Some personal identifiers have been redacted for privacy purposes

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, D.C. 20036-3457 

SECRETARY OF LABOR, 

 Complainant,

 v. 

 

ALL FLORIDA TREE & LANDSCAPE, OSHRC DOCKET NO. 13-0373

INC.

 Respondent. 

APPEARANCES: Charna C. Hollingsworth-Malone, Esquire Andrea Lee Wolfson, Esquire 

 U.S. Department of Labor Wolfson & Konigsburg, P.A. 

 Office of the Solicitor 4491 South State Rd. 7 

 61 Forsyth St., S.W., Room 7T10 Suite 314 

 Atlanta, Georgia 30303 Davie, Florida 33314 

 For the Complainant For the Respondent 

 

BEFORE: Dennis L. Phillips 

Administrative Law Judge

DECISION AND ORDER

 Background 

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

Commission”) pursuant to § 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 

§ 651 et seq. (“the Act”). All Florida Tree & Landscape, Inc., (“All Florida” or “Respondent”) is 

a corporation operating in the Fort Lauderdale, Florida area, where it is engaged in pruning and 

removing trees and shrubs, and debris removal. On August 21, 2012, two of Respondent’s 

employees were cutting and removing branches while high up in a large kapok tree in the 

backyard of a residence in Coral Springs, Florida. The employees wrapped the branches in 
chains hanging from a crane that thereafter lifted the cut branches away from the tree. Energized 

overhead lines were in the vicinity of the tree.1

 Mr. Jorge Carrera-Zarate (“Carrera-Zarate” or 

“deceased”), age 30, one of Respondent’s employees assisting in tree branch cutting and removal 

was electrocuted. This occurred when the lower segment of the chain rigging hanging down 

from the crane hook either struck or came close to an energized overhead line running below the 

deceased and Mr. Carrera-Zarate contacted the upper segment of the chain rigging. Mr. CarreraZarate died a few days later. (Tr. 38, 53-54; Ex. C-2, at p. 3 (response to Request for Admission 

(“RFA”) No. 4), ex. R-B). 

Following a referral from the local police department, Compliance Safety and Health 

Officer (“CSHO”) Maria Colon conducted an inspection of the job site on August 22, 2012. 

CSHO Anthony Campos reviewed CSHO Colon’s inspection and conducted follow-up 

inspections. After the investigation, the Occupational Safety and Health Administration

(“OSHA”) issued one citation alleging a serious violation and one citation alleging willful 

violations. The Secretary proposed a penalty of $2,800 for the serious violation and a combined 

penalty of $56,000 for the willful violations. (Tr. 164-165, 179, 411, 413). 

Respondent filed a timely Notice of Contest. After a contentious period of discovery, 

which will be discussed infra, a hearing was held in Miami, Florida on December 3-5, 2013. 

The parties have filed both opening post-hearing briefs (“Post-Hr’g Br.”) and reply post-hearing 

briefs (“Reply Br.”), and the matter is ready for decision. 

 Cited Standards 

Citation 1, Item 1 alleges a serious violation of 29 C.F.R. § 1910.180(h)(3)(v), which 

1 Overhead line refers to a line above the ground. The energized overhead line that made contact with the crane’s 

chain was situated below Mr. Carrera-Zarate. In this decision, the energized overhead lines are also referred to as 

“lines”, “power line”, “energized power lines”, “wire(s)”, “wiring”, “overhead lines”, “energized overhead power 

lines”, and “overhead power lines”. 

2 

 
provides: 

1910.180 Crawler, locomotive and truck cranes.

 * * * 

(h) Handling the load- 

 * * * 

(3) Moving the load. 

 * * * 

(v) No hoisting, lowering, swinging, or traveling shall be done while anyone is on 

the load or hook. 

Specifically, the Secretary alleges that “On or about 8/21/2012, at 2660 SW 13th Avenue, 

Fort Lauderdale, FL, two employees were exposed to a fall and/or electrocution when being 

brought up into a tree while riding the hook of the crane, which came in close proximity to 

energized power lines.” (Citation 1, Item 1)

Citation 2, Item 1(a) alleges a willful violation of 29 C.F.R. § 1910.333(c)(3), which 

provides: 

1910.333 Selection and use of work practices.

* * * 

(c) Working on or near exposed energized parts- 

* * * 

(3) Overhead lines. If work is to be performed near overhead lines, the 

lines shall be deenergized and grounded, or other protective measures shall be 

provided before work is started. If the lines are to be deenergized, arrangements 

shall be made with the person or organization that operates or controls the electric 

circuits involved to deenergize and ground them. If protective measures, such as 

guarding, isolating, or insulating are provided, these precautions shall prevent 

employees from contacting such lines directly with any part of their body or 

indirectly through conductive materials, tools, or equipment. 

Specifically, the Secretary alleges that “On or about 8/21/2012, at 2660 SW 13th

Avenue, Fort Lauderdale, FL, the employer did not ensure that overhead power lines 

were de-energized prior to work being started.” (Citation 2, Item 1a). 

Citation 2, Item 1(b) alleges a willful violation of 29 C.F.R. § 1910.333(c)(3)(i)(A)(1), 

which provides: 

3 
(i) Unqualified persons. (A) When an unqualified person is working in an 

elevated position near overhead lines, the location shall be such that the person 

and the longest conductive object he or she may contact cannot come closer to 

any unguarded, energized overhead line than the following distances: 

(1) For voltages to ground 50kv or below-10 ft. (305 cm); 

Specifically, the Secretary alleges that “When an unqualified person was working 

in an elevated position near overhead lines with voltages to ground rated at 50 kV or 

below, the location was such that the person and the longest conductive object could 

contact the power line. On or about 8/21/2012, at 2660 SW 13th Avenue, Fort 

Lauderdale, FL, the employer directed employees to work within 10 feet of an energized 

7620 overhead power line.” 2

 (Citation 2, Item 1b). 

Jurisdiction

Respondent admitted in its answer that, at all relevant times, it was engaged in a business 

affecting commerce and was an employer employing employees. Respondent also admitted that 

jurisdiction of this action was conferred upon the Commission by § 10(c) of the Act, 29 U.S.C. § 

659(c). (Answer, at ¶¶ 1 and 2, Joint Pre-Hr’g Statement ¶ III(a)(b) and (c)). Based on the 

parties’ pleadings, stipulations, and the trial record, the Court finds that Respondent, at all 

relevant times, was engaged in a business affecting commerce and was an employer within the 

meaning of §§ 3(3) and 3(5) of the Act, 29 U.S.C. §§ 652(3) and 652(5). The Court also finds 

that jurisdiction of this proceeding is conferred upon the Commission by § 10(c) of the Act and 

that it has jurisdiction over the parties and subject matter in this case.

Stipulated Principles of Law and Facts

The parties agreed to the following principles of law in their joint pre-hearing statement: 

2 At the start of the trial, the Court granted the Secretary’s Motion to Amend Citation 2, Item 1(b), allowing the 

word “not” following the words “the location was” to be deleted from the citation item. Respondent was not 

prejudiced by this amendment. The Court also denied Respondent’s Motion to Dismiss Citation 2, Item 1(b). (Tr. 

14-16).

4 

 
1. Respondent, at the time of the inspection, was an employer engaged in business affecting 

commerce within the meaning of § 3(5) of the Occupational Safety and Health Act of 1970, 29 

U.S.C. § 651, et seq.

2. OSHA has jurisdiction over Respondent as the employer of the employees at the worksite 

inspected between August 22, 2012 and February 20, 2013. 

3. Respondent timely contested the citation and the proposed penalty, pursuant to the provision 

of section 10(c) of the Act. 

(Joint Pre-Hr’g Statement, at p. 12). 

The parties stipulated to the following facts in their joint pre-hearing statement:

3

1. At the time of the accident at the jobsite on August 21, 2012, Jorge Carrera-Zarate was 

Respondent’s employee. 

2. Mr. Alan McPherson is Respondent’s owner. 

3. Mr. Alan McPherson was on the job site and observed the preparation for removal of the 

kapok tree by the crane company (Hunter/Merchant’s Crane) and MonkeyMan Tree Service, Inc. 

on August 21, 2012. 

4. Mr. Alan McPherson and Mr. Raphael Pacheco discussed the workplace’s energized overhead 

power lines before the accident. 

5. Before the accident, Mr. Alan McPherson did not believe the overhead powerlines were 

turned off. 

6. Before the accident on August 21, 2012, Mr. Alan McPherson saw Jorge Carrera-Zarate

working in the tree. 

3 Additional stipulated facts were made during the trial as sanctions remedying Respondent’s discovery deficiencies. 

See discussion, The Secretary’s Motion in Limine to Exclude Evidence in Support of Respondent’s Affirmative 

Defenses, infra, at pp. 64-71, herein.

5 

 
(Joint Pre-Hr’g Statement, at pp. 12-13). 

 Witness Testimony

Three witnesses testified for the Secretary: Respondent’s president, Alan McPherson; 

CSHO Anthony Campos; and Rafael Pacheco, owner of Monkey Man Tree Service, Inc.

(“Monkey Man”) and the Respondent’s foreman at the job site on August 21, 2012.4

 The 

Respondent called nine witnesses: Alan McPherson; Respondent’s employees Messrs. Jesus 

Cruz, William Gonzalez, and Jesus Pineda; former Hunter Merchant Crane salesman, Randy 

Miller; Consultant Mary Ann Wolfson, who does Respondent’s payroll; Delancy Rochester, who 

runs Coral Springs Tree Service and observed the work at the job site; Delio DeBenedetto a 

crane operator who also observed the work at the job site; and Ronny Hoggins, Hoggins 

Construction Co., 5540 Lyons Road, Coconut Creek, Florida 33073 (“Hoggins Construction”). 

Hoggins Construction was the general contractor renovating the home at the job site. (Tr. 113, 

132; Ex. R-A).

Testimony of Alan McPherson 

Alan McPherson has been the president of All Florida since it was formed in April, 2003. 

He is a certified arborist, having received his certification from the International Society of 

Arborculture in about 2003. All Florida engages in tree trimming, pruning, and tree and debris 

removal in south Florida. He testified that he generally subcontracts work that requires climbing 

trees when performing tree pruning and removal. Mr. McPherson testified that he never 

personally climbed trees or used a bucket to access tree limbs being pruned or removed.5 He 

stated that All Florida has used buckets to access tree limbs. He further testified that 

4 The employment status of Mr. Pacheco is in dispute and will be discussed, infra. 5 A “bucket truck” generally has an aerial “basket” or “bucket” resting atop a protruding boom. See Consumers 

Power Co., 5 BNA OSHC 1423, 1424 at n. 6 (No. 11107, 1977).

6 

 
Respondent’s employees occasionally climb trees, but generally perform work that is done from 

the ground with pull printers and pull clips. Mr. McPherson testified that Respondent’s work 

“never” involved overhead energized lines before August 21, 2012.6 Hoggins Construction 

entered into a contract with All Florida to remove a large kapok tree located on the property at 

2660 Southwest 13th Avenue, Fort Lauderdale, Florida (“job site”), and to chip, process, and 

remove the debris.7 (Tr. 92-95, 113, 131, 135, 705-708, 769-771). 

In about June, 2012, Mr. McPherson went to the job site to assess the job before bidding 

on it. The purpose of his “location and tree assessment” was to recognize and note any hazards 

involved with the job. He recognized hazards associated with the energized overhead lines; as 

well as with the size, height and difficulty in removing the tree. He recognized the enormity of 

the tree required a big crane and experts to remove. He observed and recognized that the 

energized overhead lines at the job site created natural hazards, including electrocution. The tree 

was in the backyard of a 1⁄4 acre plot. Mr. McPherson testified that the tree was “enormous” with 

huge limbs, “almost 100 feet tall” and 100 years old. (Tr. 107-109, 136-137, 721). 

Mr. McPherson testified that he immediately thought that he could get Monkey Man to 

do the tree removal. He testified that Mr. Pacheco was “very experienced,” “extremely highqualified,” and “highly skilled” in pruning and tree removal that he had been doing for thirty 

years. He testified that he discussed the energized overhead lines with Mr. Pacheco before Mr. 

Pacheco first looked at the job site. He stated that he told Mr. Pacheco then that he had not been 

able to “get them [the energized overhead lines] shut down” and that he [Mr. Pacheco] had to 

6 Mr. McPherson’s testimony at trial in this regard was contradicted by a prior statement that he made to OSHA 

representatives on August 30, 2012, when he said that Respondent had come in contact and worked around power 

lines, usually avoiding trees with limbs, when asked when interviewed “Have you ever worked on jobs around 

powerlines before?” (Tr. 95-105; Ex. 5, at p. 3). 7 Mr. McPherson testified that the tree removal was funded by the federal government and the City of Fort 

Lauderdale, Florida. (Tr. 713).

7 

 
consider any overhead line there “live” when he [Mr. Pacheco] went to visit the job site. Mr. 

McPherson determined that, to do the job safely, experts were required and a crane needed to lift 

the cut limbs over the house and into the street. (Tr. 108, 128, 709, 720-722). 

Mr. McPherson testified that Mr. Pacheco visited the job site twice before commencing 

work on August 21, 2012. He testified that, after Mr. Pacheco visited the job site, Mr. Pacheco 

told him that he [Mr. Pacheco] was “comfortable” and had “no problem” with the job. Mr. 

McPherson testified that Mr. Pacheco asked him if he [Mr. McPherson] could get the energized 

overhead lines “shut down.”8 In response, he told Mr. Pacheco “okay.”9 He further testified that 

together, he and Mr. Pacheco, “took into consideration the wire, the buildings, the fences, the 

size, the height, [and] the degree of difficulty” and they mitigated these considerations by getting 

a bigger crane for the job. (Tr. 129-130, 708, 712-713, 718, 720-722). 

Mr. McPherson stated that the crane was hired to keep “us a safe distance, the limbs, 

anything from coming in contact, ... [with the energized overhead lines].” He testified that 

“[t]he tree limbs were nowhere near the lines.” He used the crane to lift tree limbs that had been 

cut over the tree and the property and “fly the limb to the street.” He testified that he did not 

want the cut limbs to come down beside the tree because he “didn’t want to break those lines, I 

didn’t want to hit those lines, I didn’t want to destroy anything.” Mr. McPherson further 

testified that “naturally [he] would be concerned about something hitting the wire, yeah. That’s 

why they didn’t have anything that they held or controlled that could reach the wiring.”10 He 

also testified that he was “[a]bsolutely” concerned about hitting the energized overhead lines by 

8 Mr. McPherson also testified that Mr. Pacheco said to him before Respondent submitted its bid for the job: “If you 

can get it [the energized overhead line] shut off I would like to have it shut off.” (Tr. 722).

9 Mr. McPherson testified that Mr. Pacheco never arranged to have the power shut off on jobs when Mr. Pacheco 

worked for Respondent. (Tr. 723).

10 This testimony belies the fact that Messrs. Pacheco and Carrera-Zarate routinely touched the crane’s rigging’s 

chains to wrap around tree branches and these chains came in contact with the energized overhead lines located 

beneath the tree climbers. 

8 

 
lowering the cut branches down beside the tree because the branches were too big. He stated that 

the energized overhead lines “were much lower than where the employees were going to be 

working” in the tree and that there was no work to be done below the wires, except to cut the tree 

at its base that was 25 to 30 feet below the energized overhead lines. (Tr. 134, 143-146, 721). 

Mr. McPherson testified that Hoggins Construction agreed to supply and pay for the 

crane at a cost of $1,500. Mr. McPherson referred Hunter Merchant Crane, a company that he 

had worked with before, to Hoggins Construction. Mr. McPherson talked to Randy Miller, who 

worked for Hunter Merchant Crane, and asked him to send a crane to the job site. Mr. 

McPherson testified that he told Hoggins Construction that he [Mr. McPherson] had not been 

able to get “FP&L [“Florida Power & Light”] to act.” (Tr. 134-135, 141, 713, 722, 773-774; Ex. 

R-A). 

In early August, 2012, about three weeks before the job began, Mr. McPherson returned 

to the job site a second time to determine if there was proper access for the crane and if anything 

in the street would prevent debris removal. He saw that the hazards he had previously noted had 

not changed between his two visits to the job site. (Tr. 108-110, 718). 

Mr. McPherson testified that he contacted FP&L about de-energizing or insulating the 

energized overhead lines. He claimed that he called the power company three to four times a 

week for a couple of weeks, but FP&L allegedly did not respond. Mr. McPherson testified that 

he assured Mr. Pacheco that he would try more times to contact FP&L. He did not know the 

names of any of the people he spoke with at FP&L and asserted that his contacts there would not 

give their names. He also testified that he would get passed from one person to another, or given 

a number to call back. He stated that “it’s a shell game.”11 He also stated that he asked a 

11 Mr. McPherson testified that FP&L had never before the accident shut down any energized overhead line, “Not 

9 

 
number of other people, including municipal people, if they could help him contact FP&L. Mr. 

McPherson testified that he called the city forester who told him that it would take an act of God 

to get FP&L to de-energize the overhead lines. Mr. McPherson also testified that FP&L does not 

shield lines. He asserted that this was the experience of everyone in the industry. (Tr. 110-111, 

132, 142, 719-720, 782; Ex. C-3, at p. 22). 

Mr. McPherson stated that “I don’t attack jobs where there’s a line going through trees.” 

He testified that in such cases he used Asplundh Tree Expert Company (“Asplundh”), an 

overhead line clearing contractor, but added that Asplundh did not remove trees. He first

asserted that he did not call Asplundh on this job because the tree was far enough from the 

energized overhead lines and there was nothing to cut that would affect the overhead lines. On 

cross-examination, he recanted his initial testimony and instead testified that he did call 

Asplundh, but it did not take the job because Asplundh lacked the authority to remove that type 

of tree. (Tr. 112, 130-131, 143, 151, 719, 780). 

Mr. McPherson was next at the job site on the morning of August 21, 2012. He observed 

that the hazards he had previously noted during his two earlier visits to the job site had not 

changed. He and Mr. Pacheco again assessed the energized overhead lines hazard. Specifically, 

he testified:

Q. So my question was did you do anything to change the hazard regarding the lines 

 before the morning [of August 21, 2012]? 

A. Other than the talk in the morning with the guys and the talk with Ralph [Pacheco] 

 prior to the job. When Ralph went and looked at it, we assessed the hazard, Ralph 

 assessed it, I assessed it. We assessed it again that morning. We went over it prior to the 

start of the job to make everybody aware those lines are live.

(Tr. 110-111). 

anywhere. Ever. Not anywhere. And I’ve been a lot of places and in a lot of – lot of places.” (Tr. 724). 

10

 
Mr. McPherson testified that before work began at the job site he made sure that the 

workers knew what they were supposed to do; that the job site was clear, the dumpsters moved, 

and that there would be access for debris removal and for parking the crane. These included Mr. 

Robert Dale Scesny, Hunter Merchant Crane (“Scesny” or “the crane operator”);

12 Ronny 

Hoggins, Hoggins Construction; Foreman Pacheco and Respondent’s other employees. He 

spoke separately with Messrs. Hoggins, Pacheco, and Scesny. Mr. Scesny was Hunter Merchant 

Crane’s crane operator. When talking with Mr. Hoggins, Mr. McPherson testified that he “made 

him aware of the fact that the wire was still live.”13 (Tr. 94, 110, 113, 129, 132, 453, 458, 725-

726). 

Mr. McPherson testified that he told Mr. Pacheco that the overhead lines were live. He 

also testified that he told Mr. Pacheco to use the nylon straps as the crane’s rigging and to be 

careful. On rebuttal, Mr. McPherson testified that he told Mr. Pacheco not to get within 10 feet 

of the lines, and to try to stay at least 15-20 feet away from the energized overhead lines. He 

also testified that he told Mr. Pacheco that there were no tree limbs near the energized overhead 

lines. (Tr. 111, 138-139, 724-725). 

Respondent’s original plans called only for Mr. Pacheco to work in the kapok tree and 

Mr. Carrera-Zarate was going to work in the street doing debris removal. However, Mr. 

McPherson testified that on August 21, 2012 Mr. Pacheco stated that it would be helpful to have 

a second tree climber assist him working in the tree. Mr. McPherson further testified that he 

agreed with Mr. Pacheco and Mr. Carrera-Zarate was assigned to assist Mr. Pacheco as a second 

tree climber. Mr. McPherson stated that Mr. Pacheco had provided training to Mr. CarreraZarate years ago. Mr. McPherson testified that Mr. Carrera-Zarate knew how to climb, trim, and 

12 Mr. Scesny did not testify at the trial.

13 Mr. McPherson testified that he had not met Mr. Hoggins before August 21, 2012. (Tr. 141).

11

 
work in trees and that he was “incredibly experienced in trees.”14 Mr. McPherson stated that Mr. 

Pacheco directed the activities of Mr. Carrera-Zarate when he [the deceased] worked in the tree. 

Mr. Pacheco provided Mr. Carrera-Zarate with a saw, climbing gear, and harness. Mr. Pacheco 

did not provide any blankets to cover any energized overhead lines at the job site. Mr. Scesny 

also did not have any blankets to cover the energized overhead lines. Mr. McPherson testified 

that he is not certified to go anywhere near energized overhead lines and lacked the authority to 

cover them. No materials that provided protection against electrocution were issued to either 

Messrs. Pacheco or Carrera-Zarate. (Tr. 135, 142, 228, 727, 755-756, 772, 779, 783; Ex. C-6, at 

pp. 3-4).

Mr. McPherson testified that “[a]nytime there’s a power line, a communication line, 

there’s a hazard.” Mr. McPherson testified that he considered all of the overhead power lines, 

including the top wire, to be energized. He first testified that the energized overhead lines at the 

job site were not insulated. Later on, he testified that, except for neutral wires, the energized 

overhead lines were insulated.15 He testified that the energized overhead lines were also 

isolated because they “weren’t in the tree” and did not pass through the tree’s branches. (Tr. 

111, 151, 780-781; Ex. C-13). 

He testified that, in the past, Respondent had worked in trees where workers stayed a safe 

distance from overhead lines, a minimum of 15 feet. He said that his “guys” knew not to get 

within 15 feet of energized overhead lines. He stated that any distance less than 15 feet was “not 

acceptable.” He testified that as long as a tree is a safe distance from the energized overhead 

lines, it is safe to work in the tree. He stated that he knew OSHA’s requirement that employees 

14 Mr. Carrera-Zarate did not have an arborist certification. (Tr. 117).

15 Mr. McPherson asserted that he looked at the energized overhead lines the morning of the hearing and they were 

still insulated. (Tr. 781). 12

 
had to stay a minimum of 10 feet away when working around energized overhead lines. Mr. 

McPherson testified that, once he allowed the men into the trees, he did not believe that an 

employee was going to be within 10 feet of any energized overhead lines.16 He stated that “[w]e 

[he and Mr. Pacheco] naturally knew that we had to be 15 feet minimum away” from the 

energized overhead lines. He initially testified that Respondent’s “work was 35, 40, 50 feet 

away” from the energized overhead line. Shortly thereafter he testified that Respondent’s 

“working zones were 20, 30, 40, 50, 60 feet away” from the energized overhead lines. He also 

stated that “the majority of those [tree] limbs “weren’t even actually over other than the 50, 60 

feet away” from the wire. Shortly thereafter Mr. McPherson further testified that the tree “limbs

were 20, 30, 40 feet away. There was no limb anywhere close to the wire.” He stated that 

Respondent was “way, way in excess of 15, 20 feet away from it [energized overhead line].” 

(Tr. 111-112, 127, 130-131, 134, 720, 767). 

Mr. McPherson testified that he discussed setting up the crane with Mr. Scesny so that he

could see the work being done while he operated the crane. Mr. McPherson testified that he 

confirmed that Mr. Scesny could see the energized overhead lines in the tree from the crane in 

the street.17 The crane at the job site was about 150 feet in height. Mr. McPherson testified that 

he believed that Mr. Scesny understood that the energized overhead lines were live, and that he 

[Mr. Scesny] was going to lift the cut limbs over the house and to the street using the crane. Mr. 

McPherson testified that Mr. Scesny told him that the crane was twice the size necessary and that 

he [Scesny] would have no trouble doing the job. He also stated that the crane operator had a 

16 Mr. McPherson also testified that he did not expect Mr. Carrera-Zarate to get within 20 feet of the energized 

overhead line. (Tr. 130).

17 Specifically, Mr. McPherson testified:

Q. And that he [Mr. Scesny] could see the power lines in the tree from the street, is that correct?

A. Yes.

(Tr. 148).

13

 
“spotter” to be located in the backyard, by the tree, who would guarantee that Mr. Scesny could 

see the job and direct Mr. Scesny by radio.18 Mr. McPherson testified that Mr. Scesny had a 

good attitude, and was not irritable or grumpy. Mr. McPherson initially testified that he could 

only tell Mr. Scesny the identities of the properties where he could operate the crane. But he 

later also testified that he directed Mr. Scesny to use the crane company’s rigging for the crane. 

Mr. McPherson said that Mr. Scesny told him that he had “straps in the box.” He also testified 

that crane’s rigging is typically provided with the crane and that was the case here. He stated 

that Respondent did not have slings that hang off a crane that are 40 feet long and hold 20,000 to 

30,000 pounds. Mr. McPherson testified that before the job was started he [Mr. McPherson] 

personally retrieved the straps from the supply truck and handed the straps to the crane’s spotter. 

Mr. McPherson testified that he was not paying for the crane and did not care how long the job 

took.19 (Tr. 94, 110, 127, 135-139, 148-149, 725-726; Ex. C-13). 

Before the work began, Mr. McPherson testified that Mr. Scesny told him that he [Mr. 

Scesny] did not bring his basket to hoist the climbers into the tree. The crane company’s policy 

was to not hoist employees into a tree without a basket. He further stated that Mr. Scesny told 

him that his office was too far away for him to go back and get a basket. Mr. McPherson further 

testified that Mr. Scesny called Hunter Merchant Crane’s office to get permission to have the 

employees ride the ball20 of the crane into the tree. Mr. McPherson stated that he was told that 

the crane company “needed a basket to hoist the men up.” Mr. McPherson told them that the job 

should not be held up because they did not have what was needed for the crane to properly hoist 

the men up into the tree. Calls were made to other places to determine if anyone had something 

18 The name of the spotter is not in the record and the spotter did not testify at the trial. 

19 Mr. McPherson also testified, to the contrary, that he planned to complete the job in one day, and had notified 

every one of that. (Tr. 146).

20 The object ridden by the employees is referred to as the “ball” or the “hook” of the crane. Respondent’s 

employees were not lifted into the tree using a bucket, basket or other appropriate device. 

14

 
that could properly hoist the employees up into the tree. After getting nowhere, Mr. McPherson 

testified that he told those at the job site, “Well, guys, you know the situation here. I’m going to 

go over to Snyder Park. You guys figure it out.” (Tr. 762-763). 

Mr. McPherson testified that he would not let anybody proceed with the work at the job 

site until he “reviewed everything.” Before Messrs. Pacheco and Carrera-Zarate began working 

up in the tree, Mr. McPherson testified that he talked to his employees about the energized 

overhead lines, but he did nothing else to eliminate the hazard the energized overhead lines 

posed at the job site. He testified that he let the work begin even though the overhead lines were 

energized because Messrs. Scesny and Pacheco were “comfortable”, knew the lines were 

energized, and “there was plenty of space in-between the work site and the lines.” He then left 

the job site to visit another job at Snyder Park. Mr. McPherson testified that, before he left, the 

employees had not yet been hoisted into the tree, and he did not know how they were going to 

gain access to the top of the tree. He testified that at the time he left the job site the first time that 

morning, Mr. Scesny was using nylon straps for the crane’s rigging. (Tr. 110, 764, 779). 

Mr. Pacheco was left “in charge of the work being done in the tree,” including removing 

its limbs. Mr. McPherson testified that Mr. Pacheco had the experience and training to handle 

anything that arose at the site.21 He testified that if there were “any problems with the machinery 

or equipment or personnel or anything, Ralph [Pacheco] could be involved, but he [Mr. Pacheco] 

was the lead man for the site.” Mr. Pacheco “could review everything and make sure everything 

was fine with the equipment.” Mr. McPherson also testified that Mr. Pacheco was a mechanic, 

tree climber, and driver with a Commercial Driver’s License (“CDL”). In Mr. McPherson’s 

absence, Mr. Pacheco had the authority to direct the other All Florida employees at the job site. 

21 Mr. McPherson testified that Mr. Pacheco has experience removing Australian pines that were much taller, harder, 

wider and heavier than the kapok tree, which was made of softer wood. (Tr. 139-140).

15

 
Mr. McPherson testified that Mr. Pacheco was “also responsible for, you know, overseeing that 

everything was going okay in the street -”, which is where the majority of Respondent’s 

employees were processing the debris from the tree. Although Mr. McPherson believed that Mr. 

Pacheco had various certifications, including an electrical certification, he admitted that he never 

saw any such certifications and only knew about Mr. Pacheco’s experience. (Tr. 113-116, 134-

135). 

 About an hour after he first left the job site on August 21, 2012 and went to another job 

right down the street, Mr. McPherson returned to the job site. Messrs. Pacheco and CarreraZarate were up in the tree. He observed them remove two or three tree limbs. Mr. McPherson 

knew that the overhead lines remained energized at all times while Messrs. Pacheco and CarreraZarate worked in the tree. Mr. Scesny was still using the fabric straps to hoist the limbs over the 

house that Mr. McPherson had handed to the crane’s spotter.22 As he drove by the job site, he 

testified that he tooted his horn and Mr. Pacheco gave him a “thumbs up” while working in the 

tree indicating that everything was fine. (Tr. 117-118, 138-140, 764-765). 

Mr. McPherson testified that he later returned to the jobsite a third time in the afternoon. 

As he drove by, he said that he saw “one man in the tree and chains on the limbs flying out.” He 

stopped by the crane. Rather than nylon straps, the crane’s rigging now consisted of “pure 

chain.” He testified that he did not know that Mr. Scesny had changed the crane’s rigging until 

he returned. Mr. McPherson asserted that, although he had some control over the type of rigging 

used at the beginning of the job, he had no control over the type of rigging used by Mr. Scesny

after he left the job site the first time. He testified that about 30 seconds after parking his car, 

22 The fabric rigging was attached to hoisting chains dangling down from the crane. (Exs. R-G at pp. G77, G84, 

G85).

16

 
Mr. Pacheco walked in front of him and again gave him the thumbs up.23 Mr. McPherson 

testified that Mr. Pacheco said to him “Hey, we’re done.” Before he could respond, men started 

screaming. (Tr. 112-113, 139, 764-767). 

When asked if All Florida has any training manuals or training programs instituted with 

its employees, Mr. McPherson testified that Respondent had an Electrical Hazard Awareness 

Protection Plan (“E-HAP”) manual produced by the tree care industry. He further testified that 

the manual is also available in Spanish and is given to employees when hired. It has “all general 

OSHA stuff that we pick out that pertains to our industry.” He testified that, once a year, 

possibly more if there were rainy days, he had Respondent’s employees read, review and study 

the manual. He further testified that Mr. Pacheco had access to Respondent’s manual. He 

admitted that Respondent’s exhibits did not show that its employees received any training. (Tr. 

759-761, 778-779; Ex. R-D). 

Mr. McPherson testified at length regarding his long-term relationship with Mr. Pacheco. 

He observed Mr. Pacheco removing trees with cranes and in all kinds of situations starting in 

about 1998. He saw Mr. Pacheco work around overhead lines; but not when trees had energized 

overhead lines running through them. Mr. McPherson knew that in instances where a charged 

wire is running through a tree “everything in and around” the charged “wire is potentially 

something that could come in contact with” the wire. According to Mr. McPherson, Mr. 

Pacheco came to him asking for work. Mr. McPherson replied that he could not afford to pay 

him. Mr. Pacheco asked, “what can we do where you can afford me?” Mr. McPherson replied, 

“I can’t afford all of the taxes and all the burdens and all the things that go with it. . . .[Y]ou’re 

doing something that I can’t afford to pay everything like Workman’s Comp and . . . all that.” 

23 See Respondent’s answer to Interrogatory No. 21, which states in part: “I [Mr. McPherson] returned to the job 

site approximately three minutes before sparks flew off of the chain.” (Ex. C-3, at p. 24). 

17

 
Mr. McPherson testified that he subcontracts with people with their own equipment because he 

cannot pay all of the expenses. He testified that this method allows him to not have to carry Mr. 

Pacheco as an employee every day. (Tr. 125-128, 561, 709-710, 762). 

Mr. McPherson testified that he advised Mr. Pacheco to form a corporation. He helped 

Mr. Pacheco fill out the forms for his occupational license. Mr. McPherson also pointed out that, 

if you are a sole proprietor and employ only two or three people, you can be exempt from 

worker’s compensation insurance. He also testified that there is a benefit to have a person form 

his own business and let them pay their own taxes and insurance. Mr. McPherson stated that this 

method is the “only way you can, not escape, you can’t get rid of paying, but it brings him the 

money that he can afford and command.” Mr. McPherson estimated that worker’s 

compensation, and unemployment, Social Security and Medicare taxes add 30% to the hourly 

cost of an employee. He testified that he did not force Mr. Pacheco to open a corporation. He 

also stated that he had many other people with whom he worked in a way similar to Mr. Pacheco. 

(Tr. 710-712). 

Mr. McPherson asserted that he had no financial interest in “Monkey Man.” He said that 

he did not restrict Monkey Man’s activities. Mr. McPherson testified that he referred jobs to 

Monkey Man all the time because there was more work than Mr. McPherson could handle. He

asserted that he started in business the same way as Monkey Man. He also stated that Mr. 

Pacheco was not a friend, but he was a man that he respected because of his abilities. He 

testified that he knew Mr. Pacheco since 1997 when they both worked at Community Tree. (Tr. 

714-717, 758). 

Mr. McPherson testified that when offered a job that he wanted Mr. Pacheco to do, he 

would not accept it unless Mr. Pacheco first agreed to do it. Mr. McPherson further testified that 

18
Mr. Pacheco was not required to work any specific, or particular number of, hours, or be 

available certain hours of the day. If Mr. Pacheco could not finish a job in one day, he could 

come back to complete the work. Mr. McPherson testified that Respondent paid Mr. Pacheco

$250 per day. It also reimbursed Mr. Pacheco for gasoline he paid for that was used in 

Respondent’s equipment. At the end of the year, Mr. McPherson sent Monkey Man an I.R.S. 

Form 1099. (Tr. 757-758, 761, 774). 

Mr. McPherson testified that Hoggins Construction initially paid Respondent $3,500 and 

a later payment of $500 for the job. He said that he did not receive any money from Hoggins 

Construction to pay for the crane. He further stated that he did not enter into a contract with the 

crane company, pay the crane company, or know who, if anyone, paid the crane company. He 

did, however, admit that the crane company was “there on my word” and that he had asked Mr. 

Miller “to send a crane for the job.” (Tr. 758, 772-773).

Testimony of CSHO Anthony Campos 

 Anthony Campos is a retired captain from the New York City Fire Department after 28 

years with the department. He has been employed by OSHA for 12 years and has conducted 

approximately 450 inspections. Approximately 40 of these inspections involved fatalities. Eight 

of the fatalities involved energized overhead lines and approximately five involved tree 

trimming.24 CSHO Campos received training on energized overhead lines through courses taken 

at the OSHA Technical Institute. He also received training provided by two local, independent 

electrical companies. While investigating another fatality that involved a FP&L employee 

electrocuted by an energized overhead line, FP&L gave him background training on distribution 

systems and how they break down to the homeowner. (Tr. 160-164). 

24 He testified that “overhead line” means “an above ground wire.” (Tr. 468). 

19

 
OSHA received a referral from the local police department of an employee injury at the 

job site at 5:30 p.m. on the day of the accident. Because of the late hour, the OSHA 

investigation began the next day, on August 22, 2012. At the time, CSHO Campos was the 

Acting Assistant Area Director, and he assigned another CSHO, Maria Colon, to conduct the 

initial investigation.

25 CSHO Colon went to the accident site on August 22, 2012. CSHO 

Campos first visited the job site on September 20, 2012 and he saw the tree when four or five 

large limbs remained atop the tree.26 He testified that CSHO Colon inspected the harness used 

by the tree climbers and spoke with the medical examiner’s office and the crane company. 

They both spoke with the general contractor. Both also took photographs and measurements 

while visiting the job site. CSHO Campos also reviewed the photographs that were taken by 

CSHO Colon on August 22, 2012. (Tr. 164-167, 178-182, 189-190, 413-414, 418; Ex. C-14). 

CSHO Campos described the residence at the job site as a one-story concrete, single 

family home. There was a fairly small yard. The kapok tree being worked on was in the 

backyard, and there were energized overhead lines that ran parallel to the street. A step down 

transformer at the corner of the backyard supplied power to the house.27 The kapok tree was 

large, with a trunk about four feet in diameter. A safety strap hung from one of the cut limbs on 

September 20, 2012. There was a primary energized overhead line carrying 7,620 volts. There 

was also a secondary energized overhead line carrying 220 or 240 volts that went from the step 

down transformer to the property. CSHO Campos testified that the energized overhead lines 

were, without question, closer than 10 feet from the tree trunk. His measurements revealed that 

the primary energized overhead line was within three feet of the tree trunk. Because of the 

25 According to the Secretary’s Counsel, Ms. Colon intended to testify at the trial. However, [redacted] prevented 

her from appearing at the hearing. (Tr. 184-185). 

26 CSHO Colon accompanied CSHO Campos on this visit. (Tr. 178, 190).

27 CSHO Campos testified that the transformer converted the 7,620 volts in the primary energized overhead line to 

either 110 or 220 volts, depending on the needs of the homeowner. (Tr. 168-169).

20

 
proximity of the tree to the energized overhead lines, CSHO Campos could not directly measure 

the distance between them and the tree. Instead, he used a fiberglass trench rod and took the 

measurements indirectly, using points of reference. He stated that his measurement 

“encompassed from the base of the tree up the trunk of the tree, the remaining trunk.” (Tr. 165-

166, 171-174, 192-193, 198, 416-417, 435-438, 463-464, 518; Exs. C-13, marked “B”, C-14, 

marked “A”, “C”, “D”, C-19, marked “A”, “B”. “C”, C-27). 

CSHO Campos participated in the OSHA interviews of Messrs. McPherson and Pacheco, 

as well as of Respondent’s employees Messrs. Cruz, Gonzalez and Pineda. CSHO Campos 

testified that Mr. McPherson told him that he was the owner of All Florida and that he was hired 

by Ronnie Hoggins of Hoggins Construction to remove the tree. Mr. McPherson visited the job

site twice prior to the day work began on August 21, 2012. Mr. McPherson knew that the 

overhead lines were energized. (Tr. 205-207, 239).

On September 14, 2012, Mr. Pacheco told CSHO Campos that he went to the site on 

Thursday, August 16, 2012 to make an initial assessment of the property. He took a video of the 

trees and wires. Later that day, Mr. Pacheco called Mr. McPherson and told him that there were 

energized overhead lines under the tree. Mr. Pacheco expressed his concern of the tree being 

close to the energized overhead line. Mr. Pacheco told CSHO Campos that he told Mr. 

McPherson that the overhead lines were energized and that they should be de-energized before 

they did any kind of work at the job site. Mr. McPherson told Mr. Pacheco that they had to do 

the job on Tuesday, August 21, 2012, so they would see when they got there. Mr. Pacheco told 

CSHO Campos that Mr. McPherson was responsible for contacting FP&L to de-energize the 

energized overhead lines. Mr. Pacheco told CSHO Campos that Mr. McPherson told him that 

FP&L would not de-energize the overhead lines. Mr. Pacheco told him that Mr. McPherson 

21
never has the power shut off at jobs being done around power lines.28 Mr. Pacheco also told 

CSHO Campos that Mr. McPherson said on August 21, 2012 that it was too late to have the 

overhead lines de-energized because the crane was already on site. (Tr. 218-219, 224-226, 232; 

Ex. C-6). 

CSHO Campos testified that Mr. McPherson was in charge of the job. When Mr. 

McPherson left the job site, he put Mr. Pacheco in charge at the job site. Every All Florida 

employee OSHA interviewed stated that Mr. Pacheco was the job’s foreman. Mr. Pacheco also 

identified himself as the foreman for all Respondent’s employees at the job site. Mr. Pacheco

identified Mr. McPherson as his direct supervisor. Mr. Pacheco worked in the tree directing the 

work being done there, including the work being done by Mr. Carrera-Zarate. Mr. Pacheco also 

testified that he told Mr. Scesny which tree branch was to be cut. CSHO Campos testified that 

the Mr. Scesny positioned the crane’s chains in the tree and Mr. Carrera-Zarate then used the 

chains hanging from the crane to wrap around the branches. (Tr. 207-208, 228-229, 236, 240, 

250, 454, 548; Exs. C-6, C-10, at p. 1). 

Mr. Gonzalez told CSHO Campos on September 14, 2012 that he worked for 

Respondent. He identified Mr. Pacheco as the foreman for the job and in charge at the job site. 

He also told him that he was not sure if the overhead lines were energized because “Alan 

[McPherson] never told us.” (Tr. 239-240; 242-249; Ex. C-10 (portions admitted into 

evidence)).

Mr. Cruz told CSHO Campos on September 14, 2012 that he started with Respondent 

28 CSHO Campos testified:

Mr. Campos: Okay, the question as I know it was has Mr. Pacheco ever worked around power lines with All 

Florida Trees or Mr. McPherson, am I correct?

Ms. Hollingsworth-Malone: Q. Yes

A. Okay. In his signed statement, he indicates that he worked a few jobs with Alan [McPherson], around ten, 

around power lines and Alan never shuts the power off.

(Tr. 232; Ex. C-6, p 3).

22

 
working on the ground with the “chipper” for 18 months. Thereafter, he worked as a tree

“climber,” and used a bucket truck. He was working in the backyard by the base of the tree, 

holding a rope that Mr. Carrera-Zarate was using so that the rope would not touch the energized

overhead lines, when the accident occurred. He identified Mr. Pacheco as his supervisor. (Tr. 

248-252, 255-256; Ex. C-11 (portions admitted into evidence)). 

Turning to the individual citations, CSHO Campos testified that Citation 1, Item 1 was 

issued because the cited OSHA standard prohibits employees from riding on the hook of a crane. 

Based on photographs and his interviews, he determined that Respondent’s employees rode the 

hook of the crane to the top of the tree. CSHO Campos testified that Photograph C-38 showed 

the deceased “riding the hook of the crane.” On September 14, 2012, Mr. Pacheco told him that 

there was a problem climbing the tree because of the thorns. Mr. Pacheco stated that “We [he 

and the deceased] accessed the tree by having the crane bring us up to the top of the tree and 

work our way down. This tree had thorns so it would be hard to climb.” On August 21, 2012, 

Messrs. Pacheco and Carrera-Zarate rode the hook of the crane to get up to the top of the tree. 

According to Mr. Pacheco, riding a crane was a standard way for Mr. Pacheco’s crew to get into 

a tree. (Tr. 226-230, 306-307, 566; Exs. C-6, at p. 2, C-38). 

CSHO Campos explained that it is a fall hazard to ride the hook of a crane at any 

elevation. He further testified that a tree is an energy conductor and any contact between the tree 

and an energized overhead line would also create an electrocution hazard for any worker who 

rides a crane’s hook up into the tree. Based on his interview with Mr. Pacheco and photographs 

that show the deceased in the tree, CSHO Campos concluded that Messrs. Carrera-Zarate and 

Pacheco were exposed to fall and electrocution hazards by riding the crane’s hook into the tree. 

He estimated that the length of exposure was the time it took the employees to mount the crane’s 

23
hook and get into the tree, which he estimated was at least 15 minutes. (Tr. 307-308, 561-562). 

CSHO Campos concluded that Respondent had knowledge of the violation. He 

explained that, as a certified arborist, Mr. McPherson knew that OSHA standards required 

Respondent to use a bucket for workers to gain access to the top of the tree on August 21, 2012. 

Also, Mr. Pacheco, Respondent’s foreman, directed Mr. Carrera-Zarate to ride the hook with him 

to the top of the tree. (Tr. 308-309; Ex. C-6, at p. 2). 

The violation was deemed to be serious because a fall from the crane’s elevated hook 

could result in severe, life altering fractures or death. Additionally, the hazard of electrocution 

could result in the death of an employee. (Tr. 309). 

CSHO Campos asserted that, based solely on the gravity of the violation, the penalty 

would have been $7,000. A 60% deduction was granted because of Respondent’s small size. No 

reduction was given for good faith because the gravity of the violation was a “high grader” and a 

fatality occurred. OSHA had never before inspected Respondent and it did not qualify for a 

reduction based on history. OSHA proposed a penalty of $2,800 for Citation 1, Item 1. (Tr. 

321-322). 

Turning to Citation 2, Item 1(a), CSHO Campos testified that he learned from interviews, 

photographs and personal observation that Respondent’s employees were working in a tree near 

energized overhead lines on August 21, 2012 at the job site. He pointed out that the jacket seen 

on the primary energized overhead line in the photographs is a weather protector and not a line

insulator. He testified that the uninsulated primary and secondary energized overhead lines ran 

through the tree. CSHO Campos explained that Messrs. Pacheco and Carrera-Zarate wrapped 

nylon or chain slings hanging from the crane’s hook around the tree limbs and then cut the limbs. 

The nylon or chain slings had to be sufficiently lower than the branch being cut. This enabled 

24
the workers to put a choker or shackle on the branch so that the cut limb could be raised over the 

energized overhead lines and dropped to the ground. The crane’s lifting hook was above the 

energized overhead lines, but its chains dropped down below the lines. Photograph C-34 shows 

one length of chain dropping down on the side facing the limb where a tree climber was sitting

on a branch. The other length of chain is shown draped over a branch on the far side. CSHO 

Campos testified that non-metallic slings, generally made of nylon webbing, were also used by 

the crane on the job. He stated that these nylon slings (also referred to as “fabric straps”) were 

not insulated. (Tr. 310, 314, 515-516; Ex. C-34). 

CSHO Campos testified that the tree had branches that spread out from its trunk. He 

stated that a branch could come into contact with the energized overhead line and create a risk of 

electrocution either because of wind or someone standing on the branch. He stated that branches 

“move up and down.” Additionally, a tool or chainsaw could be dropped onto an energized 

overhead line and create a risk of electrocution.29 The only safe way to do the job would be to 

either de-energize the overhead lines or provide some type of barrier to prevent contact with the 

energized overhead lines. CSHO Campos also noted that when trimming a tree, the branches 

and leaves hide the energized overhead lines, making it hard to determine exactly where the lines 

are. The crane’s rigging equipment can hang down and possibly contact an energized overhead 

line. He pointed out that it is not necessary to make direct contact with an energized overhead 

line because electricity can arc as it looks for a potential to ground. This arcing can be caused by 

a tool, employee, or tree, all of which could result in electrocution. He testified that there would 

be a path to ground if the crane’s chain, draped on a tree limb, came in close proximity to the 

energized overhead line. (Tr. 310, 449-450). 

29 CSHO Campos testified that Messrs. Pacheco and Carrera-Zarate were also using positioning belts in the tree. 

He identified positioning belts as tools and described them as grommeted, thick canvas belts with eyelets. (Tr. 313).

25

 
Based on his measurements, CSHO Campos determined that the primary uninsulated, 

energized overhead line of 7,620 volts was not more than three feet from the tree trunk. He also 

testified that photograph C-36 showed a tree branch, with a worker on it, near the energized 

overhead line.30 He further said photograph C-36 showed the worker about twelve feet from the 

energized overhead line. He also stated that the crane’s rigging chain was in “close proximity” 

to the primary energized overhead line. (Tr. 198, 311-314, 416, 516-517, 551-553, 570; Exs. C27, C-34, at “E” and “F”, C-36 at “A”, “B”, “C”). 

CSHO Campos testified that both tools and trees are conductive. They can act as a 

conductor that can result in electrocution. He testified that “the entire tree is a conductive 

item.”31 According to CSHO Campos, it really did not matter if a tree branch was within 10 feet 

of the energized overhead line. The tree trunk was within 3 feet of the line and its branches were

part of the tree. CSHO Campos testified that “an employee was on a conductive surface [tree 

branch] within ten feet of an energized power line,” and that is what Respondent was cited for. 

He testified that the deceased was on a conductive surface, the tree branch, when a conductive 

object [the crane’s rigging’s chain] touched the energized overhead line. From photographs, he 

determined that there was a lot of potential for the crane’s rigging’s chains or tree branches to 

make contact with the energized overhead line. He also pointed out that fabric straps, used on 

the crane at the beginning of the job, also conduct electricity. (Tr. 313, 451, 464-465, 516-517, 

553-554; Ex. C-34). 

CSHO Campos testified that Mr. Carrera-Zarate was “close enough to that chain and to 

the end of the limb to grab that chain and whatever rigging they had to wrap around the limb.” 

30 CSHO Campos testified that photograph C-36 was taken by Ms. Em-Orn Yosagrai on August 21, 2012 while she 

was watching the work because she felt it was very, very dangerous and she was afraid that one of the tree limbs 

would hit her house. Ms. Yosagrai lived adjacent to the job site property. (Tr. 574-578; Ex. C-36). 

31 He testified that the tree included “the parts of the tree, trunk, limbs, branches, it’s all the same.” (Tr. 469-470).

26

 
He concluded that the accident occurred when Mr. Carrera-Zarate either came in contact with the 

chain hanging down from the crane, or was on a tree limb, and either the crane’s chain or tree 

limb made contact with the energized overhead line. He explained that there does not need to be 

direct contact between the crane’s chain and the energized overhead line because electricity can

arc into the chain.32 In his view, the accident occurred when a conductive object, either the 

crane’s chain or a limb of the tree, was in contact with Mr. Carrera-Zarate and the conductive 

object touched or came too close to the energized overhead line.33 (Tr. 452-456, 460-461, 510-

517, 557). 

CSHO Campos testified that when a worker comes in contact with an energized overhead 

line through a conductive object, the electricity “goes right through them, it cooks them, goes 

through the tree, goes to ground,” resulting in electrocution. CSHO Campos testified that the 

doctor who performed the autopsy indicated that the manner of Mr. Carrera-Zarate’s death was 

electrocution. [redacted] This is not unusual because the burns are exit wounds, not entrance 

wounds, caused when electricity violently exits the body. CSHO Campos testified that “there 

was no way to do this job with this line energized. There’s actually two lines that were concerns 

because the secondary line is energized as well.” (Tr. 451-456, 460-461, 510-517, 554, 557; Ex. 

R-B, at p. 2). 

CSHO Campos testified that photographs of the tree clearly show how close the 

energized overhead line is to the tree. He identified Mr. Carrera-Zarate in the tree before the 

accident on the photograph at Exhibit C-34 and marked him with a “D.” He also identified the 

32 CSHO Campos further testified that Mr. Carrera-Zarate did not “have to grab a chain to be shocked. If the chain 

comes in contact, the power jumps to that chain and contacts a tree limb where the employee is, that would be 

enough.” CSHO Campos testified that Mr. Carrera-Zarate was “just shocked” when the chain got too close to the 

energized overhead line. (Tr. 456, 517).

33 CSHO Campos testified that Mr. Carrera-Zarate may have made contact with the crane’s chain. He did not 

believe that Mr. Carrera-Zarate personally touched an energized overhead line. He testified that the deceased did 

not have to touch the chain in order to be electrocuted or shocked. (Tr. 517-519, 561).

27

 
chain hanging down from the crane’s rigging in the photograph at Exhibit C-34 at “E.” He 

testified that the photograph at C-34 shows the chain coming down on the far side of one of the 

limbs and then on the inside part of another limb. CSHO Campos testified that the two energized 

overhead lines at letter “C’, Exhibit C-34, ran through the tree. He testified that his visual 

observations and photographs C-27 and C-34 showed that the primary 7,620 energized overhead 

line, marked at “F” on C-34, was within ten feet of the tree trunk, or one of its limbs, on August 

21, 2012. He testified that photograph C-34 also shows that the secondary energized overhead

line, marked at “G”, running through the tree is ten feet or less away from the tree. He said that 

this is so because the secondary energized overhead line is shown inside the branches and 

running through the tree’s foliage to outside the branches. He stated that based upon his 

observation, measurements and photograph C-34, “it’s clearly evident that you have this 

[secondary energized overhead] line that’s running very, very close to that tree.”34 CSHO 

Campos testified that there was “not a clear-cut path for the [energized overhead] line going 

through the tree being any kind of a safe distance.” (Tr. 387-390, 394-395, 443-445, 449-450, 

453, 467, 469, 516; Exs. C-27, C-34). 

According to CSHO Campos, the work could have been performed safely by deenergizing the overhead line, relocating it, or covering it with blankets, all of which were 

standard procedures for FP&L. He noted that FP&L takes the hazard of electrocution very 

seriously because of the potential liability. He testified that when FP&L is called to de-energize

an overhead line, it responds. (Tr. 314). 

CSHO Campos testified that Messrs. Pacheco, Carrera-Zarate and Cruz were exposed to 

the hazard of electrocution. He testified that the electrocution hazard was not only the primary 

34 Although not clearly identified in his testimony, the Court finds that CSHO Campos was referring here to the 

secondary energized overhead line at “G” running very close to the tree. (Ex. C-34).

28

 
energized overhead line, but the secondary energized overhead line as well. He testified that the 

secondary energized overhead line was also three feet or less from the trunk of the tree. He 

stated that even though the secondary energized overhead line had a jacket on it, the jacket was 

basically a weather protection jacket, and not an insulator. He stated that Mr. Cruz was exposed 

even though he was on the ground because had the rope he was holding for Mr. Carrera-Zarate 

contacted the energized overhead lines Mr. Cruz could also have been shocked. The exposures 

lasted between four and four and one-half hours. The exposures started at 10:00 a.m., August 

21, 2012 when work began in the tree, and continued until 2:00-2:30 p.m. when the accident 

occurred. (Tr. 314-316). 

CSHO Campos testified that he considered All Florida to be the controlling employer at 

the job site. He explained that, except for Mr. Scesny and his spotter, all the workers at the job 

site were Respondent’s employees. He stated that Mr. McPherson directed Messrs. Pacheco and 

Carrera-Zarate to work in the vicinity of the energized overhead lines. He testified that the 

overhead lines were energized when Messrs. Pacheco and Carrera-Zarate were in the tree and 

Respondent knew that. (Tr. 496-497, 512, 561). 

He also considered All Florida to be the exposing employer. CSHO Campos testified 

that “[t]he hazard was that the tree was, in fact, closer than ten feet and the result of it is we have 

an employee who perished.” He testified that he based his conclusion upon the photographs, his 

personal observations of the tree, and the measurements that he had made at the job site. He 

stated that photograph C-34 showed the energized overhead “lines going through trees” and 

“chains from a crane that are going through tree limbs.” He also testified that Mr. Scesny gave 

him a signed statement where Mr. Scesny stated that the tree trunk was within three feet of the 

29
energized overhead line.

35 

CSHO Campos also testified that Mr. Scesny told him that he [Mr. Scesny] saw someone 

holding the crane’s chain. CSHO Campos identified two photographs that he believed showed 

Mr. Carrera-Zarate holding the crane’s chain in the tree. He testified that photograph C-35 

showed Mr. Carrera-Zarate holding the crane’s chain in his left hand. He further testified that 

the photograph at C-36 shows him holding the chain in his left hand getting ready to “sling” a 

tree limb. He explained that Mr. Carrera-Zarate first wrapped the crane’s chain around the tree 

limb, cut the limb, and then moved closer to the tree trunk. The cut limb was then suspended by 

the crane and lifted up and away from the tree by the crane. (Tr. 497-504, 541-542, 545, 547, 

552, 562-566, 571-573; Exs. C-35, at “A”, C-36 at “B”, “C”, “D”).

CSHO Campos further testified that Respondent had knowledge of the violation. Mr. 

McPherson twice visited the job site to assess hazards before August 21, 2012. Mr. Pacheco was 

also at the job site the Thursday before the accident. On the morning of the job, Messrs. 

McPherson and Pacheco discussed the energized overhead lines. Yet, even though they both 

knew that the energized overhead lines were energized, Mr. McPherson instructed Messrs. 

Pacheco and Carrera-Zarate to get into the tree and cut it down. (Tr. 314-315; Ex. C-2, at p. 21 

(response to RFA No. 21)). 

CSHO Campos testified that he considered the violation to be willful. Mr. McPherson 

had long experience in the field and he was a certified arborist, which requires familiarity with 

OSHA regulations. He was aware that FP&L needed to be called to de-energize the overhead 

lines. He failed to follow through and get the overhead lines de-energized. Although Mr. 

35 CSHO Campos testified that he believed that Hunter Merchant Crane was also cited for a serious violation and 

fined by OSHA for hanging the crane’s chains within ten feet of the energized overhead lines. (Tr. 453, 457-458, 

545-547).

30

 
McPherson believed that a safe distance from the energized overhead line was fifteen feet, 

Respondent’s employees worked in a tree that was well within that distance. Despite all this, he 

made the decision to disregard the hazard and proceed with the job on August 21, 2012. (Tr. 

316-317). 

Willful Citation 2, Item 1(b) alleged that an unqualified person was working in an 

elevated position near an energized 7620 volt overhead line at a location where the person and 

the longest conductive object could contact the energized overhead line. CSHO Campos testified 

that a person working around energized overhead lines needs to have a basic knowledge of 

electricity and hazard assessment in order to be qualified to do so. He testified that tree limbs 

were the longest conductive objects at the job site. He stated that the crane’s chain, block and 

cabling, and the workers’ chain saws were also all conductive objects that could have conducted 

electricity to the deceased even absent direct contact. CSHO Campos testified that Mr. CarreraZarate had not received any specific training that would make him aware of how to recognize the 

electrocution hazards at the job site and how to avoid them. Yet, Messrs. McPherson and

Pacheco directed Mr. Carrera-Zarate to go into a tree that was in close proximity to an energized 

overhead line. While working in the tree, Respondent knew the deceased would be exposed to 

an electrocution hazard. CSHO Campos testified that the branch where Mr. Carrera-Zarate was 

sitting at the time of the accident was close enough to the primary energized overhead line to 

allow Mr. Carrera-Zarate to be electrocuted by a conductive object’s contact with the primary 

energized overhead line. (Tr. 318-320, 427, 466, 509-510, 546, 561, 566; Ex. C-34).

CSHO Campos testified that after reviewing CSHO Colon’s investigative file before the 

citations were issued, he agreed with her findings, including the finding that Mr. Carrera-Zarate

31
was unqualified when he worked too close to an energized overhead line.36 CSHO Campos 

testified that the training required to work around energized overhead lines depended on the type 

of electricity and work at the job site. He pointed out that there are qualifications for working 

around energized overhead lines, and other qualifications for working on underground or above 

ground vaults. CSHO Campos testified that, in order to be qualified, workers had to know why 

they needed to stay away from energized overhead lines. They needed to know the accurate 

distances to any energized overhead lines, what to do to prevent an injury when recognizing a 

hazard, and have a basic knowledge of electricity. CSHO Campos testified that after he had 

reviewed CSHO Colon’s materials and the notes and statements given, a determination was 

made before the citations were issued that Messrs. Pacheco and Carrera-Zarate were not 

qualified under the cited standard. He also testified that OSHA never received any of the 

requested documentation from Respondent that might have shown that they, or anyone else at 

All Florida, were qualified under the cited standard. (Tr. 422-435). 

CSHO Campos concluded that Citation 2, Item 1(b) was willful because of Mr. 

McPherson’s experience, training, and failure to get the energized overhead lines de-energized. 

He testified that Mr. McPherson had a heightened level of awareness, knew the conditions at the 

job site, and had the ability to correct the condition, but did not. He could have stopped the men 

from getting into the tree, but did not. He failed to ensure that Messrs. Pacheco and CarreraZarate were qualified to work around energized overhead lines and there was no specific 

instruction given to them on how to recognize the hazards created when a high voltage energized 

overhead line is close to a tree being cut down by workers elevated in the tree. (Tr. 317-320). 

A combined penalty of $56,000 was proposed for willful Citation 2, Items 1(a) and (b). 

36 Respondent did not have OSHA’s investigative file because it had not engaged in any affirmative discovery 

before the trial and had not requested it. (Tr. 430-432).

32

 
CSHO Campos classified the gravity of the violation as 10 out of 10. The gravity based penalty 

was $70,000. A 20% reduction was given due to Respondent’s small size. CSHO Campos 

explained that when a violation is willful and results in a fatality, the full 60% size reduction is 

not given. Rather, the Area Director has the discretion to reduce the credit for a small employer

to 20%. No credit was given to history or good faith because the violations were willful. (Tr. 

322-323). 

Testimony of Jesus Cruz 

Mr. Jesus Cruz testified that he now lives at West Palm Beach, Florida. He stated that he 

was working for Respondent at the job site on August 21, 2012, the day Mr. Carrera-Zarate was 

injured. He has been an employee of All Florida for approximately five years. His primary task 

is to work on the ground and drive the truck. He picks up tree limbs. He identified Mr. Pacheco 

as the foreman on the job on August 21, 2012. He stated that whenever Mr. Pacheco is on the 

job, he is looked on as the supervisor. Mr. Cruz testified that he saw the accident. He stated that 

the crane operator had “no control” and that he warned Mr. Carrera-Zarate just before the 

accident to “be careful.” He testified with words to the effect that the crane’s cable and a chain 

first made contact with the overhead power line and then a chain made physical contact with Mr. 

Carrera-Zarate. (Tr. 334-339, 347, 357). 

He testified that he had difficulty knowing or remembering whether Mr. McPherson was 

at the job site when the chain was put on the crane, distances relating to the tree and overhead

lines,37 reading and signing his interview statement, and Monkey Man. Mr. Cruz acknowledged 

that he gave a statement to OSHA personnel and identified it at Exhibit C-11. Mr. Cruz testified 

37 Without any reference point, Mr. Cruz testified that the tree “and the cable maybe ten feet” or “more [apart].” (Tr. 

339). 

33

 
that he previously lived at Lake Worth, Florida.38 He testified that Mr. Jesus Pineda was in the 

house, but it was unclear whether he was referring to his former or current residence. Mr. Cruz 

denied having received a subpoena at his West Palm Beach house. (Tr. 338-339, 344-349; 351, 

357; Ex. C-11, at p.1 (portions admitted into evidence)). 

Testimony of William Gonzalez

Mr. William Gonzalez testified that he lives at West Palm Beach, Florida.39 He has 

worked as a laborer for Respondent for two years. He testified that he was at the job site all day 

on August 21, 2012. His work included cleaning up debris in the front yard along the street. He 

identified Mr. Pacheco as the foreman and boss at the job site. He also stated that he saw 

personnel working in the tree while it was being cut. (Tr. 359, 370-374). 

Mr. Gonzalez testified that he saw Messrs. Pacheco and Carrera-Zarate, at an unspecified 

time on August 21, 2012, when they were more than ten or twenty feet from the overhead line. 

He did not measure the distance. During his testimony, he identified Messrs. Pacheco and 

Carrera-Zarate up in the tree in photograph C-33. He testified that photograph C-33 was taken 

on August 21, 2012, but did not know at what time. He did not recall the overhead lines shown 

in photograph C-33. He could not remember if the overhead lines at the job site were energized. 

(Tr. 370-374, 378-379; Ex. C-33). 

Mr. Gonzalez testified that he saw Mr. Carrera-Zarate working on a branch atop the tree. 

He stated that Mr. Carrera-Zarate asked him for water and told Mr. Gonzalez that he was warm 

and needed help. Mr. Gonzalez relayed Mr. Carrera-Zarate’s request for help to Mr. Pacheco. 

38 On November 20, 2013, the Court issued a subpoena ad testificandum that the Secretary used to subpoena Mr. 

Cruz, at his Lake Worth, Florida address to appear at the trial at 1:00 p.m., December 3, 2013. (Ex. C-43). The 

September 14, 2012 record of Mr. Cruz’s interview by CSHO Campos shows the same Lake Worth, Florida address. 

(Ex. C-11, at p. 1 (portion admitted into evidence)). 39 The September 14, 2012 record of Mr. Gonzalez’s interview by CSHO Campos shows the same West Palm Beach 

address. (Ex. C-10, at p. 1 (portion admitted into evidence)).

34

 
(Tr. 360). 

He testified that he recalled talking with OSHA personnel about what he saw at the job 

site. He also testified that he signed a statement at the OSHA office. He identified his signature 

on two of the pages of his statement. (Tr. 247, 360-361, 368-369; Ex. C-10, at pp. 2-3). 

Mr. Gonzalez testified that he received his subpoena ad testificandum the day before he 

was scheduled to testify at the trial. It was postmarked November 20, 2013. (Tr. 361-362, 364). 

Testimony of Jesus Pineda

 Jesus Pineda has worked for Respondent as a driver and laborer for almost two years. He 

knows how to work the chipper. He was at the job site working for Respondent at the time of the 

accident. Mr. Pacheco told him what to do when they started the job. He did not know if Mr. 

Pacheco rode the hook of the crane up into the tree. When the accident occurred, Mr. Pineda 

was working with the chipper in the front of the house and in the street. He testified that he was 

about 40-50 feet from the overhead line. Mr. Carrera-Zarate was working in the back of the 

house. He estimated that Mr. Carrera-Zarate was sitting in the tree about 15 feet from the 

overhead lines. He testified that he did not measure the distance and that he was not sure of the 

distance because he was working in the front of the house. After the accident, Mr. Pacheco 

[redacted]. An ambulance was called and arrived right away. Mr. Pineda testified that he later 

spoke with OSHA personnel about how the accident happened and what kind of tools were used 

by Mr. Carrera-Zarate in the tree. He told the OSHA personnel that Mr. Carrera-Zarate had all 

the tools he needed, including a belt, rope, hat, and saw. (Tr. 398-408). 

Testimony of Randy Miller

Randy Miller is currently the general manager for Allegiance Crane. At the time of the 

accident, he was a salesman for Hunter Merchant Crane. He submitted a bid for the removal of 

35
the kapok tree for Mr. McPherson. He has also been a crane operator for ten years. He 

described Hunter Merchant Crane as a crane rental company. The company leases cranes with 

operators. (Tr. 476-479). 

Mr. Miller testified that after talking with Mr. McPherson, he visited the job site to make 

an assessment of the size of the crane that was needed for the job. He could not recall the date 

that he made his assessment. He went into the home’s backyard and looked at the tree. He 

testified that the kapok tree was 110 feet tall and its removal required that the crane lift pieces 

over the house. The crane needed to reach about a hundred feet from its position on the street, 

over the house, to the tree. Mr. Miller noticed an overhead line behind the tree. He initially 

testified that he had visually observed and estimated during his job site assessment that the 

overhead lines were probably 20 feet off the ground and below the branches. He also initially 

testified that he visually estimated that the closest point between the overhead line and the lowest 

tree limb where the employees would work to be a distance that was 20 feet vertically. He did 

not measure the distance between the overhead lines and the tree and had no idea how far away 

from the overhead line the tree was horizontally. (Tr. 477-484, 491). 

Mr. Miller later contradicted his initial testimony regarding distances. He testified that he 

could not tell from photograph C-33 whether the overhead line shown at “A” was 20 feet beyond 

the tree, or how close it was to the tree. He testified that he could not tell whether the overhead 

line was amongst the tree branches. When shown the overhead line at photograph C-36, Letter 

“A”, Mr. Miller also testified that he could not tell how close the overhead line was to the 

branch. He did admit that “[f]rom this picture [photograph C-36] it looks close” and agreed that 

the overhead line was near the branch. He also admitted after being shown photograph C-36 that 

he did not know how many feet the overhead line was from the tree’s lowest branch. (Tr. 486-

36
492; Ex. C-36). 

 During the morning of August 21, 2012, Mr. Miller called Mr. Scesny and told him that 

they were going to take the tree down in pieces and to be aware that there was a power line 

behind the tree.40 He stated that the plan was to take the tree limbs out level. He did not visit the 

job site on August 21, 2012. He testified that he was not concerned about the overhead line 

because of its distance from the branches. (Tr. 480, 484-485, 489). 

Mr. Miller testified that Mr. McPherson originally asked Hunter Merchant Crane for a 

110 ton crane. After Mr. Miller assessed the job, the decision was made to send a 200 ton crane. 

Mr. Miller further testified that Hunter Merchant Crane’s responsibility at the job site was to lift 

the tree parts to the front yard. He stated that Mr. McPherson did not have the ability to tell Mr. 

Scesny what to do. He also testified that none of All Florida employees were allowed to climb 

on the crane, or direct Mr. Scesny. Mr. Miller also testified Hunter Merchant Crane provided the 

crane’s rigging and that it was customary for the crane operator to do so. He stated that Mr. 

Scesny had straps and chains available to use as crane rigging at the job site. He testified that 

Mr. Scesny could give his input to the workers in the tree on rigging the branches being cut. He 

said that Mr. Scesny did not have the responsibility to direct the arborists. (Tr. 477-478, 480-

481, 484). 

Testimony of Mary Anne Wolfson41

 Mary Anne Wolfson identified herself as a certified arborist. She works at her own 

40 Mr. Miller did not testify whether or not he knew that the overhead lines at the job site were energized on August 

21, 2012.

41 During the trial, the Secretary objected to Ms. Mary Anne Wolfson’s testimony on the basis that she was not 

identified on Respondent’s pre-hearing witness list. Respondent asserted that pre-hearing notice was provided. The 

Court instructed the parties to review their notice materials and discuss the issue in their post-hearing briefs, if 

necessary. Her testimony was received at the trial as an offer of proof. (Tr. 523-526). See 29 C.F.R. § 2200.72(b). 

The parties did not raise it further in their post-hearing briefs. The Court will consider her testimony in reaching its 

decision.

37

 
company called Arborist Services. Since 2007, she has worked full time as a consultant for 

Respondent. She keeps records and payroll for, and basically runs, All Florida. She regularly 

paid the deceased. She also has records of independent contractors. She maintains records of 

Monkey Man’s incorporation, worker’s compensation exemption, and insurance coverage. She 

also handles the invoices Monkey Man submits to Respondent, its receipts for expenses, and 

Respondent’s correspondence to and from Monkey Man. She testified that Monkey Man started 

working as a subcontractor for Respondent in 2010 and receives an I.R.S. Form 1099 from 

Respondent. Ms. Wolfson testified that Mr. Pacheco has never been a Respondent’s employee. 

(Tr. 526-536; Exs. R-E, R-F). 

 Ms. Wolfson testified that, when employees start working for Respondent, they watch a 

video and review safety manuals. The safety manuals cover tree matters. She testified that the 

employees keep the manuals and sign for them. She could not recall if Mr. Carrera- Zarate

signed for a manual. Employees are required to have hard hats, safety vests, steel toed boots, 

long pants, long sleeves, protective eye wear, certain color safety jackets and gloves and, when 

needed, hearing protection. Through the tree industry care association, Respondent receives a 

safety program manual that comes with a videotape. Most of the manuals are also in Spanish. 

The manuals have sections dedicated to working around electricity. Ms. Wolfson testified that 

from 2007 until before August 21, 2012, Respondent’s employees had no major injuries. One 

employee cut his finger and was out for a while. (Tr. 530-536). 

 Ms. Wolfson prepared the June 29, 2012 “Estimate” that All Florida provided to 

Hoggins Construction for the job. The estimate called for the “removal of very large kapok tree” 

at 2660 SW 13th Avenue, Fort Lauderdale, Florida at a cost of $4,000. The estimate stated that 

[Respondent] was “Not responsible for fences or any underground cables, wires, electrical, ... 

38
etc. North side of property must be cleared for access as agreed upon. Tree permit must be 

previously applied for and approved prior to commencement of any work.” The estimate further 

provided that “[a] crane will be needed for this project and will cost $1,500 to be paid by 

Hoggins Construction.” According to Ms. Wolfson, the estimate served as the contract between 

Respondent and Hoggins Construction to remove the kapok tree. (Tr. 531-532; Ex. R-A). 

Testimony of Ralph Pacheco 

Ralph Pacheco has been cutting trees since he was 12 years old, for 28 years. He has 

been a foreman or lead man for 20 years. He learned from other tree trimmers and has 

experience cutting trees around overhead lines. Sometimes the power has been cut, at other 

times the overhead lines were energized. Mr. Pacheco testified that he knew Mr. McPherson 

before he left his earlier job at Community Tree. (Tr. 616-618, 621-622; Ex. C-6, at p.1).

 When he asked to work for All Florida, he knew that Mr. McPherson had a few 

employees and a number of subcontractors. Mr. Pacheco also testified that he started his own 

business in 2010 because the only way he could get a job working for All Florida was as an 

independent contractor. He asserted that he did not set up his company, Monkey Man. He told 

Mr. McPherson that he did not have the money to start a business. Mr. Pacheco testified that Mr. 

McPherson did all the paperwork, “set it all up for me,” and paid for it. Mr. Pacheco testified 

that he never wanted to get into his own business because of the headaches involved. He further

testified that he did not want to work that way, but was forced into it because he could not 

otherwise find work.42 He stated that Mr. McPherson’s only interest in Monkey Man was to 

have Mr. Pacheco work for him. Since forming Monkey Man, Mr. Pacheco has only worked for 

42 Mr. Pacheco testified:

Q, But you agreed to do it [work as an independent contractor] that way, right?

A. I didn’t agree. He [Mr. McPherson] did the paperwork and paid for it. I didn’t want to do it that way, 

but I had to work. I was forced into doing this.

(Tr. 620).

39

 
All Florida. (Tr. 608-609, 618-620, 654). 

Mr. Pacheco testified that he did not bring any business to All Florida. Mr. McPherson 

told him when to show up for jobs, but did not exactly set a time when work would end. 

Nonetheless, he worked each day from 8:00 a.m. until 5:00 p.m., “just like a regular employee.” 

According to Mr. Pacheco, “[t]he only difference was that he didn’t have Workman’s Comp on 

me and didn’t pay my taxes.” He received no benefits from All Florida. He did not operate like 

a business, where he would tell the client what he wanted to get paid. He got paid what Mr. 

McPherson wanted to pay him. He stated that Mr. McPherson gave him an I.R.S. Form 1099 

annually from 2010 through 2012. Sometimes he would get on the ground to pick up debris. He 

was paid the same rate, no matter what he did. He testified that it was Mr. McPherson’s 

arrangement and not his [Mr. Pacheco’s] that he work as a subcontractor. Mr. Pacheco testified 

that he worked “underneath” Mr. McPherson and Mr. McPherson had the authority to direct him 

how to remove a tree. In the instant case, Mr. Pacheco testified that he [Mr. Pacheco]

determined how the tree was coming down. (Tr. 609, 623-624, 627, 655-657). 

 Mr. Pacheco testified that he removed trees near overhead lines for All Florida about ten 

times before. Mr. Pacheco never saw any training manuals or videos at the yard where he would 

meet up with All Florida employees when going to work for Respondent. Before the accident, 

Mr. Pacheco had no certifications in electricity and no electrician qualifications. After the 

accident he took a course with his current employer, P.J.’s Land Clearing near Green Acres, 

Florida. He worked with Mr. Carrera-Zarate off and on for about ten years since the deceased 

arrived in Florida. He testified that he had provided training to Mr. Carrera-Zarate and directed 

him on this job. Mr. Carrera-Zarate was not certified as an electrician. (Tr. 595, 607-608, 622, 

660-661; Ex. C-6, at p.3). 

40
Before starting the job on August 21, 2012, Mr. Pacheco testified that he went to the job 

site and made an assessment of the job.43 As a result, he made a video where, speaking in 

Spanish for the crew, he stated that the job was “going to be hell because we’re going to need to 

cut the power.” He testified that the energized overhead lines were 12 inches away from the tree 

trunk and about thirty-five feet in the air. He did not feel comfortable doing the job unless the 

power was off. He recognized that somebody could get killed. At the trial, he testified:

Q. Okay. Now, you’ve mentioned that you were concerned about the overhead lines. 

 Why were you concerned about them? 

A. The electricity. He was going to get killed. 

Mr. Pacheco also testified that he concluded that a bucket truck, like a “cherry picker,” could not 

be used on the job because a bucket truck could not get back into the property’s backyard.44 

Consequently, he told Mr. McPherson “to get a crane only because that wire was so close, I was 

scared of working on it.” He agreed that he discussed cutting the power with Mr. McPherson 

before arriving at the job site on August 21, 2012. He testified that he told Mr. McPherson that 

he could do the job, “but we need to cut the power.”45 He testified that although Mr. McPherson 

did not personally cut trees, “he has the power to cut the power.”46 (Tr. 597-598, 606-607, 620-

623, 626, 629-630, 668). 

43 Although he initially testified that he visited the job site the day before, he later testified that he was not sure of 

the precise date that he visited the site to perform his assessment. (Tr. 626, 645).

44 Mr. Pacheco testified that he normally drives and uses one of Respondent’s bucket trucks when doing work for 

All Florida. (Tr. 607). 

45 Mr. Pacheco testified:

Q. What discussion was there from Mr. McPherson regarding the wires when you told him after your site 

visit before the job?

A. I told him [Mr. McPherson] that we needed to cut the power on that and he said okay. That’s what he 

told me. He did not say that he was going to get it done or anything like that. After we got to the job and I 

says is the power cut off, he says no. And I said, well, we need to cut the power. And he goes, well, 

there’s no time now, the crane’s here. 

(Tr. 646).

46 Mr. Pacheco testified that Mr. McPherson “won’t get up in a tree” and he never saw him in a tree. (Tr. 657, 666).

41

 
Mr. Pacheco testified that he was at the job site on August 21, 2012 when Mr. CarreraZarate was injured. At first, he testified that he was the foreman in charge of the job.47 He then

altered his testimony and indicated that he was “not really considered like a foreman.” He also 

testified that there were no other foremen or supervisors on the job for Respondent. (Tr. 596). 

Mr. Pacheco testified that on August 21, 2012, at the beginning of the job, he “asked 

Alan [McPherson] to cut the power, that we needed to get that power cut because it was 

dangerous. I didn’t feel comfortable with it unless it was off.” Mr. McPherson replied that it 

was too late to have the power cut because the crane was already at the job site. Mr. McPherson 

did not tell him that FP&L refused to de-energize the overhead lines or respond to any request to 

cut the power. Mr. Pacheco testified that he does not know who to call to cut power to energized 

overhead lines. He stated that Mr. McPherson is the one who arranges to have the power cut to 

energized overhead lines at job sites. There was no protection for the energized overhead lines at 

the job site. Mr. Pacheco testified that sometimes the power is cut to the energized overhead 

lines upon his [Mr. Pacheco’s] request and other times it is not. He stated that he will sometimes 

refuse jobs when the power will not be cut in energized overhead lines. He testified that he 

could not tell Mr. McPherson on August 21, 2012 that he was not getting in the tree since the 

power was not cut off to the overhead lines because Mr. McPherson “wanted to get that job done 

because he had the crane there.” He testified that “I told Alan [McPherson] cut the power. He 

didn’t want to cut the power because the crane was there so I felt like I had no choice so I went 

up there to cut the tree.” Mr. Pacheco also testified he told Mr. McPherson, at the beginning of 

the job, that he did not like Mr. Scesny’s attitude. Mr. Pacheco “felt that vibe that he wasn’t a 

pretty good [crane] operator.” (Tr. 597-598, 600, 622-629, 646, 671-672). 

47 This testimony is consistent with what Mr. Pacheco told OSHA investigators on September 14, 2012 when he 

stated “I am the foreman for All Florida Tree & Landscape employees.” (Ex. C-6, at p 4).

42

 
 Mr. Pacheco testified that on the morning of August 21, 2012 he conducted a safety 

meeting with the crew at the job site. He told the crew members what Mr. McPherson wanted to 

get done and how they were going to do it. He explained that they were at the job site to knock 

down a large kapok tree. He also told the crew to wear safety gear, hard hats, vests, safety 

glasses and gloves because the tree had a lot of spikes. Mr. Pacheco owned the belt harnesses, 

climbing gear, power pruner, and the chain saw and provided these for the job.48 He also 

provided the deceased with ropes and a harness. He instructed Mr. Cruz, who was on the ground 

and controlling the ropes in the tree, to make sure that the ropes did not get tangled. He testified 

that if the ropes got hung up on the thorns, the ropes would be hard to pull. The plan was to 

bring the tree down in pieces, like a puzzle, from top to bottom. The crane was used to grab 

pieces and swing them away from the energized overhead lines. He testified that the plan was to 

provide the workers with more control of the tree, which was needed because the tree was next to 

energized overhead lines. The use of the crane was also intended to help keep cut pieces of the 

tree away from the energized overhead lines, as well as a fence and shed on the property. (Tr. 

596-598, 600-601, 628, 656, 668-669, 680-681; Ex. C-6, at p. 3). 

Mr. Pacheco testified that Mr. McPherson asked him if he wanted Mr. Carrera-Zarate to 

work in the tree with him. Mr. Pacheco testified that he said no at first. However, Mr. Pacheco 

testified that Mr. Carrera-Zarate wanted to work in the tree. Mr. Pacheco testified that he 

thought Mr. Carrera-Zarate would be fine to work in the tree because he had provided training to 

him, so he agreed. (Tr. 662). 

Mr. Pacheco testified that Mr. Scesny and his spotter removed fabric straps from a truck 

48 Mr. Pacheco did not know if the saw was insulated. (Tr. 628).

43

 
and used them as crane rigging when the job started.49 Mr. Pacheco testified that the job began 

at about 10:30 a.m. when he and Mr. Carrera-Zarate started getting up in the tree.50 According 

to Mr. Pacheco, he and others, “usually get up on top of the tree” by riding crane hooks. They tie 

on with a rope and safety harness. At first, Mr. Scesny refused to let him and Mr. Carrera-Zarate 

ride the crane’s hook up into the tree. Mr. Pacheco testified that Mr. McPherson did not try to 

get a bucket out to the job site as a way to properly gain access to the top of the tree. Instead, he 

testified that Mr. McPherson “tried to get us to ride the ball [hook] because it would take time to 

get the bucket over.” Mr. Pacheco testified that he heard Mr. McPherson ask Mr. Scesny to call 

his boss and see if his boss would let him and Mr. Carrera-Zarate ride the hook to the top of the 

tree one time. After speaking to his office at Mr. McPherson’s request, Mr. Scesny gave in and 

allowed them to ride the crane’s hook, but only this one time. Mr. Pacheco testified that Mr. 

Scesny “brought me straight up and then over on top of the tree and I came down on top of the 

tree.” Mr. Pacheco testified that Mr. McPherson was at the job site when he and the deceased

rode the crane’s hook into the tree and was still at the job site when they started cutting the tree. 

Mr. Pacheco stated that he had never before worked with either Hunter Merchant Crane or Mr. 

Scesny. (Tr. 601-602, 630, 642, 650, 663, 669, 674-677, 680). 

Once the two workers were high-up in the tree, the crane set up over a branch. Mr. 

Pacheco testified that either he or Mr. Carrera-Zarate then walked out to the branch and tied the 

fabric or chain straps (also referred to sometimes as a “harness”) hanging down from the crane to 

the branch by hand. This tying process takes about 10 minutes. The climber then “hooks” or 

“smacks” the tied up branch on to the “ball” of the crane. The crane operator tightens the cable

49 Mr. Pacheco testified that the fabric straps were yellow. (Tr. 604).

50 Mr. Pacheco testified that Messrs. McPherson, Ivan [Yangez], Jesus Cruz, Willie [Gonzalez], “Poppo” William 

or Williams, Jesus Pineda and Rubin [Ruda] were at the job site from All Florida when the work started. Mr. 

Pacheco also testified that Mr. Scesny had a “spotter” who was sometimes in his truck because it was too hot, 

instead of being on the ground near the tree watching the whole job. (Tr. 601, 624; Ex. C-3, at p. 11). 

44

 
so, when the climber cuts the branch, the branch will be stable and the crane can pick the branch

up and move it to the grinder on the street where the branch is chipped up. Mr. Pacheco testified 

that Mr. Scesny communicated with one of Hunter Merchant Crane’s other employees on the 

ground underneath the All Florida tree climbers via cell phones and walkie-talkies in order to 

move the crane’s cable, fabric or chain straps, and hook as needed. Mr. Pacheco also yelled

down from the tree to “tell them what we wanted done.” (Tr. 602-605; C-6, at p. 3). 

 To cut the branches, Mr. Pacheco used a MS-200 chainsaw. He did not know the 

chainsaw’s insulation rating. He also used a safety harness and leather gloves from Home Depot 

while in the tree. The gloves had no rubber and he did not know the insulation rating of the 

gloves that he used. (Tr. 605-606). 

 Mr. Pacheco testified that Mr. McPherson remained at the job site for a little while after 

he and Mr. Carrera-Zarate starting cutting the tree. Mr. McPherson then left the job site and 

returned after about 30-45 minutes; whereupon he drove by the job site and left again. Mr. 

McPherson “said wave” while he and the deceased were in the tree and a picture was taken of the 

two of them in the tree showing Mr. Carrera-Zarate, wearing a blue hard hat, waving. Mr. 

Pacheco also testified that Mr. McPherson was later again at the job site talking with him in front 

when the accident occurred. (Tr. 664-665, 673; Ex. R-G, at p. G83). 

Mr. Pacheco stated that both he and Mr. Carrera-Zarate were working in the tree above 

the energized overhead lines. He testified that they had both worked on the tree branch shown in 

photograph C-13, at “C”, that was “basically eight to nine feet” or “eight to ten feet” above the 

primary energized overhead line shown in photograph C-13, at “A”.51 Mr. Pacheco testified that 

he tried to keep himself and the deceased more than 10 feet from the primary energized overhead

51 The Court finds that the branch at Ex. C-13, at “A”, is the same branch where Mr. Carrera-Zarate was working at 

the time of the accident. 

45

 
line. He further stated that he had the hazard in mind all day. Mr. Pacheco was concerned about 

the energized overhead line because it was close to the tree trunk. The main tree trunk was 

within a foot or two of the energized overhead lines. Mr. Pacheco testified that photograph C-39 

depicted Mr. Carrera-Zarate tying the crane’s chain strap into the tree to cut the branch. He 

marked the top primary energized overhead line as “A.” He also testified that photograph C-39 

showed Mr. Carrera-Zarate about 10-12 feet away from the primary energized overhead line at 

“A”. (Tr. 230-232, 235, 606, 612-613, 633, 639-641; Exs. C-6, p. 3, C-13, at “A”, “C”, C-39, at 

“A”). 

 Mr. Pacheco testified that photograph C-33 showed him and Mr. Carrera-Zarate about 30 

to 45 minutes after being in the tree. Photograph C-33 also showed the energized overhead lines 

at the upper left that Mr. Pacheco was concerned with. About at the same time, Mr. Pacheco 

began having a difficult time with the crane operator, Mr. Scesny. When he was asked to move 

the crane in one direction, Mr. Scesny would either go the opposite way or would jerk the crane. 

Mr. Pacheco was concerned that Mr. Scesny would hit the energized overhead lines because he 

was operating the crane erratically. He was further concerned, after Mr. Scesny removed the 

fabric straps from the crane’s rigging sometime between noon and 12:30 p.m., that Mr. Scesny 

was “going to touch the wire” with the metal chains and that was going to cause a shock.52 This 

left the crane using hoisting chains alone as rigging. Mr. Pacheco testified that he could have 

insisted that Mr. Scesny not remove the fabric slings, but he chose not to do so. Despite these 

concerns, Mr. Pacheco stated that he could not stop the job because it would take time. (Tr. 605, 

610, 632, 670-674, 677-678; Ex. C-33, at “A”). . 

Mr. Pacheco testified that Mr. Cruz also told him [Mr. Pacheco] that Mr. Scesny was 

52 Mr. Pacheco testified that Mr. Scesny and his spotter removed the crane’s fabric straps on the ground and that it 

was not hard to do. (Tr. 679).

46

 
being erratic. Mr. Cruz told Mr. Pacheco that Mr. Scesny moved the crane’s chain toward the 

energized overhead line at the time of the accident. He testified that Mr. Cruz told him that “he 

[Mr. Cruz] saw the crane operator bringing the chain over towards the wire and it [the chain] 

touched the wire and then it [the chain] hit Georgie [deceased]. And Georgie was smacking it 

[the chain] away from him [the deceased].” 53 Mr. Pacheco testified that Mr. Scesny

miscalculated where the energized overhead line was. He stated that Mr. Scesny “drug” the 

crane’s chain to a point where the chain first touched the energized overhead line, then the chain 

moved closer to Mr. Carrera-Zarate, and the deceased thereafter smacked the chain away 

because he [deceased] had seen it on the energized overhead line. Mr. Pacheco testified that this 

is when and how the fatal injury occurred. (Tr. 633-636, 673). 

 Mr. Pacheco testified that when the work began in the tree, the crane’s straps used to tie 

the cut tree branches to the crane’s rigging were fabric. They were about four inches wide and 

10-12 feet long. Mr. Pacheco did not know if they had any insulation rating. He testified that 

after the first three or four branches were cut, Mr. Scesny switched the crane’s rigging from 

fabric straps to chains because he was worried that the fabric straps were getting ripped up and 

breaking.

54 Also, Mr. Scesny asserted that the chains would give him more control. He testified 

that Mr. Scesny decided which straps to use on the crane. Respondent did not provide any of the 

crane’s rigging. Mr. Scesny did not ask Mr. Pacheco’s permission to change the crane’s rigging

from chains and fabric straps to only chains. Mr. Pacheco recognized that the metal chain was 

conductive and that there was always a risk that the chain would hit the energized overhead lines 

if Mr. Scesny was not careful. Mr. Pacheco testified that he exercised control over the crane’s 

53 Mr. Pacheco testified that there were two separate chains hanging down from the crane’s ball in a loop. The 

Court finds that these two chains could be spread apart as shown in photograph C-35. (Tr. 635, 659; Ex. C-35). 

54 The Court finds that the photograph R-G, at p. G85, shows fabric straps dangling below two chains after at least 

five tree branches were cut. (Ex. R-G, at p. G85).

47

 
operation to the extent that he could and did tell Mr. Scesny what he wanted when he was up in 

the tree. Mr. Pacheco did not know if Mr. Scesny would have listened to him if he asked him not 

to use only chain rigging. Mr. Pacheco testified that he did not stop the job because he believed 

that Mr. Scesny knew what he was doing. (Tr. 604-605, 636-637, 642, 648, 670-671, 674, 677-

678). 

Mr. Pacheco testified that he left Mr. Carrera-Zarate alone in the tree because he had to 

go to the bathroom. At that time, Mr. Carrera-Zarate was sitting in the tree, drinking a bottle of 

water. Mr. Pacheco testified that photograph C-40 depicts the scene right after the accident, 

between 1:30 and 2:30 p.m. [redacted] He was about 10 feet from the primary energized 

overhead line, marked “A.” [redacted] Mr. Pacheco knew this because he went up the tree to 

get Mr. Carrera-Zarate down. To access the tree, Mr. Pacheco again rode the hook of the crane. 

[redacted] After the accident, he also saw electrical burn marks on both of the crane’s chains 

that were similar to welding burns. (Tr. 613-615, 631-634, 639-641, 659-650; Ex. C-40). 

Mr. Pacheco testified that Monkey Man was cited by OSHA and assessed a $3,600 

penalty. The citation was for riding on the crane’s hook and for working around energized 

overhead lines. He testified that he recalled telling OSHA that he and Mr. Carrera-Zarate stayed 

15 feet away from the wires.55 During the trial, he answered affirmatively that at an unspecified 

place and time he was more than ten feet away from an unidentified wire. He testified that he 

knew that “we” had to stay ten feet away from the wires. He also acknowledged that he and Mr. 

Carrera-Zarate worked within ten feet of the tree.

56 He testified that the energized overhead lines 

shown on photograph C-33 were the ones that he was “real concerned” about because they were 

55 His September 14, 2012 written statement to OSHA that is in evidence does not indicate that any such statements 

were made. The statement does reflect that Mr. Pacheco told OSHA that he thought that there was a requirement to 

stay 15 feet from energized overhead lines. (Tr. 648; Ex. C-6).

56 The Court finds that the photograph at C-33 shows Messrs. Pacheco and Carrera-Zarate up in the tree working 

directly alongside the main tree trunk. (C-33, at “C”, “D”).

48

 
coming sideways and were “right next to the tree.” (Tr. 625, 633, 638, 651-652; Ex. C-33, at 

“A”, “E”, “F”). 

Testimony of DeLancy Rochester

Mr. DeLancy Rochester runs Coral Springs Tree Service, which specializes in residential 

tree work. His company prunes, removes and plants trees. He testified that he knew Mr. 

McPherson and was familiar with Respondent. He was invited to watch the removal of the 

kapok tree. He arrived at the job site before work began. When the job began, he overheard a 

conversation between Mr. McPherson and the crane operator. He described the crane operator as 

“a hot dog, very bullheaded, very set on doing things his way. A hard man to argue with.” (Tr. 

685-686, 692). 

 He testified that the branches did not run through the overhead lines. Rather, the tree 

trunk was set back from the overhead lines and the tree spread up and over the overhead lines at 

a considerable height. He estimated, without doing any measurement, the vertical distance 

between the tree and the overhead line at 15-20 feet. Fabric swings were used to attach to the 

branches, which he estimated at 3,000 pounds, and set them to the side. He noted that his weight 

estimate was arrived at because there was a scale on the crane and the spotter told him the 

weight. (Tr. 686, 692-693). 

 Describing the operation, Mr. Rochester testified that the crane operator would lower the 

crane and hook whatever rigging they were using to the branch. Because of the structure of the 

tree, the climbers were not able to get right to the end of the branch. As a result, the cut pieces of 

branches were huge. When cut, the branches would swing down, and the green end would swing 

over sideways toward the overhead lines. He never saw electricity jump. (Tr. 689). 

 At the beginning, the crane operator was using a fabric sling which he thought to be 

49
nylon. He had no idea of the insulation rating of the slings. He doubted that these were certified

nonconductive. Mr. Rochester testified that he was concerned when the crane operator switched 

from chain and fabric slings to only chains. In his view, it is “very stupid” to use chains near an 

energized overhead because chains are conductive and definitely create a hazard. Mr. Rochester 

testified that the crane’s chains were not properly positioned. The crane operator could have 

moved the crane further back in the front yard to give more reach. Instead, the crane was at the 

end of its reach. He saw newly cut branches swing over and hit the energized overhead lines 

three times because the crane operator did not have enough reach to pull the branches back in the 

other direction properly. The lead climber did not stop the job when the branches actually 

contacted the energized overhead lines. (Tr. 687-688, 693-697). 

The crane operator had a spotter with a radio, so that he could know what was going on

in the tree. The crane operator was out in the crane’s cab in the front yard and could not see 

what was happening in the tree very well. The crane operator was trying to see over the house 

and down the length of the pool, straight away and not sideways making it “[v]ery, very difficult 

to tell what you’re doing.” When the accident occurred, the spotter was in the truck in the front 

yard taking a break. Mr. Rochester testified that, by operating without the spotter, the crane 

operator was using “very bad judgment, and something went real wrong.” Mr. Rochester stated 

that he was and is still appalled when he found out what happened. (Tr. 690-691). 

 Although he was at the site, Mr. Rochester did not see the injury occur because he was 

looking in another direction. He testified that all of the tree’s branches had been removed and 

only “logs” remained as part of the tree at the time of the accident. After the accident, he saw the 

crane’s chains, but saw no damage or marks on them. However, he did not pick them up and 

look at them because the focus was on the injured employee. (Tr. 688, 695-696).

50
Testimony of Delio DeBenedetto

Delio DeBenedetto is a crane operator who lived caddy-corner to the job site. He has 

been a crane operator in south Florida for 43 years. He witnessed Mr. Scesny operating the 

crane’s chains around the energized overhead lines. He testified that the use of the crane’s 

chains created a hazard. Nobody stopped the work. He testified that either the contractor or the 

crane company calls FP&L when there are energized overhead lines in the way. If FP&L does 

not respond to them, he stated “you do it yourself.” Besides de-energizing the overhead lines, 

FP&L can place electrical shields. Mr. DeBenedetto testified that if FP&L fails to respond, there 

are protective actions that the contractor can take. He did not specify those measures. He did 

not see where any of this was done before the job began. (Tr. 701-703). 

Testimony of Ronny Hoggins 

 Ronny Hoggins owns Hoggins Construction, a general contractor that performs 

construction contracts for the government. Hoggins Construction was awarded a contract by the 

city of Fort Lauderdale to rehabilitate and remodel the house at the job site in Fort Lauderdale as 

part of the city’s redevelopment plan.57 He hired subcontractors to assist with the work that 

included interior home renovation and roofing. (Tr. 730-732). 

A city official recommended All Florida to him because it had worked for Fort 

Lauderdale in the past. He met with Mr. McPherson at the job site to discuss what needed to be 

done to remove the kapok tree. Mr. Hoggins had no experience removing trees or with crane 

operations. Mr. McPherson told him that the work required a crane. He testified that the two of 

them discussed the cost of the crane, which cost $1,500 over and above the $4,000 Hoggins 

57 Mr. Hoggins testified that the City Redevelopment Plan fixes up distressed homes at government expense when 

property owners cannot afford to do so. (Tr. 731). The contract between Hoggins Construction and the city is not in 

the record.

51

 
Construction agreed to pay All Florida.58 Mr. Hoggins testified that he did not pay Hunter 

Merchant Crane because he had not contracted directly with the crane company. He did not 

meet or have discussions with the crane company before August 21, 2012. He did not hire the 

crane company, direct it, or meet with the crane operator until he was at the job site on August 

21, 2012. Mr. Hoggins’ only concern was to get the kapok tree cut down. (Tr. 730-734, 736-

738, 743-745, 751). 

 Mr. Hoggins testified that “[w]e all had concern about the tree being close to the power 

line.” He stated that we knew the tree was directly over the energized overhead lines. Mr. 

Hoggins testified that he personally called FP&L to cut off the power, but FP&L refused to do 

so. He testified that FP&L told him that “they don’t do that.” He testified that Mr. McPherson 

also contacted FP&L. Mr. McPherson was responsible for contacting FP&L. Mr. Hoggins 

speculated that cutting the power would affect too many homes in the neighborhood. On other 

jobs, he contacted FP&L to cut power to a specific house. He had no experience getting them to 

shut off a main power line and that is why he hires somebody who knows what to do. (Tr. 738-

739, 743-749). 

 He was at the job site on the morning of August 21, 2012 for about 30 – 45 minutes. He 

testified that he did not call FP&L on the day of the job because he had called several times 

before and FP&L had refused to cut the power. It was his understanding that people were to stay 

about 10 or 15 feet away from the energized overhead lines. He testified that he had no concern 

that anyone would come within 10 feet of the energized overhead lines because the tree was

about 20 feet over them. It was his belief that the purpose of the crane was to avoid the 

energized overhead lines. (Tr. 739-741). 

58 Later, Mr. Hoggins testified that everything, including the cost of the crane, may have been included in the $4,000 

contract price between Respondent and Hoggins Construction. (Tr. 751-752). 

52

 
 Procedural Issues

The Respondent raises several procedural objections to matters that occurred during the 

proceedings, which must be addressed before moving to the substantive issues in this case. 

1. Admissibility of Mr. Pacheco’s Written Statement and limited portions of Written 

Statements by Messrs. Gonzalez and Cruz

Respondent contends in a footnote in its Post-Hearing Brief that parts of written 

statements given to the CSHOs on September 14, 2012 were improperly admitted into evidence. 

According to Respondent, parts of written statements of Messrs. Pacheco,59 Gonzalez60 and 

Cruz,61 at Exhibits C-6, C-10 and C-11 respectively, were improperly admitted because they are 

hearsay and because Messrs. Pacheco, Gonzalez and Cruz were not “unavailable” at the trial 

under Federal Rule of Evidence (“Fed. R. Evid.”) 804. (See Resp’t’s Post-Hr’g Br. (“R. PostHr’g Br.”), at p. 12, fn 2). 

a. Respondent has waived its hearsay objection to the admissibility of Mr. 

Pacheco’s written statement.

On December 5, 2013, during the trial, Respondent’s counsel asked Mr. Pacheco 

questions using parts of his written statement beyond those admitted by the Court on December 

3, 2013. At the end of Mr. Pacheco’s testimony on December 5, 2013, the Court granted 

59 On December 3, 2013, the Court admitted Mr. Pacheco’s responses to a limited number of interview questions 

concerning: 1) the interviewee’s name, address, phone, job title, and signature, 2) an admission that the crane 

brought Messrs. Pacheco and Carrera-Zarate up to the top of the tree, 3) an admission that Mr. McPherson never had 

the power shut off for the job, and 4) an admission that Mr. Pacheco was the foreman for Respondent’s employees. 

(Tr. 237; Ex. C-6).

60 On December 3, 2013, the Court admitted Mr. Gonzalez’s responses to a limited number of interview questions 

concerning: 1) the interviewee’s name, address, phone, job title, supervisor, interview date, and signature, 2) two 

admissions that Mr. Pacheco was the foreman who directed the work and was left in charge at the job site, and 3) a 

statement and admission that Mr. McPherson never informed Mr. Gonzalez that there was electricity in the overhead 

lines. (Tr. 247; Ex. C-10).

61 On December 3, 2013, the Court admitted Mr. Cruz’s responses to a limited number of interview questions 

concerning: 1) the interviewee’s name, address, phone, job title, interview date, supervisor, and signature, 2) a 

statement and admission that Mr. Cruz was assigned to hold the rope that the deceased was using so that it would 

not touch the overhead power lines, and 3) an admission that Mr. Pacheco was left in charge at the job site. (Tr. 

256; Ex. C-11).

53

 
Respondent’s motion to move Mr. Pacheco’s entire September 14, 2012 written statement into 

evidence.62 By its actions at trial regarding the use and admissibility of Mr. Pacheco’s statement, 

Respondent has waived its hearsay objections concerning its admissibility into evidence. 

 b. Messrs. Pacheco’s, Gonzalez’s and Cruz’s Written Statements are not hearsay. 

Under Commission Rule of Procedure 71, 29 C.F.R. § 2200.71, the Federal Rules of 

Evidence are applicable to hearings. Under Fed. R. Evid. 801(d)(2)(D), a statement is not 

hearsay if the statement is offered against the opposing party and was made by the party’s agent 

or employee on a matter within the scope of that relationship and while it existed.63 To qualify 

as an admission, no specific “against interest” component is required. Aliotta v. Nat'l R.R. 

Passenger Corp., 315 F.3d 756, 761 (7th Cir. 2003); United States v. McGee, 189 F.3d 626, 631 

(7th Cir. 1999) (holding that there is no “requirement that admissions by a party-opponent be 

inculpatory” and that “the statement need only be made by the party against whom it is offered”). 

Under Commission precedent, a statement made by an employee concerning a work activity is 

an admission, not hearsay, “[b]ased on the plain language of Rule 801(d)(2)(D).”64 Regina 

Constr. Co., 15 BNA OSHC 1044, 1047 (No. 87-1309, 1991). 

 One of the threshold issues in this case is whether Mr. Pacheco was actually one of 

Respondent’s employees who served as Respondent’s foreman during the job. Respondent has 

62 The Secretary had no objection to the Court’s receipt of Mr. Pacheco’s entire written statement into evidence. 

(Tr. 682). 

63 Rule 801(d)(2)(D). Definitions That Apply to This Article; Exclusions from Hearsay, states:

(d) Statements That are Not Hearsay. A statement that meets the following conditions is not hearsay: ...

 (2) An Opposing Party’s Statement. The statement is offered against an opposing party and: ...

 (D) was made by the party’s agent or employee on a matter within the scope of that relationship and 

while it existed; .... 

64 In Regina, the Commission ruled that the testimony of an OSHA compliance officer regarding two statements he 

gathered from two employees of Respondent’s construction company were admissible because the statements were 

made during their employment and concerned work activities. Regina Constr. Co., 15 BNA OSHC at 1046. The 

Commission also found that the testimony was not double hearsay, because each statement made was an exception 

to hearsay under 801(d)(2)(D). Id.

54

 
asserted that the Court could not find any of Mr. Pacheco’s September 14, 2012 statements as 

opposing party’s statements under Fed. R. Evid. 801(d)(2)(D) because his agency status and 

scope of employment had not been established and was in dispute at trial. During bench trials, 

“judges routinely hear inadmissible evidence that they are presumed to ignore when making 

decisions.” Harris v. Rivera, 454 U.S. 339, 346 (1981). Here, the Court discussed the admission 

of Mr. Pacheco’s September 14, 2012 statement as an agent or within the scope of his 

employment through CSHO Campos at the trial: 

 Respondent’s Counsel: There’s been no foundation, no predicate at all to show agency 

here.

 The Court: Oh, no, there has been a foundation [of Mr. Pacheco’s agency and scope of 

employment] through Mr. Campos. He’s testified that other employees told him [CSHO 

 Campos] he [Mr. Pacheco] was the foreman; he [Mr. Pacheco] told him [CSHO Campos] 

 he was the foreman. I’m not saying he is the foreman. I’m saying that for the purpose of 

 the question, I’m going to say there’s been enough foundation laid that this is a statement 

against interest.

As discussed later, the Court finds that Mr. Pacheco was actually one of Respondent’s employees 

who served as Respondent’s foreman at the job site on August 21, 2012. The Court further finds 

that Messrs. Pacheco,

65 Cruz, and Gonzalez provided their written statements to the CSHOs on 

September 14, 2012 when they were still employed by Respondent and the written statements 

that were admitted into evidence, in whole or in part, concerned matters within their employment 

for Respondent at the job site on August 21, 2012. (Tr. 214, 246-47, 256-57; Exs. C-6, C-10 and 

C-11). 

c. Notwithstanding the above, Fed. R. Evid. 804 does not justify the exclusion of Mr. 

65 Respondent also maintains that CSHO Campos’s testimony, regarding Mr. Pacheco’s out of court statement that 

Mr. McPherson was his boss, was double hearsay. (Tr. 208) This argument fails, as “[h]earsay within hearsay is not 

excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay 

rule provided in these rules.” Fed. R. Evid. 805. As discussed, infra, the Court finds that Mr. Pacheco was

employed by the Respondent and Mr. Pacheco’s statement that CSHO Campos testified to was related to Mr. 

Pacheco’s scope of employment. 

55

 
Pacheco’s Written Statement and limited portions of Written Statements by Messrs. 

Gonzalez and Cruz.

Under Fed. R. Evid. 804, a declarant is “unavailable” as a witness if they are “absent 

from the trial or hearing and the statement's proponent has not been able, by process or other 

reasonable means, to procure the declarant's attendance. . . .” Fed. R. Evid. 804(a)(5)(A).66 The 

burden is on the offering party to supply justification as to why a declarant is unavailable. 

Moore v. Miss. Valley State Univ., 871 F.2d 545, 552 (5th Cir. 1989). The plain assertion that a 

witness is unavailable does not satisfy Fed. R. Evid. 804(a)(5). See Id. 

In United States. v. Morsley, the Fourth Circuit held that the trial court “properly 

concluded that the government had met the burden of demonstrating its declarant's 

unavailability” where the government obtained an arrest warrant and attempted to serve the 

declarant with that warrant. United States. v. Morsley, 64 F.3d 907, 919 n. 11 (4th Cir. 1995); 

see also Ohio v. Roberts, 448 U.S. 56, 74 (1980) (finding a reasonable good faith effort to obtain 

the presence of a witness at trial is required before unavailability is established). In United 

States v. Smith, 577 F. Supp. 1232, 1234-1235 (S.D. Ohio 1983), the court held that a witness 

can be considered unavailable under Fed. R. Evid. 804(a)(5) and it could consider prior 

testimony where the defense counsel attempted to serve a subpoena on the witness to testify at a 

preliminary criminal hearing, and apparently succeeded, but she did not appear.67 

Here, the record shows that the Secretary served Messrs. Pacheco, Gonzalez and Cruz

subpoenas via certified mail. The record also shows that Messrs. Pacheco, Gonzalez and Cruz 

66 See also Fed. R. Civ. P. 32(a)(4)(D): Unavailable Witness. A party may use for any purpose the deposition of a 

witness, whether or not a party, if the court finds that the party offering the deposition could not procure the 

witness's attendance by subpoena. 67 Counsel was also unable to contact her by telephone. Apparently, the witness refused to testify at the hearing due 

to an alleged fear of harassment by police and adverse publicity in the case. United States v. Smith, 577 F. Supp. at 

1234-1235.

56

 
did not appear in court at the date, time and place designated on the subpoenas; i.e. December 3, 

2014, at 1:00 p.m., at Courtroom 1524, Claude Pepper Federal Building, 51 SW 1st Avenue, 

Miami, Florida. On December 3, 2013, Mr. McPherson acknowledged that Messrs. Cruz and

Gonzalez were employed by Respondent as of the hearing date.68 When Mr. McPherson was 

asked if he had telephone numbers where Messrs. Gonzalez and Cruz could be reached, he 

initially claimed he did not. After a short recess, the parties were able to obtain a telephone 

number for Mr. Cruz, but he was unreachable. A telephone number for Mr. Gonzalez was not 

ascertained. (Tr. 152-159, 211; Ex. C-43). 

Because Messrs. Pacheco, Gonzalez and Cruz did not present themselves at the date, time 

and place; i.e. the courtroom specified on their subpoenas, and the Secretary was unable to reach 

them using other reasonable means, the Court found that they were all unavailable as witnesses 

under Fed. R. Evid. 804(a)(5) on December 3, 2013.69

68 The Court was initially told at the hearing on December 3, 2013 that neither Mr. McPherson nor Respondent’s 

counsel knew the names of the these two witnesses subpoenaed by the Secretary, or whether they were still 

employed by Respondent. Respondent’s counsel later acknowledged, when reminded by the Secretary’s counsel, 

that she was provided with the names of these two employees by the Secretary’s counsel the preceding Wednesday, 

November 27, 2013. The Secretary also served copies of these two subpoenas upon Respondent’s counsel, who 

declined to accept service of the two subpoenas. Thereafter, Respondent’s counsel asked Mr. McPherson to see 

what he could do to help them appear at the hearing. (Tr. 153). He apparently did little, if anything, to help 

facilitate the presence of Messrs. Gonzalez and Cruz at the hearing on December 3, 2013 to testify during the 

Secretary’s case-in-chief. See Fed. R. Evid. 804(b)(6), exceptions not excluding prior statements if the declarant is 

unavailable as a witness where the “statement is offered against a party that wrongfully caused – or acquiesced in 

wrongfully causing – the declarant’s unavailability as a witness, and did so intending that result.” Here, the Court 

finds that Respondent acquiesced in wrongfully causing Messrs. Gonzalez’s and Cruz’s unavailability to testify as 

witnesses for the Secretary on December 3, 2013, and did so intending that result. Both were employees of All 

Florida as of that date. Respondent knew the Secretary wanted them to testify at the hearing during his case-inchief on December 3, 2013. Only after the Court admitted portions of their September 14, 2012 statements on 

December 3, 2013 as part of the Secretary’s case-in-chief, did both appear to testify the next day for Respondent.

69 On December 4, 2013, Respondent called Mr. Gonzalez to testify in its case-in-chief. During direct examination, 

Respondent asked Mr. Gonzalez questions about his September 14, 2012 written statement to the CSHOs. On cross 

examination, he acknowledged that it was his written statement. Later, he testified that Mr. Pacheco was “the 

foreman there. He’s the boss.” (Tr. 360-361, 368-370; Ex. C-10). On December 4, 2013, Respondent also called 

Mr. Cruz to testify in its case-in-chief. During direct examination, Respondent showed and asked Mr. Cruz 

questions about his September 14, 2012 written statement to the CSHOs. Mr. Cruz acknowledged that it was his 

written statement and identified Mr. Pacheco as the job’s foreman. (Tr. 339-345; Ex. C-11). 

57

 
If a declarant is found unavailable as a witness, the following is not excluded by the rule 

against hearsay: 

Fed. R. Evid. 804. Exceptions to the Rule Against Hearsay – When the Declarant is 

Unavailable as a Witness. ...

(b) The Exceptions. The following are not excluded by the rule against hearsay if the 

declarant is unavailable as a witness: ...

(3) Statement Against Interest. A statement that:

 (A) a reasonable person in the declarant's position would have made only if the 

person believed it to be true because, when made, it was so contrary to the declarant's 

proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's 

claim against someone else or to expose the declarant to civil or criminal liability; ...

Fed. R. Evid. 804(b)(3)(A). 

In the employment setting, “[a] statement is against pecuniary and proprietary interest 

when it threatens the loss of employment, or reduces the chances for future employment, or 

entails possible civil liability.” Gichner v. Antonio Troiano Tile & Marble Co., 410 F.2d 238, 

242 (D.C. Cir. 1969). If a statement includes both self-inculpatory and non-self inculpatory 

parts, only those parts of the statement which are self-inculpatory may be admitted under Fed. R. 

Evid. 804(b)(3). Williamson v. United States, 512 U.S. 594, 600-605 (1994). 

 The Court finds that CSHO Campos’ testimony regarding Mr. Pacheco’s out of court 

statement of September 14, 2012 that: 1) the crane brought Messrs. Pacheco and Carrera-Zarate 

up to the top of the tree, 2) Mr. McPherson never had the power shut off for the job, and 3) he 

[Mr. Pacheco] was the foreman for Respondent’s employees at the job site on August 21, 2012, 

to also have been properly admitted as statements against interest under Fed. R. Evid. 804. It 

was against Mr. Pacheco’s own pecuniary and proprietary interest to admit that he and the 

deceased rode the crane’s hook to the top of the tree, and that he was the foreman on a job site

where the power had not been shut off and a worker was electrocuted. This admission could 

58
have threatened Mr. Pacheco’s employment, reduced the chance of his future employment, and 

exposed him to possible civil liability. It was also against Messrs. Gonzalez’s and Cruz’s 

pecuniary and proprietary interest to admit that Mr. Pacheco was the job’s foreman directing 

work at the job site on August 21, 2012 since his activities could then expose their employer, All 

Florida, to liability and threaten both employees with loss of employment. United States v. Hsia, 

87 F.Supp.2d 10, 14 (D.D.C. 2000) (citing Gichner, at 242). 

 While it was proper for the Court to admit into evidence limited portions of the 

September 14, 2012 interview statements of Messrs. Pacheco, Gonzalez, and Cruz on December 

3, 2013 under Fed. R. Evid. 804, all three gentlemen eventually appeared and provided testimony 

at the hearing. Mr. Pacheco testified on December 5, 2013 during both parties’ cases-in-chief. 

He covered all of the areas contained within the limited portion of his September 12, 2012 

written statement admitted by the Court on December 3, 2013. During his testimony, Mr. 

Pacheco acknowledged giving a written statement to OSHA and admitted that the crane brought 

him and the deceased up to the top of the tree, Mr. McPherson did not have the power shut off, 

and he [Mr. Pacheco] was in charge of the job.70 Messrs. Gonzalez and Cruz also testified

during Respondent’s case-in-chief on December 4, 2013. The few matters involved in the 

limited portions of their interview statements that were admitted by the Court into evidence on 

December 3, 2013 were all also later covered in their testimony at the trial.

71 (Tr. 332-396, 596, 

598, 601-602, 625, 646-648, 680-682; Ex. C-6).

 For the above reasons, the Court finds that Mr. Pacheco’s entire September 14, 2012 

written statement and the limited portions of the September 14, 2012 written statements of 

70 The parties have also stipulated as fact that Mr. Pacheco acted as Respondent’s foreman and directed the tree 

removal activities. (Tr. 280-281).

71 Therefore, any error regarding the admissibility of these limited portions of their September 14, 2012 statements 

under Fed. R. Evid. 804 is harmless for this reason alone.

59

 
Messrs. Gonzalez and Cruz were properly admitted into evidence. 

 2. Motion to Dismiss Citation 2, Item 1b.

 Respondent next takes exception to this Court’s denial of its Motion to Dismiss Citation 

2, Item 1b. As originally drafted, the citation item alleged a violation of 29 C.F.R. § 

1910.333(c)(i)(A)(1) on the grounds that “[w]hen an unqualified person was working in an 

elevated position near overhead lines with voltages to ground rated at 50 kV or below, the 

location was not such that the person and the longest conductive object could contact the power 

line.” (emphasis added). The citation went on to specify that “On or about 8/21/2012, at 2660 

SW 13th Avenue, Fort Lauderdale, Florida, the employer directed employees to work within 10 

feet of an energized 7620 overhead power line.” (Original Complaint, at p. 6). 

At the hearing, Respondent’s counsel moved to dismiss Citation 2, Item 1b, ore tenus, on 

the grounds that the allegation was correct in that the location where the employee was working 

“was not such that the person and the longest conductive object could contact the power line.” 

(Tr. 11-12). 

The Secretary’s counsel replied that the standard was plainly cited and that it was clear 

what the citation intended to allege. The Secretary moved to amend the citation by removing the 

word “not.” The Secretary asserted that his motion was due to a “scribner’s error.” Respondent 

objected to the amendment asserting that “the descriptive language is not—does not allege that 

there was any conductive object that my client had—that the employee had within ten feet of the 

power line, so it is very confusing. I would submit it should be dismissed as alleged.” (Tr. 13-

14). 

 When asked if Respondent was prejudiced by the amendment the following discussion 

ensued: 

60
 Court: [portion omitted] If you’d like to tell me where the prejudice has been 

 because of this word not, to exclude it, where was the prejudice to you? 

Respondent’s counsel: Your Honor, no, I just wanted to make sure that – I just 

wanted to straighten the record out and make my motion on the record is all I 

wanted to do, to make sure it stands as that. 

Court: Well, have you been misled by the government along the way here? 

Respondent’s counsel: No, I’m not arguing---

Court: This case was filed back earlier in the year.

Respondent’s counsel: I’m not suggesting that, I’m not arguing prejudice, Your 

Honor. 

(Tr. 15). 

 The Court denied Respondent’s motion to dismiss Citation 2, Item 1b at the trial. 

Despite denying any prejudice from the amendment at the trial, in its Post-Hearing Brief, 

Respondent takes exception to the Court’s denial of its Motion to Dismiss Citation 2, Item 1b 

because the item as originally worded failed “to state either factually or legally” that Respondent 

violated the cited standard. Respondent argues that it agrees with the allegations contained in the 

original citation. It also asserts that, “the standard as cited does not apply to this case and the 

Secretary did not place AFT&L [All Florida] on notice of the conduct that AFT&L engaged in 

that was in violation of the OSHA standard.” (Tr. 14-16; R. Post-Hr’g Br., at p. 11).72 

 Respondent’s exception is rejected. Whether the Secretary established a violation of the 

cited standard is an issue independent of whether the amendment was appropriate and will be 

dealt with at the appropriate time in this decision. The Federal Rules of Civil Procedure (“Fed. 

R. Civ. P.”) apply to Commission proceedings. See 29 U.S.C. § 661(g) (“Unless the 

Commission has adopted a different rule, its proceedings shall be in accordance with the Federal 

72 The applicability of 29 C.F.R. § 1910.333(c)(i)(A)(1) to Respondent’s work will be discussed, infra.

61

 
Rules of Civil Procedures).” Fed. R. Civ. P. 15(a) states that, before trial, leave to amend “shall 

be freely given when justice so requires.” The Secretary’s ore tenus motion to amend his 

pleading was made at the start of the trial as a consequence of Respondent’s ore tenus motion to 

dismiss. The Court’s Notice of Hearing and Scheduling Order issued on May 10, 2013 

(“Scheduling Order”) called for all motions to be submitted to the Court by November 8, 2013, 

25 days before the start of the trial. Respondent’s Motion to Dismiss Citation 2, Item 1b should 

have been submitted by Respondent to the Court in writing, after conferring with the Secretary, 

before the start of the trial. See 29 C.F.R. § 2200.40; Scheduling Order. The Scheduling Order 

also required the parties to include “a list of all motions or other matters which require action by 

the U.S. Administrative Law Judge...” in the Joint Pre-Hearing Statement. The matter was 

neither raised by Respondent in the Joint Pre-Hearing Statement filed on November 8, 2013 or 

during the final pre-hearing conference conducted on November 15, 2013.73 Respondent’s 

Motion to Dismiss was untimely and not submitted in compliance with the Court orders and 

Commission rules. Justice requires the Secretary’s Motion to Amend to be granted at the start of 

the trial. 

The decision to amend a pleading is at the sound discretion of the trial court. Foman v. 

Davis, 371 U.S. 178, 182 (1962); Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994) 

(citing Avatar Exploration, Inc. v. Chevron, U.S.A., 933 F.2d 314, 320 (5th Cir. 1991); Ruffolo v. 

Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993); Cornell & Co., Inc. v. Occupational 

Safety & Health Review Comm'n, 573 F.2d 820, 823 (3d Cir. 1978). The Commission has held 

that motions to amend pleadings will not be granted if the objecting party would be prejudiced 

by the amendment, or if there was intent to deceive the opposing party. See Kokosing Constr. 

73 The Scheduling Order also directed the parties to be prepared to discuss their compliance with the Scheduling 

Order, including the status of motions, at the final pre-hearing conference.

62

 
Co., Inc., 21 BNA OSHC 1629, 1631 (No. 04-1665, 2006), aff’d, 232 F.App’x 510 (6th Cir. 

2007); see also Conagra Flour Milling Co., 15 BNA OSHC 1817, 1821-23 (No. 88-2572, 1992). 

“[I]t is the opposing party's burden to prove that such prejudice will occur.” Kiser v. Gen. Elec. 

Corp., 831 F.2d 423, 428 (3d Cir. 1987) (citing Sanders v. Clemco Indus., 823 F.2d 214, 217 (8th 

Cir. 1987)). Judges must also ensure that the objecting party has sufficient time to prepare its 

case, and should grant a continuance where appropriate. Kokosing Constr. Co., 21 BNA OSHC 

at 1631 (citing Reed Eng’g Grp., Inc., 21 BNA OSHC 1290, 1291 (No. 02-0620, 2005) (“fair 

notice” must be given to a non-moving party; this may be accomplished through granting a 

continuance). 

Respondent’s counsel explicitly stated that the amendment caused it no prejudice. It was 

clear that the insertion of the word “not” into the citation was a typographical error and there is 

no doubt that Respondent understood that it was being alleged that an unqualified employee and 

a conductive object could contact the energized overhead line. Neither at the time of the motion 

nor at present does Respondent assert that it needed a continuance to prepare to defend the 

amended citation. Respondent explicitly agreed that it was not misled. 

The Secretary’s Motion to Amend was properly granted. See Bomac Drilling Co. and 

True Drilling Co., 9 BNA OSHC 1202, 1203 (No. 79-828, 1980) (consolidated) (finding 

Complainant permitted to amend the complaint at trial to insert a missing word where there was 

no proof of prejudice). 

3. The Secretary’s Motion in Limine to Exclude Evidence in Support of Respondent’s 

Affirmative Defenses.

The Secretary served his First Set of Interrogatories, First Request for Admissions and 

Request for Production of Documents on Respondent on May 9, 2013. (See R. Post-Hr’g Br., at 

p. 9). Respondent answered the Secretary on June 11, 2013, providing its Responses to Requests 

63
for Admissions, but stating that it would provide its answers to interrogatories and the documents 

on June 14, 2013. On October 24, 2013, the Secretary filed a Motion to Compel Responses to 

Complainant’s Request for Interrogatories, Production of Documents, and Requests for 

Admission with the Court (“Motion to Compel”). The Secretary’s Motion to Compel asserted 

that Respondent had not provided complete answers to his interrogatories or requests for 

admission, and that it failed to produce all unprivileged documents requested. The Secretary 

sufficiently met and conferred with Respondent prior to the filing of the Motion to Compel.74 

On November 8, 2013, the Secretary filed his Motion in Limine to Exclude Evidence in 

Support of Respondent’s Affirmative Defenses (“Motion in Limine”). The Secretary claimed 

that he still had not received Respondent’s Answers to Interrogatories, or any of the documents 

asked for in his requests for discovery. Complainant sought to bar Respondent “from presenting 

any evidence at the hearing regarding its affirmative defense” because Respondent had allegedly 

failed to comply with Commission procedures and the Scheduling Order by not: 1) providing 

complete responses to written discovery requests, 2) participating properly in prehearing 

exchange activities by not providing proper notice of its witnesses and trial exhibits, and 3) 

74 Complainant’s Motion to Compel included the following:

Complainant has made good faith efforts to resolve this discovery dispute before filing this motion pursuant 

to Commission Rules and the Fed. R. Civ. P. Commission Rule 2200.40(a) requires a party filing any motion with 

the Court to first “confer or make reasonable efforts to confer” with the other party. Complainant, on seven (7) 

occasions, either by email or phone call or letter sent by facsimile, has attempted to communicate with Respondent’s 

counsel to resolve this discovery dispute. Further, Complaint has identified the discovery deficiencies by email and 

letter so that Respondent would have a clear outline of Complainant’s position and could respond reasonably. Nev. 

Power Co. v. Monsanto Co., 151 F.R.D. 118 (D. Nev. 1993). In this case, the undersigned has attempted in good 

faith to request initial discovery responses to interrogatories and requests for production. Also, in good faith, the 

undersigned as [sic] asked Respondent to cure its requests for admissions and to attest to them. 

Complaint’s counsel certifies that she has attempted to confer with Respondent’s counsel, Andrea L. 

Wolfson to resolve the matter outlined above. Also, on October 22, 2013, Complainant’s counsel attempted to 

contact Ms. Wolfson regarding this Motion by email (citation omitted] and left a message at her office. The 

undersigned spoke with Respondent’s counsel for nearly an hour at approximately 2:00 p.m. on October 23, 2013. 

At the time of this filing, Respondent’s counsel has not provided the promised discovery. (Motion to Compel, pp. 7-

8).

64

 
producing any documentation to support its affirmative defense. Complainant further alleged 

that Respondent had: 1) engaged in contumacious conduct, 2) not properly supported its 

affirmative defense, 3) abandoned its affirmative defense, and 4) prejudiced Complainant by its 

actions. 

On November 13, 2013, the Court issued an Order granting the Secretary’s Motion to 

Compel, and ordered Respondent to provide: 1) complete responses to Interrogatories 1-25; 2) 

complete answers to Requests for Admission Nos. 8 and 9; 3) an attestation for Requests for 

Admission 1-25; and 4) all unprivileged documents that are responsive to the Secretary’s 

Request for Production of Documents. The Court also deemed Request for Admission No. 12 

admitted.

75 All of Respondent’s responses to the Order were due on or before November 20, 

2013. Respondent provided its corrected responses on November 21, 2013. (Ex. C-3).

 Respondent filed its Response to the Secretary’s Motion in Limine on November 14, 

2013 (“R. Response to Motion in Limine”). Respondent asserted that, during OSHA’s

investigation, it voluntarily provided OSHA with documents and information for employees who 

were working at the time of the accident. It also asserted that during OSHA’s investigation, Mr. 

McPherson answered OSHA’s questions concerning the fatality. Respondent asserted that “it 

never intentionally withheld evidence and in fact has complied with each and every request for 

documents interviews and inspection of tangible items made by OSHA and the Secretary of 

Labor.” Respondent claimed the discovery was sent to the Secretary at an earlier date, but was 

not received due to computer errors.76 It further asserted that the Secretary failed to “show 

prejudice or surprise in fact and bad faith or willfulness” by Respondent during the discovery 

75 Request for Admission No. 12 stated: “Alan McPherson oversaw tree removal activities before the [sic] leaving 

the workplace the morning of August 21, 2012.”

76 According to Respondent, the discovery was sent via email at first, but the file size was too large to send. Later 

the discovery was sent via Adobe Send Now, but the Adobe server had inadvertently deleted the documents and they 

were not sent. (See R. Response to Motion in Limine, Exs. C-5, C-6) 

65

 
process. (R. Response to Motion in Limine, at pp. 10-11). 

The Secretary filed a reply to the Respondent’s Response to the Motion in Limine on 

November 19, 2013. The Secretary acknowledged that after a telephone conversation between 

the parties on November 8, 2013, Respondent sent discovery to the Secretary, but it was 

incomplete and non-responsive as a whole. In its Surreply, Respondent claimed that it was 

unaware of the discovery not being sent, and that it was as compliant as possible in remedying 

the situation. Respondent claimed further that the Secretary had not been prejudiced by the late 

service of discovery. 

On November 25, 2013, the Court denied the Secretary’s Motion in Limine without 

prejudice, finding it premature and overly broad in the scope of the remedy sought.77 

During the trial, the Secretary renewed his Motion in Limine to bar Respondent from 

presenting any evidence at the hearing concerning Respondent’s affirmative defense of 

unpreventable employee/subcontractor misconduct due primarily to its failure to provide any 

responses to Interrogatory Nos. 6, 7, 9 and 13, and for inadequate responses to Interrogatory Nos. 

15 and 23 during the pre-trial discovery phase of the proceeding. The parties agreed, as a 

remedy for Respondent not responding to Interrogatory Nos. 6, 7 and 15, to stipulate as fact that: 

1) From August 22, 2010 through August 21, 2012, there were no disciplinary actions taken by 

Respondent with regard to any unauthorized action that was similar to the August 21, 2012 

incident involving Mr. Jorge Carrera-Zarate against any employee or subcontractor; 2) There 

was no disciplinary action taken by Respondent against anyone based upon the August 21, 2012 

incident involving Mr. Jorge Carrera-Zarate; and 3) In his testimony at trial, Alan McPherson 

77 The Court further ordered that the Secretary may, during the course of the trial, object to the admissibility of any 

trial exhibit or the testimony of any witness, and assert any grounds of prejudice that he may have sustained as a 

result of any failure by Respondent to make timely and complete responses to the Secretary’s discovery requests, or 

to provide timely and proper notice of its witnesses and trial exhibits.

66

 
will not describe in detail the manner in which Respondent enforces the work rules that apply to 

the work activities in which Respondent’s employees, supervisors and foremen were engaged on 

August 21, 2012. (Tr. 66-67, 77-80, 85-86, 277-305; Ex. C-3). 

The parties agreed, as a remedy for Respondent not responding to Interrogatory No. 9, to 

stipulate as fact that: 1) “Mr. Jorge Carrera Zarate worked in the tree.”, 2) “Mr. Rafael Pacheco 

worked in the tree.”, and 3) “Mr. Rafael [Pacheco] acted as Respondent’s foreman and directed 

the tree removal activities.” (Tr. 280-281, 298-302). 

The parties further agreed to stipulate as a fact that “Respondent does not have written 

work rules regarding traveling on a crane load or hook[.]” as a sanction for not answering 

Interrogatory No. 13. The parties also agreed that Respondent would not present any evidence 

that it provided work policies and rules to its employees that addressed hazards. (Tr. 72, 76, 

281-282). 

The Court also imposed a sanction against Respondent for its inadequate response to 

Interrogatory No. 23(b), by finding a stipulation of fact that: 

1) Mr. Rafael Pacheco worked for All Florida Tree, Respondent, each week as follows: 

 September 2010 through March of 2011, three weeks in April 2011, each week from May 

 2011 through November 2012 and one week in December 2012. 

2) Respondent paid Monkey Man intermittently on a daily or weekly basis for each 

 period of work for September 2010 through March of 2011, three weeks in April 2011, 

 each week from May 2011 through November 2012 and one week in December 2012. 

3) Rafael Pacheco was the only employee of Monkey Man.

4) Rafael Pacheco was reimbursed for Respondent’s expenses while working for 

 Respondent between October 2010 through December 2012 and that these payments 

67
 or reimbursements were addressed to Monkey Man. 

(Tr. 289-302). 

The Court further sanctioned Respondent for its inadequate responses to Interrogatory 

Nos. 6, 7, 9, 13 and 23(b) during discovery by excluding from evidence, as a remedy, Exhibit C, 

All Florida Tree & Landscape, Inc., General Construction, Additional Safety and Health Work 

Practices and Procedures Including Hazard Communication, pp. C-10 through C-17, and the 

Tree Care Industry Association’s Electrical Hazard Recognition and Compliance Training 

Manual, pp. C-18 – C-55 [both English and Spanish versions] “for failure to properly --

adequately respond to Interrogatory [nos.] 6, 7, 9, 13, and 23B and for violating the Court’s order 

which directly directed the Respondent to answer all the Interrogatories and that order was not 

complied with.” (Tr. 77, 85, 302-304).78 

Under Commission Rule 52, a judge may impose sanctions for failure to comply with a 

discovery order with “[a]n order refusing to permit the disobedient party to support or to oppose 

designated claims or defenses or prohibiting it from introducing designated matters in evidence.” 

29 C.F.R. § 2200.52(f)(2). The order may be issued by the judge’s own initiative or upon a 

motion by a party. Id. The court must allow the opposing party the opportunity to show cause 

why the sanction should not issue. Id. This was done here. 

In its Post-Hearing Brief, Respondent asserts that sanctions were inappropriate since the 

Secretary failed to comply with Fed. R. Civ. P. 37 because he failed to certify that he had in good 

faith conferred or attempted to confer with the person or party failing to make disclosure or 

discovery in an effort to obtain it without court action before filing his Motion to Compel.79 

78 These pages are from Respondent’s safety/training manual. In general, the referenced interrogatories were 

relevant to Respondent’s asserted affirmative defense of “unpreventable employee/subcontractor misconduct.” 

Respondent also withdrew Exhibit C, pages C-18 through C-55, at the beginning of the trial. (Tr. 52, 60).

79 See Fed. R. Civ. P. 37(a)(1) that states:

68

 
Respondent is mistaken. Complainant fully complied with Fed. R. Civ. P. 37 before he filed his 

Motion to Compel. Complainant’s Motion to Compel included a certification that Complainant 

had attempted to confer with Respondent’s counsel in an effort to resolve the discovery dispute 

before seeking judicial intervention. The motion was signed and attested to by the Secretary’s 

counsel. The Secretary’s Motion to Compel sets forth his, more-than-adequate, good faith 

attempts by the Secretary to seek proper discovery responses from Respondent. Respondent’s 

objection is also untimely. The time for Respondent to have raised any such lack of certification 

objection was when its response to the Secretary’s Motion to Compel was due, in this case by 

November 6, 2013, and not raise it for the first time in a post-hearing brief.80 (R. Post-Hr’g Br., 

at p. 12; Motion to Compel, at pp. 7-8). 

In Modern Cont'l/Obayashi v. Occupational Safety & Health Review Comm'n,, 196 F.3d 

274 (1st Cir. 1999), the court held that the administrative law judge did not abuse his discretion 

by denying the employer’s motion to compel discovery and quashing of two of its subpoenas 

when the employer failed to adequately respond by the court’s discovery deadline. The First

Circuit held that “[a]ppellate courts seldom intervene in discovery questions,” and “will 

intervene in such matters only upon a clear showing of manifest injustice, that is, where the 

lower court's discovery order was plainly wrong and resulted in substantial prejudice to the 

aggrieved party.” Id., at p. 281. The court in Modern Continental reasoned that the employer’s 

own lack of diligence in seeking and responding to discovery provided “more than adequate 

grounds” for the trial judge to reach the decision that he did. The court also found no reason to 

 In General. On notice to other parties and all affected persons, a party may move for an order compelling 

disclosure or discovery. The motion must include a certification that the movant has in good faith 

conferred or attempted to confer with the person or party failing to make disclosure or discovery in an 

effort to obtain it without court action.

80 Respondent filed no response to the Secretary’s Motion to Compel.

69

 
question the trial judge’s decision to sanction the employer by quashing two subpoenas. Id.

Here, the Court explicitly ordered Respondent to provide: 1) complete responses to 

Interrogatories 1-25; 2) complete answers to Requests for Admission 8 and 9; 3) an attestation 

for Requests for Admission 1-25; and 4) all unprivileged documents that are responsive to the 

Secretary’s Request for Production of Documents by November 20, 2013. Respondent did not 

comply. The Court sanctioned Respondent by excluding from evidence Exhibit C, part of which 

Respondent had withdrawn from the case; as well as imposing stipulation of facts after 

consultation with counsel as discussed above.81 Respondent claims that the inadequate 

responses were simply mistakes on her part.82 The Court does not view them as such. 

Respondent was given ample opportunity to provide responses to Interrogatory Nos. 6, 7, 9, and 

13, and adequate responses to Interrogatory Nos. 15 and 23. The Secretary was prejudiced by 

Respondent’s failure to timely and adequately respond to many of Complainant’s requests for 

interrogatories before trial. The Secretary’s Motion in Limine at trial was properly granted to the 

extent indicated herein. 

4. Employment Status of Ralph Pacheco d/b/a Monkey Man 

Respondent asserts that Mr. Pacheco was an independent subcontractor who, in Mr. 

McPherson’s absence, was left in charge of the job site and that All Florida is not responsible for 

the citations incurred due to Mr. Pacheco’s actions. (See R. Reply Br., at p. 3). 

81 Complainant sought as a sanction an order barring Respondent from presenting any evidence at the hearing that 

concerned Respondent’s affirmative defense of unpreventable employee/subcontractor misconduct. The Court 

found the requested remedy to be overly broad in scope and fashioned a lesser sanction as described above. (See

Court Order Denying, without prejudice, the Secretary’s Motion in Limine to Exclude Evidence in Support of 

Respondent’s Affirmative Defenses, dated November 25, 2013).

82 At the trial, Respondent’s counsel stated:

I did not see, and it’s my error, I did not see that you wanted me to more fully answer any of them. 

(Tr. 62). 

70

 
At the hearing, Mr. McPherson readily admitted that he wanted to hire Mr. Pacheco but 

that the costs imposed by taxes and worker’s compensation insurance made it infeasible to hire 

him as an employee. Mr. McPherson encouraged Mr. Pacheco to form his own corporation, 

Monkey Man, which ostensibly enabled All Florida to take on Mr. Pacheco as an independent 

contractor. Mr. Pacheco did not want the headaches of forming and running his own company. 

Mr. McPherson did the necessary paperwork to form Monkey Man and paid the associated costs 

and fees. Since forming Monkey Man in 2010, Mr. Pacheco worked directly only for All 

Florida. (Tr. 608-609, 620, 654, 709-711). 

Monkey Man was formed as a convenience to All Florida. It was a method that 

attempted to reduce Respondent’s tax and insurance liabilities. By Mr. McPherson’s own 

estimate, hiring Mr. Pacheco as a subcontractor saved All Florida approximately 30% of the cost 

to employ him in a more traditional manner. Mr. McPherson asserts that he commonly uses this 

type of arrangement. This was how he started his own business. The Court expresses no opinion 

as to whether the tax and insurance avoidance scheme was sufficient to qualify Mr. Pacheco as a 

subcontractor rather than as an employee for IRS, Social Security, or worker’s compensation 

purposes. Whether All Florida was Mr. Pacheco’s employer under section 3(5) of the Act, 29 

U.S.C. § 652(5), is a separate issue that is addressed herein. (Tr. 708, 711, 716). 

“In determining whether the Secretary has established that a cited entity is the employer 

of the particular workers at issue, the Commission relies upon the test set forth in Nationwide 

Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992).” See also Sharon & Walter Constr., Inc., 23 BNA 

OSHC 1286, 1289 (No. 00-1402, 2010); Allstate Painting & Contracting Co., Inc., 21 BNA 

OSHC 1033, 1035 (No. 97-1631, 2005) (consolidated) (noting that Commission relies on the 

Darden test to determine whether the Secretary has met his burden to establish an employment 

71
relationship). In Darden, the main factor in deciding if an employer-employee relationship 

exists is the extent “of the hiring party’s right to control the manner and means by which the 

product [was] accomplished. Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 

445 (2003) (“principal guidepost” is the control exercised over a worker); Sharon & Walter 

Constr., Inc., 21 BNA OSHC at 1288 (citing Darden, 503 U.S. at 323). Factors relevant to the 

inquiry include: 

[1] the skill required; [2] the source of the instrumentalities and tools; [3] the location of 

the work; [4] the duration of the relationship between the parties; [5] whether the hiring 

party has the right to assign additional projects to the hired party; [6] the extent of the 

hired party's discretion over when and how long to work; [7] the method of payment; [8] 

the hired party's role in hiring and paying assistants; [9] whether the work is part of the 

regular business of the hiring party; [10] whether the hiring party is in business; [11] the 

provision of employee benefits; [12] and the tax treatment of the hired party. 

Darden, 503 U.S. at 323-24 (citation omitted). 

 Under Darden’s “common law” approach, the factors determining the employment 

relationship are non-exhaustive and there is “no shorthand formula or magic phrase that can be 

applied to find the answer, ... all of the incidents of the relationship must be assessed and 

weighed with no one factor being decisive.” Id. at 324 (quoting NLRB v. United Ins. Co. of Am., 

390 U.S. 254, 258 (1968)). To determine if Mr. Pacheco was Respondent’s employee, or an 

independent subcontractor, the Darden factors must be applied to the case at hand: 

1) Skill Required

Mr. Pacheco has been in the tree trimming business for over 20 years. He is an 

experienced tree trimmer. Respondent had other employees who also climb and trim trees. At 

least two other All Florida employees at the job site, Messrs. Carrera-Zarate and Cruz, had

experience trimming trees. Like other All Florida employees, Mr. Pacheco also worked on 

ground level picking up debris. The Court finds that there was nothing in Mr. Pacheco’s skill set 

72
that set him apart from Respondent’s employees who performed the same tasks. The Court 

concludes that this factor supports the finding of an employment relationship. (Tr. 616, 621, 644, 

655, 661, 665-666). 

2) The Source of the Instrumentalities and Tools 

Mr. Pacheco provided the “chainsaw, climbing gear, power trimmer, and weed eater” for 

the job. Respondent provided and manned the chipper and hired the crane. The former is more 

consistent with independent contractor status and the latter is not. On balance, this factor is 

inconclusive as to whether Mr. Pacheco was employed by Respondent. (Tr. 676, 680, 737-38, 

743, 773). 

3) The Location of the Work Performed 

Respondent was hired to cut a specific tree at the job site. Mr. Pacheco had no ability to 

change the location of the job. The evidence further indicates that, at other times, All Florida

hired Mr. Pacheco to trim trees at other locations identified by Respondent. Based on the record, 

the location of the work performed supports a finding that Mr. Pacheco was Respondent’s 

employee. (Tr. 609). 

4) The Duration of the Relationship Between the Parties 

Mr. McPherson knew Mr. Pacheco for at least 20 years. From about September, 2010 to 

early December, 2012, Mr. Pacheco worked for All Florida every week except one, 

approximately 106 out of 107 weeks. Although Mr. McPherson testified that Mr. Pacheco was 

supposedly free to contract with other companies, Mr. Pacheco worked only for All Florida.83 

Mr. McPherson testified that jobs Mr. Pacheco worked were generally only one day long. The 

83 Mr. McPherson testified that Mr. Pacheco obtained “jobs on the side all the time.” This assertion was contradicted 

by Mr. Pacheco who testified that he worked only for All Florida for about 106 out of 107 weeks. (Tr. 294-96, 654, 

714; Ex. C-42). The Court does not credit Mr. McPherson’s testimony in this regard. The Court finds Mr. Pacheco 

credible and Mr. McPherson not based upon their demeanor at the trial. See infra, at p. 79, fn 86. 

73

 
duration and regularity of the relationship between All Florida and Mr. Pacheco supports a 

finding that Mr. Pacheco was Respondent’s employee. (Tr. 128, 294-96, 654, 714, 761; Ex. C42) 

5) Whether the Hiring Party has the Right to Assign Additional Projects to the Hired Party 

 Although supposedly hired as a tree trimmer, Mr. Pacheco routinely performed additional 

tasks assigned by Mr. McPherson. Mr. Pacheco worked as a mechanic, bucket truck driver, CDL 

driver, and ground level debris remover for All Florida. He was able to and did anything that 

needed to be done on the job. Mr. Pacheco testified that, if he declined the job at issue, Mr. 

McPherson would have had him work on one of the several other jobs Respondent had going at 

the same time. This all suggests that Mr. Pacheco often performed tasks as if he were a regular 

employee of All Florida and that he relied on Respondent to assign him to jobs in a manner very 

similar to an employee. This factor supports a finding that Mr. Pacheco was Respondent’s 

employee. (Tr. 114, 626-627, 655, 709). 

6) The Extent of the Hired Party's Discretion Over When and How Long to Work 

Mr. Pacheco worked under Mr. McPherson’s supervision.84 Mr. McPherson told him 

when jobs began. Mr. Pacheco did not work for any other company. He was in charge of all of 

the other All Florida employees at the job site when Mr. McPherson was absent. He was All 

Florida’s foreman at the job site. Here, Mr. Pacheco continued to perform work at the job site, 

despite being concerned about the energized overhead lines, at Mr. McPherson’s direction 

because the crane was there. 

Mr. McPherson testified that Mr. Pacheco was not tied to any particular work hours, but 

was expected to stay on the job until it was finished. Also, Mr. McPherson asserted that he did 

84 He identified Mr. McPherson as his “direct supervisor” during his OSHA interview on September 14, 2012. 

(C-6, at p. 1).

74

 
not require Mr. Pacheco to be available certain hours of the day. In contrast, Mr. Pacheco stated: 

“I worked [at All Florida] basically [from] 8:00 to 5:00 every day just like a regular employee.” 

Mr. McPherson testified that Mr. Pacheco “doesn’t have to work every day. But when there’s 

work, he works.” He worked virtually every week for more than two years at All Florida. 

 The Court finds that Mr. Pacheco could not leave a job whenever he wanted, and that 

Respondent had control over when and how long he worked as the hiring party. This factor 

supports a finding of an employment relationship. (Tr. 114, 224-226, 589, 609, 654-655, 665, 

709, 757). 

7) The Method of Payment 

 Monkey Man did not submit bids to All Florida for particular jobs, and was not paid by 

the job. Mr. Pacheco “got paid what [McPherson] wanted to pay me. I didn’t get paid as a 

business of me asking what I needed. If I told him I needed a rate on what I wanted to get paid 

as a business, he wouldn’t want to pay it.” Respondent regularly paid Mr. Pacheco from about 

September, 2010 to December, 2012. All Florida reportedly paid Mr. Pacheco $250 per hour. 

Mr. McPherson also paid expenses Mr. Pacheco incurred on the job, such as gasoline used in 

Respondent’s equipment. Respondent prepared an I.R.S. Form 1099-MISC, Miscellaneous 

Income, that reported $61,993.09 as Nonemployee compensation for Mr. Pacheco, Monkey Man 

in 2011. Respondent prepared an I.R.S. Form 1099-MISC, Miscellaneous Income, that reported 

$3,962.74 as Nonemployee compensation and $71,689.53 as Other Income for Mr. Pacheco, 

Monkey Man in 2012. There is no evidence that Mr. Pacheco’s compensation was based on the 

danger and complexity of a particular job. The Court finds the reported hourly basis for payment 

supports the finding of an employment relationship. (Tr. 296, 619-620, 627, 654, 774-775; Ex. 

R-F).

75
8) The hired party's role in hiring and paying assistants 

 Nowhere in the record is there any indication that Mr. Pacheco had any authority to hire 

and pay assistants that worked with him on Respondent’s jobs. All of the other employees

involved in the tree trimming operation at the job site were employed band paid by Respondent, 

except Mr. Scesny and his spotter who worked for Hunter Merchant Crane. As foreman, Mr. 

Pacheco supervised Respondent’s employees at the job site. In that role, he would have provided 

input to Mr. McPherson as to whether Respondent’s employees adequately performed their jobs 

and should be paid by Respondent. Mr. McPherson also consulted with Mr. Pacheco on whether 

to use Mr. Carrera-Zarate as a tree climber. The Court’s analysis of this factor is inconclusive as 

to any employment relationship between Respondent and Mr. Pacheco. 

9) Whether the Work is Part of the Regular Business of the Hiring Party 

Mr. McPherson is a certified arborist. Respondent’s business is “[t]ree pruning, mainly, 

and some tree removal. But most[ly] debris removal from the pruning activities.” Respondent 

holds itself out as an “expert” in tree pruning and its website claims it does “hazardous tree 

removal.” All Florida had other employees, such as Messrs. Carrera-Zarate and Cruz, who also 

climbed trees and cut them down. Mr. Pacheco was hired to perform the very work that is the 

core of Respondent’s business. Mr. Pacheco was not a certified arborist and worked under 

Respondent’s license. That the work Mr. Pacheco performed at the job site was the same as 

Respondent’s regular business supports the finding of an employment relationship. (Tr. 661, 665, 

706, 727, 770; Ex. C-6, at p. 1). 

10) Whether the Hiring Party is in Business 

 Respondent is in business as All Florida Tree and Landscape, Inc. All Florida 

incorporated in 2003. It keeps a website, business address, and telephone number. It has 

76
employees and is actively engaged in the tree trimming business. The Court concludes that 

Respondent is in business. This factor supports the finding of an employment relationship. (Tr. 

705, 768). 

11) The Provision of Employee Benefits

Mr. Pacheco asserted that the only difference between himself and the other employees at 

All Florida “was that [Mr. McPherson] didn’t have workman’s comp on me and he didn’t pay 

my taxes.” Mr. Pacheco said that the contractor-subcontractor relationship that was allegedly in 

place between All Florida and Monkey Man was “[McPherson’s] idea, not mine.” Mr. Pacheco 

received no benefits from All Florida. That this is so is of little weight. Small businesses often 

provide no benefits to employees. See e.g. NRG Sound & Commc’ns., LLC, 23 BNA OSHC 

2017, 2022 (No. 10-2576, 2011). Mr. Pacheco agreed to be paid at a particular daily rate that 

eschewed benefits so that he could work for All Florida. (Tr. 655-656). 

12) Tax Treatment of the Hired Party 

Mr. Pacheco received an I.R.S. Form 1099 from Respondent from 2010 to 2012. 

Respondent did not withhold any taxes for Mr. Pacheco. While the provision of employee 

benefits and the withholding of taxes from a paycheck is usually indicative of an employee 

relationship, the converse is not as telling. See Id. at 2022 n.6; Sharon & Walter Constr., Inc., 23 

BNA OSHC at 1289. Here, Monkey Man was born of a scheme hatched by Mr. McPherson to 

enable him to hire Mr. Pacheco at a low cost while paying Mr. Pacheco a specific daily rate. The 

“failure to withhold federal income and Social Security taxes was ...not a bona fide reflection of 

an authentic independent contractor relationship.” Id. The Court finds that the lack of benefits 

and tax treatment are not dispositive in determining whether Mr. Pacheco was an employee 

under the Act. (Tr. 289-302, 655, 658; Ex. R-F). 

77
Additional Considerations 

 Given Respondent’s degree of control of his work and applying the Darden factors

strongly suggest that Mr. Pacheco was an employee of Respondent on August 21, 2012.85 In 

addition to these factors, other evidence strongly suggests an employment relationship. Mr. 

McPherson testified that Mr. Pacheco was in charge of cutting the tree. Mr. Pacheco directed the 

activity at the job site, especially when Mr. McPherson was absent. Mr. Pacheco operated as 

Respondent’s foreman in charge of the job. Respondent’s other employees at the job site 

believed that Mr. Pacheco was their foreman. The parties have stipulated as a fact that Mr. 

Pacheco was the foreman at the job site. In that capacity, he was expected to make sure that 

everything went smoothly at the job site. Although Mr. Pacheco determined how best to take the 

kapok tree down in consultation with Mr. McPherson, Mr. McPherson had the ultimate authority 

to direct him how to remove the tree. (Tr. 113, 134, 207, 299-300, 370, 596, 623). 

Mr. McPherson testified that Mr. Pacheco requested that Mr. Carrera-Zarate be assigned 

to assist him in the tree. According to Mr. McPherson, Respondent had no gear for Mr. CarreraZarate and agreed to the assignment only when Mr. Pacheco told him that he had gear he could 

lend to Mr. Carrera-Zarate. Mr. Pacheco’s account differed markedly. Mr. Pacheco testified that 

he did not want assistance up in the tree. Rather, Mr. McPherson told him that he [Mr. 

McPherson] wanted Mr. Carrera-Zarate to assist him. Mr. Pacheco initially refused, stating that 

he did not want Mr. Carrera-Zarate working up in the tree with him. When Mr. Carrera-Zarate

said that he wanted to work in the tree, Mr. Pacheco relented. (Tr. 662, 756, 772). 

 The Court credits the testimony of Mr. Pacheco. He had no reason not to tell the truth. 

85 See The Barbosa Grp., Inc., d/b/a Exec. Sec., 21 BNA OSHC 1865, 1867 (No. 02-0865, 2007) (finding an 

employment relationship based in part on the degree of control exercised by the employer) aff’d 296 F. Appx. 2 (2d 

Cir. 2008) (unpublished)..

78

 
Monkey Man had already been cited for a violation and paid the penalty. In addition to the 

matter of Mr. Carrera-Zarate’s assignment, the Court also finds that throughout the hearing, Mr. 

McPherson’s testimony was often: 1) contradicted by other evidence, 2) self-serving, 3) selfcontradictory and 4) not credible.

86 

 Based on the foregoing analysis, the Court finds that Mr. Pacheco was an employee of 

Respondent. Mr. Pacheco worked solely for Respondent. There was no subcontract between All 

Florida and Monkey Man pertaining to any work Monkey Man was to perform at the job site on 

August 21, 2012. All Florida employees at the job site considered Mr. Pacheco the job’s 

foreman. Although he was incorporated as Monkey Man, the paperwork and costs of 

incorporation were paid for by Respondent. Mr. Pacheco admitted that he did not want to 

incorporate. 

 “Where the work done, in its essence, follows the usual path of an employee, putting on 

an ‘independent contractor’ label does not take the worker from the protection of the [Fair Labor 

Standards] Act.” Rutherford Food Corp. v. McComb, 331 U.S. 722, 729, (1947). While under 

86 For example: (1) Mr. McPherson testified that, before the accident, Respondent never worked around overhead 

energized lines. He had previously told OSHA investigators on August 30, 2012 that Respondent had worked 

around power lines; (2) He testified that Messrs. Pacheco and Carrera-Zarate did not hold or control anything that 

could reach the energized overhead lines when both men used nylon and chain rigging to wrap around branches; (3) 

Mr. McPherson first testified that he did not contact Asplundh, a company with expertise in cutting trees that cross 

overhead lines, because the kapok tree was a distance from the energized overhead lines. Later, he claimed that he 

did contact Asplundh, but that it refused the job because it lacked the authority to remove kapok trees; (4) Mr. 

McPherson testified that he told Mr. Pacheco that he did not care how long the job took when he also testified that 

he told everyone that the job was to be done in one day; (5) Mr. McPherson testified that he told his employees that 

the overhead lines were still energized. Employee Gonzalez testified that he was never told that the overhead lines 

were energized; (6) Mr. McPherson testified that he left the job site before the employees rode the crane’s hook up 

into the tree. Mr. Pacheco testified that Mr. McPherson was still at the job site when he and Mr. Carrera-Zarate rode 

the crane’s hook up into the tree and began to cut branches; and (7) Mr. McPherson testified that Mr. Scesny had a 

good attitude, and was not irritable or grumpy. In contrast, Mr. Rochester, an observer with no personal interest in 

this case, described the crane operator as “a hot dog, very bullheaded, very set on doing things his way. A hard man 

to argue with.” Mr. Rochester’s characterization of Mr. Scesny was supported by Mr. Pacheco, who testified that 

when he asked Mr. Scesny to move the crane in one direction, he would move it in another. He also did not know 

whether Mr. Scesny would have complied with a request to continue to use the fabric straps as the crane’s rigging, 

rather than switch to chains. (Tr. 105, 111, 117, 131, 134, 138, 143-146, 151, 242, 598, 630, 677, 692, 721, 725, 

763-764, 768, 780; Ex. C-5, at p. 3 (portion admitted)). 

79

 
the Darden criteria, “no one factor is decisive” in determining whether the employer-employee 

relationship exists, the overwhelming evidence establishes that the formation of Monkey Man 

was a tax/benefits avoidance scheme and that in virtually every respect, Mr. Pacheco operated as 

an employee of All Florida on August 21, 2012.87 

 The Violations 

Secretary’s Burden of Proof

To establish a prima facie violation of the Act, the Secretary must prove by a 

preponderance of the evidence that: (1) the cited standard applied to the condition; (2) the terms 

of the standard were violated; (3) one or more of the employees had access to the cited condition; 

and (4) the employer knew, or with the exercise of reasonable diligence could have known, of 

the violative condition. Offshore Shipbuilding, Inc., 18 BNA OSHC 2169, 2170 (No. 97-257, 

2000), Atlantic Battery Co. 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994), Astra Pharm. 

Prods., Inc., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981); aff’d, 681 F.2d 69 (1st Cir., 1982).

A violation is serious if there is a substantial probability that death or serious physical 

harm could result from the violative condition. 29 U.S.C. § 666(k). Complainant need not show 

that there is a substantial probability that an accident will occur; he need only show that if an 

accident occurred, serious physical harm could result. Phelps Dodge Corp. v. OSHRC, 725 F.2d 

1237, 1240 (9th Cir. 1984) (citing California Stevedore & Ballast Co. v. OSHRC, 517 F.2d 986, 

988 n.1 (9th Cir. 1975)). 

87 Respondent argues that because OSHA issued Monkey Man a citation for riding the crane as well, Mr. Pacheco 

cannot be considered an employee of Respondent. This argument is invalid. While, at the time of the inspection, 

the Secretary may have believed that Monkey Man was a subcontractor, further investigation revealed that Monkey 

Man was essentially a shill corporation set up as a tax avoidance scheme and that Mr. Pacheco was an employee of 

Respondent under the Act. The fact that a citation was issued to another alleged employer does not automatically 

negate the employer-employee relationship. See Cent. of Ga. R. Co. v. Occupational Safety & Health Review 

Comm'n, 576 F.2d 620, 625 (5th Cir. 1978) (noting employer of exposed employees properly cited even where other 

company might have been cited). 

80

 
1. Applicability of the Cited General Industry Standards to All Florida’s job site. 

 As a threshold issue, Respondent raises whether the General Industry Standards of Part 

1910 under which Respondent was cited applied to its job site, or whether it should have been 

cited under the Safety and Health Regulations for Construction under 29 C.F.R. Part 1926. 

Respondent argues that 29 C.F.R. § 1910.12(b) provides that construction work means 

work for construction, alteration, and/or repair. A subcontractor is defined at 29 C.F.R. § 

1926.13(c) as a person who agrees to perform any part of the labor or material requirements of a 

contract for construction, alteration or repair. Respondent argues that Hoggins Construction was 

engaged by the City of Ft. Lauderdale Redevelopment Authority to make alterations and repairs 

to the real property situated at the job site. Hoggins Construction entered into an agreement with 

Respondent to remove a large kapok tree on the property being renovated by Hoggins

Construction. Respondent contends that removal of the tree was construction work because it 

was integral to the renovation of the property. (Tr. 730-731). 

For work to constitute “construction” there must be a nexus between the work and the 

construction site or structure. Brock v. Cardinal Indus., Inc., 828 F.2d 373, 378 (6th Cir. 1987). 

Activities that aid non-construction activities, are not actual construction and are not specifically 

related to the performance of construction work are not construction work. Royal Logging Co., 7 

BNA OSHC 1749 (No. 15169, 1979), aff’d, 645 F.2d 822 (9th Cir. 1981). 

Respondent was hired to remove a tree from the job site. It had no construction 

responsibilities and was not engaged in the general rehabilitation, repair or alteration of the 

structure at the job site. It did not perform any construction, alteration, or repair to any structure 

on the project. Rather, its sole purpose at the project was to remove a tree which constituted 

general maintenance work at the job site. There is nothing inherent in tree trimming that would 

81
constitute “construction work.” In Consumers Power Co., the Commission rejected the 

Secretary’s argument that trimming trees around power lines constituted “construction work.” 

Consumers Power Co., 5 BNA OSHC 1423, 1424 (No. 11107, 1977). Rather, the Commission 

found the activity to constitute “maintenance,” which is excluded from the definition of 

“construction” work. In so finding, the Commission noted that tree trimmers performed no work 

on the transmission lines and that, when their work was completed, the lines were in the same 

condition as they were before the work. 

The employees involved in the instant citation were engaged solely in trimming 

trees. They did not work directly upon electric transmission lines or equipment. Rather 

they pruned branches from within the aerial basket of an insulated ‘bucket truck.” [fn 

deleted] Employees classified as tree trimmers were neither trained nor permitted to work 

directly on the utility lines. In fact, they did not even carry the tools needed to work on 

electrical lines and equipment. 

 It is abundantly clear that respondent's tree trimmers were not engaged in the 

erection of new lines or equipment. 

Id. at 1424. 

The employees involved at the job site were engaged solely in trimming trees. 

Respondent performed no work in, or on, the home structure which, after the kapok tree was 

removed, was in the same condition as it was before the tree’s removal. Although the kapok tree 

was tall and large, Respondent’s activities were no different from any other tree removal taking 

place around energized overhead lines. 

Finally, in its Reply brief, Respondent argues that the standards at Part 1926 – Safety and 

Health Regulations for Construction, should apply because they are more specific than the 

general Occupational Safety and Health Standards at Part 1910.

88 Under Respondent’s theory, 

the general industry standards prohibit work “near” energized overhead lines, but fail to define 

88 See 29 C.F.R. § 1926 et seq. and 29 C.F.R. § 1910 et seq., respectively.

82

 
the term “near.” In contrast, the construction industry standards clearly define “near” as 10 feet. 

29 C.F.R. § 1926.550(a)(15). The argument is without merit. First, a construction industry 

standard cannot apply to non-construction work merely because it may be more specific than the 

applicable general industry standard. There may be valid reasons why the general industry 

standard is written more broadly than its construction industry counterpart. Simply put, if an 

activity does not qualify as “construction work,” the construction industry standards do not 

apply. Second, the Court finds that there is insufficient evidence to show that Respondent did 

not understand the requirements of the cited standards or that the standards were otherwise 

unconstitutionally vague. Finally, as will be discussed, infra, the term “near” is sufficiently

defined at 29 C.F.R. § 1910.333(c)(3)(i)(A)(1) (Citation 2, Item 1b), as 10 feet for “unqualified 

employees” working around energized overhead lines. 

The Court finds that Respondent was engaged in non-construction, maintenance work on 

August 21, 2012 at the job site. Accordingly, the Court finds that the cited standards applied to 

Respondent’s job site. 

Citation 1, Item 1 

Respondent was cited under 29 C.F.R. § 1910.180(h)(3)(v) for permitting the hoisting 

and traveling of its employees on a crane’s load or hook. 

The section provides: 

No hoisting, lowering, swinging, or traveling shall be done while anyone is on the 

load or hook. 

Respondent does not dispute that both Messrs. Pacheco and Carrera-Zarate accessed the 

kapok tree by riding the hook of the crane on the morning of August 21, 2012.89 Exhibit C-38 

89 Respondent’s Proposed Fact No. 18 alleges that “Mr. Pacheco and Mr. Carrera-Zarate eventually rode the ball of 

the crane up to the tree branches and started to remove the branches of the Kapok Tree. (sic)” (R. Post-Hr’g Br., at 

83

 
shows Mr. Carrera-Zarate riding the crane’s hook. Respondent claims that it had no knowledge 

that Messrs. Pacheco and Carrera-Zarate rode the crane hook to the top of the tree branches

because Mr. McPherson had left the job site beforehand. Respondent also asserts that Messrs. 

Pacheco and Carrera-Zarate rode the hook of the crane “because the trunk of the kapok tree was 

covered with thorns. It was not possible for Mr. Pacheco and Carrera-Zarate to safely climb up 

the tree trunk in order to work on the elevated tree branches.” Lastly, Respondent argues that 

Respondent’s use of the crane’s hook to access the tree should be viewed as a de minimis

violation. (Tr. 566; Ex. C-38; R. Post-Hr’g Br., at pp. 6, 15).

Respondent had actual knowledge that Messrs. Pacheco and the deceased rode the hook 

up to the tree top through Mr. McPherson and Foreman Pacheco.90 When the crane arrived at 

the job site, Respondent was aware that it was not equipped with a bucket, basket or platform. 

Instead of requiring his employees to wait for any of these devices to be delivered, Mr. 

McPherson orchestrated the effort to have the crane company and operator have Messrs. Pacheco 

and Carrera-Zarate ride the hook up into the tree. Mr. McPherson testified that he was not 

actively engaged in the decision making process that led to Messrs. Pacheco and Carrera-Zarate 

to ride the crane’s hook up into the tree. 91 This is contrary to Mr. Pacheco’s testimony. Mr. 

6).

90 Mr. McPherson’s knowledge is imputed to Respondent because he owns All Florida and Mr. Pacheco’s 

knowledge is imputed to Respondent because he was its foreman at the job site. ComTran Grp., Inc. v. U.S. Dep’t 

of Labor, 722 F.3d 1304, 1308 (11th Cir. 2013) (Noting employer knowledge must be established by either 

employer’s actual knowledge, or by its constructive knowledge where employer could foresee the unsafe conduct of 

supervisor); Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1538-39 (No. 86-360, 1992) (consolidated) (finding the 

actual or constructive knowledge of a foreman can be imputed to the employer). Here, Mr. McPherson saw his 

workers ride the crane’s hook to the top of the tree. It was also readily foreseeable to him that is how they gained 

access to the tree based upon Mr. Pacheco’s prior unsafe routine of getting atop trees and the absence of any other 

way to do so at the job site. 

91 Mr. McPherson claims he told his employees, “[w]ell, guys, you know the situation here. I’m going to go over to 

Snyder Park. You guys figure it out.” (Tr. 763). Such instructions, given to his employees just before he allegedly 

left the site, constitute tacit consent for having his employees ride the hook into the tree. Therefore, even if he left 

the site before the employees were lifted into the tree, Respondent had at least constructive knowledge of the 

violation. 

84

 
Pacheco testified that Mr. McPherson did not try to get a bucket over to the job site on the 

morning of August 21, 2012. Instead, Mr. Pacheco testified that Mr. McPherson “tried to get us 

to ride the ball because it would take time to get the bucket over.” Mr. Pacheco testified that he 

heard Mr. McPherson ask Mr. Scesny at the job site to call his boss and see if his boss would let 

them ride the ball to the top of the tree once. After speaking to his office at Mr. McPherson’s 

request, Mr. Scesny gave in and allowed Messrs. Pacheco and Carrera-Zarate to be hoisted to the 

top of the tree using the crane’s hook. Mr. McPherson further claims he was not at the job site

when Messrs. Pacheco and Carrera-Zarate rode the crane’s hook up into the tree the morning of 

August 21, 2012. Mr. Pacheco testified that Mr. McPherson was there at that time. The Court 

observed Mr. Pacheco’s demeanor as he was testifying and found him to be honest, truthful, 

knowledgeable, direct, and persuasive with regard to Mr. McPherson’s presence and activities at 

the job site on August 21, 2012. Conversely, the Court also observed Mr. McPherson’s 

demeanor as he was testifying and found him to be less than credible with regard to his presence 

and activities at the job site on August 21, 2012. The Court finds that Mr. McPherson was at the 

job site when the two men used the crane’s hook to travel up into the kapok tree and that he had 

advocated that the crane’s hook be used to do so. The Court finds that Respondent used the 

crane’s hook to hoist, lower, and transport Messrs. Pacheco and Carrera-Zarate into the tree at 

the job site on August 21, 2012 in violation of the cited standard. (Tr. 642, 650, 663). 

Also, Respondent has admitted that “Alan McPherson oversaw tree removal activities 

before the [sic] leaving the workplace the morning of August 21, 2012.”92 The Court has found 

that Mr. McPherson was present at the job site when Messrs. Pacheco and Carrera-Zarate rode 

the crane’s hook up to the tree branches and Respondent has admitted that Mr. McPherson 

92 As discussed supra, the Court has deemed Complainant’s Request for Admission No. 12 admitted. 

85

 
oversaw such an activity before he left the job site for the first time on August 1, 2012. 

Next, Complainant asserts that Respondent has raised what appear to be defenses of 

impossibility or greater hazard for the first time in its Post-Hearing Brief.

93 The Secretary is 

correct. Respondent did not raise these affirmative defenses in its Answer as required by

Commission Rules 34(b)(3) and (4), 29 C.F.R. § 2200.34(b)(3)(4).94 Respondent also failed to 

raise the affirmative defenses during prehearing conferences, the Joint Pre-Hearing Statement and

the hearing.95 The Court finds that Respondent failed to raise the affirmative defenses as soon 

as practicable, as required. 29 C.F.R. § 2200.34(b)(4). Because the affirmative defenses were not 

timely raised, they should not be considered by the Court. Nat’l Eng’g & Contracting Co., 16 

BNA OSHC 1778, 1779 (No. 92-73, 1994) (finding infeasibility of alternative measures 

affirmative defense not considered where not raised in Answer). Further, the issues raised by the 

defenses were not tried by the parties’ express or implied consent. See Fed. R. Civ. P. 15(b)(2). 

In the defense of impossibility of compliance, an employer must prove that it would be 

impossible to perform its work and that an alternative means of protection is unavailable. Brock 

v. Dun-Par Engineered Form Co., 843 F.2d 1135 (8th Cir. 1988); Siebel Modern Mfg. & Welding 

Corp., 15 BNA OSHC 1218, 1225-1228 (No. 88-821, 1991). Mere inconvenience, difficulty or 

expense are not sufficient to avoid compliance. C.J. Coakley Co., Inc., No. 80-4128, 1981 WL 

19430, at *3 (O.S.H.R.C.A.L.J. May 27, 1981). Regarding the greater hazard defense, an

93 The first and only affirmative defense raised in Respondent’s answer concerned alleged “unpreventable 

employee/subcontractor misconduct.” (Answer, at p. 2; Joint Pre-Hr’g Statement, at pp. 14-15).

94 29 C.F.R. § 2200.34(b)(3)(4) states:

(3) The answer shall include all affirmative defenses being asserted. Such affirmative defenses include, but 

are not limited to, “infeasibility,” “unpreventable employee misconduct,” and “greater hazard.”

(4) The failure to raise an affirmative defense in the answer may result in the party being prohibited from 

raising the defense at a later stage in the proceeding, unless the Judge finds that the party has asserted the 

defense as soon as practicable.

95 The Scheduling Order stated that the “Respondent shall set forth the factual basis of each affirmative defense as it 

relates to each specific item” in the Joint Pre-Hearing Statement that was due and filed by the parties on November 

8, 2013. 

86

 
employer must prove that compliance with the standard is more hazardous than noncompliance, 

that alternative means of protection are unavailable, and that a variance has been sought and

denied, or that a variance application to OSHA would be inappropriate. John H. Quinlan d/b/a 

Quinlan Enters., 17 BNA OSHC 1194, 1995 (No. 92-756, 1995). (See also Complainant’s 

Reply Br. (“C. Reply Br.”), at pp. 7-8). 

Even if Respondent’s late-raised affirmative defenses are properly before the Court, and

they are not, Respondent failed to present sufficient evidence to support them and they are 

without merit. Regarding the defense of impossibility, Respondent claims that use of a 

conventional means of access was impossible. Respondent has not shown why it could not have 

used another means, such as a bucket, basket or suspended platform, to gain access to the upper 

branches of the tree at the job site. In this case, Mr. McPherson surveyed the job site several 

times before work began. He had plenty of opportunity to see the kapok tree and ascertain

whether thorns made it difficult to climb. He knew, or should have known through constructive 

knowledge, that he or the tree climbers may have preferred to be mechanically hoisted into the 

tree due to the presence of any thorns. When arranging for the use of the crane, he should have 

ensured that the crane would arrive at the job site with a bucket, basket or platform available to 

lift the tree climbers up into the tree. Although to do so may have been more inconvenient, 

untimely, and costly, the evidence is insufficient to show that it was impossible or more 

hazardous to do so. Respondent’s failure to use a bucket, basket or platform with the crane to get 

the tree climbers up into the tree on the morning of August 21, 2012 was not because it was 

impossible or created a greater hazard to use any of these devices to gain access to the tree, it 

was because Respondent did not want to delay the start of the job any longer and riding the 

crane’s ball was the typical mode of how tree climbers working for All Florida were transported 

87
up into the tree top. According to Mr. Pacheco, he and others “usually get up on top of the tree” 

by riding the ball of the crane. Respondent did not have any written work rules regarding 

traveling on a crane load or hook and Respondent did not present any evidence that it provided 

work policies and rules to its employees that addressed any fall or electrocution hazards relating 

to doing so. (Tr. 72, 76, 142, 281-282, 314, 507, 601-602, 607, 642, 650, 663, 779). 

Similarly, Respondent did not explain why having its employees hoisted to the top of the 

tree using a bucket, basket or platform suspended from the crane would have been more 

hazardous than having its employees ride a crane’s hook where they were exposed to fall or 

electrocution hazards. Moreover, Respondent did not claim it ever sought a variance from

OSHA, or explain why it did or could not seek one. 

Respondent also asserts that the use of the crane’s hook to access the tree should be 

viewed as a de minimis violation. Respondent relies on OSHA Standard Interpretation, Standard 

Number 1910.180(h)(3)(v), from February 17, 1993, available at https://www.osha.gov/pls/ 

oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=21040. The Standard 

Interpretation states: 

OSHA has determined, however, that when the use of a conventional means of access to 

 an elevated worksite would be impossible or more hazardous, a violation of 

 1910.180(h)(3)(v) will be treated as de minimis if the employer has complied with the 

 provisions set forth in 1926.550(g)(3)[Crane Operational criteria], 1926.550(g)(4) 

 [Personnel platforms], 1926.550(g)(5)[Trial lift, inspection, and proof testing], 

 1926.550(g)(6)[Work practices], 1926.550(g)(7)[Traveling] and 1926.550(g)(8) 

[Pre-lift meeting]. 

(Id., at p. 1). 

Respondent neither offered the standard interpretation as evidence at the hearing nor even 

mentioned it at any time before citing to it in its Post-Hearing Brief. Pursuant to the referenced 

Standard Interpretation, Respondent needed to show that access to the elevated job site would be 

88
impossible or more hazardous, as well as showing that it had complied with the enumerated 

 provisions set forth above; e.g. trial lift, inspection and proof testing. Respondent has failed to 

show this and to demonstrate that its actions fit within the referenced standard interpretation. The 

Court does not view Citation 1, Item 1 as a de minimis violation and finds the referenced standard 

 interpretation to be inapplicable here. (See R. Post-Hr’g Br., at p. 15). 

The Court further finds Respondent’s defenses to be without merit for the reasons stated 

above and also finds that Respondent had actual knowledge of the hazard. Exposure to the 

violative condition has been established. Citation 1, Item 1 is affirmed. 

‘Serious’ Classification

Citation 1, Item 1 was deemed a “serious” violation. A violation is serious under § 17(k) 

of the Act, 29 U.S.C. § 666(k), “‘if there is a substantial probability that death or serious physical 

harm could result.’” Miniature Nut & Screw Corp., 17 BNA OSHC 1557, 1557 (No. 93-2535, 

1996) (quoting Super Excavators, Inc., 15 BNA OSHC 1313, 1317 (No. 89-2253, 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 should an accident occur.” 

Miniature Nut & Screw at 1557; Super Excavators, Inc., 15 BNA OSHC at 1317; Natkin & Co., 

Mech. Contractors, 1 BNA OSHC 1204, 1205 (No. 401, 1973). 

CSHO Campos testified that there were two hazards associated with Citation 1, Item 1. 

First, a fall hazard was present for any worker riding on the crane’s hook. Second, an 

electrocution hazard was present due to the proximity of the crane’s hook and the tree climbers 

riding the hook to the energized overhead lines. The CSHO testified that the result of these 

hazards could be death, broken bones and serious physical injury. Item 1 was properly classified 

as serious. (Tr. 307-309). 

89
 The Secretary proposed a penalty of $2,800. Section 17(j) of the Act, 29 U.S.C. § 666(j), 

requires that in assessing penalties, the Commission give "due consideration" to four criteria: the 

size of the employer's business, the gravity of the violation, the employer's good faith, and its 

prior history of violations. Specialists of the S., Inc., 14 BNA OSHC 1910, 1910 (No. 89-2241, 

1990). These factors are not necessarily accorded equal weight; generally speaking, the gravity 

of a violation is the primary element in the penalty assessment. J. A. Jones Constr. Co., 15 BNA 

OSHC 2201, 2214 (No. 87-2059, 1993) (citing Trinity Indus., Inc., 15 BNA OSHC 1481, 1483 

(No. 88-2691, 1992); Astra Pharm. Prods., Inc., 10 BNA OSHC 2070 (No. 78-6247, 1982)). 

 CSHO Campos testified that the gravity of the violation was high and mandated a penalty 

of $7,000. A deduction of 60% was granted due to the small size of Respondent’s business. Due 

to the high gravity of the violation and the fatality that occurred due to other alleged violations, 

no reduction was given for good faith. Finally, no reduction was allowed for Respondent’s 

safety history. CSHO Campos testified that, under OSHA procedures, a company that has not 

been inspected within the last five years is deemed not to have an established safety history. 

Here, this was the first time Respondent was inspected. (Tr. 320-322). 

 The Court finds that the Secretary properly considered the § 17(j) factors when proposing 

the $2,800 penalty. Accordingly, the proposed penalty of $2,800 is assessed by the Court. 

 Citation 2, Items 1a and 1b 

In Citation 2, Item 1a, Respondent was cited for a willful violation of 29 C.F.R. § 

1910.333(c)(3) for performing work near overhead lines, when the lines were not de-energized 

and grounded, or other protective measures provided before work was started. 

Citation 2, Item 1b alleges that Respondent violated 29 C.F.R. § 1910.333(c)(3)(i)(A) on 

the grounds that Respondent directed unqualified employees to work within 10 feet of an 

90
energized 7620 volt power line. 

 Were Employees Working “Near” Energized Overhead Lines?

The Court now turns to whether the employees were working near energized overhead 

lines, as alleged in Citation 2, Items 1a and 1b, and whether employees may have been in contact 

with a “conductive object” that came within 10 feet of an unguarded, energized overhead line, as 

alleged in Citation 2, Item 1b. As Respondent noted, supra, 29 C.F.R. § 1910.333(c)(3) does not 

define the term “near.” That question, however, is resolved in the subsequent subsections of the 

standard. Section 1910.333(c)(3)(i)(A) defines minimum clearances when work is being 

performed by “unqualified persons” at 10 feet for voltages below 50 kV. 

The evidence demonstrates that Respondent’s employees were exposed to the hazard of 

electrocution because: 1) both Messrs. Pacheco and Carrera-Zarate worked on a tree branch 

within ten feet of the primary energized overhead line, and 2) Mr. Carrera-Zarate and a 

conductive object, i.e. metal chains dangling from the crane’s hook, came within 10 feet of 

energized overhead lines. Mr. Pacheco testified that both he and Mr. Carrera-Zarate worked on 

the tree branch shown in photograph C-13, at “C”, that was “basically eight to nine feet” or 

“eight to ten feet” above the primary energized overhead line shown in photograph C-13, at “A”. 

This is the same branch where Mr. Carrera-Zarate was working at the time of the accident. Mr. 

Pacheco testified that photograph C-40 depicts the scene right after the accident, between 1:30 

and 2:30 p.m. It shows Mr. Carrera-Zarate hanging onto the branch with his right arm and with 

his left arm dangling away from the branch. He was about 10 feet from the primary energized 

overhead line, marked “A.” Mr. Pacheco also testified that photograph C-39 depicted Mr. 

Carrera-Zarate tying the crane’s chains into the tree to cut the branch. He also testified that 

photograph C-39 showed Mr. Carrera-Zarate about 10-12 feet away from the primary energized 

91
overhead line at “A”. Of all those alive today that were at the job site, Mr. Pacheco knew best 

how close he and Mr. Carrera-Zarate were to the primary energized overhead line when working 

in the kapok tree.96 The Court finds that Messrs. Pacheco and Carrera-Zarate worked in the tree 

near, i.e. within ten feet, of the primary energized overhead line. (Tr. 230-232, 235, 606, 612-

613, 633, 639-641; Exs. C-13, at “A”, “C”, C-39, at “A”).

The evidence shows that Mr. Carrera-Zarate and a conductive object in his hands, e.g.

metal chains dangling from the crane’s hook, came within 10 feet of energized overhead lines. 

Other tools used by the deceased while up in the tree, including a chainsaw and positioning belts, 

were also conductive objects. Photograph C-34 shows one length of chain dropping down on the 

side facing the limb where the deceased was sitting on a branch. The other length of chain is 

shown draped over a branch on the far side. Photograph C-35 shows two chains hanging from 

the crane’s hook. Photograph C-36 shows the crane’s rigging chain in close proximity to the 

primary energized overhead line. Photograph C-39 shows Mr. Carrera-Zarate working on a 

branch near both the crane’s chain and the energized overhead line. The Court finds that the 

crane’s rigging chain was, at times, in close proximity to, or made contact with, the primary 

energized overhead line. The Court also finds that the deceased regularly made contact with the 

crane’s chain in order to wrap the branches so that cut branches could be relocated to the street. 

The Court further finds that Mr. Carrera-Zarate and a conductive object, i.e. metal chains 

dangling from the crane’s hook, came within 10 feet of energized overhead lines.97 (Tr. 313, 

96 The Court gave much less weight to conflicting testimony by others as to how close the deceased came to the 

primary energized overhead line when working up in the tree. Such testimony comes from those on the ground, 

working in the street, or who were at the job site intermittently or only for a short time; e.g. Messrs. Hoggins, 

Gonzalez and McPherson. For example, Mr. McPherson gave conflicting testimony that his employees worked no 

closer than somewhere between 15 to 60 feet away from the energized overhead lines. (Tr. 127, 130-131).

97 Due to these findings, the Court need not find whether Messrs. Pacheco and Carrera-Zarate were exposed to an 

electrocution hazard solely because the kapok tree within which they were working was itself closer than ten feet 

from the energized overhead lines. Whether a tree, by itself, is a “conductive object” for purposes of establishing a 

92

 
546, 561, 613; Exs. C-34, C-35, C-36, C-39).

The evidence establishes that the accident occurred when a lower portion of the crane’s 

chains used as rigging came close to or made contact with the primary energized overhead line, 

while an upper portion simultaneously came in contact with Mr. Carrera-Zarate.

98 Although Mr. 

McPherson, Respondent’s crew, Mr. Scesny and his spotter, and two observers were at the job 

site at the time of the accident, the only eyewitness of record was Mr. Cruz. Mr. Pacheco 

testified that Mr. Cruz told him that he saw the crane operator bring the crane’s chain over 

towards the overhead line. The lower end of the chain touched the primary energized overhead 

line while an upper portion of the chain came in contact with the deceased. At the trial, Mr. Cruz 

essentially confirmed Mr. Pacheco’s recollection of what Mr. Cruz had said he observed at the 

time of the accident. Mr. Pacheco testified that the chain was conductive and that there was a 

risk that it would hit the primary energized overhead line. He was concerned when Mr. Scesny

changed the crane’s rigging from chains and straps to only chains, but he did not stop the job 

because, despite being erratic, Mr. Pacheco “figured he [Mr. Scesny] knew what he was doing.” 

His pre-August 21, 2012 prophesy that someone was going to be killed if the overhead lines 

were not de-energized unfortunately came true. (Tr. 337-338, 633-635, 642, 648, 674). 

Both Messrs. Pacheco and Carrera-Zarate were Unqualified Persons under the Cited 

Standard. 

Here, the Secretary alleges that both Messrs. Pacheco and Carrera-Zarate were 

minimum distance violation under 29 C.F.R. § 1910.333(c)(3) is a matter of first impression for the Commission. It 

is undisputed that the trunk of the tree was within 10 feet of the primary energized overhead line, and the Court so 

finds. 29 C.F.R. § 1910.333 does not list a tree as being conductive. But the standard also states that any object not 

rated for insulating is considered a conductor. 29 C.F.R. § 1910.333(c)(3)(i)(B) at “Note.” The standard’s 

regulatory history does not address whether a tree is a conductor.

98 This conclusion is somewhat consistent with Respondent’s response to the Secretary’s Interrogatory No. 22 that 

states, in part, “The Chain hit the powe (sic) rline (sic) or conducted the electricity from the power line and hit 

Carrera Zarte’s (sic) leg in more than one place and acted as the conductor of electricity to Mr. Carrera-Zarte (sic). 

(Ex. C-3, at p. 25). 

93

 
“unqualified” under the cited standard. 

A “qualified person” is defined at 29 C.F.R. § 1910.399 as: 

Qualified person. One who has received training in and has demonstrated skills and 

 knowledge in the construction and operation of electric equipment and installations and 

 the hazards involved. 

NOTE 1 TO THE DEFINITION OF “QUALIFIED PERSON:” Whether an 

employee is considered to be a “qualified person” will depend upon various 

circumstances in the workplace. For example, it is possible and, in fact, likely for 

an individual to be considered “qualified” with regard to certain equipment in the 

workplace, but “unqualified” as to other equipment. (See §1910.332(b)(3) for 

training requirements that specifically apply to qualified persons.) 

NOTE 2 TO THE DEFINITION OF “QUALIFIED PERSON:” An employee 

who is undergoing on-the-job training and who, in the course of such training, has 

demonstrated an ability to perform duties safely at his or her level of training and 

who is under the direct supervision of a qualified person is considered to be a 

qualified person for the performance of those duties. 

As referenced in Note 1, the training requirements for a “qualified person” is set forth at 

29 C.F.R. § 1910.332(b)(3): 

(3) Additional requirements for qualified persons. Qualified persons (i.e., those 

permitted to work on or near exposed energized parts) shall, at a minimum, be 

trained in and familiar with the following:

 (i) The skills and techniques necessary to distinguish exposed live parts 

from other parts of electrical equipment,

 (ii) The skills and techniques necessary to determine the nominal voltage 

of exposed live parts, and 

 (iii) The clearance distances specified in §1910.333(c) and the 

corresponding voltages to which the qualified person will be exposed. 

NOTE 1. For the purposes of §§1910.331 through 1910.335, a person must have 

the training required by paragraph (b)(3) of this section in order to be considered a 

qualified person. 

NOTE 2. Qualified persons whose work on energized equipment involves either 

direct contact or contact by means of tools or materials must also have the training 

needed to meet §1910.333(c)(2). 

Finally, the nature of the required training is set forth at 29 C.F.R. § 1910.332(c): 

(c) Type of training. The training required by this section shall be of the 

classroom type or on-the-job type. The degree of training provided shall be 

94
determined by the risk to the employee. 

The Court finds that the evidence establishes that both Messrs. Pacheco and CarreraZarate were not “qualified” persons within the meaning of the cited standard.99 CSHO Campos 

testified that neither employee had the specific training or qualifications that made them 

qualified under the cited standard. There is no evidence that either employee received training 

that made them aware of how to recognize and avoid electrical hazards or the rationale for the 

distance requirements to energized overhead lines.100 There is no evidence that either Messrs. 

Pacheco or Carrera-Zarate had either class room or on the job training on the matters set forth at 

29 C.F.R. § 1910.332(b)(3). There was no documentation that demonstrated that the two 

employees received any training by Respondent or elsewhere. Mr. Pacheco testified that he 

never saw any training manuals or videos in the yard where crews assembled to go to work on 

Respondent’s jobs. Mr. Pacheco lacked any certification to work on energized circuits and 

admitted that, before the accident, he had no electrician qualifications. (Tr. 318, 428, 661, 607-

608, 779). 

Mr. Pacheco testified that Mr. Carrera-Zarate had no electrical certifications. He pointed 

out that he knew Mr. Carrera-Zarate since he came to the United States, ten years earlier. Both 

Messrs. McPherson and Pacheco testified that Mr. Pacheco personally provided some form of 

unidentified training to Mr. Carrera-Zarate at unspecified times. As an “unqualified person” 

under the cited standard, Mr. Pacheco was not competent to provide Mr. Carrera-Zarate with 

training, on the job or otherwise, capable of making Mr. Carrera-Zarate a “qualified person” 

99 The standards do not provide a definition for “unqualified person” but provide that 29 C.F.R. § 1910.333, among 

others, applies to “...both qualified persons (those who have training in avoiding the electrical hazards of working 

on or near exposed energized parts) and unqualified persons (those with little or no such training) ....” 29 C.F.R. § 

1910.331(a)(Scope).

100 See Brennan v. Butler Lime & Cement Co.,520 F.2d 1011, 1018 (7th Cir. 1975) (“Rules are more likely to be 

observed if their rationale is understood and it is made clear that they are not just arbitrary pronouncements but are 

grounded in practical reasons of safety.”).

95

 
under the cited standard.101 (Tr. 608, 622, 662, 772). 

Both Mr. McPherson and Ms. Mary Ann Wolfson testified that Respondent maintains 

various manuals, including an E-HAP manual, and a video. They explained that, once a year, 

maybe more often “depending on the weather” Respondent’s employees study the manual and 

may watch the video. Employees supposedly take a “self-test.” Mr. McPherson testified that 

Mr. Pacheco also had access to Respondent’s manuals, but asserted that Respondent was not 

responsible for training Mr. Pacheco because he was a subcontractor. All Florida’s employees 

allegedly completed a certificate to inform the Tree Care Industry Association (“TCIA”) that 

they were trained. No TCIA employee certifications, or any indication regarding who received 

any electrical awareness training, were entered into evidence. (Tr. 530, 534, 537-538, 760-761). 

Any claim by Respondent that Messrs. Pacheco and Carrera-Zarate were provided the 

necessary training to be deemed “qualified persons” under the cited standard is rejected. See 

Teichert Constr., 578 Fed.Appx. 647, 649 (9th Cir. 2014) (finding trucks were not inspected 

where no safety sheets in evidence), U.S. ex rel. Compton v. Midwest Specialties, Inc., 142 F.3d 

296, 303 (6th Cir. 1998)(noting the absence of a record of an event is probative of the fact that 

the event did not occur); Wiley v. United States, 20 F.3d 222, 227 (6th Cir. 1994)(same). See also 

Murray Roofing Co., Inc., No. 98-0923, 1999 WL 717820, at *6 (O.S.H.R.C.A.L.J. Sept. 3, 

1999) (showing company’s failure to respond to a subpoena duces tecum calling for all fall 

protection training records reasonable basis for concluding that Murray did not prepare the 

required written record). 

The record demonstrates that Respondent had no formal training program and made no 

legitimate effort to ensure that its employees, including Messrs. Pacheco and Carrera-Zarate, 

101 On September 14, 2012, Mr. Pacheco told OSHA investigators that he was responsible for providing most of the 

on-the-job training to Respondent’s employees. (Ex. C-6, at p. 5).

96

 
were trained. None of Respondent’s current employees who testified at the trial, i.e. Messrs. 

Gonzalez, Cruz and Pineda, presented testimony regarding any training they received from 

Respondent. Rather at best, Respondent had a “catch-as-catch-can” approach to safety training 

that was more dependent upon the weather than the hazards to which its employees were 

exposed. There were no All Florida or Monkey Man safety policies when working near 

energized overhead lines. Accordingly, the Court finds that neither Messrs. Pacheco nor 

Carrera-Zarate were “qualified persons” within the meaning of the cited standard. (Tr. 334-357, 

359-396, 398-410; Ex. C-6, at p.4). 

All Florida has not Met its Burden of Establishing the Multi-employer Worksite 

Defense.

Respondent asserts that the hazard of electrocution was caused by the unauthorized acts 

of Mr. Scesny over which it had no control. All Florida argues that the Secretary presented no 

evidence that Mr. McPherson knew or could have known that Mr. Scesny would not be able to 

control the crane, or that he would change the crane’s chain and fabric rigging to only chains. It 

contends that it should have been able to rely on Hunter Merchant Crane to provide a crane 

operator who was experienced, certified and capable of using the crane to avoid contact with 

energized overhead lines. (R. Post-Hr’g Br., at pp. 16-18). In support of its position, 

Respondent cites Elec. Smith, Inc. v. Sec’y of Labor, 666 F.2d 1267 (9th Cir. 1982), where the 

Court vacated a citation issued to an electrical subcontractor on a multi-employer worksite. The 

Court found that, on a multi-employer worksite, a non-controlling, non-creating subcontractor 

can avoid liability where it shows that it has protected its own employees by “realistic measures 

taken as an alternative to literal compliance with the applicable standard,” i.e. “those measures 

that would be taken by a reasonable employer seeking to protect his employees and faced with 

97
the same conditions.”102 Id. at 1268. The Court vacated the citations because it found that the 

non-controlling employer attempted to have the violations abated. When that was unsuccessful, 

the employer took “realistic and reasonable” measures to minimize employee exposure. 

The Commission has recognized OSHA’s authority to cite multiple employers at a job 

site. See, e.g. Summit Contractors, Inc., 23 BNA OSHC 1196 (No. 05-0839, 2010). “Exposing,” 

“creating,” “controlling” and/or “correcting” employers can be cited for hazardous conditions 

that violate OSHA’s standards. Here, Respondent was at least an exposing and controlling 

employer at the job site.

103 Its employees were exposed to fall and electrocution hazards. 

Messrs. Pacheco and Carrera-Zarate rode the crane’s hook at the instigation of Mr. McPherson, 

and Mr. Carrera-Zarate worked in the kapok tree within 10 feet of energized overhead lines and 

with conductive objects that could come in contact with the lines. Respondent alone permitted 

its employees to participate in tree removal activities while exposed to the known electrocution 

hazard for more than four hours. The Commission has a long-standing precedent holding that an 

employer whose own employees are exposed to a hazard, i.e. an “exposing employer”, has a 

statutory duty to comply with a particular standard.104 See S. Pan Servs. Co., No. 08-0866, 2014 

WL 7338403, at *5 (OSHRC Dec 18, 2014). Respondent had an independent duty to protect its 

own employees from recognized hazards.105 It did not fulfill its duty obligations. 

102 This is known as the Anning-Johnson/Grossman rule. Anning-Johnson Co., 4 BNA OSHC 1193 n.16 (No. 3694, 

1976) (consolidated); Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185 (No. 12775, 1976).

103 Respondent also failed to take appropriate abatement measures to protect its employees from the fall and 

electrocution hazards at the job site. It neither asked Mr. Scesny to abate the hazards, nor attempted to abate the 

hazardous conditions itself. Respondent could have elected to wait until a bucket, basket or platform were brought 

to the site and the overhead lines were de-energized or protected before permitting its employees to work in the tree. 

104 This is true even where the exposing employer did not create or control the hazard. S. Pan Servs. Co., 2014 WL 

7338403, at *5. . 

105 Under the Act, an employer has a duty to protect its own employees from workplace hazards. See 29 U.S.C. § 

654(a). That duty may not be contracted away to third parties. See Bianchi Trison Corp. v. Chao, 409 F.3d 

196, 209 (3d Cir. 2005); Summit Contractors, Inc., 23 BNA OSHC at 1207 (finding employer may not contract out 

of its duties under the Act); Barbosa, 21 BNA OSHC at 1867; Baker Tank Co., 17 BNA OSHC 1177, 1180 (No. 90-

98

 
All Florida’s multi-employer worksite defense and argument fails as the Court finds that 

it had sufficient control at the job site to the extent that the standard applies.

106 Respondent’s 

owner and foreman supervised Respondent’s employees at the job site. There is no evidence that 

Respondent lacked the authority or ability to prevent its employees from riding the crane’s hook 

to the top of the tree or working in the tree within 10 feet of energized overhead lines or with 

conductive objects that could come in contact with the lines. Respondent could have taken 

whatever steps it deemed necessary to protect its employees working in the tree. Respondent had 

the authority and responsibility to insist that everyone at the job site, including Mr. Scesny, 

comply with the requirements of the cited standards. Mr. McPherson identified, hired, and most 

likely incurred the obligation to pay Hunter Merchant Crane to operate the crane at the job site. 

Despite its protestations to the contrary, the Court finds Respondent was in a position to exercise 

control over Mr. Scesny at the job site. 

The Commission recognizes that reasonable measures may fall short of full compliance 

because “[w]hat is realistic depends upon a balance of the hazard involved with considerations of 

efficiency, economy, and equity.” Sunshine Guardrail Servs., No. 96-631, 1996 WL 650480 at 

*5 (O.S.H.R.C.A.L.J., Oct. 28, 1996) (citing Hayden Elec. Servs., 4 BNA OSHC 1494, 1495 

(No. 4034, 1976). The Commission also recognizes that “[i]t is normally not difficult to assert 

1786-S, 1995) (finding Respondent could not contract away its legal duties to its employees or its ultimate 

responsibility under the Act by requiring another party to perform them). Hunter Merchant Crane did not accept the 

responsibility in any contract to insure that Respondent’s employees did not come within 10 feet of the energized 

overhead lines, with or without a conductive object. When an employer denies liability on the ground that it lacked 

control over hazardous conditions to which its own employees were exposed, it must show, first, that it had no 

ability or authority to abate the hazard as required under the cited standard; and second, that it took reasonable 

alternative steps to protect its employees from the hazard. See Rockwell Int’l Corp., 17 BNA OSHC 1801, 1808 

(No. 93-45, 1996) (consolidated) (noting an employer must prove three elements to establish the multi-employer 

defense, including it did not control the violative condition so that it could not itself have performed the action 

necessary to abate the condition, and it took all reasonable alternative measures to protect its employees from the 

violative condition). The employer bears the burden of establishing this multi-employer worksite defense. See 

Grossman Steel & Alum. Corp., 4 BNA OSHC at 1190. Respondent has failed to meet its burden in this regard.

106 See Atl. Battery Co., 16 BNA OSHC at 2166 n.56 (finding multi-employer worksite defense rejected when 

employer had “control” over the cited conditions). 

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that the subcontractor could conceivably have done something more to protect their exposed 

employees.” Elec. Smith, Inc., 666 F.2d at 1273-74 (9th Cir. 1982). We must therefore view

Respondent’s conduct in its totality and in terms of “whether a reasonable employer would have 

done more.” Capform, Inc., 16 BNA OSHC 2040, 2042 (No. 91-1613, 1994) (citing Elec. Smith, 

Inc., 666 F.2d at 1273-74). 

 About 30-45 minutes into the job, Mr. Pacheco realized that Mr. Scesny was having 

difficulty operating the crane. He described the operator’s movements as “erratic” and was 

concerned that Mr. Scesny would hit the energized overhead lines. Mr. Rochester saw cut 

branches hanging from the crane’s chain strike the energized overhead lines three times. Mr. 

Pacheco also knew that reconfiguring the crane’s chain and fabric rigging to only chains 

substantially increased the risk to those working in the kapok tree, including himself. He did not 

stop the job because it would take more time. (Tr. 642, 648, 672-673, 687, 695). 

Despite the lethal combination of an erratic crane operator and the use of chain rigging 

on the crane, Mr. Pacheco never ask Mr. Scesny to continue to use fabric slings or reposition the 

crane. At the start of the job, Mr. Scesny initially refused to allow employees to ride the crane’s 

hook up into the tree. Mr. McPherson protested and had him call his office. Respondent 

eventually prevailed upon him to allow Messrs. Pacheco and Carrera-Zarate to ride the crane’s 

hook in violation of OSHA regulations. Similar pressure by Respondent could also have 

prevailed upon Mr. Scesny to revert back to using the fabric slings on the crane, especially where 

the goal was to reduce, not increase, the hazard to employees. Either Messrs. McPherson or 

Pacheco could have also again called Mr. Scesny’s office and explained his erratic crane 

movements and the need to revert back to the use of fabric rigging. This was not even attempted. 

Although there is no evidence that the fabric slings were also not conductive, the use of only 

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metal chains as rigging dramatically increased the hazard of electrocution enough to raise 

concerns with Messrs. Pacheco, Rochester, and DeBenedetto.107 Inexplicably, Mr. Pacheco

assumed that Mr. Scesny knew how to safely operate the crane. (Tr. 642, 648, 674, 703). 

From early August 21, 2012, Respondent knew that Mr. Scesny was a difficult person to 

deal with. Mr. Pacheco testified that he warned Mr. McPherson that he did not like Mr. Scesny’s

attitude at the start of the job. This was supported by Mr. Rochester who was a neutral observer 

at the job site. Overhearing a conversation between the crane operator and Mr. McPherson, Mr. 

Rochester described the crane operator as “a hot dog, very bullheaded, very set on doing things 

his way. A hard man to argue with.” Even if Mr. Scesny refused to revert back to using fabric 

slings, Respondent had the option of stopping the job rather than allowing its employees to be 

exposed to a foreseeable and fatal hazard by an erratic crane operator who was using equipment 

that only exacerbated the hazard.108 Not only did Respondent fail to take “realistic and 

reasonable” alternative measures, it took no measures at all. The Court finds that Respondent 

does not qualify for the exception set out in Capform, its purported multi-employer defense fails, 

and the cited standard applies. (Tr. 671-672, 692).

 Willfulness

The Secretary alleges that Citation 2, Items 1a and 1b, are willful. A willful violation is 

one “committed with intentional, knowing or voluntary disregard for the requirements of the Act 

or with plain indifference to employee safety.” Valdak Corp., 17 BNA OSHC 1135, 1136 (No. 

93-0239, 1995), aff’d, 73 F.3d 1466 (8th Cir. 1996); Williams Enterp., 13 BNA OSHC 1249, 

107 The crane’s fabric rigging was itself conductive and presented an electrocution hazard. 29 C.F.R. § 

1910.333(c)(i)(B) (“objects which do not have an insulating rating for the voltage involved are considered to be 

conductive”). 

108 Respondent also failed to take corrective action to insist that Mr. Scesny stop operating the crane in the tree when 

his spotter left his station below the tree and sat in the truck in the front yard taking a break. This is when the 

accident occurred. (Tr. 691).

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1256 (No. 85-355, 1987); Asbestos Textile Co., Inc., 12 BNA OSHC 1062, 1063 (No. 79-3831, 

1984). The Secretary must differentiate a willful from a serious violation by showing that the 

employer had a heightened awareness of the illegality of the violative conduct or conditions, and 

by demonstrating that the employer consciously disregarded OSHA regulations, or was plainly 

indifferent to the safety of its employees. Valdak Corp., 17 BNA OSHC at 1136 (citing Gen’l 

Motors Corp., Electro-Motive Div., 14 BNA OSHC 2064, 2068 (No. 82-630, 1991). The 

Secretary must show that, at the time of the violative act, the employer was actually aware that 

the act was unlawful, or that it possessed a state of mind such that if it were informed of the 

standard, it would not care. Propellex Corp., 18 BNA OSHC 1677, 1684 (No. 96-0265, 1999). 

Willfulness is negated by evidence that the employer had a good faith opinion that the conditions 

in its workplace conformed to OSHA requirements. E.g., Calang Corp., 14 BNA OSHC 1789, 

1791 (No. 85-319, 1990). The test of good faith is an objective one, i.e., whether the employer’s 

belief concerning the factual matters in question was reasonable under all of the circumstances. 

In other words, the employer’s belief must have been “nonfrivolous.” Morrison-Knudson, 16 

BNA OSHC 1105, 1127 (No. 88-572, 1993); McLaughlin v. Union Oil Co. of Cal., 869 F.2d 

1039, 1047 (7th Cir. 1989). 

The evidence demonstrates that All Florida had a heightened awareness of the hazard 

posed by the energized overhead lines and was indifferent to the safety of its employees. Messrs.

McPherson and Pacheco assessed the job site before the job began. Mr. Pacheco told Mr. 

McPherson that the overhead lines needed to be de-energized. Mr. McPherson asserts that he 

made several unsuccessful attempts to get FP&L to de-energize the overhead lines. Having 

failed to get the overhead lines de-energized, Mr. McPherson took no other steps to protect his 

employees. For example, he could have asked FP&L to place insulated blankets or electrical 

102
guards over the energized overhead lines. (Tr.110, 132, 142, 314, 702, 719, 739, 749). 

Mr. McPherson’s professed efforts to have the overhead lines de-energized demonstrate 

that he was fully aware that the energized overhead lines posed a hazard to his employees before 

the job began. On August 21, 2012, Mr. Pacheco told him of his concerns about the energized

overhead lines. In a demonstration of plain indifference to employee safety, Mr. McPherson 

decided to proceed with the job anyway. He replied that the crane was already on the job site 

and it was too late to de-energize the overhead lines. (Tr. 598). 

 Respondent concedes that both it and Mr. McPherson knew that the primary overhead 

line was energized when Messrs. Pacheco and Carrera-Zarate worked up in the tree. Mr. 

Pacheco knew that Mr. Carrera-Zarate was working in the tree within 10 feet of the energized 

overhead lines. Both Messrs. McPherson and Pacheco knew that from the very start of the job 

the crane’s rigging included chains that could come within 10 feet of, or even make contact with, 

the energized overhead lines. Mr. Pacheco was aware of the hazard posed by the combined 

hazard of an erratic crane operator and the use of chain rigging on the crane that might, and 

indeed did, make contact with the energized overhead line. As Respondent’s foreman, Mr. 

Pacheco’s knowledge may be imputed to Respondent. Jersey Steel Erectors, 16 BNA OSHC 

1162, 1164 (No. 90-1307, 1993), aff’d, 19 F.3d 643 (3d Cir. 1994). The Court further finds that 

it was readily foreseeable to Mr. McPherson that Mr. Carrera-Zarate could either come within 10 

feet of the primary energized overhead line or make contact with the line through the crane’s 

chain rigging, as a result of the unsafe conduct of Foreman Pacheco who proceeded with the job 

at the owner’s urging even though the lines remained energized. ComTran Grp., Inc. v. United 

States Dep’t of Labor, 722 F.3d at 1316. (Tr. 198, 312). 

The actions and knowledge of Owner McPherson, both actual and constructive, and 

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Foreman Pacheco establish Respondent’s willfulness. Both were aware of the unsafe job site 

conditions, understood their duty and responsibility to employ appropriate safety precautions, 

and yet chose to proceed with the job while the overhead lines were energized. Both were fully 

aware that cutting the tree in the vicinity of the energized overhead lines was extremely 

dangerous. Mr. Pacheco taped a statement for his crew that the job was “going to be hell” 

because of the need to cut the power. MJP Constr. Co., Inc., 19 BNA OSHC 1638, 1647 (No. 

98-0502, 2001) (finding willfulness where the employer’s supervisor had actual knowledge of 

safety standard and no protection) aff’d 56 F.Appx. 1 (D.C. Cir. 2003)(unpublished); Sal 

Masonry Contractors Inc., 15 BNA OSHC 1609, 1613 (No. 87-2007, 1992) (finding employer 

who has notice of the requirements of the standard and is aware of a condition which violates 

that standard but fails to correct the violation demonstrates knowing disregard for purposes of 

establishing willfulness). (Tr. 626). 

Two observers at the job site, Messrs. Rochester and DeBenedetto, were concerned when 

the crane operator removed the nylon straps and proceeded to use only chain rigging.109 Mr. 

Pacheco, who was in charge of the job site and working up in the tree, was similarly concerned. 

Mr. Pacheco also testified that 30-45 minutes into the job, he observed Mr. Scesny operating the 

crane erratically. Placing the perceived need to complete the job that day as the overriding 

consideration, Mr. Pacheco decided not to stop the job because it would take more time.110 To 

make matters worse, he realized that the hazard was heightened when Mr. Scesny reconfigured

109 Mr. Rochester ran a tree removal business and Mr. DeBenedetto had 43 years of experience operating a crane.

110 As noted, supra, at the start of the job, Respondent prevailed upon the operator to allow its employees to ride the 

crane’s hook up into the tree. It failed to similarly attempt to prevail upon Mr. Scesny regarding the rigging. Mr. 

Pacheco admitted that he could have insisted that Mr. Scesny not remove the fabric slings, but he chose not to do so. 

This Court concludes that the reason Mr. Pacheco did not try to persuade Mr. Scesny to revert to using fabric rigging 

was that, while having the tree climbers ride the crane’s hook rather than wait for a bucket, basket or platform to get 

to the job site sped up the job, requesting that Mr. Scesny again use fabric rigging would have taken time and slowed 

the job. (Tr. 677-678).

104

 
the crane’s rigging from chains and fabric to only chains about two hours before the accident. 

Rather than ask Mr. Scesny to return to using fabric rigging, Mr. Pacheco chose to say and do 

nothing. Instead, he just figured that Mr. Scesny knew what he was doing, although he had 

reason to believe otherwise. The Court finds this excuse to be noncredible. Mr. Pacheco already 

observed that the operator was handling the crane erratically. He knew that the use of only chain 

rigging heightened the hazard that already existed. He certainly had a heightened awareness that 

the hazard to himself and Mr. Carrera-Zarate increased dramatically when the chain only rigging 

was employed, especially with an erratic crane operator. “The state of mind of a supervisory 

employee, his or her knowledge and conduct, may be imputed to the employer for purposes of 

finding that the violation was willful.” Branham Sign Co., Inc., No. 98-0752, 2000 WL 675530, 

at *2 (OSHRC May 15, 2000). (Tr. 42, 627, 648, 672-673, 687, 703). 

Respondent’s willingness to allow the work to continue despite his knowledge regarding 

the proximity of the energized overhead lines, the danger posed by the crane’s chain rigging, and 

the questionable attitude of the crane operator demonstrates that Respondent was willing to 

gamble with workers’ safety and lives to complete the job. This is a wager Respondent lost and 

Mr. Carrera-Zarate unfortunately paid the price with the loss of his life. This willingness to 

gamble with the safety of the crew demonstrates a conscious, if not reckless, disregard for 

employee safety. L.E. Myers Co., 16 BNA OSHC 1037, 1047-1048 (No. 90-945, 1993). 

The Court finds that this evidence establishes that both Messrs. McPherson and Pacheco 

knowingly put completion of the job over safety. It further finds that Respondent willfully 

violated Citation 2, Items 1a and 1b. Willful conduct by an employee in a supervisory capacity 

constitutes a prima facie case of willfulness against his or her employer unless the supervisory 

employee's misconduct was unpreventable. It is the employer's burden to show that the 

105
supervisory employee's misconduct was unpreventable. See, e.g., V.I.P Structures, Inc., 16 BNA 

OSHC 1873 (No. 91-1167, 1994); L.E. Myers Co., 16 BNA OSHC at 1046. Respondent made 

no such showing. Finally, where the actions of a supervisory employee are willful, the 

willfulness of those actions may be imputed to the employer. MJP Constr. Co., Inc., 19 BNA 

OSHC at 1648; Tampa Shipyards, Inc., 15 BNA OSHC at 1539. 

 The evidence establishes that as “unqualified” persons, both Messrs. Pacheco and 

Carrera-Zarate performed work near the primary energized overhead line that was not deenergized, grounded or otherwise protected as alleged in Citation 2, Item 1a. The evidence also 

establishes that the employees were working where conductive objects were or could be within 

10 feet of the line as alleged in Citation 2, Item 1b. The violations were established. 

Additionally, the Court finds that the violations were causing or likely to cause death or serious 

physical harm. 

 Penalty

 The Secretary proposed a penalty of $56,000 for Citation 2. CSHO Campos testified that 

the gravity of the violation was considered 10 out of 10 and warranted a gravity based penalty of 

$70,000. Because the violation was cited as willful and resulted in a fatality, no credit was given 

for good faith or history. A 20% deduction was given for the company’s small size. (Tr. 322-

323). The Court find that the Secretary properly considered the factors set forth in § 17(j) of the 

Act, 29 U.S.C. § 666(j), and that the proposed penalty is appropriate.111 A penalty of $56,000 is 

assessed. (Tr. 322). 

 Findings of Fact and Conclusions of Law 

111 A high penalty is necessary to induce compliance. See e.g. Revoli Constr., 19 BNA OSHC 1682, 1687 (No. 00-

0135, 2001).

106

 
All findings of facts and conclusions of law relevant and necessary to a determination of 

the contested issues have been found and appear in the decision above. See Fed. R. Civ. P. 52(a). 

ORDER

Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that 

1. Citation 1, Item 1 for a serious violation of 29 C.F.R. § 1910.180(h)(3)(v) is 

AFFIRMED and a penalty of $2,800 is ASSESSED; and

2. Citation 2, Items 1a and 1b, for willful violations of 29 C.F.R. § 1910.333(c)(3) and 29 

C.F.R. § 1910.333(c)(3)(i)(A)(1), are AFFIRMED and a penalty of $56,000 is ASSESSED.

 /s/ 

 The Honorable Dennis L. Phillips 

 U.S. OSHRC Judge

Dated: January 22, 2015 

 Washington, D.C. 

107