United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 1120 20th Street, N.W.

 Washington, D.C. 20036

SECRETARY OF LABOR,

 Complainant,

 v. OSHRC Docket No. 17-0070

WRIGHT TOUCH LANDSCAPING & 

HEAVY EQUIPMENT, INC., 

 Respondent.

Appearances: Nicholas C. Geale, Acting Solicitor of Labor

Stanley E. Keen, Regional Solicitor

Karen E. Mock, Counsel 

Monica R. Moukalif, Trial Attorney

U.S. Department of Labor, Office of the Solicitor, Atlanta, Georgia 

For the Complainant

Princess Wright, Owner 

Wright Touch Landscaping & Heavy Equipment, Inc., Miami, Florida

For the Respondent

Before: Covette Rooney

Chief Administrative Law Judge

DECISION AND ORDER

On June 28, 2016, a tree-trimming worker was hospitalized from an incident on a 

residential worksite in Miami, Florida. The worker did not leave the hospital and eventually 

passed away. After an investigation, the Occupational Safety and Health Administration 
2

(OSHA) issued a citation to Wright Touch Landscaping & Heavy Equipment, Inc. (Wright 

Touch or Respondent), alleging violations of the Occupational Safety and Health Act of 1970, 29 

U.S.C. §§ 651-678 (the OSH Act) and proposing a total penalty of $9,516. Respondent filed a 

timely notice of contest, bringing this matter before the Occupational Safety and Health Review 

Commission (Commission). The parties filed pre-hearing pleadings, and a hearing was 

scheduled in Miami, Florida on October 12, 2017. Respondent did not appear. The Secretary 

presented his case at the hearing. The Secretary filed a post-hearing brief, Respondent did not 

file a post-hearing brief. For the reasons set forth below, the citations and proposed penalties 

that remain at issue are affirmed.1

JURISDICTION AND COVERAGE

The record establishes that Respondent filed a timely notice of contest and that, as of the 

date of the alleged violation, it was an employer engaged in business affecting commerce within 

the meaning of section 3(3) and 3(5) of the Act.2 Respondent owned and operated, in Florida, 

equipment that was manufactured in Kentucky. (Tr. at 36-38; Ex. C-7); Lewis Cty. Dairy Corp., 

21 BNA OSHC 1070, 1071 (No. 03-1533, 2005) (remanding on basis that even intrastate 

commerce affects interstate commerce when there is an interstate market of industry materials); 

see also Admissions ¶¶ 1, 2, 5, 6, 8, 9, 10, 11, 12, 13, 15, 16, 18, 24, 25; Tr. at 66-68 (reading 

 

1 The Secretary has withdrawn one of the citation items, Serious Citation 1 Item 1, an alleged 

violation of 29 C.F.R. § 1910.67(c)(2)(ii)(“Only trained persons shall operate an aerial lift”). 

(Sec’y Pre-Hr’g Statement at 3; Tr. at 8.) This citation item is not adjudicated in this decision. 

Cuyahoga Valley Ry. Co. v. United Transp. Union, 474 U.S. 3, 5-6 (1985) (holding that the 

Secretary's discretion to withdraw citation is unreviewable).

2 The conclusion of law regarding the employment relationship between Respondent and the 

decedent is set forth in more detail after the findings of fact in this Decision and Order. 
3

Admissions into the record). Based upon the record, the undersigned concludes that the 

Commission has jurisdiction over the parties and subject matter in this case, and Respondent is 

covered under the Act.

PROCEDURAL EVENTS: 

DISCOVERY, PRE-HEARING PLEADINGS, AND THE HEARING

The Secretary cited Respondent on December 20, 2016. The citation was mailed to 

Respondent at the following address: Wright Touch Landscaping & Heavy Equipment, Inc. and 

its successors, 10029 NW 14th Ave, Miami, FL 33147.3 Respondent filed a timely notice of 

contest, and this case was docketed at the Commission on January 19, 2017. The Secretary filed 

the Complaint for this case on February 22, 2017,4and Respondent filed an Answer on March 

13, 2017.5 

The Answer was handwritten, and Respondent is before the Commission without an 

attorney, or pro se. The handwritten Answer, signed by Respondent’s Owner, Ms. Princess 

Wright, includes the following:

 

3 This address has been used by the Commission for all mailings in this matter, no other address 

for Respondent is in the record. The undersigned finds that this address is Respondent’s record 

address as defined in the Commission’s rules. 29 C.F.R. § 2200.6 (“Record Address”).

4 On February 16, 2017, when my office called Respondent to confirm that it declined to 

electronically file documents for this matter, Respondent explained to my office that it had no 

electronic mailing address. While the undersigned accepts Respondent’s explanation, it is also 

noted that Respondent’s business card, in evidence as being in use on the day of the incident,

contains an electronic mailing address for Respondent. (Ex. C-3.) 

5 This matter had initially been placed under Simplified Proceedings, however, upon an opposed 

motion by the Secretary, was placed on Conventional Proceedings. See Order dated February 

16, 2017 (agreeing with Secretary that cases involving a fatality are not appropriate for 

simplified proceedings at the Commission). 
4

I am denying the allegations that Wright Touch Landscaping & Heavy Equipment 

Inc. was the employer engaged in business, and was not providing any landscaping 

service, on the date of the alleged violations.

The employer on the date of the incident Realtor Daniel Carriazo owned the 

property where the incident occurred. Wright Touch was not working for Mr. 

Carriazo. [The decedent] was employed by the realtor, and owner of the property 

Mr. Daniel Carriazo.6 Mr. Carriazo was a repeating customer of [the decedent]. At 

no time before are(sic.) on the date of the incident did [the decedent] work for 

Wright Touch Landscaping & Heavy Equipment.

(Answer at 1.) 

On April 5, 2017, the Notice of Hearing and Order for Parties to Confer and Submit 

Planning Recommendations was sent out to both parties – and this notice was not returned by the 

U.S. Post Office to the Commission – notifying the parties of the hearing date and ordering the 

parties to confer by April 19, 2017. On April 19, the Secretary submitted the Parties’ 

Recommendations for Time Limits, and certified that Respondent agreed to the 

recommendations and authorized the Secretary to sign the document for Respondent. The next 

day, April 20, 2017, the Notice of Hearing, Scheduling order and Special Notices was sent out to 

both parties – and this notice was also not returned by the U.S. Post Office to the Commission. 

On August 25, 2017, the Secretary filed a Motion to Have Complainant’s First Requests 

for Admission Deemed Admitted, and the undersigned granted the Secretary’s motion on 

September 21, 2017.7 See Order Granting Complainant’s Motion to Have Complainant’s First 

Requests for Admissions deemed Admitted dated September 21, 2017. On this same day, 

September 21, the Notice of Precise Location of Hearing was sent out to both parties – and both 

 

6 For personal privacy reasons, the name of the decedent has been omitted throughout this 

decision. 

7 The order granting the Secretary’s motion was sent out on September 21, 2017, followed by

another issuance of the same order, this time with attachment, on October 5, 2017. 
5

this notice and the order issued this same day were not returned by the U.S. Post Office to the 

Commission. 

On September 28, 2017, the Secretary submitted the Secretary’s Pre-Hearing Statement. 

In this statement, the Secretary stated that despite numerous attempts at contact, Respondent had 

not returned telephone calls or letters since September 20, 2017.8 (Sec’y Pre-Hr’g Statement at 1 

n.1; Tr. at 7). The Secretary called Respondent, but could not leave a voicemail because the 

voicemail box was full. (Sec’y Pre-Hr’g Statement at 1 n.1; Tr. at 7). Because Respondent did

not use electronic mail, the Secretary sent an overnight letter to Respondent regarding the 

Prehearing Statement and exhibits, and Respondent did not reply. (Sec’y Pre-Hr’g Statement at 

1 n.1; Tr. at 7). 

As the Secretary had not been in contact with Respondent, my office also attempted to 

contact Respondent on October 5, 2017; and again, on October 11, the night before the hearing, 

leaving voice messages each time regarding the hearing on October 12, 2017. Respondent, 

however, did not respond to the voicemails or appear at the hearing. (Tr. at 8.) As there is no 

evidence in this record that the U.S. Postal Service failed to properly fulfill its duties, it is 

presumed that Respondent received all mailings from my office. Powell v. Commissioner, 958 

F.2d 53, 54 (4th Cir. 1992) (holding that, in the absence of evidence to the contrary, it is 

reasonable to presume that the United States Postal Service officials have properly discharged 

their duties). The undersigned holds Respondent responsible for its mail handling procedures. 

 

8 As noted in the September 21, 2017 order, Respondent had until this time been in contact with 

the Secretary regarding this matter.
6

La.-Pac. Corp., 13 BNA OSHC 2020, 2021 (No. 86-1266, 1989) (holding that the Commission 

expects employers to maintain orderly procedures for handling important documents).

Accordingly, the hearing for this case took place as scheduled on October 12, 2017.

9

 

Respondent was not in attendance. (Tr. at 6-7). Counsel for the Secretary presented her case. 

Several exhibits were admitted into evidence at the hearing. (Tr. at 14, 16, 25, 38, 43, 64; Exs. 

C-2 through Ex. C-7.) Additionally, the Secretary’s First Requests for Admissions, previously

admitted under Commission Rule 54(b),10 were read into the record. (Tr. at 65-68); see also

“Order Granting Complainant’s Motion to Have Complainant’s First Requests for Admission 

Deemed Admitted Attachment A” dated September 21, 2017 (attachment sent out on October 5, 

2017); Sec’y Pre-Hr’g Statement at 3-5. According to Commission Rule 54(c), these admissions 

 

9 Although the Commission recognizes the difficulties a pro se litigant may face when 

participating in the Commission’s proceedings, the Commission still requires the pro se litigant 

to follow the rules and exercise reasonable diligence in the legal proceedings in which it is taking 

part. Sealtite Corp., 15 BNA OSHC 1130 (No. 88-1431, 1991); Wentzell d/b/a N.E.E.T. 

Builders, 16 BNA OSHC 1475, 1476 (No. 92-2696, 1993) (stating that “[a] pro se employer is 

required to exercise reasonable diligence... [they must] follow the rules and file responses to a 

judge’s orders, or suffer the consequences...”).

10 Commission Rule 54(b) states in pertinent part: 

Response to requests. Each matter is deemed admitted unless, within 30 

days after service of the requests or within such shorter or longer time as 

the Commission or Judge may allow, the party to whom the requests are 

directed serves upon the requesting party a written answer specifically 

admitting or denying the matter involved in whole or in part, or asserting 

that it cannot be truthfully admitted or denied and setting forth in detail the 

reasons why this is so, or an objection, stating in detail the reasons therefor. 

The response shall be made under oath or affirmation and signed by the 

party or his representative.

29 C.F.R. § 2200.54(b); see also Samsonite Corp., 10 BNA OSHC 1583 (No. 79-5649, 1982) 

(discussing Federal Rule of Civil Procedure 36, “Requests for Admission,” in context of 

Commission proceedings).
7

are conclusively established in this matter.

11

 29 C.F.R. § 2200.54(c). These admissions are 

reproduced infra.

After the hearing, the Secretary served a copy of his post-hearing brief upon Respondent 

on November 30, 2017. Respondent neither offered any exhibits into the record nor filed a posthearing brief. Commission Rule 64 states that the failure of a party to appear at a hearing “may 

result in a decision against that party.” 29 C.F.R. § 2200.64(a). A failure to appear may be 

excused where good cause is shown, but a request for reinstatement must be made within five 

days of the hearing. 29 C.F.R. § 2200.64(b). Respondent has made no such request. Despite the 

numerous attempts by both the Secretary and my office, Respondent effectively abandoned this 

case by not showing up to trial and by not communicating with my office since that time. 

The evidence produced by the Secretary is therefore uncontested since Respondent failed 

to appear at the hearing, proffer any trial exhibits, or file any post-hearing brief.

ADMITTED FACTS

The following facts are conclusively established for this matter:

1) On June 28th, 2016, Respondent's principal business activity included landscaping 

services. 

 

11 Commission Rule 54(c) explains what it means to have a matter deemed admitted:

(c) Effect of admission. Any matter admitted under this section is 

conclusively established unless the Judge or Commission on motion permits 

withdrawal or modification of the admission. Withdrawal or modification 

may be permitted when the presentation of the merits of the case will be 

subserved thereby, and the party who obtained the admission fails to satisfy 

the Commission or Judge that the withdrawal or modification will prejudice 

him in presenting his case or defense on the merits.

29 C.F.R. § 2200.54(c)(emphasis added).
8

2) On June 28th, 2016, Respondent's principal business activity included tree trimming 

services. 

3) Princess Wright does not personally perform landscaping services for Wright Touch.

4) Princess Wright does not personally perform tree trimming services for Wright Touch. 

5) Wright Touch solicits landscaping work from homeowners in the Miami, Florida and 

Broward area. 

6) When a person hires Wright Touch to perform landscaping work, Princess Wright 

negotiates the details, including cost and scope of the landscaping work to be done.

7) On June 28th, 2016, Princess Wright was present at the work site.

8) As of June 28th, 2016, Respondent operated at least one vehicle that required the driver 

to hold a valid commercial driver license. 

9) On June 28th, 2016, Princess Wright held a commercial driver license.

10) Princess Wright transported [the decedent] to the work site on June 28th, 2016. 

11) On June 28th, 2016, [the decedent] was performing tree trimming work at the work site. 

12) On June 28th, 2016, [the decedent] performed tree trimming work from Respondent's 

elevated truck-mounted bucket.

13) [The decedent] used the Respondent's truck-mounted bucket to access the roof at the 

work site. 

14) On June 28th, 2016, [the decedent] did not use a body belt and lanyard at any time while 

in Respondent's truck-mounted bucket. 

15) On June 28th, 2016, [the decedent] was in Respondent's truck-mounted bucket while it 

was elevated over four feet above the ground.

16) On June 28th, 2016, [the decedent] performed work from Respondent's truck mounted 

bucket while it was elevated over four feet above the ground. 

17) On June 28th, 2016, Princess Wright knew that [the decedent] did not use a body belt and 

lanyard while using Respondent's truck-mounted bucket to access the roof and/or to trim 

trees at the work site. 

18) On June 28th, 2016, [the decedent] performed tree trimming work while on the roof at 

the work site.
9

19) On June 28th, 2016, Respondent did not provide [the decedent] with fall protection 

equipment while he performed his work activities while on the roof at the work site.

20) On June 28th, 2016, Princess Wright knew that [the decedent] was working from the roof 

at the work site without using fall protection.

21) On June 28th, 2016, [the decedent] stood at the edge of the roof at the work site while 

performing tree trimming. 

22) On June 28th, 2016, [the decedent] stood within five feet of the edge of the roof at the 

work site while performing tree trimming. 

23) On June 28th, 2016, Princess Wright knew that [the decedent] worked near the edge of 

the roof at the work site without using fall protection.

24) Respondent provided the necessary tools for [the decedent] to perform his work at the 

work site on June 28th, 2016.

25) On and before June 28th, 2016, Respondent paid [the decedent] to perform tree trimming 

work.

“Order Granting Complainant’s Motion to Have Complainant’s First Requests for Admission 

Deemed Admitted Attachment A” dated September 21, 2017 (attachment sent out on October 5, 

2017); Sec’y Pre-Hr’g Statement at 3-5; (Tr. at 66-68) (reading admissions into the record).

BACKGROUND & FINDINGS OF FACT

Ms. Princess Wright owns Wright Touch, a small landscaping and tree-trimming 

company. To obtain business, Ms. Wright drives out into the community in the company vehicle

and solicits individual homeowners for landscaping and tree-trimming work. Ms. Wright 

presents a business card to the individual homeowner and negotiates the terms of the project with 

the homeowner. Ms. Wright does not perform the work herself, instead she hires workers to 

perform the work. Once the landscaping or tree-trimming job is completed by these workers, 

Ms. Wright collects payment from the homeowner and then pays the workers, keeping a portion 

for herself. 
10

The OSHA Investigation

On or around September 13, 2016, OSHA received a referral regarding the decedent’s 

accident on June 28, 2016, from the Miami Police Department. (Tr. at 29-30; Citation at 9 

(beginning date of OSHA inspection).) Prior to receiving this referral in September from the 

Miami Police Department, OSHA had not received notice from Respondent of the decedent’s 

incident in June. (Tr. at 30.) At the beginning of OSHA’s investigation, Compliance Officer 

Juan Roa held an opening conference with Ms. Wright at her residence, having identified 

Respondent as the employer by speaking with the homicide detective involved with referral. (Tr. 

at 30.) During this opening conference, Ms. Wright told CO Roa that the decedent was not her 

employee. (Tr. at 31.) CO Roa, however, learned that Ms. Wright had driven the decedent to the 

worksite, had provided the decedent with “utilities,” and had paid the decedent for “the service 

that had been rendered.” (Tr. at 31.)

During the OSHA investigation, CO Roa interviewed and took statements from Ms. 

Wright and Mr. Jack Davis, the other worker on the worksite on the day of the incident. (Tr. at 

35, 39, 58; Exs. C-2, C-5); Beta Constr. Co., 16 BNA OSHC 1435, 1441-1442 (No. 91-102, 

1993) (noting that out-of-court, contemporaneous statements made by the employee to the 

OSHA compliance officer during the OSHA investigation are admissible and can be given 

weight to the extent that they are reliable).12 Through these interviews, CO Roa determined that 

 

12 On September 29, 2016, Mr. Davis signed the statement he gave to CO Roa. (Tr. at 40; Ex. C5.) About a month later, on October 31, 2016, CO Roa called Mr. Davis to ask him a follow up 

question. (Tr. at 42.) CO Roa wrote down, “There was no harness on his back when he came off 

the house from the bucket truck,” on the bottom of the statement. (Tr. at 41-42.) CO Roa read 

this statement back to Mr. Davis over the phone and asked him whether it was accurate. (Tr. at 

42-43.) CO Roa testified that Mr. Davis told him over the phone that the statement was accurate. 
11

the decedent had been working on a residential roof, trimming trees and “cleaning out branches,” 

“without any type of fall protection, with no harness, or lanyard, or tied off to anything.” (Tr. at 

35.) 

The Worksite

CO Roa visited the worksite, a one-story residence with tall oak trees surrounding it. (Tr. 

at 31); see Ex. C-6 (pictures of the worksite). CO Roa determined, by using a measuring tape, 

that the distance from the eaves of the roof (the lowest point of the roof) to the ground was nine 

feet eight inches. (Tr. at 32-34.) Ms. Wright told CO Roa that she personally “elevated [the 

decedent] to the roof with an aerial lift.” (Tr. at 35.) Ms. Wright also told CO Roa that the 

decedent had not used a lanyard while working. (Tr. at 35.) According to CO Roa, Mr. Davis 

was at ground level and did not engage in any activity in the bucket or on the roof. (Tr. at 56-

57.)

The project at issue in this case began when Ms. Wright approached homeowner Daniel 

Carriazo in front of Mr. Carriazo’s home.13 (Tr. at 10.) Mr. Carriazo testified that Ms. Wright 

told him that her company had been working on another project in the area but that it fell 

through, and she asked Mr. Carriazo whether he was interested in landscaping or tree-trimming 

work. (Tr. at 10.) She presented her business card to him, which had Respondent’s name and 

contact information on it. (Tr. at 12-14; Ex. C-3.) Mr. Carriazo testified that the decedent was 

 

(Tr. at 42.) There is no signature or further notation from Mr. Davis near this additional sentence 

on the bottom of the statement. (Tr. at 42; Ex. C-5.)

Ms. Wright reviewed and signed the statement she gave to CO Roa, who wrote down what Ms. 

Wright said, on November 16, 2016. (Tr. at 57-60; Ex. C-2.) 

13 The worksite was located at: 8605 Southwest 107 Street, Miami, Florida, 33156. (Tr. at 16.)
12

standing with Ms. Wright during this conversation. (Tr. at 11.) Ms. Wright and Mr. Carriazo 

negotiated a deal which entailed trimming oak trees, “trimmed them, and cleaned them up and 

thinned them out,” on Mr. Carriazo’s property in exchange for $650. (Tr. at 14, 18, 63; Ex. C-2 

at 5.) Mr. Carriazo testified that before this moment, he had never met the decedent. (Tr. at 11-

12.)

The Workers

The decedent, according to his wife’s testimony, had performed work for Ms. Wright in 

the past. (Tr. at 20.) The decedent’s wife testified that her “son-in-law’s cousin” knew Ms. 

Wright, knew that the decedent “needed work,” and so connected Ms. Wright and the decedent. 

(Tr. at 20.) According to his wife, the decedent did not solicit his own landscaping jobs, did not 

own his own business, did not own tree-trimming or landscaping tools, and did not have his own 

transportation. (Tr. at 20-21.) Ms. Wright would provide the decedent transportation to the 

worksites as well as the tools to perform the work she told him to do.14 (Tr. at 21.) The 

decedent’s wife testified that Ms. Wright would call their home in the morning to arrange the 

time at which Ms. Wright would pick up the decedent to go to work. (Tr. at 21.) One time, 

according to the decedent’s wife, Ms. Wright told her to tell the decedent to be ready to be 

picked up at 10a.m.15 (Tr. at 21.) 

 

14 Ms. Wright, however, admitted that she did not provide fall protection equipment to the 

decedent at the worksite on the day of the incident. (Admission at ¶ 19; Tr. at 67-68.) 

15 The decedent’s wife also testified that the she had a “Wright Touch tree-trimming T-shirt” that 

had Respondent’s contact information and a license number on it. (Tr. at 22-23; Ex. C-4.) She 

testified that her husband never wore the T-shirt because it did not fit him, but he kept it in his 

bag. (Tr. 23-24.) She testified that Ms. Wright gave the decedent the T-shirt and that “they’re 

supposed to have on T-shirts to match the company they work for to let people know that he’s 

working for that company.” (Tr. at 24.) The undersigned notes that the license number (License 
13

Mr. Davis told CO Roa that he (Davis) had worked for Ms. Wright “about eight times in 

a month.” (Tr. at 40-41.) Mr. Davis said that he was on the worksite all day on the day of the 

incident, and that Ms. Wright paid him for the work he did on the day of the day of the incident, 

as she did for the other jobs he performed for her. (Tr. at 41.) 

The Aerial Lift

Respondent owned a truck-mounted aerial lift to perform its services. (Tr. at 36, 55; Ex. 

C-7.) Ms. Wright communicated to CO Roa that the truck was hers, and the truck has a “Wright 

Touch Tree Service” sign on it. (Tr. at 36; Ex. C-7.) Ms. Wright told CO Roa that Respondent 

utilized this truck on the worksite on the day of the incident. (Tr. at 37.) This truck was 

manufactured in Elizabethtown, Kentucky. (Tr. at 37; Ex. C-7 at 2.) This truck was the only 

truck with an arm attached to it on the worksite on the day of the incident; the only other truck on 

the worksite that day was a pick-up truck. (Tr. at 38.) Mr. Carriazo testified that Respondent 

drove a truck, that had Respondent’s name on it, onto his property, through his side gate, and 

into his backyard. (Tr. at 15-16; Ex. C-6.) The term “bucket” is used in Ms. Wright’s statement

as well as within her Admissions as the “truck-mounted bucket.” See, e.g., ¶ 13 (“[The 

decedent] used the Respondent’s truck-mounted bucket to access the roof at the work site.”) The 

undersigned finds that the “bucket” referred to here is the elevated work platform that is attached 

to Respondent’s aerial lift. 

The Work Tasks

 

# 658116-0) on this T-shirt is the same as that on the business card and the sign on Respondent’s 

truck. (Exs. C-3, 4, and 7.)
14

Ms. Wright described the work that was performed at the worksite on the day of the 

incident. (Ex. C-2 at 2-3; Tr. at 61-62.) The decedent, Mr. Davis and Ms. Wright arrived at the

worksite sometime between 11a.m. and 1p.m. (Ex. C-2 at 2; Tr. at 61.) The decedent used the 

“bucket,” which was attached to the truck which was parked on the side of the house, to get on 

the roof. (Ex. C-2 at 2; Tr. at 61.) Ms. Wright told CO Roa that she herself elevated the 

decedent to the roof using the bucket of the aerial lift. (Tr. at 35.) The decedent then trimmed 

the trees in front of the house from the roof. (Ex. C-2 at 2; Tr. at 61.) Mr. Davis also used the 

bucket to get up on the roof at this time. (Ex. C-2 at 2; Tr. at 61.) Ms. Wright then left the 

worksite for about 20-30 minutes. (Ex. C-2 at 2; Tr. at 61.) When she returned, the decedent 

and Mr. Davis came down. Ms. Wright stated that she did not see the decedent or Mr. Davis 

“tied off to anything while they were on the roof.” (Ex. C-2 at 2; Tr. at 61.) 

The decedent then used the bucket in front of the house to trim some trees by the house 

and by the driveway. (Ex. C-2 at 2-3; Tr. at 61.) He used a “pull saw,” and while Ms. Wright 

stated that she thought the pull saw belonged to him, not remembering if he had used her 

“pruning saw,” she later admitted to providing the necessary tools for the decedent to perform his 

work that day. (Ex. C-2 at 3; Tr. at 61; Admissions at ¶ 24.) The decedent also trimmed trees 

from the bucket away from a black awning in the back yard. (Ex. C-2 at 3; Tr. at 62.) Ms. 

Wright stated that the decedent was in the bucket for “15 minutes maximum,” and did not know 

“how he had to get up to trim the trees in the back.” (Ex. C-2 at 3; Tr. at 62.) At this time, the 

decedent and Mr. Davis began cleaning up. They loaded the big branch debris in the truck. (Ex. 

C-2 at 3; Tr. at 62.) The decedent “got back on the truck to blow the awning off clean, which 
15

took 5-7 minutes.” (Ex. C-2 at 3; Tr. at 62.) Then the decedent “got back down, and they loaded 

up the truck with the debris that was left in the back.” (Ex. C-2 at 3; Tr. at 62.)

Notably, Ms. Wright stated the following: “[The decedent] did not have a harness on 

while he was on the roof. [The decedent] did not have a harness on while he was trimming the 

trees from the bucket truck.” (Ex. C-2 at 3-4; Tr. at 62.) 

The Incident

Regarding the incident itself, the record contains circumstantial evidence. No one saw 

what happened. Neither Ms. Wright nor Mr. Davis testified at the hearing. In her statement, Ms. 

Wright stated:

[The decedent] and Jack stayed in the back to clean up, and I parked the truck in 

the front of the house. I was waiting for about 10 minutes, and finally I got out and 

I walked back. The gate was open, and I found [the decedent] by the corner of the 

post. His head was toward the gate and his legs toward the street. He was facing 

up. When I found him on the floor, he did not have a harness. I found [the 

decedent], and I went to get Jack, and I told him that [the decedent] was passed out. 

We came back and Jack stayed with [the decedent]. I ran to the front of the house 

and got the attention of the people inside. They did not speak English. I called 911 

before I got Jack. 

(Ex. C-2 at 4-5; Tr. at 62-63.) Mr. Davis stated: “I think he was on the truck because he had to 

cut two tree limbs in the front. That’s after the truck had left out back and had gone to the front.” 

(Ex. C-5; Tr. at 41.)

Mr. Carriazo also did not witness the accident. He testified that he had left his house and 

returned to find his relative in the road in front of his home, waving him (Mr. Carriazo) down. 

(Tr. at 17.) Mr. Carriazo testified that his relatives did not know what happened. (Tr. at 17.) 

Ms. Wright was talking to Mr. Carriazo’s relatives, who did not speak English, trying to get 
16

towels. (Tr. at 17.) Mr. Carriazo sent his relatives inside his home and then went to find the 

decedent. Mr. Carriazo stated that he found the decedent:

on the ground face up. He was trying to sit up and speaking. In my opinion, it 

didn’t make sense what he was saying, but he was trying to get up, and I was telling 

him to relax. We got some towels. And by that time within seconds, I would say 

the police and the ambulance got there of me arriving there, probably 30 seconds, 

probably – maybe less.

(Tr. at 17-18.) 

Ms. Wright stated that she called 911 on the worksite on the day of the incident. She told 

the operator that “[the decedent] was bleeding from the back of the head. The operator told me 

to get a towel. I ran inside the house, and I laid down to try to explain what was happening. I 

got up, and the owner of the house arrived, and I went up to him and told him what happened.” 

(Ex. C-2 at 5; Tr. at 63.) Ms. Wright further said:

Once the paramedics picked [the decedent] up and I saw a rock in the ground. The 

rock was about the size of a CD, and it was sticking out about one inch. I don't 

remember if the rock was smooth or jagged. The last time I saw him, he was trying 

to fix a Christmas light in the back of the house at ground level. [The decedent] told 

me that the owner was a repeat customer of his.

(Ex. C-2 at 6; Tr. at 63-64.)

At around 2 p.m., according to the decedent’s wife, Ms. Wright called her from the 

decedent’s cell phone. Ms. Wright told the decedent’s wife that “he had an accident, and 

that he was on the ground, and paramedics and the police were there.” (Tr. at 26.) The 

decedent’s wife testified that she then spoke to “the officer,” who told her that [the 

decedent] fell. He was on the ground, and they was transporting him to [the hospital].” 

(Tr. at 26.) The decedent was taken to the hospital on June 28, 2016, and never left the 

hospital. (Tr. at 26-27.)
17

After the accident, Ms. Wright stated that: “The owner of the house gave me the 

money for the job, and I gave some to the wife. The owner gave me $650. I gave the wife 

$150. I gave Jack $100 or $150. I kept $300 because he owed me money.” (Ex. C-2 at 5-

6; Tr. at 63.) 

DISCUSSION

Was There an Employer/Employee Relationship?

The OSH Act places duties on “employers” to protect the health and safety of

“employees.” 29 U.S.C. § 654(a). An employer is defined as “a person engaged in a business 

affecting commerce who has employees.” 29 U.S.C. § 652(5). “Only an employer may be cited

for a violation of the Act.” Allstate Painting & Contracting Co., 21 BNA OSHC 1033, 1035

(No. 97-1631, 2005) (consolidated) (Allstate). The Act requires each employer to comply with

occupational safety and health standards and regulations promulgated under the OSH Act. Id.

The Secretary has the burden of proving Respondent is the employer of at least one affected

employee at the worksite. Allstate, 21 BNA OSHC at 1035; Poughkeepsie Yacht Club, Inc., 7 

BNA OSHC 1725, 1727 (No. 76-4026, 1979).

To determine whether the Secretary has established the existence of an employer

employee relationship, the Commission relies upon an analysis of the factors elucidated in 

Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992) (Darden). See Sharon & 

Walter Constr., Inc., 23 BNA OSHC 1286, 1289 (No. 00-1402, 2010) (S&W). In Darden, the 

following factors are considered:

the skill required [for the job]; the source of the instrumentalities and tools; the 

location of the work; the duration of the relationship between the parties; whether 

the hiring party has the right to assign additional projects to the hired party; the 
18

extent of the hired party’s discretion over when and how long to work, the method 

of payment; the hired party’s role in hiring and paying assistants; whether the work 

is part of the regular business of the hiring party; whether the hiring party is in 

business; the provision of employee benefits and the tax treatment of the hired 

party.

Darden, 503 U.S. at 323-324 (citation omitted). When following Darden, the Commission 

emphasizes that the critical factor in the analysis is the “right to control the manner and means by 

which the product [was] accomplished.” S&W, 23 BNA OSHC at 1289, quoting Darden, 503 

U.S. at 323.

The record supports a finding that Respondent employed the decedent at the Miami 

residential worksite on June 28, 2016. Contrary to what Ms. Wright wrote in Respondent’s 

Answer, Ms. Wright later admitted to facts that establish that the decedent was her employee on 

the day of the incident. For example, Ms. Wright owned the landscaping and tree-trimming 

company, and advertised its services and commercial license number using business cards and a 

sign on her truck that she owned. The decedent was given a T-shirt to wear with the purpose of 

identifying him as a representative of Wright Touch.16 

Ms. Wright also controlled where and when the decedent would work. She would call 

the decedent the morning of and direct him to be ready to be picked up at a specific time to be 

transported to the worksite. Ms. Wright also negotiated the terms of the project with the 

homeowner, and then directed the decedent to perform those tasks. Ms. Wright also provided the 

tools with which the decedent used to perform those tasks. Finally, Ms. Wright paid the 

 

16 The undersigned finds it irrelevant that the decedent did not wear this T-shirt. The salient 

point is that Respondent gave the decedent the T-shirt with instructions to wear it. The record 

also establishes that the decedent stood with Ms. Wright while she presented her business card to 

the homeowner while introducing herself and the company; there is no evidence that the 

decedent represented to the homeowner that he (the decedent) was not associated with 

Respondent at that time.
19

decedent from the proceeds of the payment – which was issued to her – after the decedent 

performed the tasks.

Under these circumstances, the undersigned finds that Respondent employed the 

decedent, and therefore, Respondent was responsible for protecting the health and safety of the 

decedent at the Miami residential worksite on June 28, 2016.

Allegations

To establish a prima facie case for the violation of an OSHA standard, the Secretary must 

show “(1) that the regulation applied; (2) that it was violated; (3) that an employee was exposed 

to the hazard that was created; and importantly, (4) that the employer ‘knowingly disregarded’

the Act's requirements.” ComTran Grp., Inc. v. U.S. Dep’t of Labor, 722 F.3d 1304, 1307 (11th 

Cir. 2013). A violation is “serious” if a substantial probability of death or serious physical harm

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

While the record is unclear exactly how the decedent’s incident occurred, the fall 

protection citation items are affirmed here because the record supports the finding that 

Respondent violated these standards before the incident even occurred. Regarding the reporting 

standard, the record also supports a finding that whatever caused the decedent’s injury on the day 

of the incident was work-related. 

Citation 1, Item 2: The Alleged Aerial Boom Fall Protection Violation

For this citation item, the Secretary alleges a serious violation of 29 C.F.R. 

§ 1910.67(c)(2)(v), which provides in pertinent part:

(c)(2) Extensible and articulating boom platforms. (v) A body belt shall be worn 

and a lanyard attached to the boom or basket when working from an aerial lift.
20

29 C.F.R. § 1910.67(c)(2)(v). The definitions section of this cited standard explains that an 

aerial device is “any vehicle-mounted device, telescoping or articulating, which is used to 

position personnel.” 29 C.F.R. § 1910.67(a)(1). An extensible boom platform is an aerial device 

(except ladders) with a telescopic or extensible boom.” 29 C.F.R. § 1910.67(a)(4). 

At the hearing, CO Roa explained that this “standard requires basically fall protection 

anytime you’re working from a bucket truck ... [because] an employee can be easily catapulted 

out with any sort of movement.” (Tr. at 44-45.) CO Roa testified that Respondent was cited for 

a violation of this standard because Ms. Wright stated, in the interview, that the decedent did not 

use fall protection “in the bucket” while the decedent “had been in the bucket, you know, to cut 

the trees and to access the roof.” (Tr.at 45-47.) CO Roa testified that Ms. Wright stated that she 

was “right there at the site, and [] watched [the decedent] get on and off.” (Tr. at 46.) 

The evidence supports the Secretary’s allegations. To determine which standard applies, 

the Commission looks to the cited working conditions. S. Pan Servs. Co., 25 BNA OSHC 1081, 

1085 (No. 08-0866, 2014) aff’d, 685 F. App’x 692 (11th Cir. 2017) (unpublished). Respondent 

was performing tree-trimming work at a residential worksite. According to the homeowner, he 

contracted with Respondent to “clean up” the trees and to “thin them out.” The undersigned 

finds this type of tree-trimming work is preventative in nature, so as to prevent damage to the 

residence. Preventative tree-trimming work is considered maintenance and therefore falls under 

the general industry standards in section 1910 instead of OSHA’s construction standards in 

section 1926. Consumers Power Co., 5 BNA OSHC 1423 (No. 11107, 1977). Additionally, 

Respondent’s truck qualifies as an aerial lift because it has a structure mounted on it which was 

used to elevate the decedent into position to trim trees, and to lift him to the roof. The bucket is 
21

found to be an extensible boom platform because the decedent stood in it while it transported 

him to his work tasks. The decedent worked trimming trees from the bucket. The cited standard 

applies.

Ms. Wright stated that the decedent did not wear any kind of harness while working from 

the bucket. Ms. Wright also admitted that she did not provide fall protection equipment to the 

decedent, even after providing other equipment for him to use while working from the bucket. 

The standard has been violated.

Ms. Wright stated that she personally operated the truck, lifting the decedent in the 

bucket up to the roof of the residence. Ms. Wright also stated that the decedent worked from the 

bucket, trimming trees, without a harness on. The Secretary has established exposure.

“Commission precedent holds[s] that a supervisor's knowledge is imputable to the 

employer.” Empire Roofing Co. Se., LLC, 25 BNA OSHC 2221, 2222 (No. 13-1034, 2016) 

aff’d, Empire Roofing Co. Se., LLC v. Occupational Safety & Health Review Comm'n, No. 16-

17309, 2017 WL 4708162, at *3 (11th Cir. Oct. 19, 2017) (unpublished). Both the worksite and 

Wright Touch’s principal place of business, according to Ms. Wright’s business card, are in 

Florida, which is located in the Eleventh Circuit. Therefore, the Eleventh Circuit would have 

jurisdiction over an appeal filed by either party.17 See 29 U.S.C. § 660(a), (b). “Where it is 

highly probable that a Commission decision would be appealed to a particular circuit, the 

Commission has generally applied the precedent of that circuit in deciding the case—even 

though it may differ from the Commission’s precedent.” Kerns Bros. Tree Serv., 18 BNA OSHC 

2064, 2067 (No. 96-1719, 2000).

 

17 Wright Touch could also seek review in the D.C. Circuit. See 29 U.S.C. § 660(a).
22

The 11th Circuit has issued several recent decisions addressing knowledge of a 

supervisor in a Commission case. For example, in ComTran, the 11th Circuit held that the 

Secretary must do more than establish a “supervisor's knowledge of his own malfeasance” in 

order to prove the knowledge element of an OSHA violation. Comtran, 722 F.3d 1304. In such 

a situation, the supervisor’s knowledge of his own misconduct is not imputable to the employer. 

Id. In Quinlan v. Sec’y, U.S. Dep’t of Labor, 812 F.3d 832 (11th Cir. 2016), the 11th Circuit 

held that a “supervisor's knowledge of [a] subordinate employee's violative conduct could be 

imputed to his employer under [the OSH Act] when [the] supervisor himself was simultaneously 

involved in violative conduct.” Id. at 832. These cases have slightly different factual scenarios 

than the one at issue here.

However, the recent Empire Roofing Co. Se., LLC, 2017 WL 4708162 (11th Cir. Oct. 19, 

2017) (unpublished), is a case with similar facts to the case at issue: a supervisor operating an 

aerial lift, elevating his subordinates who failed to wear fall protection. Empire Roofing Co. Se.,

LLC, 2017 WL 4708162, at *3. The supervisor knew that his subordinates were not wearing fall 

protection. Empire Roofing Co. Se., LLC, 2017 WL 4708162, at *3. The 11th Circuit, 

expounding on ComTran and Quinlan, held that this situation was a “classic situation” of 

supervisor knowledge properly imputable to the employer: 

‘The classic situation in which knowledge of a supervisor is imputed to an employer 

is when the supervisor is on the scene looking on, sees the subordinate employee 

violating a safety rule, knows there is such a violation, but nonetheless allows it to 

continue.’ Quinlan v. Sec’y, U.S. Dep’t of Labor, 812 F.3d 832, 841 (11th Cir. 

2016). Thus, in the “ordinary case” — in which the Secretary proves that a 

supervisor had actual or constructive knowledge of a subordinate employee's 

violation — the general rule is that the knowledge of the supervisor is imputed to 

the employer. ComTran, 722 F.3d at 1307–08 & n.2. 

Empire Roofing Co. Se., LLC, 2017 WL 4708162, at *3. 
23

Here, Ms. Wright, the supervisor, admitted to knowing that the decedent did not wear fall 

protection while he worked from the aerial lift bucket; and, Ms. Wright stated that she elevated 

the bucket with the decedent in it, while he was not wearing fall protection. The undersigned 

finds that this situation is analogous to the “classic situation” of the supervisor “looking on,” 

while the subordinate worked without fall protection in the bucket of an aerial lift. Quinlan, 812 

F.3d at 841; see also Phoenix Roofing, Inc., 17 BNA OSHC 1076, 1079 (No. 90-2148, 1995) 

(“Employer knowledge is established by a showing of employer awareness of the physical 

conditions constituting the violation”), aff’d, 79 F.3d 1146 (5th Cir. 1996) (unpublished). The 

Secretary has established actual knowledge. The alleged violation is affirmed. 

CO Roa testified that the violation was characterized as serious because a fall from the 

bucket of an aerial lift could cause the employee to “break their bones and/or death.” (Tr. at 46.) 

This testimony establishes that death or serious physical harm could result from the decedent not 

wearing fall protection while working from the bucket.

This violation is affirmed as serious.

Citation 1, Item 3: The Alleged Roof Fall Protection Violation

The Secretary alleges a serious violation of 29 C.F.R. 1910.132(a), which requires in 

pertinent part:

Protective equipment...shall be provided, used, maintained in a sanitary and 

reliable condition wherever it is necessary by reason of hazards...encountered in a 

manner capable of causing injury or impairment in the function of any part of the 

body through absorption, inhalation or physical contact.

29 C.F.R. 1910.132(a). CO Roa explained that this “standard requires a personal protective 

equipment when an employee is exposed to a hazard. In this case, [the decedent] was exposed to 

a fall hazard from the eaves of the roof while working on it, doing tree trimming.” (Tr. at 49.) 
24

CO Roa testified that Ms. Wright stated that the decedent had no fall protection while he was 

working on the roof, and that Ms. Wright said she watched him work on the roof with no fall 

protection. (Tr. at 49-50.)

The record establishes that the decedent and Mr. Davis worked from a residential rooftop, 

which was over 9 feet high. In this situation, a fall hazard existed on this worksite, and therefore, 

Respondent was obligated to provide fall protection equipment to its workers, and those workers 

were obligated to use the fall protection equipment. The cited standard applies. 

The record also establishes that Respondent did not provide fall protection equipment to 

the decedent, despite providing other tools for the job, and the decedent did not wear fall 

protection while he was on the roof. The cited standard was violated.

The decedent worked from the rooftop, which was over 9 feet high, in the front of the 

house and the back of the house. He traversed the rooftop from the edge on which he accessed it 

from the bucket, to the front of the house and to the back of the house. He was trimming trees 

away from the roof, and thus had to approach the edge of the rooftop to reach those branches, all 

while not being protected from falling from the rooftop. Exposure has been established.

With regard to knowledge, Ms. Wright admitted that she did not provide fall protection to 

the decedent to use while he performed work on the rooftop. Ms. Wright also admitted that she 

knew that the decedent did not wear fall protection while he was working near the edge of the 

roof trimming trees. She also stated that she elevated the decedent to the roof with the aerial lift, 

knowing that he did not have fall protection to wear while being on the roof. The undersigned 

finds that this situation, like the aerial lift citation item, is analogous to the “classic situation” of 

the supervisor “looking on,” while the subordinate worked without fall protection; this time from 
25

a rooftop with a fall of more than 9 feet. Quinlan, 812 F.3d at 841 ; Phoenix Roofing, Inc., 17 

BNA OSHC at 1079 (awareness of violative conditions sufficient to establish knowledge 

element of violation). Actual knowledge of the violation of this standard is established. The 

violation is affirmed.

CO Roa applied the same characterization analysis as he did to Citation 1, Item 2. (Tr. at 

51-52.) The undersigned finds that a fall from a roof over 9 feet tall can result in serious bodily 

injury or death. The violation is affirmed as serious.

Citation 2, Item 1: The Alleged Reporting Violation

The Secretary cited Respondent for an alleged other-than-serious violation of 29 C.F.R. 

1904.39(a)(2), which provides in pertinent part:

Within twenty-four (24) hours after the in-patient hospitalization of one or more 

employees or an employee’s amputation or an employee’s loss of an eye, as a result 

of a work-related incident, you must report the inpatient hospitalization, 

amputation, or loss of an eye to OSHA. 

29 C.F.R. 1904.39(a)(2). CO Roa testified that “Wright Touch was cited because Wright Touch 

had never contacted the Agency within 24 hours, you know, of the accident, you know, 

informing us that there had been someone hospitalized – and employee hospitalized from the 

company.” (Tr. at 52-53); see also Yelvington Welding Serv., 6 BNA OSHC 2013, 2014 (No. 

15958, 1978) (explaining that the reason for the “reporting requirement is to provide the 

Secretary with prompt notification of serious accidents so that he can take timely action to avoid 

further injuries.”)

There is no dispute that the decedent was hospitalized, and that Respondent failed to 

notify OSHA within 24 hours of decedent’s hospitalization. The decedent never left the hospital, 

supporting a finding that he died as a result of his head injury. Based on the evidence in the 
26

record, the undersigned also finds that the decedent’s head injury was work-related. “An injury 

is work-related if an event or exposure in the work environment either caused or contributed to 

the resulting condition.” 29 C.F.R. § 1904.5(a). For an injury to be considered work-related, the 

Secretary must establish an “identifiable event” at the worksite that caused the employee’s 

injury. Home Depot #6512, 22 BNA OSHC 1863, 1864-1865 (No. 07-0359, 2009).

Here, Respondent was found at the worksite, face up, with blood coming from the back 

of his head. Ms. Wright stated that, in looking to determine what caused the injury, she noticed a 

rock under where the decedent’s head was on the ground. Mr. Davis suggested that the decedent 

fell while working from the bucket, stating “I think he was on the truck because he had to cut 

two tree limbs in the front. That’s after the truck had left out back and had gone to the front.” 

The police officer at the scene told the decedent’s wife that the decedent fell. The decedent’s 

injury was severe enough to have resulted in his hospitalization, from which he never recovered, 

and spurred the Miami County Police Department to notify OSHA. The record establishes that 

the decedent had been working on an aerial lift and from a rooftop without any fall protection. 

There is nothing in the record that suggests anything not work-related caused the decedent to hit 

his head. The record supports a finding that the decedent hit his head while performing workrelated tasks on the Miami residence worksite, and was therefore hospitalized as a result of a 

work-related incident. Applicability and non-compliance of the cited standard are established.

Regarding knowledge, the record shows that Ms. Wright was present with the decedent

when the emergency responders took the decedent away from the worksite. The record also 

establishes that Ms. Wright was directed to administer a towel to the decedent’s head in response 

to his bleeding. Ms. Wright also stated that she noticed a rock sticking up from out of the ground
27

under his head, supporting a finding that Ms. Wright suspected that the decedent’s head injury 

resulted from his work on the worksite. The incident occurred to the decedent, while he was on 

her worksite. Ms. Wright herself transported the decedent to this worksite. Actual knowledge 

for this citation item is established. Empire Roofing Co. Se., LLC, 25 BNA OSHC at 2222; 

Phoenix Roofing, Inc., 17 BNA OSHC at 1079. 

This citation item is affirmed. 

With regard to characterization, a violation is “other-than-serious” if the evidence in the 

record does not support a finding that failure to comply with the cited standard would likely 

result in death or serious physical harm. 29 U.S.C. § 666(k); Miniature Nut & Screw Corp., 17 

BNA OSHC 1557, 1559 (No. 93-2535, 1996). CO Roa explained that this citation item was 

characterized as “other-than-serious” because “it’s a regulatory citation. It’s there basically to, 

you know, prevent employees from not reporting, you know, the accident that happened at the 

job site.” (Tr. at 53.) The record supports a finding that this affirmed citation item is properly 

characterized as “other-than-serious.”

PENALTY

Section 17(j) of the Act requires the Commission to give due consideration to four 

criteria in assessing penalties: the size of the employer’s business, the gravity of the violation, 

the employer’s good faith, and its prior history of violations. Compass Envtl., Inc., 23 BNA 

OSHC 1132, 1137 (No. 06-1036, 2010) aff’d, 663 F.3d 1164 (10th Cir. 2011). The gravity of the

violation is generally accorded greater weight. J. A. Jones Constr. Co., 15 BNA OSHC 

2201, 2214 (No. 87-2059, 1993). 
28

Regarding Serious Citation 1, Item 2, the aerial lift violation, CO Roa testified that he 

assigned a “higher” severity to the penalty due to the consequences of a fall from 9 feet 8 inches 

(broken bones and/or death), but a “lesser” probability due to the “very short time period of 

approximately 30 minutes” of the decedent working during the violative condition. As a result, 

the violation was assigned a “moderate gravity” and the Secretary proposed a $8,990 penalty. 

(Tr. at 47.) The penalty was then adjusted to take into account the small size of the employer 

(70% deduction from the original penalty). (Tr. at 48.) No adjustments were made for good 

faith because Respondent had no safety program, oral or written. (Tr. at 48.) No adjustment was 

made for history, deduction or increase, because Respondent had not before been cited or 

inspected by OSHA. (Tr. at 48.) The resulting proposed penalty was $2,672. 

Regarding Serious Citation 1, Item 3, the roof violation, CO Roa arrived at the same 

proposed penalty as he did for Citation 1, Item 2, after adjusting for size: $ 2,672. (Tr. at 51-52.)

Regarding Other-Than-Serious Citation 2, Item 1, the reporting violation, CO Roa 

testified that severity, gravity and probability were not factored by OSHA in determining the 

proposed penalty of $5,000 because “it’s a flat penalty assessed by the Agency.” (Tr. at 53.) 

Like Citation 1, Items 2 and 3, OSHA adjusted the penalty due to small size of the employer, but 

did not adjust for good faith or history, for a final adjusted proposed penalty of $1,500. (Tr. at 

54.)

After consideration of the statutory factors with regard to the penalties for the affirmed 

violations, the undersigned agrees with the penalty amounts proposed by the Secretary for each 

citation item. The proposed penalty amounts are assessed for each affirmed citation item.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
29

All findings of fact and conclusions of law relevant and necessary to a determination of 

the contested issues have been made above. See Fed. R. Civ. P. 52(a). All proposed findings of 

fact and conclusions of law inconsistent with this decision are denied. 

ORDER

Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that:

1) Citation 1, Item 1 was withdrawn by the Secretary and is thus VACATED, 

2) Citation 1, Item 2, alleging a Serious violation of 29 C.F.R. § 1910.67(c)(2)(v), is 

AFFIRMED, and a penalty of $2,672 is ASSESSED,

3) Citation 1, Item 3, alleging a Serious violation of 29 C.F.R. § 1910.132(a), is 

AFFIRMED, and a penalty of $2,672 is ASSESSED,

4) Citation 2, Item 1, alleging an Other-Than-Serious violation of 29 C.F.R. 

§ 1904.39(a)(2), is AFFIRMED, and a penalty of $1,500 is ASSESSED.

SO ORDERED.

_/s/Covette Rooney____

COVETTE ROONEY

Chief Judge, OSHRC

DATE: February 1, 2018

Washington, D.C.