he really didn’t know anything.” (Ex. C25, pp. 30 & 37). Watson also told OSHA officials that, being aware of the decedent’s 

inexperience, the decedent had been Watson’s “concern all day long” and that “I had my eye –– 

any time there was something going on.” (Id. at 85). Watson told investigating police in the 

immediate aftermath of the fatality that the decedent “wasn’t hired or trained to operate any of 

the machinery including ... [the] brush chipper.” (Ex. C-16). Watson told OSHA officials that 

he “definitely didn’t need [the decedent] ... for any kind of brush removal” that day and that he 

“was basically having [the decedent] come in to basically rake” (Ex. C-25, pp. 57-58) and to be a 

“helper and a cleaner.” (Ex. C-16). 

2 Watson’s use of the verb “run” in the context here was to connote the feeding of material in 

the chipper, not operating the chipper’s controls. (T. 475). In other contexts, the act of 

“operating” the chipper includes other operational activities in addition to the act of feeding 

material into a running chipper. (T. 573, 597, 601-02). 

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8. At about 7:45 a.m. on May 4, 2016, the four employees gathered outside Watson’s 

residence on Church Road in Schenectady, from where Watson operates his business. (Ex. C-25, 

p. 32). The workers arrived in pairs—Burton with the decedent, and Andres with Ciaccio. (T. 

115). While the four employees waited outside for Watson to emerge from his house, Andres 

took the initiative to orient the decedent to two aspects of the chipper—the “forward/reverse 

bar,”3 which is situated over the infeed hopper, and the two “last chance cables,” which dangle 

inside the infeed hopper near the infeed wheels.4 (T. 115, 145-46, 155-56; Ex. C-25, pp. 31-32, 

117-18). Andres did so unprompted and without any direction from Watson. In Andres’ view, 

the “guidance” he provided the decedent “was not enough to know how to properly use the 

chipper,” but was rather simply about “some safety features of the chipper in hopes that he 

wouldn’t need to use them.” (T. 137). 

9. Upon emerging from his house, Watson gave the crew the street address for the first 

of the day’s three jobs, which was on the corner of West Lydius Street and Church Road. 

(Church Road is the same street on which Watson resides and where the crew was gathered). (T. 

115, 176; Ex. C-16). Watson did not provide any safety or work instructions to the decedent or 

to anyone else before departing his residence for the day’s first job. (T. 176). The crew departed 

Watson’s residence at about 8:00 a.m. (Ex. C-25, p. 33). 

10. Watson was the supervisor of the work crew at all three worksites on May 4, as well 

as a working member of the crew. (T. 106-107, 485, 501). Watson did not expressly delegate 

any supervisory responsibilities to the two experienced employees, but Watson believed that 

3 The forward/reverse bar is identified by several other names in the manufacturer’s manual: 

“feed control handle,” “Forward-Off-Reverse Control Bar,” and “Feedwheel Control Bar.” (Ex. 

R-24, manual pages 19, 24 & 25). 

4 The infeed wheels are referred to as “feedrolls” in the manufacturer’s manual. (Ex. C-24, 

manual page 27). 

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both implicitly understood that Watson relied on them to maintain proper work procedures with 

respect to the two inexperienced workers. (T. 485). The experienced employees, however, did 

not understand that Watson was relying upon them to supervise the two inexperienced 

employees. (T. 143). 

11. Other than being shown the control bar and the last chance cables, neither Ciaccio 

or the decedent received any formalized training on the chipper at any time before arriving at the 

first work site on May 4, including reading any material or viewing any video regarding the safe 

operation of the chipper, reviewing the safety decals that the manufacturer had affixed to the 

chipper, or observing any demonstrations or instruction on operating the chipper. (Ex. C-25, p. 

117). 

12. Ciaccio and the decedent did not receive any formal or informal instruction or 

training on utilization of personal protective equipment, including protective eyewear or 

protective helmets, nor was either instructed on when the wear of protective eyewear or 

protective helmets was required. (T. 494-95). 

Church Road Worksite 

13. The crew arrived at the Church Road worksite around 8:15 a.m. and worked there 

until about 11:30 a.m., removing eleven white pine trees, each about 60 feet in height. (Ex. C25, pp. 52, 62-63). About a week earlier, Watson and Burton had gone to the site to remove the 

lower limbs on all eleven trees (Ex. C-25, p. 35-36), and so the work that remained on May 4 

with respect to each tree entailed (a) using the crane to remove the treetop (which had not been 

de-limbed, each about 20 feet in length), (b) cutting limbs of the downed treetop and running that 

brush through the chipper, (c) cutting down the bare tree trunk that remained after the treetop had 

been removed, and (d) cutting the downed bare trunk and the bare treetop into logs about six to 

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eight feet long to be collected and hauled away sometime later. (T. 116-117; Ex. C-25, pp. 59-

61). This work was done one tree at a time. (Ex. C-25, p. 62). 

14. Soon after arriving at the worksite, and while the mobile crane was setting up, 

Watson spoke with the decedent about the days’ work, and he asked the decedent whether he had 

been shown the chipper. The decedent responded affirmatively, and Watson did not at that time 

further address the operation of the chipper with the decedent. Rather, Watson instructed the 

decedent about the mobile crane’s operation, telling the decedent to “just stay out of the way and 

just watch” whenever the crane was “picking up a piece and ... laying it down.” (Ex. C-25, p. 

37-38). 

15. Andres, whose primary role for the day was to be the “tree climber,” got up in each 

tree to lash its treetop to the crane using nylon straps called “chokers.” (T. 118; Ex. C-25, pp. 

39-42). After doing so, Andres severed the treetop from the trunk with a chainsaw; once severed 

the crane lifted the treetop and set it down on the ground. Watson did not require Andres to wear 

any leg protection such as chaps while operating the chainsaw while in the trees at Church Road, 

or wear any hardhat while in the tree, and Watson knew that Andres was not wearing any leg 

protection or hardhat. (T. 118-123, 144-45, 162, 177; Ex. C-5, p. 3). 

16. Watson, Burton, and Andres used chainsaws while standing on the ground to cut the 

limbs off the downed treetops and to cut the main trunk into smaller logs. None of the workers 

operating chainsaws wore chaps or other leg protection at any time during the day. (T. 118-123, 

144-45, 162, 177). 

17. The tree service industry recognizes that workers operating chainsaws, whether 

while in a tree or while on the ground, should wear leg protection such as chaps to protect 

against lacerations from the chainsaw, even though some workers who operate chainsaws while 

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up in a tree prefer not to wear chaps because they are perceived to limit the worker’s mobility 

while up in the tree. (T. 142; Ex. C-25, p. 108). 

18. Watson, Burton, Ciaccio and the decedent were all involved dragging or carrying 

the brush that had been cut from the treetops to the chipper. (T. 122). From time to time, both 

Watson and Burton used a piece of equipment known as a “skid-steer”5 to grapple limbs and 

feed the chipper mechanically by using the skid-steer’s grappler, rather than feeding the chipper 

by hand. (T. 123-24, 143-44). 

19. Brush from the treetops that was not fed into the chipper by the skid-steer 

mechanically was hand-fed. For the most part at Church Road, the decedent and Ciaccio carried 

or dragged branches to the chipper and put the cut end of the branch on the chipper’s infeed tray6 

when the chipper’s infeed wheels were not rotating, and then after the infeed wheels were 

activated Burton or Watson would feed the branches into the chipper by hand. (T. 124, 482-83; 

Ex. C-25, pp. 44 & 54-55). 

20. About the time the crew was feeding the chipper with branches from the third or 

fourth tree, Watson and Burton showed Ciaccio and the decedent how to feed brush into the 

running woodchipper. This included instructing the decedent to feed the chipper while 

positioned to the side of the infeed tray and not from behind it, and that once the infeed wheels 

5 Throughout the hearing, the skid steer was generally referred to as the “dingo,” which is the 

manufacturer’s appellation for Watson’s skid-steer. (E.g., T. 425, 583-84, 605). 

6 The chipper’s infeed tray is 30 inches deep from its back edge to where it abuts the bed of 

the infeed hopper. The infeed hopper’s opening and bed start where the infeed tray ends. (T. 

514-15; see diagram at Ex. R-24, page 50 of equipment manual’s pagination). The infeed wheels 

are recessed from the opening of the hopper, but the record does not reflect the depth of the 

hopper (i.e., the distance from the end of the infeed tray to the infeed wheels). However, 

diagrams in the manufacturer’s manual suggest that this distance is about the same depth as the 

30-inch depth of the infeed tray. (T. 525; Ex. R-25). A depth of 30 inches for the hopper is 

consistent with Watson’s estimation that the distance from the end of the feed tray to the feed 

wheels is around five feet (i.e., 60 inches). (T. 487). 

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grabbed and started to pull on the branch, to walk away from the chipper. (Ex. C-25, pp. 44-47, 

53-55). Watson then gave the decedent and Ciaccio express permission to actually feed limbs 

into the running woodchipper. (Ex. C-25, pp. 48, 53-55, 64, 124). Watson recognized that “it 

wasn’t something that we needed to – but I mean, we were just trying to give them a little bit of 

experience.” (Ex. C-25, p. 47). Allowing the two inexperienced workers to “run” the chipper 

was not Watson’s “normal procedure on a new guy working with us.” (T. 485). 

21. Watson “didn’t want [the decedent] getting comfortable with ... thinking like ... 

he’s running the machine,” so Watson told the decedent that “if that machine’s running ... don’t 

put anything in there without at least me or [Burton] standing there.”7 (Ex. C-25, pp. 47-48, 53; 

7 Watson’s concern about the decedent becoming overconfident with the chipper was 

consistent with safety information printed by the chipper’s manufacturer in 2002, which was 

received in evidence at Exhibit C-22. While the record evidence was insufficient to establish 

that Watson had been provided a copy of any version of Exhibit C-22 by the dealer from which 

he purchased the chipper (see footnote 10 infra), the information in the document is nevertheless 

relevant to the matter of industry recognition of the hazard that the Secretary alleges in 

connection with the section 5(a)(1) citation item. See K.E.R. Enters., Inc., 23 BNA OSHC 2241, 

2242 (No. 08-1225, 2013). The admonitions in Exhibit C-22 included the following (Ex. C-22, 

pages 1, 2 & 11 of document’s pagination): 

.... Employees need constant reminders not to become over confident and 

not to take a casual approach to the potential hazards they encounter on a 

daily basis. Improperly operating a brush chipper is very dangerous. The 

operator must be trained and warned that amputation and death can 

happen unless they follow all warning instructions. They must also 

always be in position and ready to operate feed controls if a dangerous 

situation should arise.... 

Operators must be trained to be constantly thinking about being in a 

position and ready to use the forward-off-reverse feed control bar and 

other controls. They should be thinking and ready to stop or reverse the 

feed control bar the instant they feel any pulling toward infeed hopper or 

feed wheels. 

* * * * 

Training is essential! It is extremely important that 

everyone who operates a wood chipper to be trained. 

Operating instructions for the chipper are included in 

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T. 480). Watson testified that he thought Burton and Andres would enforce these instructions 

given to the decedent and Ciaccio that they not feed material into the woodchipper without an 

experienced worker being with them, but he never actually communicated this to either of 

Burton or Andres. (T. 143, 486). Watson told OSHA officials that he believed that neither 

Ciaccio nor the decedent should be permitted to feed brush into the chipper by himself 

“unattended.” (Ex. C-25, p. 56). Although Watson acknowledges that he gave Ciaccio and the 

decedent express permission to feed the running chipper (albeit only when an experienced 

worker was nearby), Watson testified that he had not intended the decedent to be “running” the 

chipper that day, and that regardless whether the decedent had received safety instructions, 

Watson “didn't want [the decedent] even around that machine.” (T. 499). 

22. Neither Watson nor any of the employees wore protective helmets at any time at the 

Church Road site or at the other two worksites on May 4. (T. 121-22). Watson did not direct 

anyone to wear a hardhat because he had instructed the employees to stay clear of the loads that 

the crane was hoisting, and he believed no one would be exposed to being struck by any loads 

that the crane would be hoisting at any of the three job sites. (T. 114, 490-91; Ex. C-25, pp. 108-

09; Ex. C-8, p. 3). Watson also believed there was no risk of employees being struck by falling 

Bandit manuals, decals and training video tapes with each 

chipper sold. 

Safety training and enforcement of safety operating 

procedures is an important process. No device will prevent 

accidents when equipment is operated in an improper and 

dangerous manner. Operators need a frequent reminder as 

to the proper, safe operation of any piece of equipment, 

especially a chipper that is designed to quickly break down 

material much tougher than human flesh.... 

.... Lecture, preach, train, discuss and enforce safety 

procedures constantly!! 

Chipper safety has to be a constant and continuing effort by 

all involved with operating and maintaining chippers. 

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limbs because all the cutting of limbs and branches would be done when the trees lay flat on the 

ground. (T. 490-91). 

23. The tree care industry recognizes that debris can fall off trees that are hoisted 

overhead and that this debris presents a struck-by hazard even to workers who are not situated in 

the fall zone of a load. (T. 162-63; Ex. R-24, manual page 8; Ex. C-14, item 2). 

24. Andres did not wear safety glasses at the Church Road site, but he was wearing a 

pair of personal sunglasses that were not impact resistant, although Andres believed these 

provided him a measure of eye protection. (T. 153, 163, 177, 179). Watson knew that Andres 

was wearing sunglasses, but he did not determine whether they were impact-resistant safety 

glasses. 

25. Watson had impact-resistant safety glasses on site available for employee use (T. 

179; Ex. C-7, p. 3), and he had a work rule requiring that everyone wear them. (T. 493). Watson 

did not enforce this rule on the day of the fatality at any of the three worksites with respect to his 

employees, although Watson himself did wear safety glasses at all three job sites. (Ex. 25, pp. 

109-10). Watson knew that Burton, Ciaccio, and the decedent were not wearing safety glasses at 

any of the worksites that day. (T. 493). 

26. The crew departed the Church Road worksite at about 11:30 a.m., went to lunch, and 

from lunch traveled to the second worksite on DiBella Drive. 

DiBella Drive Worksite 

27. The second worksite was in a residential area with a DiBella Drive address that was 

situated on the corner of DiBella Drive and Placid Drive. (T. 66; Ex. C-19, video 1).8 The crew 

arrived there at 12:08 p.m. (Ex. C-19, video 1). 

8 Exhibit C-19 was comprised of two video clips that were recorded by a security camera 

mounted on the DiBella Drive residence that the Respondent was servicing. (T. 61-62, 66-67). 

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28. The job at DiBella Drive involved the removal of a single pine tree. Unlike the 

eleven white pines that the crew had removed at the Church Road worksite, the lower limbs of 

the pine tree at DiBella Drive had not been previously removed. (T. 149-50). 

29. After the crane set up, Andres got up in tree, lashed the tree trunk to the crane, and 

then dismounted the tree. Watson then made a full cut of the tree at a point about four feet above 

ground level, whereupon the crane lifted the severed tree and set it down onto the street. DiBella 

Drive is a residential street with little traffic, and the crew had blocked off the street such that the 

crane, the downed tree, and the chipper were now arrayed on the street in that order in a blockedoff section of the street. 

30. Video 2 of Exhibit C-19 captured the activities of the workers that occurred in 

between the crane and the chipper, where the tree lay flat in the street. The video depicts the 

following activities at the minute and second time marks in the video indicated as follows: 

The date and time stamps superimposed on the video images are accurate. (T. 63). References 

in this Decision to the two video clips are to either “video 1” or “video 2.” Video 1 depicts 

events that were first in time, and the date/time stamp shows the video commencing at 12:08:06 

(i.e., six seconds after 12:08 p.m.) and ending at 12:22:37 p.m. Video 2 commences at time 

stamp 12:22:37 p.m. and ends at 12:37:00 p.m. The names of the electronic .mp4 files for the 

two video clips as such that the last four digits for video 1 are “0800” and the last four digits for 

video 2 are “2237.” 

During the hearing, references to any specific point in a particular video were generally to the 

time elapsed in that particular video segment reflected through the media player being utilized. 

(E.g., the time of “04:13” indicates a point at which four minutes and thirteen seconds have 

elapsed in the video.) References to the particular points or segments of these videos in this 

Decision is similarly to the time elapsed in the video segment. 

The individuals in the two videos are most easily identified by their clothing as follows: 

Watson wore a blue hooded sweatshirt with white lettering on the back; Burton wore a blue 

sweatshirt with white lettering on the front; Andres wore a yellow jacket; Ciaccio wore a blue 

sweatshirt with no writing on it, but he removed the sweatshirt at the 05:42 mark of video 2, after 

which he was wearing a blue short-sleeved tee shirt with white lettering on the front; the 

decedent wore a maroon hooded sweatshirt. (T. 227). 

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a. From 00:00 to 00:17 –– The crane sets the entire tree down in the street. Andres 

coils rope in the vicinity of the drop zone while facing away from the tree, and he peripherally 

notices a branch of the descending tree passing near his head, causing him to move out of the 

way with haste. 

b. From 00:40 to 01:04 –– With the tree on its side in the street, Watson uses a 

chainsaw to sever the treetop. 

c. From 01:38 to 02:05 — The crane hoists the treetop from street. In the early part 

of this lift, Ciaccio and Watson are near or in the fall zone. Andres goes to assist them, but he 

waits for treetop to clear the area before doing so, probably to assure that he does not step into 

the fall zone. (See also Ex. C-25, p. 86). 

d. From 02:10 to 02:43. –– Burton cuts branches with a chainsaw and the decedent 

takes one of those branches and drags it about eight steps to the chipper, where he puts the cut 

end on the infeed tray. The chipper is not running at the time. The decedent then does the same 

thing with a second branch. 

e. From 02:44 to 02:50 — The decedent walks from the chipper to where Burton is 

cutting limbs off the trunk. Limbs that extend higher than head-level drop to the ground while 

the decedent is in the vicinity of the dropping limbs. 

f. From 03:02 to 03:17 — Burton puts down the chainsaw and walks to the chipper 

and starts it. With the bottom part of the tree trunk having now been fully de-limbed, Watson 

cuts the tree trunk at about its midpoint. The half below the cut is completely de-limbed, but the 

half above the cut still has limbs to be trimmed off. 

g. From 03:18 to 03:24 — The decedent grabs a branch and then feeds it into the 

running chipper as Burton walks past him and observes the decedent feed the branch into the 

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chipper. This is the first branch that any worker feeds into the running chipper at the DiBella 

Drive worksite. 

h. From 03:25 to 03:40 — As Watson continues to trim branches from the trunk 

with a chainsaw, Burton grabs a branch and feeds it into the woodchipper and then faces back 

toward the tree as the decedent passes by him carrying another branch that the decedent then 

feeds into the woodchipper. 

i. From 03:30 to 04:05 — Burton backs up the truck that is hauling the woodchipper 

to close the space between the downed tree and the chipper. This re-positioning of the chipper 

enables the workers to take fewer steps to drag or carry branches to the chipper. (Also during 

this period, Andres rigs the de-limbed bottom segment of the tree trunk to the crane, and the 

crane hoists it from the street to a location off the street on the opposite side of the crane, outside 

the frame of the video.) 

j. From 03:56 to 04:57 — Ciaccio trots up the where the decedent is feeding 

branches into the chipper and assists the decedent and Burton in feeding branches into the 

chipper. In some instances, Ciaccio hands branches over to the decedent for the decedent to feed 

into the woodchipper, and in other instances Ciaccio feeds branches in the chipper himself. All 

the while, Watson continues cutting branches off the trunk, sometimes facing in the direction of 

the decedent, Ciaccio and Burton, all of whom feed the chipper less than 25 feet away from 

Watson’s position. 

k. From 04:23 to 04:58 — The decedent and Ciaccio together wrangle a large 

branch as the decedent stands with his back to the infeed tray. The decedent then rotates his 

body toward the chipper, and he and Ciaccio together feed the branch into the chipper while 

Burton feeds a smaller branch into the chipper at the same time. At 04:44, Watson says 

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something to Burton, who is about 10 feet away, and from 04:52 to 04:58 Watson simply stands 

and faces directly at Burton, Ciaccio and the decedent as they feed the chipper about 20 feet 

away. 

l. From 04:59 to 05:51 — Burton grabs a chainsaw and resumes cutting limbs off 

the tree along with Watson, as Ciaccio and the decedent continue to feed brush into the chipper 

no more than twenty feet away from them. Sometimes the decedent and Ciaccio feed branches 

at the same time, and sometimes they feed branches while positioned directly behind the infeed 

tray rather than from the side of the infeed tray. From 05:15 to 05:52, Watson and Burton both 

cut limbs from the trunk while Andres is positioned next to them rigging the trunk to the crane 

and while Ciaccio and the decedent gather brush and feed it into the running chipper. From 

05:24 to 05:47 Watson is standing on one side of the trunk simply observing Burton and Andres 

working on the trunk, while about 15 to 20 feet to Watson’s right, Ciaccio and the decedent 

gather and feed brush into the running chipper. From 05:19 to 05:40, the decedent struggles to 

wrangle a large branch while standing with his back to the chipper, eventually facing the chipper 

and feeding the branch into it. After the chipper starts to pull that branch in, the decedent lets go 

of the branch and he then steps over it while it is in motion as it is being pulled into the chipper. 

m. From 05:52 to 06:48 –– The crane lifts the remainder of the now fully de-limbed 

trunk off the street, with Ciaccio and the decedent working in or near the fall zone gathering 

brush and feeding it in the chipper. Burton makes direct contact with the trunk just as it is 

hoisted, pushing it with his hand and kicking it with his foot, as Watson can be seen on the left 

side of the video frame near the crane looking in the direction of the hoisted trunk and the four 

employees. Ciaccio and the decedent are directly in range of Watson’s vision roughly 50 feet 

away, gathering brush and feeding the running chipper. 

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n. From 06:32 to 09:37 — Andres joins Ciaccio and the decedent in feeding brush 

into the woodchipper for over a three-minute period, feeding all the brush into the woodchipper 

that had been in the street. From 06:33 to 06:40, the decedent feeds two branches at the same 

time while positioned behind the feed tray rather than from the side, and by leaning over the feed 

tray so that his arms and torso are above the feed tray. (Note: Around the 07:10 mark, both 

Watson and Burton exit the video frame in the direction of the crane and reappear near the crane 

over a minute later at 08:17; at 08:40, the two men step out of the frame again in the direction of 

the crane. All during this period, Andres, Ciaccio and the decedent gather brush and feed it into 

the chipper.) 

o. From 09:20 to 09:30 — The decedent throws a handful of brush onto the feeder 

tray of the chipper, and then uses his hands to shove the brush into the infeed hopper until the 

feed wheels grabbed the brush. In doing so, the decedent puts his hands and arms over the feed 

tray, but no part of his body penetrates the hopper’s opening. Andres makes a similar move 

around 09:30. 

p. From 03:18 to 09:45 — Over this approximate six and one-half minute period, the 

decedent fed branches and brush into the woodchipper about 20 separate times, and Ciaccio fed 

branches into the woodchipper about 16 times. In many instances when feeding the 

woodchipper, the decedent and Ciaccio fed the woodchipper while positioned behind the feed 

tray and not from the side of the feed tray. In many instances when feeding the woodchipper, 

neither Ciaccio nor the decedent was in a position to reach the chipper’s control bar. In many 

instances feeding the chipper, branches would come in close proximity to the heads and eyes of 

workers manipulating the branches and of other workers near them. The video depicts the 

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workers from time to time placing their hands and arms over the infeed tray, but it does not 

depict the workers putting any part of their bodies into the infeed hopper. 

31. The crew did not de-limb the treetop or cut the de-limbed trunk segments into 

smaller logs, but instead the crew left them flat on the ground (off the street) and proceeded to 

the next work site on Placid Drive. (Ex. C-25, pp. 87, 89). Watson intended to return to the 

DiBella Drive site at some later time to complete the removal of that material. (T. 126). 

32. Watson believes that the manner and the extent to which Ciaccio and the decedent 

were feeding the chipper as is depicted in video 2 of Exhibit C-19 were improper. (T. 499, lines 

7-9). Watson, in the exercise of reasonable diligence, should have known that Ciaccio and the 

decedent were utilizing unsafe practices in feeding the chipper at the Church Road worksite. 

33. Watson and Burton operated chainsaws at the DiBella Drive site while standing on 

the ground. (Ex. C-19, video 2). Neither of them wore leg chaps while operating the chainsaws. 

Watson did not require that Burton wear chaps while operating the chainsaw at the DiBella Drive 

site, and Watson could see that Burton was not wearing leg chaps. (Ex. C-19, video 2). Watson 

had a pair of chaps on site in the truck that Burton could have used. (T. 494). 

34. None of the five crew members wore protective helmets at any time at any of the 

three job sites. (T. 121-22; Ex C-25, p. 109). Watson did not require the employees to wear 

protective helmets. Watson instructed the employees to stay clear of the loads that the crane was 

hoisting, and he believed that none of the workers would be exposed to being struck by any loads 

that the crane would be hoisting at DiBella Drive (or at the other two job sites) by either 

intentionally or inadvertently positioning themselves in an area where they could be struck by 

something falling from the crane. (T. 114; Ex. C-8, p. 3). 

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35. None of the employees wore impact-resistant safety glasses at the DiBella Drive 

site. (Ex. C-25, p. 113). Watson had safety glasses available for employee use (Ex. C-25, pp. 

111-12; T. 179, 195), but he did not require that any employees wear them. Andres wore a pair 

of personal sunglasses, but they were not impact-resistant safety glasses. (T. 179). 

36. The crew and the crane departed the DiBella Drive location at 12:37 p.m. and 

traveled a short distance to the third jobsite on Placid Drive, which was down the street from the 

DiBella Drive worksite. (Ex. C-25, p. 87; Ex. C-19, video 2 at 14:20; Ex. C-16). 

Placid Drive Worksite 

37. The type of work to be done at the Placid Drive job was similar to the work that 

had been done at the Church Road worksite. (T. 149, 481, 561). There were five trees to remove 

at Placid Drive. (Ex. C-16; T. 496). One was an oak and the others were pines. (T. 496). About 

a week earlier, Watson and Andres had removed the lower limbs from three of the five trees (the 

oak and two of the pines), so that all that remained on those trees were mostly bare trunks topped 

by the untrimmed treetops. (T. 150, 496). 

38. The crew and crane first removed the oak tree. (T. 496). After the crane set down 

the oak tree’s treetop on the street, Watson de-limbed it with a chainsaw, and its brush was fed 

into the running chipper. The crew and crane then did the same thing with a red pine tree. (T. 

129, 161, 496; Ex. C-25, p. 73, 75, 79, 83-84, 125). Watson, Burton, Ciaccio, and the decedent 

all fed brush from the oak tree and the pine tree in the running chipper. (T. 129, 161; Ex. C-25, 

page 125). 

39. Andres then cut the treetop off a second pine tree, and the crane set it on the ground, 

where Watson de-limbed it with a chainsaw. (Ex. C-16). Watson was beginning to prepare to 

use the skid-steer to feed some of the brush from this treetop into the chipper, when he turned 

and saw the decedent’s body in the chipper. (T. 130-31; Ex. C-25, p. 85; Ex. C-16). The bottom 

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half of the decedent’s body lay within the enclosure of the infeed hopper amidst brush from a 

pine tree, with only his feet extending over the infeed tray, as is reflected in the photograph at 

Exhibit R-14. (Ex. C-25, pp. 85-86, 102, 498). Watson rushed to shut the woodchipper down 

and called “9-1-1” for emergency services. (Ex. C-25, p. 86; C-16). The decedent was declared 

dead at the scene. (Ex. C-15). 

40. The fatality occurred around 1:15 p.m., which was about 38 minutes after the crew 

had departed the previous worksite. (Ex. C-19, video 2; Ex. C-15). Andres recalled that he last 

saw the decedent alive about a minute before, and that the decedent had been standing near the 

right side of the chipper, which was the curb side. Similarly, the crane operator recalled last 

seeing the decedent standing near the chipper. (T. 447). Watson recalled last seeing the 

decedent alive just 30 seconds or so earlier, standing near the chipper.9 (Ex. C-25, pp. 85-86, 

102, 498). No one witnessed what the decedent was doing between the time that he was last seen 

standing near the chipper and the time he was killed. 

9 Neither Burton nor Ciaccio testified at the hearing. There is no evidence of precisely where 

Burton were situated or what he was doing at the moment the decedent was killed. In a formal 

interview conducted by an OSHA official fifteen days after the fatality, Ciaccio said: 

Well, basically what happened was I was probably about 30 feet 

away from the chipper. And I had my back turned to the chipper. 

And I went to go grab a branch. And next thing I know, I just hear 

[Watson] screaming. So I dropped the branch, turn around. And 

that's when I just see, you know, I look at the chipper and it's just 

the kid's feet hanging out. 

(Ex. C-26, p. 17; T. 310). 

The verbatim transcript of Ciaccio’s interview was admitted in evidence as Exhibit C-26 

pursuant to Fed. R. Evid. 803(8) as a public record. (T. 310). Ciaccio’s statements reflected in 

the verbatim transcript may not be accepted for the truth of the matters asserted therein (Ciaccio 

was no longer employed by the Respondent at the time he was interviewed), and thus cannot 

provide support for any finding of fact, because the statements do not meet any exceptions to the 

rule prohibiting hearsay evidence. See Fed. R. Evid. 805, “Hearsay within hearsay.” (See ruling 

on Respondent’s objection to Exhibit C-26 at T. 305-311). 

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41. Andres and Watson used chainsaws at Placid Drive, and neither wore chaps while 

operating the chainsaws. Watson knew that Andres was not wearing chaps while using the 

chainsaw. (T. 118-123, 142, 144-45, 162, 177; Ex. C-25, p. 108). 

42. None of the workers wore protective helmets at the Placid Drive worksite, and 

Watson knew this. (T. 114, 121-22, 490-91; Ex. C-25, pp. 108-09; Ex. C-8, p. 3). 

43. None of the workers wore safety glasses at the Placid Drive worksite. Watson 

knew that Burton, Ciaccio and the decedent were not wearing safety glasses, and he did not 

determine whether the sunglasses that Andres wore were impact-resistant safety glasses. (T. 

153, 163, 177, 179, 493; Ex. C-7, p. 3; Ex. C-25, pp. 109-10). 

Safety and Training Programs 

44. Watson believes the two main hazards at his worksites are the chipper and overhead 

hazards during crane lifts. (Ex. C-25, pp. 104-05.) 

45. Watson did not require any of the four employees who were working on the day of 

the fatality to read the manufacturer’s safety instructions for the chipper, and none of them had 

read those instructions. Similarly, Watson had not required any of those employees to view any 

safety videos regarding operation of the chipper. (T. 160-61). Another employee of Watson’s 

who was not working on May 4 had viewed a safety video, though it is not apparent from his 

testimony whether he had viewed it before the fatality. (T. 466, 517). 

46. Most of the workers that Watson hires are experienced in the tree service industry, 

and while Watson does not provide any formalized training to his employees, he regards himself 

as utilizing a “method” of working that addresses safety issues. (T. 195, 477; Ex. C-25, pp.107-

08). With regard to feeding the chipper, Watson’s safety method is to have workers carry brush 

to the chipper when the feed wheels are not turning, after which he uses the skid-steer to feed 

brush into the chipper mechanically. (T. 477). Watson recognizes that the manner in which the 

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Ciaccio and the decedent were feeding and operating the chipper as reflected in video 2 of 

Exhibit C-19 did not comport with this safety method. (T. 477, lines 14-23; T. 472, lines 5-22). 

The activity depicted in video 2 was not Watson’s “normal procedure on a new guy working 

with” his business. (T. 485). 

47. Watson recognizes that safety glasses are necessary PPE in the tree service industry. 

(Ex. C-25, p. 108). Watson keeps safety glasses in his truck that are available for his employees 

to use, and he uses safety glasses himself when using a chainsaw. (Ex. C-25, pp. 109 & 111; T. 

493). 

48. Watson believes that hardhats are necessary PPE in the tree service industry to be 

worn where workers are working under falling limbs and hoisted loads. Watson testified that he 

has “always had a hard hat rule in effect” that applies when he believes employees will be 

exposed to overhead hazards such as falling branches or will be in the fall zone of a hoisted load. 

(T. 490-91; Ex. C-25, pp. 108-09). Watson keeps hardhats at worksites in his truck for employee 

use. (T. 111-12, 456). 

49. Watson believes that chaps are necessary personal protective equipment in the tree 

service industry where workers are “doing a lot of cutting.” (Ex. C-25, p. 108; Ex. C-5, p. 3). 

Watson keeps chaps in his truck for employee use. (T. 494). 

Chipper Safety 

50. In March 2004, when Watson purchased the chipper new from a dealer, he signed 

the manufacturer’s “Warranty Validation Form,” though he believes that he did not read it before 

he signed it. (T. 529; Ex. C-14). The face of the form, however, reflects the dealer’s affirmative 

representation that certain specified matters had been communicated to and acknowledged by 

Watson, including the following (Ex. C-14; T. 528-29): 

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1. Customer has been instructed and understands operation 

and all safety aspects of operating the equipment. 

2. Customer has been instructed and understands that 

everyone within 100 feet of the machine must wear 

personal protective equipment (i.e. hard hat, safety glasses, 

etc.) 

* * * * 

4. Customer has been advised and understands not to reach 

into the infeed hopper with hands or feet. The machine 

operators must always be located within easy reach of all 

feed control and shutdown devices. 

5. Customer understands that the wooden push paddle must 

be used to push small debris into the chipper and, that they 

are not to reach or kick debris into the infeed hopper area 

of the machine. 

6. Customer understands the purpose of and how to operate 

the last chance device, and if used the machine has been 

operated in an unsafe manner. Customer understands 

never attempt to override any safety devices or guards. 

* * * * 

12. Customer has been instructed, understands, and agrees that 

all potential operators must: See the supplied videotape, be 

instructed in all the Danger, Warning and Operational 

decals, read the manual and follow the procedures. 

The dealer had placed a check mark in the blank space to the left of each representation and 

signed the form along with Watson. (Ex. C-14). 

51. Exhibit R-24 is the equipment manual that Watson was provided when he 

purchased the chipper from the manufacturer in March 2004. (T. 522-525). Watson understood 

the dangerousness and potential lethality of the chipper without being informed of those 

properties of the chipper by the manufacturer (see, e.g., T. 498, lines 15-20), but the manual that 

he was provided when he purchased the woodchipper is nonetheless replete with warnings that 

address hazards posed by the chipper, including the following (Ex. R-24):10 

10 In the Secretary’s case in chief, material prepared by the manufacturer regarding operation 

and maintenance of the chipper that indicates it was published in October 2002 were received in 

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a. Page 2 of the manual is the one-page “Introduction” section. Included in this 

introduction are the following warnings: 

WARNING! 

Improper use of the chipper can result in severe personal injury. 

Personnel using the chipper must be qualified, trained and familiar 

with the operating procedures as defined in this manual. 

WARNING! 

It is the responsibility of the owner or employer to insure that the 

operator is trained and practices safe operation while using and 

servicing the machine.... 

b. Pages 7 to 10 of the manual comprise the “Safety Procedures” section of the 

manual and include the following (the fonts used in the actual manual vary in size): 

i. The following warning is on page 7, and is illustrated by a graphic that depicts 

a hand caught in between a chipper’s feed wheels: 

WARNING! 

DO NOT attempt to operate this machine without proper 

training and becoming very familiar with the operator's manual. 

The hydraulic feed wheels are designed to pull wood into the 

chipper. They do not know the difference between a hand or 

wood.... 

ii. The following warnings are on page 8: 

DANGER! 

Don't ever take the machine for granted, always be cautious 

and careful when operating your equipment. 

Read and follow all the instructions in your manuals 

thoroughly. Your safety is dependent on your knowledge of how 

to operate and maintain this machine.... 

evidence at Exhibits C-21 and C-22. During the Respondent’s case in chief, the manual that 

Watson actually received from the manufacturer when he purchased the chipper in March 2004, 

was received in evidence as Exhibit R-24. (T. 519, 521-22). That manual reflects that it had 

been published in 1999. While all three documents contain similar information, the evidence is 

insufficient to establish that Watson actually received versions of Exhibit C-21 or C-22 when he 

purchased the chipper in 2004. 

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Before operating chipper, you must have all potential 

operators; read and understand manuals, and follow the 

recommendations. 

* * * * 

WARNING! 

When feeding material into the infeed hopper, always feed 

from the side of the infeed tray and then turn away from material 

and walk away as wood feeds in. Chippers should be fed from 

curbside (right side) whenever possible. Anytime operator is near 

infeed hopper, he must be within easy reach of feed control 

devices. 

* * * * 

DANGER! 

* * * * 

Wear all applicable safety equipment examples: hard hat, 

safety glasses, gloves, ear protection, etc. 

WARNING! 

Operators must at all times be located within easy reach of all 

feed control and shut-off devices when the unit is running. 

iii. Page 10 contains the following: 

Regardless of how hard a manufacturer tries to produce a safe 

machine, accidents still happen. Normally accidents are caused by 

people making mistakes. They do not read the manual, they ignore 

warning decals or do not use lockouts provided for their safety. 

This normally happens after the person has become accustomed to 

the machinery. In the initial start up and operation of the 

machinery, they are cautious, they are very careful because they do 

not understand the machine. 

c. Pages 16 to 20 of the manual depict the safety decals that the manufacturer 

affixed to the equipment (the fonts on the decals that are actually depicted in the manual vary in 

size):11 

i. The safety decal depicted on page 19 of the manual states as follows: 

11 The photographs at Exhibits R-14 and C-9(1) reflect the presence of some of the 

manufacturer’s safety decals on Watson’s chipper, but there is no evidence that addresses 

whether all of the safety decals that are depicted in the manual remained both affixed and 

readable on the day of the fatality. For purposes of this decision, it is presumed that all of the 

manufacturer’s safety decals were affixed to the chipper and were and readable. 

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DANGER! 

BRUSH CHIPPERS ARE VERY DANGEROUS MACHINES 

TO OPERATE! READ & BELIEVE THIS WARNING 

DECAL! 

The chipper feedrolls are VERY DANGEROUS. They are 

designed to pull large diameter trees of any length into the chipper. 

Pulling your hand, arm, foot or entire body through the machine is 

much easier than pulling a tree. FOLLOW the operating 

instructions in the operator's manual, and ALWAYS be in a position 

to activate the Forward-Off-Reverse Control Bar. Never take 

chances pushing wood too far into the infeed hopper of the chipper. 

NEVER use your feet to try to kick wood into the machine. There 

have been MANY ACCIDENTS involving the feed rolls, resulting 

in the amputation of hands, arms, feet legs and DEATH. DO NOT 

let this happen to you! 

* * * * 

DO NOT OPERATE THIS MACHINE UNLESS YOU HAVE 

READ THE OPERATOR'S MANUAL AND HAVE BEEN 

TRAINED FOR SAFE OPERATING PROCEDURES! 

ii. Another of the decals depicted on page 20 of the manual pertains to the “Last 

Chance Stop” and states as follows: 

DANGER! 

LAST CHANCE STOP! 

Brush Bandit Chippers have been involved with several serious 

hydraulic feed wheel injuries, these injuries have resulted in loss of 

hands/arms, feet/legs and/or DEATH. 

Hand/arm and DEATH injuries are caused by negligently 

reaching far into the infeed hopper. This "Reaching In" is usually 

associated with trying to feed short limbs, twigs or leaves. Short or 

loose material must be tossed into the infeed hopper while longer 

material is feeding into the machine, or this material should be 

pushed in with a long, wooden pushing stick. 

The "Last Chance Stop" is a means of stopping/reversing the 

feed rolls if the negligent operator does not follow the safety rules 

and finds him or herself in trouble. 

DO NOT RELY ON THE "LAST CHANCE STOP" TO 

DISOBEY THE OPERATOR RULES! 

YOU WILL FIND YOURSELF IN TROUBLE! 

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d. Page 27 of the manual relates to “Start-Up Procedures” and sets forth the 

following warnings that are illustrated by two graphics depicting hands and arms being caught up 

in the feed wheels: 

DANGER! 

STOP TO THINK!! 

REACHING OR KICKING INTO THE INFEED HOPPER 

WILL CAUSE SERIOUS INJURY OR DEATH! 

DO NOT reach with your hand or kick with your foot inside 

the infeed hopper. The feedrolls are very powerful. Once your 

hand or foot is grabbed by the feedrolls, you can be pulled into the 

chipper. Do not think that you will be able to pull yourself out of 

the feedrolls. They will not let go! 

There is absolutely no reason to work inside of the infeed 

hopper. If the feedrolls become tangled or clogged, stop the 

machine and wait a minimum of three (3) minutes to clean them 

out. 

WARNING! When feeding material into the infeed hopper, 

always feed from the side of the infeed tray and then turn away 

from material and walk away as wood feeds in. Chippers should 

be fed from curbside (right side) whenever possible. Anytime 

operator is near infeed hopper, HE MUST be within easy reach of 

feed control devices. 

DANGER! DO NOT use any body part or steel devices inside 

the infeed hopper area. A "Wooden Pusher Tool" is supplied with 

this chipper to assist feeding material. It is owner's and operator's 

responsibility to use and keep a "Wooden Pusher Tool" with 

chipper, also to secure it when transporting chipper. 

e. Also in the “Start-Up Procedures” section on page 29 of the manual is the 

following warning: 

DANGER! 

Do not let anyone operate or maintain this machine until they 

have thoroughly read this manual. You can purchase additional 

Bandit manuals for a nominal fee. 

f. In the “Operating Procedures” section of the manual, the method of feeding wood 

into the chipper is reiterated at manual pages 31 and 32 as follows: 

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WARNING! 

When feeding material into the infeed hopper, always feed from 

the side of the infeed tray and then tum away from material and 

walk away as wood feeds in. Chippers should be fed from curbside 

(right side) whenever possible. 

* * * * 

WARNING! 

* * * 

Always stand to the side of the infeed hopper when inserting 

material. This will allow you to turn away from the wood, and walk 

away, without passing through the material. 

52. In 2012, the American National Standards Institute (ANSI) issued voluntary 

national consensus standard Z133–2012, titled “American National Standard for Arboricultural 

Operations—Safety Requirements.” ANSI standard Z133–2012 is the seventh revision to the 

original standard that had been issued in 1972. (Ex. C-23, page 5 of 15). When an OSHA 

official asked Watson whether he was familiar with ANSI standard Z133–2012, Watson was 

uncertain, but he remarked that he received magazines about arboricultural operations.12 (T. 

327). 

53. Section 8.6 of ANSI Z133–2012 pertains to work procedures for brush removal and 

chipping, and includes the following provisions: 

8.6.4 Personal protective equipment shall be worn when in the work area 

of chipping operations in accordance with section 3.4, Personal 

Protective Equipment, of this standard.13 

12 The record does not establish that Watson had actual knowledge of the specific content of 

ANSI Z133 – 2012, but excerpts from the standard were nevertheless received in evidence over 

objection as Exhibit C-23. (T. 326-333). The standard is relevant to the matter of industry 

recognition of the hazardous activities/conditions alleged with respect to the section 5(a)(1) 

citation item, as well as industry recognition of the presence of hazards that warrant the use of 

certain PPE. 

13 Section 3.4 of ANSI Z133–2012 regarding personal protective equipment, which is 

referenced in subsection 8.6.4, was not included in the excerpt of the standard that was received 

in evidence at Exhibit C-23. Nor were four other subparagraphs of the standard that the 

Secretary cited to in the willful citation item that alleged inadequate training on, and improper 

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8.6.5 Only persons trained in safe chipper operation may operate 

chippers. Training shall include, but is not limited to, inspection, 

starting, stopping, feeding, and shutdown. Training shall be 

provided for each type of chipper being used. 

8.6.7 Brush and logs shall be fed into chippers from the side of the feed 

table center line, butt or cut end first, and the operator shall 

immediately tum away from the feed table when the brush is taken 

into the rotor or feed rollers. Chippers should be fed from the 

curbside whenever practical. 

8.6.11 Small branches shall be fed into chippers with longer branches or 

by being pushed with a long stick or tool designed for such use to 

prevent body parts from entering the infeed hopper. 

8.6.12 Hands or other parts of the body shall not be placed into the infeed 

hopper. Leaning into or pushing material into infeed hoppers with 

feet is prohibited. 

54. Watson understands that workers should not push small bits of brush into the 

hopper with their hands, and Watson himself usually uses a rake or similar implement to push 

small bits of brush into the hopper. (Ex C-25, p. 121). 

Classifications of “Serious” 

55. There was a substantial probability that death or serious physical harm could result 

by employees operating chainsaws without leg protection. 

56. There was a substantial probability that serious physical harm could result by 

employees engaging in tree removal and chipping without wearing safety glasses. 

57. There was a substantial probability that death or serious physical harm could result 

by employees engaging in tree removal and chipping without wearing protective helmets. 

feeding of, the chipper. (See Citation 2, item 1, which references ANSI Z133-210, sections 

3.1.2, 5.1.2, 5.1.5, and 5.3.7). Those provisions not included in Exhibit C-23 are thus not of 

record in these proceedings. 

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58. There was a substantial probability that death or serious physical harm could result 

by employees operating a chipper before being provided adequate training and when feeding the 

chipper in an unsafe manner. 

Unforeseeable Employee Misconduct 

59. Watson had some work rules designed to prevent employees from using unsafe 

practices in feeding a chipper, and for requiring the employees to use certain PPE, but Watson 

did not adequately communicate those work rules to Ciaccio or the decedent. Watson was not 

reasonably diligent in taking steps to discover violations of those work rules, or in enforcing 

those rules when he identified violations, as is reflected by findings of fact in preceding 

paragraphs herein. 

DISCUSSION 

The Commission obtained jurisdiction of this matter under section 10(c) of the OSH Act 

upon Watson’s timely filing of a notice of contest. 29 U.S.C. § 659(c). The Respondent has 

employees and is engaged in a business affecting interstate commerce, and thus meets the OSH 

Act’s definition of “employer.”14 29 U.S.C. § 652(5). 

14 The Respondent argues for dismissing the Secretary’s complaint on the ground that the 

Secretary’s litigation tactics and handling and presentation of exhibits “violated due process.” 

(Resp’t Br. 10-17, 45). The undersigned confirms all evidentiary rulings made during the 

hearing and denies the Respondent’s reassertion in his closing brief of some of those objections. 

The Respondent has demonstrated neither a violation of due process nor any legal prejudice as a 

consequence of the claimed wrongful tactics and admission of evidence to which objection was 

made. In this regard, the undersigned notes that Exhibits C-2 through C-9 inclusive (OSHA’s 

inspection report, inspection summary, safety narrative, and violation worksheets), the admission 

under Fed. R. Evid. 803(6) and 803(8) to which the Respondent objected in part on the asserted 

ground that the records are not trustworthy, have not been relied upon as the foundation for any 

findings of fact herein. 

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Citation 1, Items 1: 2, 3 and 4 – Personal Protective Equipment (PPE) 

To establish a violation of a workplace safety or health standard promulgated pursuant to 

section 5(a)(2) of the Act, the Secretary must prove by a preponderance of the evidence that: (1) 

the cited standard applies; (2) the terms of the standard were violated; (3) employees were 

exposed or had access to the violative condition; and (4) the employer knew, or with the exercise 

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

OSHC 2131, 2138 (No. 90-1747, 1994); Astra Pharm. Prods., 9 BNA OSHC 2126, 2129 (No. 

78-6247, 1981), aff’d in relevant part, 681 F.2d 69 (1st Cir. 1982). 

Serious Citation 1, Item 1 – Section 1910.132(a) – Leg Protection 

Item 1 of serious citation 1 alleges that the Respondent violated 29 C.F.R. § 1910.132(a) 

in three separate instances on May 4, 2016, averring that for each instance “employees were 

exposed to laceration and amputation hazards while operating chainsaws during tree removal” 

when “[e]mployees did not wear leg protection while trimming branches.”15 

The cited standard, section 1910.132(a), is a general personal protective equipment 

standard (PPE) that provides as follows: 

§ 1910.132 General requirements. 

(a) Application. Protective equipment, including personal 

protective equipment for eyes, face, head, and extremities, 

protective clothing, respiratory devices, and protective shields and 

barriers, shall be provided, used, and maintained in a sanitary and 

reliable condition wherever it is necessary by reason of hazards of 

processes or environment, chemical hazards, radiological hazards, 

or mechanical irritants encountered in a manner capable of causing 

injury or impairment in the function of any part of the body 

15 Each of the four citation items alleging violations of PPE standards, as well as willful 

citation 2, alleged three identically worded instances for each item—one instance for each of the 

three worksites on May 4, 2016. Each of the citation items misidentified the DiBella Drive 

worksite as “Salvia Lane.” The Secretary moved to amend the complaint, which had 

incorporated by reference all of the citation items, to substitute “DiBella Drive” for “Salvia 

Lane” in each item, and that motion was granted at the hearing without objection. (T. 298-99). 

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through absorption, inhalation or physical contact. 

“To establish the applicability of a PPE standard that, by its terms, applies only where a 

hazard is present,” the Secretary must demonstrate that “there is a significant risk of harm and 

that the employer had actual knowledge of a need for protective equipment, or that a reasonable 

person familiar with the circumstances surrounding the hazardous condition, including any facts 

unique to the particular industry, would recognize a hazard requiring the use of PPE.” Wal-Mart 

Distrib. Ctr. No. 6016, 25 BNA OSHC 1396, 1400-01 (No. 08-1292, 2015), aff’d in relevant 

part and vacated in part on other grounds, 819 F.3d 200 (5th Cir. 2016). “The Secretary must 

show more than the mere possibility of or a potential for injury.” Andrew Catapano Enters., 

Inc., 17 BNA OSHC 1776, 1783 (No. 90-0050, 1996) (consolidated). Rather, in order to 

establish that a potential hazard presents a “significant risk of harm,” the Secretary must prove 

that the circumstances in the workplace are “likely to give rise to the alleged hazard” for which 

the PPE is needed. See Pratt & Whitney Aircraft v. Donovan, 715 F.2d 57, 63-67 (2d Cir. 1983). 

Watson acknowledged that leg protection such as chaps was appropriate to protect 

against injury when trimming trees with a chainsaw while standing on the ground, but he 

suggested that chaps were unnecessary for a worker in a tree who is making overhead cuts and 

that they are a hindrance to the mobility of a worker who is in a tree. Andres, who is 

experienced in the tree service industry and is an experienced “tree climber,” testified that chaps 

are “advised” for workers using chainsaws while cutting in trees, although he noted that many 

“climbers” do not wear them because they limit the mobility while in the tree. (Ex. C-19, video 

2; T. 142, 493-94; Ex. C-25, p. 108). Cf. Tri-State Roofing & Sheet Metal, Inc. v. OSHRC, 685 

F.2d 878, 881 (4th Cir. 1982) (“The particular views of workmen are not necessarily, and often 

times are not, the best determination as to what is safe and what is unsafe. Convenience rather 

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than safety considerations often dictates a worker's perspective.”). 

Both Watson and Andres own and use chaps, but neither was using them at any of the 

three locations. Watson also had chaps on site in his truck, but he did not require that Burton 

wear them when Burton operated a chainsaw while standing on the ground at the Church Road 

and DiBella Drive sites. Watson’s testimony establishes that he had actual knowledge that 

workers in the tree service industry operating chainsaws while standing on the ground should 

wear leg protection to protect against lacerations and amputations. Andres’ testimony 

establishes that persons familiar with the tree service industry recognize that workers using 

chainsaws while in a tree should wear leg protection to protect against lacerations and 

amputations. Andres and Burton both operated chainsaws at the Church Road site and the 

DiBella Drive site, and Andres used a chainsaw while in a tree at the Placid Drive site. Both 

violated section 1910.132(a) by operating chainsaws without leg protection, and both were 

exposed to laceration and amputation hazards by doing so.16 Employees were exposed to that 

16 The Respondent Watson is the proprietor of a sole proprietorship, so he and his 

proprietorship are the same entity in law and fact. If Watson were to have had no employees, he 

would not have been covered by the OSH Act, and OSHA could not have cited him for his 

personal failure to wear leg protection at any of the three worksites. See Poughkeepsie Yacht 

Club, Inc., 7 BNA OSHC 1725, 1727 (No. 76-4026, 1979) (noting that “the Act's coverage 

extends even to those employers with only one employee.”) 

The Secretary has not asserted that Watson’s personal failure to wear leg protection while 

using a chainsaw on May 4 violated section 1910.132(a), so the matter of whether OSHA can 

cite a sole proprietor who is covered by the Act for personally violating a standard was not put in 

issue. Even so, although no Commission precedent has been identified that addresses this issue, 

a Commission judge addressed the issue in Clauson, No. 76-2669, 1977 WL 6908 

(O.S.H.R.C.A.L.J., Mar. 17, 1977), aff’d on other grounds 5 BNA OSHC 1760 (No. 76-2269, 

1977) (the Commission had sua sponte directed review of the decision, but then declined “to 

pass upon, modify or change the Judge’s decision in the absence of a compelling public interest” 

where no party had “expressed dissatisfaction with” it). 

The Commission judge in Clauson concluded that a sole proprietor who is covered by the 

Act “while working in his business, must necessarily personally comply with applicable safety 

regulations.” Cf. McCullough v. Suter, 757 F.2d 142, 143 (7th Cir. 1985) (holding that if a sole 

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hazard at each of the three worksites on May 4, and Watson had actual knowledge that neither 

employee wore leg protection while operating chainsaws. 

The Secretary has established by a preponderance of the evidence that the Respondent 

violated section 1910.132(a) in each of three instances alleged.17 

The violation of section 1910.132(a) is properly classified as “serious.” A violation is 

“serious” if there was a substantial probability that death or serious physical harm could result 

from the violative condition. 29 U.S.C. § 666(k); Consol. Freightways Corp., 15 BNA OSHC 

1317, 1324 (No. 86–351, 1991). “This does not mean that the occurrence of an accident must be 

a substantially probable result of the violative condition but, rather, that a serious injury is the 

likely result if an accident does occur.” Oberdorfer Indus. Inc., 20 BNA OSHC 1321, 1330-31, 

(No. 97-0469, 2003) (consolidated) (citation omitted). The severe lacerations or amputations 

that would likely result if a running chainsaw impacted an unprotected leg constitutes serious 

physical harm and supports the serious classification of the violation. See Kaspar Electroplating 

Corp., 16 BNA OSHC 1517, 1522) (No. 90-2066, 1993) (likelihood of severe lacerations to hand 

support classification of serious). 

Citation 1, Item 3 – Section 1910.133(a)(1) – Eye Protection 

Item 3 of serious citation 1 alleges that Watson violated 29 C.F.R. § 1910.133(a)(1) in 

three separate instances on May 4, 2016, averring that for each instance “employees were 

proprietorship has employees or associates, it can be an “enterprise” with which its sole 

proprietor can be “associated” within the meaning of the RICO Act, the court reasoning that it 

should make no difference what kind of legal form the enterprise takes—e.g., corporation, 

partnership, sole proprietorship, etc.) (Posner, J.). 

17 Watson’s argument that the Secretary lacked the authority to cite him for violations alleged 

to have occurred at the Church Street and DiBella Drive worksites because OSHA did not 

conduct a physical inspection of those two worksites is rejected as having no support in either the 

text of the Act or any of the Secretary’s regulations promulgated pursuant to the Act. (Resp’t Br. 

46-47). 

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exposed to eye hazards during tree removal including wood dust, flying wood pieces, and being 

struck by branches during tree trimming and feeding a wood chipper.” 

The cited standard, section 1910.133(a)(1), is a general PPE standard respecting eye and 

face protection, and provides in pertinent part that “[t]he employer shall ensure that each affected 

employee uses appropriate eye or face protection when exposed to eye or face hazards from 

flying particles ....” 

Watson had safety glasses available for employees on May 4, and he had a work rule that 

everyone wears them, testifying that “everyone should have been wearing safety glasses.” (T. 

(T. 179, 195; 493; Ex. C-7, p. 3). Watson was wearing safety glasses himself (Ex. 25, pp. 109-

10), and he could see that among his four employees Andres was the only one wearing any 

eyewear during tree removal, trimming branches, and chipping. However, Watson did not check 

to determine whether the personal sunglasses that Andres was wearing were impact-resistant 

safety glasses (Andres reliably testified that they were not). (T. 153, 163, 177, 179). See 

Stearns-Roger, Inc., 7 BNA OSHC 1919, 1921 (No. 76-2326, 1979) (inferring that eyewear 

referred to as “street glasses” were not impact-resisting safety glasses that met the criteria of the 

construction industry eye-protection standard involved there). 

The evidence establishes that employees who were engaged in tree removal and brush 

chipping activities were exposed to eye hazards from moving branches and propelled particles, 

so that the cited standard is applicable. Wal-Mart Distribution Ctr. The evidence also 

establishes (1) non-compliance with the standard at each of the three worksites, (2) employee 

exposure to injury to the eyes at each of the three worksites as a result of that non-compliance, 

and (3) that Watson had actual knowledge of the violative conduct. A preponderance of the 

evidence establishes that the Respondent violated section 1910.133(a)(1) in the manners alleged 

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in item 3 of citation 1. 

The violation of section 1910.133(a)(1) is properly classified as serious. There is a 

substantial probability that an unprotected eye struck by a flying wood chip or some other object 

could result in temporary or permanent disability. See Stearns-Roger, Inc., 7 BNA OSHC at 

1921 (noting “that the eye is an especially delicate organ and that any foreign material in the eye 

presents the potential for injury”). Such an injury would amount to “serious physical harm” that 

warrants a classification of “serious.” (T. 194, 420-21). See Vanco Constr., Inc., 11 BNA 

OSHC 1058, 1061-62 (No. 79-4945, 1982) (finding that “given the delicateness of the eye, 

serious physical harm would be substantially probable if an employee were struck in the eye by a 

particle or chip of concrete” caused by a sledgehammer or an electric hammer) aff’d, 723 F.2d 

410 (5th Cir. 1984). 

Citation 1, Item 4 – Section 1910.135(a)(1) – Protective Helmet 

Item 4 of serious citation 1 alleges that the Respondent violated 29 C.F.R. 

§ 1910.135(a)(1) in three separate instances on May 4, 2016, averring that for each instance 

“employees were exposed [to] overhead hazards during tree removal involving a mobile crane 

and tree trimming from height” and “to struck by hazards from branches while loading a wood 

chipper.” 

The cited standard, section 1910.135(a)(1), is a general PPE standard respecting head 

protection, and provides that “[t]he employer shall ensure that each affected employee wears a 

protective helmet when working in areas where there is a potential for injury to the head from 

falling objects.” 

Watson has a rule requiring that employees wear hardhats when they are working in the 

vicinity of falling limbs and hoisted loads, but his hardhat rule apparently does not extend to 

employees who are feeding the chipper. (T. 490-91; Ex. C-25, pp. 108-09). Watson keeps 

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hardhats at worksites in his truck for employee use. (T. 111-12, 456). 

In Altor, Inc., 23 BNA OSHC 1458 (No. 99-0958, 2011), the Commission applied the 

head protection standard that is contained in the construction industry standards at 29 C.F.R. 

§ 1926.100(a) (requiring employees in the construction industry to wear protective helmets when 

“working in areas where there is a possible danger of head injury from impact, or from falling or 

flying objects”) aff’d, 498 F.App’x 145 (3d Cir. 2002) (unpublished). The Commission decided 

that the construction industry standard “requires a showing of ‘access to an area of potential 

danger,’ not actual exposure to overhead hazards.” Id. at 1465, quoting Donovan v. Adams Steel 

Erection, Inc., 766 F.2d 804, 812 (3d Cir. 1985). The Commission in Altor stated further that 

“[e]xposure can be shown even where ‘the hazard of being struck... was remote and [where] 

hardhats may not have offered much protection.’” Id., quoting Hackensack Steel Corp., 20 BNA 

OSHC 1387, 1390 (No. 97-0755, 2003). The same logic should hold for the general industry 

head protection standard cited here, particularly since the standard here pertains to areas where 

there is the “potential for injury,” which is substantially the same language of the “area of 

potential danger” test that the Commission adopted in Altor. Further, as the Commission noted 

in Altor, “even a ‘comparatively brief exposure is sufficient to support a violation.’” Id., quoting 

Capeway Roofing Systems, Inc., 20 BNA OSHC 1331, 1339 (No. 00-1968, 2003) aff’d, 39 F.3d 

56 (1st Cir. 2004). 

Video 2 of Exhibit C-19, which depicted the removal of a single tree at the DiBella Drive 

worksite, showed all the employees having access to areas of potential danger from falling 

objects. It is reasonably inferable that the employees had similar access at the Church Road site, 

where the crew removed eleven trees, and the DiBella Street site, where the crew was working 

on the third tree at the time of the fatality. 

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With respect to the wear of hardhats solely for chipper operations, while the 

manufacturer’s warranty validation form that Watson signed in March 2004 indicates that 

anyone within 100 feet of machine must wear hardhats (Ex. C-14), and the chipper’s manual 

indicates that hardhats are among the “applicable safety equipment” that should be worn (Ex. R24, manual page 8), these written materials from the manufacturer alone are insufficient (though 

barely) to establish either (a) that Watson had actual knowledge of a need for wearing a 

protective helmet simply while feeding the chipper, or (b) that a reasonable person familiar with 

circumstances surrounding the operation of the chipper, would recognize a hazard requiring the 

wear of a protective helmet simply while feeding the chipper. See Wal-Mart Distrib. Ctr., 25 

BNA OSHC at 1400-01. In this regard, it is notable that nothing in the excerpt of ANSI standard 

Z133–2012 that was offered and received in evidence at Exhibit C-23 states that protective 

helmets should be worn when workers are in an area of chipping operations. 

The Secretary has thus not proven that the standard requires that employees wear 

protective helmets while simply operating the chipper at times when the crane was not operating 

and when no limbs were falling to the ground after being cut. However, the great weight of the 

remaining evidence establishes that the standard applied at each of the three worksites, that 

standard was violated and that employees were exposed to injury to the head from falling objects 

not associated with feeding of the chipper alone, and that Watson had actual knowledge of the 

violative conditions. The Secretary has proven that the Respondent violated section 

1910.135(a)(1) in manners alleged in item 4 of citation 1. 

The violation of section 1910.135(a)(1) is properly classified as serious. It is 

substantially probable that being struck in the head by a tree or branch falling while being 

hoisted by a mobile crane could result in death or permanent disability, which justifies a 

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classification of “serious.”18 (T. 422). 

Item 2 – Section 1910.132(f)(1) – PPE Training 

Item 2 of serious citation 1 alleges that the Respondent violated 29 C.F.R. 

§ 1910.132(f)(1) in three separate instances on May 4, 2016, averring that for each instance 

“employees were exposed to various hazards during tree removal, including but not limited to 

laceration and struck by hazards,” and that “[e]mployees were not trained on the necessary 

personal protective equipment for the task.” 

The cited standard, section 1910.132(f)(1), is a general PPE training standard, and 

provides as follows: 

(f) Training. (1) The employer shall provide training to each 

employee who is required by this section to use PPE. Each such 

employee shall be trained to know at least the following: 

(i) When PPE is necessary; 

(ii) What PPE is necessary; 

(iii) How to properly don, doff, adjust, and wear PPE; 

(iv) The limitations of the PPE; and, 

(v) The proper care, maintenance, useful life and disposal of the 

PPE. 

In the context of the PPE citation items alleged in citation 1, the standard required that 

Watson provide PPE training regarding protective legwear to operators of chainsaws (Andres 

and Burton), and to all employees regarding protective eyewear and protective helmets.19 

18 Watson’s general argument that holding him responsible for the violative conduct of his 

employees is inconsistent with the congressionally stated purpose of the Act is rejected. (Resp’t 

Br. 47-49). See Armstrong Steel Erectors, Inc., 18 BNA OSHC 1630, 1633, n.4 (No. 97-0250, 

1999) (stating that “[r]esponsibility under the Act for ensuring that employees do not put 

themselves into any unsafe position rests ultimately upon each employer, not the employees, and 

employers may not shift their responsibility onto their employees”). 

19By its terms, section 1910.132(f)(1) requires training for employees who are “required by 

this section to use PPE.” Section 1910.132(f) thus requires that employees who are required to 

wear leg protection while operating chainsaws pursuant to section 1910.132(a) receive PPE 

training regarding protective legwear. Paragraph (g) of section 1910.132 states that the training 

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Even though Watson did not provide any formalized training to his employees, the 

evidence is insufficient to establish that Watson never provided instruction and guidance to his 

two experienced employees, Andres and Burton, that was sufficient to meet the PPE training 

requirements of the cited standard.20 However, the great weight of the evidence is that Watson 

did not train either Ciaccio or the decedent regarding when they were required to wear protective 

eyewear and protective helmets, in violation of the cited standard. (See Findings of Fact ¶¶ 12, 

22, 25, supra). Watson had actual knowledge that neither Ciaccio nor the decedent had been 

instructed when to wear eye protection and head protection. See Lane Constr. Corp., 23 BNA 

OSHC 1097 (No. 09-0348, 2009) (ALJ) (“As the employer, Lane had actual knowledge of its 

training program”). Those new employees were exposed to risk of injury as a consequence of 

not receiving the training required by the cited standard. The Secretary has proven that the 

Respondent violated section 1910.132(f)(1) in manners alleged in item 3 of citation 1. 

For the same reasons stated in connection with the proven violations of sections 

1910.132(a), 1910.133(a)(1), and 1910.135(a)(1), the violation of the training standard at section 

1910.132(f)(1) is properly classified as “serious.” 

Citation 2, Item 1: General Duty Clause 

As described at the outset of this decision, the Secretary alleges that Watson willfully 

violated the general duty clause at each of the three separate worksites on May 4, 2016, by 

failing “to ensure that only employees trained in safe operation operated chippers and that only 

safe operating practices and techniques were used for feeding the chipper,” thereby exposing 

requirements of paragraph (f) apply to employees who are required to use eye or face protection 

under section 1910.133 and protective helmets under section 1910.135. 

20 Evidence that an employee violated a PPE standard does not prove that the employee did 

not receive required training on the matter. See Dravo Eng’rs & Constructors, 11 BNA OSHC 

2010, 2012 (No. 81-748, 1984) (observing that evidence of failure to enforce a safety rule does 

not prove a training violation). 

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employees to the hazard of “rotating blades and moving parts while feeding tree limbs” into the 

chipper. 

The citation item alleged that the following unsafe practices in feeding the chipper 

occurred on May 4: operators leaned into and reached into the infeed hopper; operators stood on 

the left side of the infeed hopper; operators pushed “small pieces of wood and branches by 

hand;” and operators manipulated “large tree limbs in front of the infeed hopper with their back 

to it.”21 

The citation alleged that feasible and acceptable methods of abatement included 

following manufacturer guidance on training and operation set forth in material issued by the 

chipper’s manufacturer and conforming to certain cited subparagraphs contained in ANSI 

standard Z133-2012, “American National Standard for Arboricultural Operations—Safety 

Requirements.” 

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

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

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

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

21 Watson argues that the alleged general duty clause violation should be vacated because it 

does not specify “the source” of the alleged unsafe practices and thereby fails to provide him 

with fair notice of what conduct is required to comply with section 5(a)(1), in violation of due 

process. (Resp’t Br. 39-45). See Ruhlin Co., 21 BNA OSHC 1779, 1784-85 (No. 04-2049, 

2006) (stating that “[a] citation issued under section 5(a)(1) will be vacated if the Commission 

determines that the employer lacks fair notice of what conduct is required”); Gen. Elec. Co. v. 

E.P.A., 53 F.3d 1324, 1328–29 (D.C. Cir. 1995) (noting that the due process clause of the Fifth 

Amendment “prevents ... deference from validating the application of a regulation that fails to 

give fair warning of the conduct it prohibits or requires”). Watson fails to show how the citation 

item is deficient in providing him with notice of what conduct the Secretary alleges would be 

required to protect employees from the caught-by hazard, and so his lack of “fair notice” 

contention is rejected. 

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Peacock Eng’g, Inc., 26 BNA OSHC 1588, 1589 (No. 11-2780, 2017). In addition, “the 

Secretary must also show the employer knew or, with the exercise of reasonable diligence could 

have known of the hazardous condition.” PSP Monotech Indus., 22 BNA OSHC 1303, 1305 

(No. 06-1201, 2008). 

Recognized Hazard 

Likely to Cause Death or Serious Physical Harm 

The willful citation item defines the hazard to which employees were exposed as “being 

caught-in rotating/moving parts of a wood chipper.” 

A hazard is defined “in terms of the physical agents that could injure employees rather 

than the means of abatement.” Chevron Oil Co., 11 BNA OSHC 1329, 1331, n.6 (No. 10799, 

1983). “The adequacy of the employer's work practices to reduce the risk of, or prevent the 

occurrence of, the hazard is a separate issue from the question of how the recognized hazard is 

defined.” Arcadian Corp., 20 BNA OSHC 2001, 2007 (No. 93-0628, 2004). 

The “physical agent” that defines the hazard here is the chipper, not the abatement 

methods that the citation proposes as being feasible and acceptable (viz., that only employees 

trained in the safe operation of the chipper operate it, and that employees use only safe operating 

techniques in feeding the chipper). 

The Secretary can establish that a hazard was recognized by “either the actual knowledge 

of the employer or the standard of knowledge in the employer’s industry—an objective test.” 

Kokosing Constr., 17 BNA OSHC 1869, 1873 (No. 92-2596, 1996), citing Cont’l Oil Co. v. 

OSHRC, 630 F.2d 446, 448 (6th Cir. 1980). 

“Manufacturers’ instructions and voluntary industry standards that contain explicit safety 

warnings regarding compliance may be probative evidence in establishing a general duty clause 

violation.” K.E.R. Enters, Inc., 23 BNA OSHC 2241, 2242 (No. 08-1225, 2013). 

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Voluntary industry standards such as those published by ANSI “are admissible and 

probative evidence of industry recognition of hazards.” Cargill, Inc., 10 BNA OSHC 1398, 

1402 (No. 78–5707, 1982). This is so even though a consensus standard has not been 

incorporated into an OSHA standard promulgated pursuant to the Act—such a consensus 

standard is nonetheless relevant to industry awareness of certain hazards associated with a given 

piece of equipment. Id. 

The manufacturer’s safety warnings and the provisions of ANSI standard Z133-2012 

described in ¶¶ 51–53 of the Findings of Fact, supra, objectively establish that the 

rotating/moving parts of a woodchipper present a “caught-in” hazard. 

Further, the caught-in hazard presented by the chipper is likely the type of hazard that is 

so "obvious and glaring” that it may be deemed recognized for purposes of the general duty 

clause apart from evidence of industry practice or expert testimony. See Tri-State Roofing & 

Sheet Metal, Inc. v. OSHRC, 685 F.2d 878, 880–81 (4th Cir. 1982). 

In any event, with nearly thirty years’ experience in the tree service industry and having 

owned and operated the chipper involved here since 2004, Watson had actual knowledge that the 

rotating/moving parts of the chipper presented a caught-in hazard. 

It is manifest that death or serious physical harm can result from being caught in the 

rotating/moving parts of a chipper. In any event, the manufacturer’s safety information 

described in the Findings of Fact at ¶ 51, is replete with warnings of the dire consequences of 

being caught in the chipper’s infeed wheels. 

Feasible and Effective Means 

to Eliminate or Materially Reduce the Hazard 

In order to establish the fourth enumerated element of a violation of the general duty 

clause (that a feasible and effective means existed to eliminate or materially reduce the hazard), 

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the Secretary “must specify the proposed abatement measures and demonstrate both that the 

measures are capable of being put into effect and that they would be effective in materially 

reducing the incidence of the hazard.” Beverly Enters., 19 BNA OSHC 1161, 1190 (No. 91-

3144, 2000) (consolidated). The Secretary need only show that the identified abatement method 

would materially reduce the hazard, not that it would eliminate the hazard. Arcadian Corp., 20 

BNA OSHC at 2011. Where an employer has undertaken measures to address a hazard, the 

Secretary must establish that the employer’s measures were inadequate. U.S. Postal Serv., 21 

BNA OSHC 1767, 1773-1774 (No. 04-0316, 2006). The Secretary may establish that an 

employer’s existing safety procedures were inadequate by demonstrating that there were 

“specific additional measures” required to abate the hazard. Pelron Corp., 12 BNA OSHC 1833, 

1836 (No. 82-388, 1986). 

An “employer may use any method that renders its worksite free of the hazard and is not 

limited to those methods suggested by the Secretary,” and thus “may defend by asserting that it 

was using a method of abatement other than the one suggested by the Secretary” and that “is as 

effective as the one suggested by the Secretary.” Brown & Root, Inc., 8 BNA OSHC 2140, 2144 

(No. 76-1296, 1980). 

The safety measures that were taken to abate the exposure of Ciaccio and the decedent to 

the chipper’s caught-in hazard was to orient them the chipper’s control bar and the last chance 

cables, to instruct them how to walk away from the chipper after the infeed wheels started 

pulling in a branch, and to feed the running chipper only when an experienced worker was with 

them. Watson also professed the intent to diligently monitor the decedent’s activity because of 

his concern over the decedent’s inexperience. The new employees were not directed to read the 

safety decals on the chipper and were not given any direct instruction on the content of those 

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safety decals. They were not provided any written or audio-visual safety material to review, and 

thus they had no exposure to such material. The Respondent had no reason to believe that either 

of the new employees had any exposure to any safety information regarding the chipper other 

than the oral information and instructions that they received during the brief time that each had 

been employed. 

The great weight of the evidence shows that these safety measures were inadequate to 

materially reduce the caught-in hazard and that they were not as effective as the measures 

proposed by the Secretary in the citation. Watson instructed Ciaccio and the decedent how to 

feed brush into the running chipper at the first worksite on Church Road, and he allowed them to 

continue to feed brush in the chipper with the instruction that they do so only when an 

experienced worker was near them. (T. 480; Ex. C-25, pp. 47-48, 53). Watson offers no 

explanation about how permitting a new employee to feed the chipper only when there was an 

experienced worker nearby adequately protects that new employee from caught-in hazards, 

particularly in light of the swiftness in which a worker may be caught up in material being pulled 

into a running chipper. Allowing either of the new employees to feed the chipper with those oral 

instructions, given their scant knowledge and orientation to the chipper, was plainly contrary to 

the safety instructions provided by the manufacturer, and Watson seems actually to have 

recognized as much when he testified as follows (T. 499): 

But it wasn't that [the decedent] was going to be running — I didn't 

want him even around that machine, even if they [Andres and 

Burton] gave him safety instructions or not. When the chipper was 

running, I – I wouldn't even have wanted him -- I mean, I was – I 

can't even believe that video [Ex. C-19, video 2] that they [Andres 

and Burton] let him run that through like that. 

In speaking with OSHA officials about two weeks after the fatality, Watson expressed a 

similar sentiment with respect to Ciaccio: “And even with [Ciaccio], I never would allow him 

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even to get near that chipper unattended himself. And he had ... somewhat more experience” 

than the decedent. (Ex. C-25, p. 56). And Watson testified that allowing new workers to “run” 

the chipper was not his “normal procedure on a new guy working with us.” (T. 485). 

It is revealing that in speaking to the police in the immediate aftermath of the fatality, 

Watson falsely told them that “all day long [the decedent] was cleaning up branches and raking 

up debris” and that the decedent “was not supposed to be putting things in the chipper.” (Ex. C16). But in truth, Watson had permitted the decedent (and Ciaccio) to do much more than clean 

up and rake up and had expressly permitted both of them to feed the running chipper. Watson’s 

false statement to the police reflects an awareness that the brief oral instructions and orientation 

given the decedent and Ciaccio on feeding the brush through the chipper was inadequate. It is 

reasonably inferable from Watson’s false statement to the police that he actually recognized that 

neither of the new employees should have been permitted to feed the chipper on the day the 

decedent was killed, because neither of them had received an adequate orientation and 

instruction on the safe operation of the chipper or had demonstrated a full understanding of, and 

proficiency in, those safe operating practices. 

The Secretary has established that the training and instruction that both the decedent and 

Ciaccio were provided on the chipper was inadequate to address the caught-in hazard posed by 

the chipper. 

The Secretary has also established that supervision of employees feeding the chipper was 

inadequate for monitoring whether the new employees were using only safe operating practices 

in feeding the chipper. At the DiBella Drive worksite, the new employees (1) fed the chipper 

while positioned directly behind the infeed tray rather than from the side of the infeed tray (and 

in some instances with the employee’s back to the infeed tray as other workers fed the chipper at 

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the same time), (2) failed to step away from the chipper after having fed brush into the chipper in 

the manner they had been instructed (and in one instance stepping over a branch as it was being 

pulled into the chipper), and (3) used hands rather than an instrument to push brush from the 

infeed tray into the infeed hopper (rather than using a wooden pole or similar instrument).22 

Watson acknowledged that the activity depicted in video 2 of Exhibit C-19 shows employees 

utilizing unsafe practices while feeding the chipper, and he testified that the only reason he did 

not correct those unsafe practices was because he did not see them as they were occurring.23 (T. 

559-61, 599-600). Watson also expressed chagrin that the experienced employees had not 

interceded at the DiBella Drive worksite to correct those unsafe practices, even though he had 

not instructed either of the experienced employees to do so. (T. 499). 

The video evidence shows both Ciaccio and the decedent feeding the running chipper 

when experienced workers were nearby, which is precisely what Watson told them they could 

do. (T. 480). Although soon after the fatality Watson told OSHA officials he had been 

concerned about the decedent and that he had made a point of keeping an eye on him throughout 

22 Contrary to averments in the citation item, the video evidence does not depict any of the 

workers putting any part of their bodies inside the infeed hopper. Moreover, while the video 

does show workers sometimes feeding the chipper from the left side of the infeed tray, doing so 

did not create a hazard at the DiBella Drive location because the street was blocked off, so no 

traffic was passing by the employees who were feeding the chipper. The safe practice prescribed 

by the manufacturer’s manual to avoid feeding from the left side of the infeed tray (the non-curb 

side) is intended to protect workers from passing vehicular traffic, not to protect employees from 

hazards presented by the chipper itself. (Ex. R-24). 

23 There is no direct evidence of any unsafe feeding practices occurring at either the Church 

Road or the Placid Drive worksites. Even though something went horribly wrong at the Placid 

Drive site, to conclude that the decedent got caught up in the chipper while engaging in unsafe 

feeding practices would to some extent require indulging in surmise, conjecture and speculation. 

Such an exercise is unnecessary in order to resolve the violation alleged. See Quick Transp. of 

Ark., LLC, 27 BNA OSHC 1947, 1949 (No. 14-0844, 2019) (stating that to establish a general 

duty clause violation does not require “[p]roof that a cited activity actually caused harm or 

necessarily could have caused harm under the precise physical conditions that happened to be 

present at the time of the violation, or at any other specific time”). 

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the day (Ex. C-25, p. 85), the video evidence belies that assertion. Had Watson been as diligent 

in supervising and monitoring the activities of the decedent as he professed to OSHA officials 

that he had been (and that he apparently believed he ought to have been), he would have 

certainly observed the unsafe feeding practices both the decedent and Ciaccio were using at the 

DiBella Drive worksite. The Secretary has established that the monitoring and supervision of the 

employees feeding the chipper was inadequate for protecting the new employees against the 

caught-in hazard presented by the chipper. 

The citation item identified provisions from the manufacturer’s materials and from ANSI 

Z133-2012 respecting training of employees on safe operating practices, and utilization of such 

safe operating practices. The excerpt of the ANSI standard Z133-2012 received in evidence at 

Exhibit C-23 does not specify any practice or procedure respecting brush chipping that is not 

also stated in the manufacturer’s manual that Watson received when he purchased the chipper. 

The great weight of the evidence establishes that restricting the feeding of the running chipper to 

employees who had been instructed on and understood the safe operating practices described in 

the manufacturer’s written materials, and adequately monitoring and supervising those trained 

employees respecting their actual use of those safe operating practices, are measures that were 

capable of being put into effect and that would have been effective in materially reducing the 

caught-in hazard while feeding the chipper. 

The Secretary has met his burden to show that a feasible and effective means existed to 

eliminate or materially reduce the caught-in hazard presented by the chipper. 

Watson’s Actual or Constructive Knowledge 

Watson had actual knowledge that neither of his new employees had adequate training 

and experience on the safe operation of the chipper when he permitted both of them to feed 

branches in the running chipper. His testimony and early statements to the police and to OSHA 

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officials convey an implicit understanding that given the level of training and experience of those 

employees, that they should not have been feeding the chipper on May 4 even when under the 

close observation of an experienced worker. (T. 499, 531; Ex. C-16, Ex. C-25, pp. 29-32, 37, 53, 

57-58, 84-85, 117-18). 

Contrary to Watson’s suggestion in his testimony that he did not know that Ciaccio and 

the decedent were feeding the chipper at the DiBella Drive worksite to the extent that video 2 of 

Exhibit C-19 depicted (T. 499), it is simply not reasonably possible that Watson failed to 

recognize that his new employees were feeding the chipper for over six minutes at the DiBella 

Drive location. At one point during the more than six minutes that the decedent fed brush into 

the chipper, the video shows Watson having stopped cutting to stand upright and to face directly 

at the decedent and Ciaccio as they feed the chipper no more than 20 feet away. (Ex. C-19, 

video 2 from 04:52 to 04:58). It was readily apparent to anyone who looked what Ciaccio and 

the decedent were doing, and the video shows that Watson actually did look. 

But even if Watson truly did not see the extent and manner in which the new employees 

were feeding the chipper at the DiBella Drive worksite, it was because he was not providing an 

appropriate level of monitoring and supervision of the inexperienced employees as they were 

feeding the chipper. 

“[A]n employer who lacks actual knowledge can nevertheless be charged with 

constructive knowledge of conditions that could be detected through an inspection or 

examination of the worksite.” Texas A.C.A., Inc., 17 BNA OSHC 1048, 1050 (No. 91–3467, 

1995). To prove constructive knowledge, the Secretary must show that Watson’s failure to 

discover an alleged violative condition was due to a lack of reasonable diligence. See Ragnar 

Benson Inc., 18 BNA OSHC 1937, 1940 (No. 97-1676, 1999). 

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“In assessing reasonable diligence, the Commission considers several factors, including 

an employer’s obligations to implement adequate work rules and training programs, adequately 

supervise employees, anticipate hazards, and take measures to prevent violations from 

occurring.” S. J. Louis Constr. of Tex., 25 BNA OSHC 1892, 1894 (No. 12-1045, 2016). 

“An employer is ... chargeable with knowledge of conditions which are plainly visible to 

its supervisory personnel.” Texas A.C.A., Inc., 17 BNA OSHC at 1050, n.4; see also Hamilton 

Fixture, 16 BNA OSHC 1073, 1091 (No. 88-1720, 1993) (noting that constructive knowledge 

may be established where a violative condition is “readily apparent to anyone who looked”), 

aff’d on other grounds, 28 F.3d 1213 (6th Cir. 1994). Whether an employer should have 

discovered a violative condition that is plainly visible requires consideration of how long the 

violative condition existed. Thos. Indus. Coatings, Inc., 23 BNA OSHC 2082, 2086 (No. 06-

1542, 2012) (ruling that the absence of evidence of how long a violative condition existed 

precludes finding that the employer could have known of the condition with the exercise of 

reasonable diligence.) 

Whether an employer has exercised reasonable diligence is a question of fact that “will 

vary with the facts of each case.” Martin v. OSHRC, 947 F.2d 1483, 1484 (11th Cir. 1991); see 

also Centex-Rooney Constr. Co., 16 BNA OSHC 2127, 2129 (No. 92–0851, 1994) (finding that 

a preponderance of the evidence established the cited employer was reasonably diligent). 

Watson is charged with constructive knowledge of the unsafe practices the decedent and 

Ciaccio frequently employed in feeding the chipper at the DiBella Drive worksite for over six 

minutes. As is substantially addressed in the preceding discussion on the section 5(a)(1) citation, 

Watson failed to exercise reasonable diligence in training the new employees, in adequately 

supervising the new employees, in reasonably anticipating hazards to which the new employees 

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may be exposed, and in taking reasonable measures to prevent the occurrence of their violative 

conduct.24 Thomas G. Gallagher, Inc. v. OSHRC, 877 F.3d 1, 11 (1st Cir. 2017). 

Willful Classification 

“The hallmark of a willful violation is the employer's state of mind at the time of the 

violation.” Kaspar Wire Works, Inc., 18 BNA OSHC 2178, 2181 (No. 90-2775, 2000), aff'd, 268 

F.3d 1123 (D.C. Cir. 2001). A violation is willful if the employer acted with an intentional, 

knowing, or voluntary disregard for the requirements of the Act, or with plain indifference to 

employee safety. Stark Excavating, Inc., 24 BNA OSHC 2215, 2222 (No. 09-0004, 2014) aff’d, 

811 F.3d 922 (7th Cir. 2016). A showing of evil or malicious intent is not necessary to establish 

willfulness. Anderson Excavating and Wrecking Co., 17 BNA OSHC 1890, 1891, n.3 (No. 92-

3684, 1997), aff'd 131 F.3d 1254 (8th Cir. 1997). “[A] willful violation may be found where the 

employer knows of the legal duty to act, and knowing an employee is exposed to a hazard, 

nonetheless fails to correct or eliminate the hazardous exposure.” Revoli Constr. Co., 19 BNA 

OSHC 1682, 1685 (No. 00-1315, 2001); see also Dukane Precast, Inc. v. Perez, 785 F.3d 252, 

256 (7th Cir. 2015) (concluding that proof of willfulness under section 17(a) of the Act “requires 

proof only that the defendant was aware of the risk, knew that it was serious, and knew that he 

could take effective measures to avoid it, but did not—in short, that he was reckless in the most 

commonly understood sense of the word”) (Posner, J.). 

“Willful violation of the general duty clause of the Act is legally cognizable.” EnsignBickford Co. v. OSHRC, 717 F.2d 1419, 1422 (D.C. Cir. 1983). A willful violation of the 

24 This affirmative finding of constructive knowledge that the new employees were utilizing 

unsafe practices in feeding the chipper at DiBella Drive effectively disproves Watson’s assertion 

that he should not be held responsible for that violative conduct on the ground of unpreventable 

employee misconduct. See Burford's Tree, Inc., 22 BNA OSHC 1948, 1951-52 (No. 07-1899, 

2010). That affirmative defense need not be further addressed. 

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general duty clause may be established where an employer demonstrates “ ‘plain indifference’ 

towards the safety requirements of the general duty clause.” Id. at 1422-23. “An employer need 

not harbor ... a ‘specific intent’ to violate” the general duty clause in order to violate it willfully. 

Id. at 1423. 

As discussed earlier, Watson’s false statement to the police in the immediate aftermath of 

the fatality, when he told the police that “all day long [the decedent] was cleaning up branches 

and raking up debris” and “was not supposed to be putting things in the chipper,” when in truth 

the decedent had fed the chipper with Watson’s express permission, evinces a consciousness of 

wrongdoing with regard to having given an inadequately trained employee with no prior 

experience the permission to operate lethal equipment. Corroborative of this conclusion is 

Watson’s testimony that allowing new workers to “run” the chipper was not his “normal 

procedure on a new guy working with us.” (T. 485). Further corroborative of this conclusion is 

Watson’s further testimony, quoted previously, that he “didn't want [the decedent] even around 

that machine” when the chipper was running regardless whether the experienced employees had 

given the decedent safety instructions. (T. 499). But video 2 of Exhibit C-19 shows that in 

actuality, Watson observed the decedent and Ciaccio feeding the chipper at the DiBella Drive 

worksite when an experienced worker was nearby. This is what Watson had expressly permitted 

the new employees to do. 

The whole of the evidence establishes that Watson’s violation of the general duty clause 

was willful in that it establishes Watson recognized that he had a legal duty not to permit the 

decedent or Ciaccio to feed the running chipper and he knew that permitting them to do so would 

materially heighten their exposure to the chipper’s caught-in hazard, but that he nonetheless 

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failed to materially reduce or eliminate the hazardous exposure. Revoli Constr. Co., 19 BNA 

OSHC at 1685. 

Watson argues that a willful classification is inappropriate because he “acted in good 

faith throughout.” (Resp’t Br. 62-63). See Jim Boyd Constr., Inc., 26 BNA OSHC 1109, 1112 

(No. 11-2559, 2016) (stating that the Commission has “long held that a violation is not willful if 

the employer shows that it exhibited a good faith, reasonable belief that its conduct conformed to 

law, or it made a good faith effort to comply with a standard or eliminate a hazard”). 

The evidence discussed above does not establish that Watson ever held the subjective 

belief that his conduct conformed to law or that he had made a good faith effort to materially 

reduce or eliminate the new employees’ exposure to the caught-in hazard. But even if Watson 

did hold such a subjective belief, that belief would have been unreasonable, and would not 

support a finding of good faith that would preclude a classification of willfulness. 

Penalty Assessment 

The Commission is the final arbiter of penalties. Hern Iron Works, Inc., 16 BNA OSHC 

1619, 1622, (No. 88-1962, 1994), aff’d, 937 F.2d 612 (9th Cir. 1991) (table); see Valdak Corp., 

17 BNA OSHC 1135, 1138 (No. 93-0239, 1995) (“The [OSH] Act places limits for penalty 

amounts but places no restrictions on the Commission’s authority to raise or lower penalties 

within those limits”), aff’d, 73 F.3d 1466 (8th Cir. 1996). Section 17(j) of the Act requires the 

Commission, in assessing an appropriate penalty, to give due consideration to the gravity of the 

violation, the “size of the business of the employer,” and to the employer’s history of violations 

and good faith. 29 U.S.C. § 666(j). Of these factors, gravity is the principal factor “and is based 

on the number of employees exposed, duration of exposure, likelihood of injury, and precautions 

taken against injury.” Siemens Energy and Automation, Inc., 20 BNA OSHC 2196, 2201 (No. 

00-1052, 2005). 

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“[T]he Commission has the authority to ensure that a penalty is not unduly burdensome 

or excessive by evaluating the penalty assessment criteria set forth in the Act and determining a 

reasonable and appropriate penalty based on that evaluation.” S.A. Healy Co., 17 BNA OSHC 

1145, 1151 (No. 89-1508, 1995), aff’d on other grounds, 138 F.3d 686 (7th Cir. 1998). 

The maximum penalty for a serious violation occurring on the day of the fatality here was 

$12,471. The maximum and minimum penalties for a willful violation were respectively 

$124,709 and $8,908.25 

Watson testified regarding his financial condition, although he presented no 

documentation to corroborate his testimony. Nevertheless, his testimony that he does not have 

significant cash holdings, and that his only significant property holdings are his house (with a 

25 On July 1, 2016, the Secretary published an Interim Final Rule that increased allowable 

penalty amounts for violations that occurred after November 2, 2015, pursuant to the Inflation 

Adjustment Act of 2015. Pub. Law 114-74 § 701, 129 Stat. 559-602 (2015). Interim Final Rule, 

Department of Labor Federal Civil Penalties Inflation Adjustment Act Catch-Up Adjustments, 

81 Fed. Reg. 43430, 43439 (July 1, 2016) (to be codified at 29 C.F.R. 1902, 1903). The Inflation 

Adjustment Act mandates that the penalty adjustments apply to any civil monetary penalty 

assessed after August 1, 2016, ‘‘including those whose associated violation predated such 

increase.’’ Pub. L. 114–74 at § 701. Before this increase, the maximum penalty for a willful 

violation had been $70,000. 

The violations here occurred on May 4, 2016, and were assessed between August 1, 2016 and 

January 13, 2017, so the maximum penalties stated in the text apply. 29 C.F.R. § 1903.15(d) 

(2016); see also, Department of Labor Federal Civil Penalties Inflation Adjustment Act Annual 

Adjustments for 2017, 82 Fed. Reg. 5373, 5385-86 (Jan. 18, 2017) (to be codified at 29 C.F.R. 

1903) (increasing maximum penalty amounts for penalties assessed after January 13, 2017). 

The Respondent argues that applying the increased penalties that were published on July 1, 

2016, to violations that occurred before the publication of the penalties “is a violation of due 

process/fair notice.” (Resp’t Br. 65). To sustain this argument would require ruling that the 

provision of the Inflation Adjustment Act of 2015 that expressly mandates application of the 

increased penalties in this manner is unconstitutional. This, the Commission has not the power 

to do. See S.A. Healy Co., 17 BNA OSHC at 1147 (noting that “[a]rguably, the Commission 

would not be competent to decide ... whether the Act would be unconstitutional”); Johnson v. 

Robison, 415 U.S. 361, 368 (1974) (noting the principle that “adjudication of the 

constitutionality of congressional enactments has generally been thought beyond the jurisdiction 

of administrative agencies”). 

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substantial mortgage) and vehicles and equipment related to his business, was credible. (T. 532-

543). 

The Commission has recognized that an employer’s finances can be relevant to assessing 

“the size of the business of an employer” under section 17(j). See e.g., Colonial Craft Reprod., 1 

BNA OSHC 1063, 1064 (No. 881, 1972) (size includes financial condition); Jasper Constr., Inc., 

1 BNA OSHC 1269, 1270 (No. 119, 1973) (size is determined by looking at both “gross dollar 

volume and the number of persons employed”). 

OSHA proposed the penalties for the serious PPE violations by employing its internal 

methodology for calculating penalty amounts to take into account the statutory factors prescribed 

by section 17(j) of the Act. (T. 415-29). The assessments for severity and probability with 

respect to the “gravity” factor for each of the PPE violations as described by the OSHA Area 

Director were consistent with the evidence presented at the hearing, and the undersigned adopts 

those assessments as reflected in the Area Director’s testimony. (T. 415-29). The undersigned 

also adopts the Area Director’s adjustments to the resulting gravity-based penalties for the 

serious citation items to take into account the employer’s size, history and good faith. In making 

these adjustments, the Secretary reduced the calculated gravity-based penalties for each of the 

serious violations by 60% to account for the employer’s size, in accordance with objective 

standards set forth in OSHA’s methodology.26 (T. 423). This reduction for size in OSHA’s 

methodology operates to address appropriately the size of Watson’s business (including the 

business’s financial condition) with respect to the four serious citation items. Adopting the 

26 OSHA’s methodology for assessing proposed penalties apparently does not directly take 

into account the financial condition of an employer (see Sec’y Br. 42), perhaps on the logic that 

OSHA’s methodology of adjusting penalties downward for smaller employers addresses to some 

extent the financial wherewithal of some smaller employers to satisfy the gravity-based penalty. 

The undersigned notes, however, that the sizes of any given employer’s workforce and the bank 

accounts are not necessarily directly correlated. 

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proposed penalties for the serious citation items, the following penalties will be assessed for the 

serious citation 1 items as follows: (1) for item 1, $3563 for the violation of § 1910.132(a); (2) 

for item 2, $4988 for the violation of § 1910.132(f)(1); (3) for item 3, $3563 for the violation of 

§ 1910.133(a)(1); and (4) for item 4, $4988 for the violation of § 1910.135(a)(1). Thus, penalties 

totaling $17,102 for serious citation 1 shall be assessed. 

OSHA’s assessment of the severity and probability factors for the serious willful 

violation resulted in a determination that the violation was “high” gravity, which under OSHA’s 

methodology resulted in a gravity-based penalty in the maximum amount allowable for a willful 

violation of $124,709. (T. 423-28). OSHA’s methodology provides for an employer of the 

Respondent’s size to receive an 80% reduction to that gravity-based penalty on account of the 

employer’s size. (T. 437). An 80% reduction to the maximum penalty would have resulted in a 

proposed penalty of $24,942 for the serious willful violation. OSHA’s penalty methodology 

allows area directors the discretion to depart from the methodology in certain circumstances, 

including violations that involve fatalities. (T. 372-74, 427-28). The Area Director here 

exercised that discretion in determining not to provide for any reduction for size because a 

fatality was involved and because of “all the factors related to the investigation.” (T. 428). 

The undersigned adopts the Secretary’s assessment that the serious willful violation is of 

high gravity and merits the gravity-based penalty as calculated using the Secretary’s penalty 

methodology. The undersigned further adopts the Secretary’s determination not to adjust this 

gravity-based penalty downward in addressing the section 17(j) factors pertaining to the 

employer’s history of violations and good faith. 

The undersigned determines that not reducing the maximum penalty allowable under the 

law for the employer of very modest financial means here, even for a willful violation involving 

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a fatality, does not adequately account for the “size of the business” of an employer under 

section 17(j) of the Act, and here would result in a penalty that is unduly burdensome and 

excessive for the employer. See S.A. Healy Co., 17 BNA OSHC at 1151. 

The Secretary argues for not reducing the proposed maximum penalty in part because of 

the deterrent effect of a maximum penalty. (Sec’y Br. 38-40). The undersigned finds that after 

due consideration is given to the size of the business of the employer here, that the interests of 

specific deterrence will be sufficiently served without assessing the maximum available penalty. 

A reduction of 60% to the gravity-based penalty for the serious willful violation, which is the 

same percentage reduction that the Secretary proposed to be applied to the gravity-based 

penalties for the serious PPE violations, is appropriate in view of the small size of the employer’s 

business (and correspondingly meager financial wherewithal) and to account for “all the factors 

of the investigation” as referenced by the area director, which includes the tragic fact that the 

matter involved a fatality. 

A 60% reduction in the proposed maximum penalty results in an assessed penalty of 

$49,884 for the willful violation of section 5(a)(1) of the Act. 

ORDER 

The foregoing decision constitutes the findings of fact and conclusions of law in 

accordance with Federal Rule of Civil Procedure 52(a)(1). If any finding is in actuality a 

conclusion of law or any legal conclusion stated is in actuality a finding of fact, it shall be 

deemed so, any label to the contrary notwithstanding. Based upon the foregoing findings of fact 

and conclusions of law, it is ORDERED that: 

1. Citation 1, item 1, instances “a”, “b”, and “c”, for a serious violation of 29 C.F.R. 

§ 1910.132(a) is AFFIRMED, and a penalty of $3563 is assessed. 

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2. Citation 1, item 2, instances “a”, “b”, and “c”, for a serious violation of 29 C.F.R. 

§ 1910.132(f)(1) is AFFIRMED, and a penalty of $4988 is assessed. 

3. Citation 1, item 3, instances “a”, “b”, and “c”, for a serious violation of 29 C.F.R. 

§ 1910.133(a)(1) is AFFIRMED, and a penalty of $3563 is assessed. 

4. Citation 1, item 4, instances “a”, “b”, and “c”, for a serious violation of 29 C.F.R. 

§ 1910.135(a)(1) is AFFIRMED, and a penalty of $4988 is assessed. 

5. Citation 2, item 1, instances “a”, “b”, and “c”, for a willful violation of section 5(a)(1) 

of the Act, 29 U.S.C. § 654(a)(1), is AFFIRMED, and a penalty of $49,884 is assessed. 

/s/ 

WILLIAM S. COLEMAN 

Administrative Law Judge 

Date: September 27, 2019 

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