United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

 

OSHRC Docket No. 22-0360 and 22-0362 

(Consolidated)

 

Appearances:

Seema Nanda, Marc Pilotin, Joshua Falk, Julia Hayer, Department of Labor, Office of Solicitor,

San Francisco, CA,

For Complainant

Moises Tagle, Self-Represented Litigant,

1 Saipan, MP, Northern Marina Islands 

For Respondent

Before: First Judge Patrick Augustine – U. S. Administrative Law Judge

DECISION AND ORDER

I. PROCEDURAL BACKGROUND

On October 27 and 28, 2021, a Compliance Safety and Health Officer (CSHO) inspected 

two worksites (the Capitol Hill worksite and the COTA Building worksite) in Saipan, North 

Marina Islands, in accordance with a regional emphasis program focused on construction projects.

1 Although the Commission recognizes the difficulties a self-represented litigant may face when 

participating in the Commission’s proceedings, the Commission still requires the self-represented 

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

taking part. Sealtite Corp., No. 88-1431, 1991 WL 132733, at *4 (OSHRC, June 28, 1991). An 

unrepresented employer must “exercise reasonable diligence in the legal proceedings” and “must 

follow the rules and file responses to a judge’s orders, or suffer the consequences, which can 

include dismissal of the notice of contest.” Wentzell, No. 92-2696, 1993 WL 488210, at *3

(OSHRC, Nov. 19, 1993) (citations omitted).

SECRETARY OF LABOR, 

 

 Complainant,

 

 v. 

RJCL CORPORATION, d/b/a RNV 

CONSTRUCTION,

 

 Respondent.
2

As a result, the Occupational Safety and Health Administration (OSHA) issued two Citations and 

Notifications of Penalty to Respondent RJCL Corporation, d/b/a RNV Construction (RNV

Construction). The Citation for the Capitol Hill worksite (Capitol Hill Citation) alleges four serious 

violations and four other-than-serious violations, with a total proposed penalty of $26,106. The 

Citation for the COTA Building worksite (COTA Building Citation) alleges three serious 

violations and one other-than-serious violation, with a total proposed penalty of $18,648. RNV 

Construction timely contested the Citations, and the Office of Executive Secretary docketed these 

two inspections as separate cases: one for the Capitol Hill Citation (No. 22-3060) and another for 

the COTA Building Citation (No. 22-3062). 

The Chief Administrative Law Judge designated both matters for conventional 

proceedings, and the cases were consolidated on May 24, 2022. A trial was held on February 15-

17, 2023, in Saipan.

2 An interpreter certified in Tagalog was retained throughout the trial to ensure 

an accurate transcription of the testimony and the proceedings.3 The following individuals testified

at trial: (1) CSHO Pologa Setu; (2) Milo Naval, Site Superintendent for RNV Construction; and 

(3) Moises Tagle, Jr., Construction Manager for RNV Construction at the time of the inspections 

at issue. 

2 “[T]he Commission is responsible for the adjudicatory functions under the OSH Act,” StarTran, 

Inc. v. OSHRC, 290 F.App’x 656, 670 (5th Cir. 2008) (unpublished), and serves “as a neutral 

arbiter and determine whether the Secretary’s citations should be enforced over employee or union 

objections.” Cuyahoga Valley Ry. Co. v. United Transp. Union, 474 U.S. 3, 7 (1985) (per curiam). 

Thus, Congress vested the Commission with the “adjudicatory powers typically exercised by a 

court in the agency-review context.” Martin v. OSHRC, (CF&I Steel Corp.), 499 U.S. 144, 151 

(2012).

3 When dealing with persons with limited English proficiency (LEP), the Court follows its 

language access plan to ensure individuals with LEP have the same access to the Court as everyone 

else. This plan was developed and implemented in compliance with Executive Order 13166.
3

After the trial concluded, both parties timely filed post-trial briefs, which were considered 

by the Court in reaching its Decision.4 Pursuant to Commission Rule 90(a), after hearing and 

carefully considering all the evidence and the arguments of the parties, the Court issues this 

Decision and Order as its findings of fact and conclusions of law.

II. STIPULATIONS

The parties stipulated to many facts underlying these cases.

5 At trial, the Court discussed 

the joint stipulation statement and its impact with RNV Construction’s representative, who signed 

the joint stipulation statement in the Court’s presence. The stipulations were thereafter entered in 

the record. (Tr. 25). Accordingly, in the event testimony conflicts with the joint stipulations, the 

Court will generally assign greater weight to the joint stipulations. The Court shall incorporate by 

reference the joint stipulations and refer to them as necessary in this Decision. 

III. JURISDICTION

The Court finds the Commission has jurisdiction over these proceedings pursuant to 

section 10(c) of the Occupational Safety and Health Act of 1970 (OSH Act or Act), 29 U.S.C. 

§ 651, et. seq. by Respondent filing its Notice of Contest. See Atlas Roofing Co. v. Occupational 

Safety & Health Review Comm’n, 518 F.2d 990, 995 (5th Cir. 1975), aff’d, 430 U.S. 442 (1977) 

(describing “Enforcement Structure of OSHA”); see also Joel Yandell, 18 BNA OSHC 1623, 

1628 n.8 (No. 94-3080, 1999); 29 U.S.C. § 659(c).

4 Affirmative defenses not discussed in post-trial submissions are deemed waived. Ga.-Pac. Corp., 

15 BNA OSHC 1127, 1130 (No. 89-2713, 1991).

5 See Armstrong Utils. Inc., No. 18-0034, 2021 WL 4592200, at *2 n.2 (OSHRC, Sept. 24, 2021) 

(finding it was “plain error” to not accept parties’ stipulation); CF & T Available Concrete 

Pumping, Inc., 15 BNA OSHC 2196, 2199 (No. 90-329, 1993) (the Commission accepted the 

parties’ stipulation the alleged violation, if any, was serious).
4

The Court also finds at all times relevant to this proceeding, RNV Construction

was engaged in a business and industry affecting interstate commerce within the meaning of 

sections 3(3) and 3(5) of the Act, 29 U.S.C. § 652 (3) and (5), at both worksites. (J. Stip. 4). The 

Commission has consistently held that “[t]here is an interstate market in construction materials 

and services and therefore construction work affects interstate commerce.” Clarence M. Jones 

d/b/a Jones Co., No. 77-3676, 1983 WL 23870, at *2 (OSHRC, Apr. 27, 1983) (citing NLRB v. 

Int’l Union of Operating Eng’rs, Local 571, 317 F.2d 638, 643 n.5 (8th Cir. 1963) (judicial notice 

taken that construction industry affects interstate commerce). 

IV. ISSUES NEEDING RESOLUTION

RNV Construction does not dispute it was the sole contractor at the COTA Building 

worksite and its employees were present at that site. (J. Stip. 53, 60, 65-66). Thus, the Court 

concludes RNV Construction was the “employer” for purposes of the COTA Building Citation. 

However, RNV Construction argues it was not the employer at the Capitol Hill worksite. 

(Resp’t Answer, No. 22-0360, at 1). RNV Construction maintains that Mr. Villacrusis—owner of 

RNV Construction—was the employer and independently hired workers to perform work on his 

private residence. (Resp’t Post-Trial Br. at 3). The Secretary bears the burden to establish RNV 

Construction is an “employer” as it relates to the Capitol Hill worksite. The Hartford Roofing Co., 

No. 92-3855, 1995 WL 555498, at *3 (OSHRC, Sept. 15, 1995).

Since the Supreme Court issued its decision in Nationwide Mutual Insurance Company v. 

Darden, 503 U.S. 318 (1992), the Commission has consistently applied the common law agency 

doctrine set forth in that decision to employment relationship questions arising under the OSH Act. 

Freightcar Am., Inc., No. 18-0970, 2021 WL 2311871, at *2 (OSHRC, Mar. 3, 2021). The

common law agency doctrine set forth in Darden “focuses on ‘the hiring party’s right to control 
5

the manner and means by which the product is accomplished.’ ”All Star Realty Co., No. 12-1597, 

2014 WL 533165, at *2 (OSHRC, Feb. 3, 2014) (quoting Darden, 503 U.S. at 323). Factors 

relevant to that inquiry include:

...the skill required; 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 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 323–24. While no single factor is determinative, the primary focus is whether 

the putative employer controls the workers. Allstate Painting and Contracting Co., Inc., No. 97-

1631, 2005 WL 682104, at *2 (OSHRC, Mar. 15, 2005) (consolidated); S. Scrap Materials Co., 

No. 94-3393, 2011 WL 4634275, at * 16 (OSHRC, Sept. 28, 2011) (holding that in the context of 

the OSH Act, the control exercised over a worker is the “principal guidepost”).

The Court finds the following facts support its finding that RNV Construction was the 

employer at the Capitol Hill worksite. RNV Construction was a construction company engaged in 

the type of work taking place at the Capitol Hill worksite. (J. Stip. 4). RNV Construction furnished 

building materials for the Capitol Hill worksite from its warehouse. (J. Stip. 46; Tr. 300, 303). 

RNV Construction’s representative at trial testified workers at the Capitol Hill worksite were paid

through RNV company money. (Tr. 328-29). An RNV Construction project supervisor created the 

schedules at the Capitol Hill worksite, assigned workers to the Capitol Hill worksite, handled sick 

leave requests for the Capitol Hill worksite, and, on the day of the inspection, an RNV foreman 

was on-site directing the work being performed. (J. Stip. 43, 45; Tr. 299-301); (Tr. 64-65). Workers

at the Capitol Hill worksite had regular work hours with a one-hour lunch break. (J. Stip. 44). The

electricians working at the Capitol Hill worksite on October 27, 2021, were RNV Construction 
6

employees.6 (J. Stip. 39, 42). Moreover, workers at the Capitol Hill jobsite identified RNV 

Construction as their employer when interviewed by the CSHO. (Tr. 225; Ex. C-11, C-15). 

RNV Construction argues that Mr. Villacrusis was the employer at the jobsite, so OSHA 

cited the wrong entity. The Court also concludes RNV Construction and Mr. Villacrusis “may be 

deemed one” for purposes of liability under the alter ego doctrine. See United Enters., Inc. v. King, 

Nos. Civ.A.93-1174 & 94-046, 1995 WL 1943000, at *2 (N. Mar. I., Nov. 30, 1995) (evaluating

the alter ego theory under the common law of the Commonwealth of the Northern Marina Islands); 

see also Altor, Inc., No. 99-0958, 2011 WL 1682629, at *3 (OSHRC, Apr. 26, 2011) (applying the 

alter ego doctrine to cases arising out of the OSH Act using the state law within the relevant 

Circuit) aff’d, 498 F. App’x 145 (3d Cir. 2012) (as amended). Under the law of the Commonwealth 

of the North Marina Islands, the Court may consider the following factors to evaluate whether an 

owner and company are identical for purposes of liability:

1. Whether the individual is in a position of control or authority over the entity;

2. Whether the individual controls the entity’s actions without need to consult others;

3. Whether the individual uses the entity to shield himself from personal liability;

4. Whether the individual uses the business entity for his or her own financial benefit;

5. Whether the individual mingles his own affairs in the affairs of the business entity;

[and]

6. Whether the individual uses the business entity to assume his own debts, or the 

debts of another, or whether the individual uses his own funds to pay the business 

entity’s debts.

King, 1995 WL 1943000, at *2. The Court also considers whether the failure to observe corporate 

formalities renders the interest of the owner “so intertwined with those of the corporation that 

separate entities no longer exist.” Arman v. JN Saipan CNMI, LLC, No. 1:21-CV-00024, 2022 WL 

3156501, at *9 (N. Mar. I., Aug. 9, 2022).

6 The Court notes that Mr. Naval testified that workers at the Capitol Hill worksite were 

subcontractors and not employees of RNV Construction. (Tr. 301). This conflicts with the parties’

joint stipulations and the evidence as a whole. This testimony diminishes Mr. Naval’s credibility. 

Accordingly, the Court affords this testimony no weight.
7

Here, the record demonstrates Mr. Villacrusis had authority over the work performed by

RNV Construction, and he had supervisory authority over all RNV Construction employees. (J. 

Stip. 12). There is no indication in the record he needed to consult someone else when making 

decisions about the company. Mr. Villacrusis used the company’s resources—such as tools, 

equipment and manpower—for his personal benefit; namely, the renovation of his personal 

residence. (Tr. 300; J. Stip. 14, 46-47). He paid workers from RNV Construction coffers, thus comingling his finances with that of the company’s. (Tr. 328). Alternatively, under the alter ego 

doctrine, the Court concludes Mr. Villacrusis and RNV Construction may be deemed one for 

purposes of liability for violations cited by OSHA and RNV Construction deemed to be an 

employer.

After careful review and on the above basis, the Court finds the workers at the Capitol Hill

worksite were RNV Construction employees and RNV Construction was their employer. Although 

RNV Construction argues, and the CSHO admitted, there was no RNV Construction sign outside 

the Capitol Hill jobsite—a common feature of RNV Construction worksites—this fact alone does 

not change the Court’s findings that RNV Construction was in fact the employer at the Capitol

Hill worksite under the Darden factors and alternatively, the alter ego doctrine. (See Resp’t PostTrial Br. 1; Tr. 201).

RNV Construction’s also argues the Capitol Hill inspection was illegal. RNV raised a 

defense in RNV Construction’s Answer, namely: “We believe that the inspection was conducted 

in a manner contrary to the existing OSHA regulations.” (Resp’t Answer, No. 22-0360). RNV 

Construction did not raise this argument in its Post-Trial Brief. However, after reviewing the 

record, the Court assumes RNV Construction may be arguing the consent to inspect given by 
8

Ronald Acuyong7 was invalid. At trial, Mr. Tagle testified Mr. Acuyong was not an RNV 

Construction employee or foreman, which could support an argument he was not authorized to 

give consent. (Tr. 316). However, this testimony directly contradicts the joint stipulation, which 

explains Mr. Acuyong worked as lead man for RNV Construction with the duties to supervise and 

assign the work being performed. (J. Stip. 40). Given the contradiction between Mr. Tagle’s 

testimony and the stipulation, the Court gives greater weight to the stipulation than contradictory 

evidence. Mr. Acuyong is found to be a leadman/foreman of RNC Construction. Therefore, he had 

the authority to consent to the inspection, which he did. The Court also finds the consent valid. 

Alternatively, the Court rejects any argument concerning invalid consent as the argument was 

waived when RNV Construction did not raise that defense in its post-trial brief.

Finally, RNV Construction argues the inspection of the COTA Building worksite was also 

illegal because the CSHO did not present his credentials or conduct an opening conference with 

the employer’s representative. (See Resp’t Answer at 2, No. 22-0362). RNV Construction also 

argues the CSHO was not wearing personal protective equipment, such as a safety vest, during his 

inspection. (See Resp’t Post-Trial Br. 1). In essence, RNV Construction argues the CSHO failed 

to comply with section 8(a) of the OSH Act, so the inspection was unlawful, and the COTA 

Building Citation should be vacated. 

Generally, section 8(a) of the OSH Act authorizes CSHOs to enter, inspect, and investigate 

places of employment. 29 U.S.C. § 657(a). The Commission has held where an OSHA citation is 

not preceded by a lawfully conducted inspection, it must be vacated. Raymond Hendrix, No. 1228, 

1973 WL 3984, at *10 (OSHRCALJ, Apr. 2, 1973), aff’d on other grounds, 511 F.2d 1139 (9th 

7 The spelling of this individual’s name is inconsistent in the record. (Compare Tr. 65 and Sec’y 

Post-Trial Br. at 12 (“Acuyon”) with J. Stip. 40 (“Acuyong”). The Court will adopt the spelling 

provided in the joint stipulation.
9

Cir. 1975); see also Genesee Valley Indus. Packaging, No. 79-2452, 1980 WL 10112, at *2 

(OSHRCALJ, Mar. 5, 1980) (vacating an inspection conducted without consent). If an employer 

claims it did not consent to an inspection, the Commission has found that failure to object to a 

CSHO’s inspection may be characterized as consent. See Kropp Forge Co. v. Sec’y of Labor, 657 

F.2d 119, 122 (7th Cir. 1981) (“Since Kropp’s representatives were present at all times during 

those inspections and did not raise any objections when informed of the intended sampling, any 

Fourth Amendment objection to those surveys was waived.”); see also Lakeland Enters. of 

Rhinelander, Inc. v. Chao, 402 F.3d 739, 745 (7th Cir. 2005) (ALJ correctly held any Fourth 

Amendment objection was waived because “evidence indicates that . . .when [the inspector] 

identified himself as an OSHA compliance officer and announced the reason for his presence, 

Lakeland employees acquiesced and cooperated in the inspection.”). 

Here, RNV Construction’s argument the Secretary failed to comply with section 8(a) of 

the OSH Act because the compliance officer failed to present his credentials at the commencement 

of the inspection is without merit. The CSHO credibly testified he “did what we’re supposed to do 

as CSHO.” (Tr. 135). He found the foreman, showed his credentials, and explained the scope of 

the inspection. (Id.). The CSHO explained when he arrived at the COTA Building worksite and 

explained who he was, the employees brought over the person in charge of the site. (Tr. 140). An 

individual came over and identified himself as the foreman, explaining that he directed the work 

on the site. (Id.). The foreman then accompanied the CSHO while the CSHO conducted his 

inspection. (Id.). The CSHO testified he explained the scope of the inspection to the foreman 

during the opening conference, and Mr. Tagle arrived while he was finishing up his inspection. 

(Tr. 135). The foreman left after Mr. Tagle arrived. (Tr. 139). There is no evidence in the record 

that Mr. Tagle objected to the inspection or notified the CSHO the foreman was not authorized to 
10

consent to the inspection. And, even if RNV Construction were to present that argument, the Court 

finds it unlikely the work at the COTA Building worksite was taking place without anyone in 

charge. 

In addition, there is no evidence in the record the CSHO failed to wear proper equipment. 

Even if the CSHO was not wearing appropriate personal safety equipment, such would not 

invalidate the “consent” aspect necessary for an inspection to be proper. Accordingly, the Court 

concludes the CSHO was at the COTA Building worksite with the permission of persons who 

controlled the area and were capable of giving consent and the COTA Building inspection was 

valid. See Pullman Power Prods., Inc., No. 78-4989, 1980 WL 10641, at *3 (OSHRC, July 31, 

1980); see also Reg’l Scaffolding & Hoisting Co., Inc., No. 93-577, 1997 WL 111082, at *3

(OSHRC, Mar. 11, 1997) (“as soon as the compliance officer made a physical entry onto the 

worksite, he presented his credentials to Regional’s foreman and afforded Regional its right to 

accompany him on a walk-around inspection, which is all that section 8(e) requires”).

The Court notes even if RNV Construction could show there was a violation of section 

8(e), it would be unable to show it was prejudiced by the violation. An employer asserting an 

inspector failed to comply with inspection procedures must establish it was prejudiced by the 

violation. See GEM Indus., Inc., No. 93-1122, 1995 WL 242612, at *3 (OSHRC, Apr. 20, 1995). 

Specifically, “[t]he test to be applied in determining whether to grant relief to an employer because 

of the Secretary’s failure to meet the walkaround requirements of section 8(e) of the Act is whether 

the employer suffered prejudice in the preparation and presentation of its defense.” Pullman Power 

Prods., Inc., 1980 WL 10641, at *3. RNV Construction has not met its burden. It has not claimed 

its ability to defend against this case has been affected in any way by the CSHO’s inspection 

methods. In fact, RNV Construction stipulated to many observations made by the CSHO during 
11

his inspections and individuals who were present at the time. The Court cannot conclude RNV 

Construction may have been prejudiced such that the COTA Building Citation should be vacated. 

Accordingly, any alleged failure of the CSHO to adhere to section 8(e) of the OSH Act is not 

credible and does not establish grounds for dismissal of the COTA Building Citation.

V. BACKGROUND

Every year, OSHA regional offices identify certain kinds of worksites that pose a high 

hazard to employees and then conduct regional emphasis inspections at those types of worksites. 

(Tr. 205-06). Worksites in Saipan fall within OSHA’s Region 9, which identified construction 

work as a high hazard and included construction projects in its regional emphasis program. (Tr. 

205-06, 287). The regional office therefore identified active construction sites in Saipan and 

scheduled planned program inspections of those worksites. (Tr. 205-06). These consolidated cases 

concern inspections of two construction sites—the Capitol Hill worksite and the COTA Building 

worksite—and the Citations issued as a result.

A. The Capitol Hill Worksite Inspection

The Capitol Hill worksite inspection took place on October 27, 2021. (J. Stip. 13). The 

worksite was the personal residence of RNV Construction’s owner. (J. Stip. 14). Upon arrival at 

the worksite, the CSHO asked to speak with the foreman, and employees notified Ronald Acuyong, 

who introduced himself to the CSHO as the foreman for the project. (Tr. 64-65). The CSHO 

presented his credentials and conducted an opening conference, at which time he explained the 

scope of his inspection. (Tr. 65). The CSHO then invited the foreman to accompany him during 

the inspection. (Tr. 66).

From the outset, the CSHO noted this was a very unsafe jobsite, and he shared his concern 

with the foreman. (Tr. 66, 70). Outside, the CSHO saw a 25-foot scaffold located at the front of 
12

the building, and he observed workers climbing the scaffold’s cross-braces to access the scaffold 

and work on the roof. (J. Stip. 29-32). The scaffolding platforms were at least 15 feet above a point 

of access. (J. Stip. 48).

Inside, the CSHO entered the kitchen and observed a fluorescent light suspended from a 

metal wire attached to the kitchen ceiling. (J. Stip. 33; Tr. 124; Ex. C-29). Anthony Regaton (an 

electrician), the foreman, and another worker were working in the kitchen. (J. Stip. 34; Tr. 125). 

Then, in the hallway, the CSHO observed spliced wires being used to power a light. (J. Stip. 35). 

Mr. Regaton was also working in the hallway. (J. Stip. 36). In another hallway outside the laundry 

room, the CSHO observed a make-shift extension cord powering a chipping gun. (Tr. 128-29,132). 

The extension cord connected the chipping gun to the generator and was made up of two spliced 

wires connected by an electrical receptacle box lacking a protective cover. (J. Stip. 18, 19; Tr. 78, 

132). Florante Reyes, another electrician, was using the chipping gun, and other workers were in 

the area. (J. Stip. 20, 21, 42; Tr. 82). 

In the master bedroom, the CSHO observed a fluorescent light mounted to a pole in the 

center of the room. (J. Stip. 25). The fluorescent light lacked a protective cover and was being used 

for illumination while workers painted. (J. Stip. 25). The CSHO also observed two electrical 

receptacle boxes without protective covers in the master bedroom. (J. Stip. 22, 24). The first was

mounted on the light pole. (J. Stip. 24). The cord for the fluorescent light lacked a plug head, so 

the electrical wires were inserted directly into the electrical receptacle box. (J. Stip. 26). The 

second electrical receptacle box was on the floor being used as part of an extension cord that 

powered the fluorescent light. (J. Stip. 22; Ex. C-10). Mr. Regaton was working in the master 

bedroom, along with the foreman and two other workers, and some were using metal tools to 

plaster the walls. (J. Stip. 27; Tr. 99).
13

The CSHO took photographs during his inspection and discussed the various violations he 

observed with the foreman. (Tr. 71). The foreman explained he had requested certain tools—such 

as extension cords—from the front office but was told they were unable to provide those supplies. 

(J. Stip. 41; Tr. 97-98). The CSHO also conducted interviews with some of the workers at the 

Capitol Hill worksite. (Tr. 82, 86; Ex. C-11; Ex. C-15). He spoke with Mr. Reyes, who explained 

he had been working in the laundry room chipping through the cement to install a pipe through 

which electrical wire could run. (Tr. 82). He said the foreman had given the make-shift extension 

cord for him to use, and he noted that “[a] lot of people need more tools.” (Tr. 82; Ex. C-15).

The CSHO also interviewed Mr. Regaton, who noted the lack of tools, such as extension 

cords. (Ex. C-11). With the foreman’s approval, Mr. Regaton connected the fluorescent light’s 

cord directly into the electrical receptacle box in the master bedroom. (Tr. 86; Ex. C-11). Mr. 

Regaton recalled the foreman complaining the worksite lacked sufficient tools and had made a 

request to the office. (Ex. C-11).

The CSHO filled out the witness statement forms as he interviewed Mr. Reyes and Mr. 

Regaton. (Tr. 109-11). Then, both men signed their respective statements and, under their 

signatures, identified “RNV” as their employer. (Tr. 110, 112; Ex. C-11, C-15). The CSHO

testified no one had issues speaking English and they appeared to understand what he was saying. 

(Tr. 210; 215). No one at the Capitol Hill worksite asked for an interpreter, and no one was forced 

to sign the statements prepared by the CSHO. (Tr. 225).

B. COTA Building Inspection

On October 28, 2021, the same CSHO who conducted the Capitol Hill inspection

conducted an inspection of the COTA Building worksite, where RNV Construction was the sole 

construction contractor. (J. Stip. 51-53). When the CSHO arrived, he requested to speak with the 
14

foreman or person in charge. (Tr. 135). An individual walked over, identified himself as the 

foreman, and explained he was in charge of tasking workers with certain jobs.

8 (Tr. 140). The 

CSHO conducted an opening conference with the foreman, explaining the scope of the inspection. 

(Tr. 135). The foreman then accompanied the CSHO on the initial stages of the inspection. (Tr. 

183). The foreman also called Mr. Tagle to inform him of the inspection, and Mr. Tagle made his 

way to the worksite. (Tr. 310).

Construction at the COTA Building was taking place primarily in a large square hall. (Tr. 

135). Relevant to this Citation were two scaffolds located in that hall: one on the east side and one 

on the west side. (Tr. 135). The scaffold on the east side was a mobile scaffold and measured 15 

feet high. (J. Stip. 56). The CSHO observed an RNV Construction electrician—Crisosimo 

Hernandez—using the east scaffold’s cross braces to climb to the top and then connecting his 

harness to the railing as an anchor point. (Tr. 176; J. Stip. 57, 58; Ex. C-47). At the time of the 

inspection, Mr. Hernandez was conducting “light work” and running some wire. (Tr. 311; J. Stip. 

55). The CSHO’s testimony contradicts the written statement of Mr. Hernandez which indicated 

he climbed the side braces. (Ex. C-54).

The CSHO noted the east scaffold was not sufficiently planked because it only had a single 

plank with a two-foot gap on the backside. (Tr. 145). The CSHO testified the floor of the scaffold 

on which employees were working should have been completely covered with planking. (Tr. 144). 

The scaffold on the west side measured 11 feet high and was also a mobile scaffold. (J. 

Stip. 62). The CSHO observed three workers painting the wall while on the west scaffold, and they 

8 The CSHO did not recall or document the foreman’s name. (Tr. 139). He “disappeared” after Mr. 

Tagle arrived on site. (Tr. 139). This is not fatal to the Secretary’s case because Mr. Tagle had 

ample opportunity to object to the inspection when he arrived at the COTA Building worksite. He 

did not do so, nor did he so testify. Also, upon arrival at the COTA Building worksite, employees 

directed the CSHO to the individual who identified himself as the foreman. 
15

left the scaffold when they saw the CSHO. (J. Stip. 60; Tr. 252). One of those painters was Alvin 

Jimenez. (J. Stip. 63, 65). The CSHO also noted the west scaffold was not fully planked, creating 

gaps that could cause a worker to fall or trip. (Tr. 152-56; Ex. C-59). 

Mr. Tagle arrived at the worksite at the end of the CSHO’s walkaround with the foreman.

(Tr. 135, 310). The CSHO explained the violations concerning the east scaffold, and Mr. Tagle 

informed him the scaffold was not fully planked because “the electrician who is working at the 

time is only doing light work and that would be a quick job.” (Tr. 311). 

Then, the CSHO interviewed Mr. Hernandez and Mr. Jimenez. (Tr. 138, 158; Ex. C-54, C60). Mr. Hernandez explained the foreman asked him to climb the east scaffold to pull electrical 

wire. (Ex. C-54; Tr. 148). He said he was on the scaffold for about 20 minutes, and he climbed the 

side braces because there was no ladder. (Ex. C-54). The CSHO also interviewed Alvin Jimenez. 

(Tr. 257; Ex. C-60). Mr. Jimenez stated he had been on the west scaffold painting the wall with an 

airbrush. (Ex. C-48, C-60). He used personal protective equipment while on the west scaffold, 

including a mask and gloves. (Ex. C-60). He also explained there had been three workers painting 

the wall that day, and they had been on the west scaffold for about two hours. (Ex. C-60). The 

CSHO wrote the information given by both men on the statement form, and then they reviewed 

and signed it. (Tr. 148-149, 257). 

C. The Issuance of the OSHA Citations

After his inspections, the CSHO ultimately concluded RNV Construction committed four

serious and four other-than-serious violations at the Capitol Hill worksite. (Ex. C-4). He also 

concluded RNV Construction committed three serious and one other-than-serious violations at the 

COTA Building worksite. (Ex. C-41). Roger Forstner, the OSHA Area Director for Honolulu,

reviewed the files and approved the issuance of the Citations. (Tr. 75-76). The total proposed 
16

penalty for the Capitol Hill Citation was $26,106, and the total proposed penalty for the COTA 

Building Citation was $18,648.

9

VI. APPLICABLE LAW 

To establish the violation of a specification safety standard under the OSH Act, the 

Secretary must prove: (1) the cited standard applies;

10 (2) the employer failed to comply with the 

terms of that standard; (3) employees had access to the hazardous condition covered by the 

standard;

11 and (4) the employer knew, or with the exercise of reasonable diligence could have 

known, of the violative condition. Atl. Battery Co., No. 90-1747, 1994 WL 682922, at *6 

(OSHRC, Dec. 5, 1994).

12 For most specification standards the Secretary is not required to prove the 

9 The proposed penalty for other-than-serious Citation items at both worksites was $0.

10 Under Commission precedent, “the focus of the Secretary’s burden of proving the cited standard 

applies pertains to the cited conditions, not the particular cited employer.” Ryder Transp. Servs., 

24 BNA OSHC 2061, 2064 (No. 10-0551, 2014) (concluding “that the Secretary has failed to 

establish that the cited general industry standard applies to the working conditions here”).

11 The Commission’s longstanding “reasonably predictable” test for hazard exposure requires the 

Secretary to “show that it is reasonably predictable either by operational necessity or otherwise 

(including inadvertence), that employees have been, are, or will be in the zone of danger.” Delek 

Ref., Ltd., 25 BNA OSHC 1365, 1376 (No. 08-1386, 2015). The zone of danger is determined by 

the hazard presented by the violative condition and is normally that area surrounding the violative 

condition that presents the danger to employees which the standard is intended to prevent. RGM 

Construction, Co., 17 BNA OSHC at 1234; Gilles & Cotting, Inc., 3 BNA OSHC at 2003.

12 “The knowledge element can be shown in one of two ways.” Eller-Ito Stevedoring, 567 F. App’x 

801, 803 (11th Cir. 2014) (unpublished) (citing ComTran, 722 F.3d 1304, 1307 (11th Cir. 2013)). 

First, the Secretary may prove a supervisor had actual knowledge of the violation. Id. It is not 43e 

necessary to show the employer knew or understood the condition was hazardous. Phoenix 

Roofing, 17 BNA OSHC 1076, 1078 (No. 90-2148, 1995) (citations omitted). Second, the 

Secretary can establish a supervisor had constructive knowledge by proving “that the ‘employer . 

. . could have known with the exercise of reasonable diligence of the conditions constituting the 

violation.’ ” Contour Erection & Siding Sys., Inc., 22 BNA OSHC 1072, 1073, (No. 06-0792, 

2007) (citation omitted). Alternatively, the Secretary can show constructive knowledge based upon 

the employer’s failure to implement an adequate safety program, with the rationale being that—in 

the absence of such a program—the misconduct was reasonably foreseeable.” See New York State 

Elec. & Gas Corp., 88 F.3d 103, 105-06 (2d Cir. 1996) (citations omitted). Generally, “knowledge 

can be imputed to the cited employer through its supervisory employee.” Am. Eng’g & Dev. Corp., 
17

existence of a hazard each time a standard is enforced since, by the wording of the standard, the 

hazard is presumed. Greyhound Lines-West v. Marshall, 575 F.2d 759, 762 (9th Cir. 1978) 

(Secretary not required to prove violation related to walking and working surfaces constituted a 

hazard). The Secretary has the burden of establishing each element by a preponderance of the 

evidence. The Hartford Roofing Co., 1995 WL 555498, at *3. To avoid duplication when each 

Citation Item is analyzed, the Court will employ this legal framework for each Citation Item to 

determine if the Secretary has established her prima facie case. 

VII. DISCUSSION

A. Capitol Hill Citation

OSHA issued four serious Citation items and four other-than-serious Citation items for 

violations observed at the Capitol Hill worksite.

1. Citation 1, Item 1 (Capitol Hill)

OSHA cited RNV Construction for a serious violation of 29 C.F.R. § 1926.403(b)(2), a 

standard that regulates electrical conductors. The regulation provides, “Installation and use. Listed, 

labeled, or certified equipment shall be installed and used in accordance with instructions included 

in the listing, labeling, or certification.” 29 C.F.R. § 1926.403(b)(2). The Secretary described the 

violation as follows:

Listed, labeled[,] or certified equipment was not installed and used in accordance 

with instructions in the listing, labeling[,] or certification:

a. Outside the laundry room door: An electrical receptacle box designed to be 

installed on a wall was used on the end of an extension cord. Employees were 

exposed to fire and electrical hazards. 

23 BNA OSHC 2093, 2095 (No. 10-0359, 2012) (quoting Access Equip. Sys., 18 BNA OSHC 

1718, 1726 (No. 95-1449, 1999). However, as will be discussed in the narrative of the Decision, 

certain circuits require the Secretary to prove foreseeability before the knowledge of a supervisor 

engaging in the violative condition may be imputed to the employer.
18

b. Light pole in master bedroom: An electrical receptacle box designed to be 

installed on a wall was used on the end of an extension cord. Employees were 

exposed to fire and electrical hazards.

Capitol Hill Citation at 6 (Ex. C-4).

The cited standard is set forth in Part 1926, Subpart K of the regulations. This Subpart 

addresses electrical safety requirements necessary for the practical safeguarding of employees 

doing construction work which involves electrical work. The parties stipulated (J. Stip. B7), and

the Court concludes, the standard applied. Electrical receptable boxes were being used at the 

worksite, and § 1926.403(b)(2) regulates the installation and use of those boxes. 

The standard was violated. The CSHO testified to comply with the standard, the electrical 

receptacle box would need to be mounted on the wall. (Tr. 81). Specifically, the body of the box 

should have been installed in the wall, and the face of the box should be outside the wall and 

covered so employees could safely plug things into it. (Tr. 84). The Court finds the CSHO knew 

the requirements for the installation and use of electrical receptacle boxes by way of his education 

and experience. (Tr. 59-62); see Okland Constr. Co., No. 3395, 1976 WL 5934, at *2 (OSHRC, 

Feb. 20, 1976) (reasonable inferences can be drawn from circumstantial evidence). The record 

indicates the electrical receptacle boxes were not being used properly. Specifically, they were used 

as components to create an extension cord, and one of the electrical receptacle boxes was mounted 

to a make-shift light pole. (Ex. C-10, C-13). The foreman admitted they were misused because the 

worksite lacked extension cords. (Tr. 106).

Next, the Court concludes due to the misuse of the electrical receptacle boxes, RNV 

Construction employees were exposed to a hazard. The failure to properly install the electrical 

receptacle boxes exposed live electrical components that would normally be protected by a cover

and the wall. (Tr. 78). If an employee were to make contact with those live electrical components, 
19

he could be exposed to electrical hazards. (Tr. 84). The CSHO testified Mr. Reyes was using a

chipping gun that was directly connected to the improperly installed electrical receptacle box in 

the hallway, exposing him to a hazard while plugging or unplugging the gun. (Tr. 79; Ex. C-7, C8). Employees working in the master bedroom holding metal tools were in very close proximity to 

the electrical receptacle box mounted to the light pole in that room and could have foreseeably 

bumped into or touched the electrical receptacle box, exposing them to a hazard. (Tr. 84-85, 99; 

Ex. C-10). The proximity of the employees to the electrical hazard demonstrates they were within 

the zone of danger required under Commission precedent. The Secretary has established employee 

exposure to the hazard of exposed energized components in the electrical receptacle boxes.

The Court next turns to whether RNV Construction had actual or constructive knowledge 

of the violation. As previously set forth, generally, the knowledge of a supervisor or foreman can 

be imputed to the company. If the foreman himself is engaging in the cited misconduct, the 

Commission does not require the Secretary to establish foreseeability. Angel Bros. Enters., Ltd.,

No. 16-0940, 2020 WL 4514841, at *3 (OSHRC, July 28, 2020) aff’d, 18 F.4th 824 (5th Cir. 2021).

The Ninth Circuit, unlike other Circuit Courts of Appeal, has not ruled on the issue of whether the 

Secretary must establish whether a supervisor’s misconduct when the supervisor is engaging in 

the misconduct was foreseeable in order to impute knowledge to the employer. The Ninth Circuit 

has ruled consistent with the Commission’s holding that permits a supervisor’s knowledge to be 

imputed to the employer absent a finding of foreseeability. R. Williams Constr. Co. v. Occupational 

Safety & Health Review Comm’n, 464 F.3d 1060, 1064 (9th Cir. 2006) (finding knowledge where 

supervisor “had reason to know that its employees would enter the trench on the day of the cave-in and 

had actual knowledge that two of its employees entered the trench prior to the cave-in”) Thus, the 

Ninth Circuit and the Commission are consistent in the application of the law regarding imputation 

of supervisory knowledge to the employer. These collective holdings permit imputation of the 
20

foreman’s knowledge, even in the event of the foreman’s own misconduct, to the employer without 

the establishment of foreseeability. See Am. Eng’g & Dev. Corp., 23 BNA OSHC at 2095 n.4

(Commission “follow[s] [its] own precedent” where the circuit court “has neither decided nor 

directly addressed [an] issue”) (citation omitted).

The Court finds Respondent had actual as well as constructive knowledge which can be 

imputed to RNV Construction. The foreman was aware of the misused electrical receptacle boxes, 

in one instance going as far as to supply the electrician with the violative extension cord to power 

the electrician’s chipping gun due to lack of supplies. (Tr. 80). The foreman was also working in 

the master bedroom, where the violative electrical receptacle box was plainly visible. See Simplex 

Time Recorder Co. v. Sec’y of Labor, 766 F.2d 575, 589 (D.C. Cir. 1985) (holding where the 

alleged “violations [were] based on physical conditions and on practices . . . which were readily 

apparent to anyone who looked,” they “indisputably should have been known to management”).

Thus, the foreman had actual and constructive knowledge that can be imputed to RNV 

Construction. The Secretary established a violation of 29 C.F.R. § 1926.403(b)(2).

However, the Court finds the Secretary did not present sufficient evidence to prove her 

classification of this Citation Item as serious. A violation is serious under section 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.” Here, the CSHO testified any injury would not result in death or serious physical injury

(Tr. 88), and the Secretary has offered no evidence that contradicts the CSHO’s assessment. The 

evidence in this case does not show the violation would result in a substantial probability of death 

or serious physical harm, and thus the Court re-classifies and affirms this Citation Item as otherthan-serious.
21

Finally, as it relates to the assessment of the penalty for any violation of a standard, section 

17(j) of the Act requires the Commission to give “due consideration” to four criteria when 

assessing penalties: (1) the size of the employer’s business, (2) the gravity of the violation, (3) the 

good faith of the employer, and (4) the employer’s prior history of violations. 29 U.S.C. §666(j). 

Gravity is the primary consideration and is determined by the number of employees exposed, the 

duration of the exposure, the precautions taken against injury, and the likelihood of an actual 

injury. J. A. Jones Constr., No. 87-2059, 1993 WL 61950, at *15 (OSHRC, Feb. 19, 1993).

A penalty reduction is warranted based on the change in characterization as well as the 

consideration of the four factors identified by the Commission. The CSHO determined the gravity 

of the violation to be low. (Ex. C-6). He testified the severity was low because the most serious 

injury that could result is temporary illness not requiring hospitalization, and the probability was 

lesser because exposure was for a short and brief duration. (Tr. 88-89; Ex. C-6). The penalty was 

reduced due to the size of RNV Construction, which has 205 employees, but he did not give a 

good-faith or history reduction because there were too many hazards on the jobsite and RNV 

Construction has a history of past violations. (Tr. 90-91; Ex. C-6).

After giving due consideration to the gravity, severity, probability of the violation, the 

employer’s size, history of violations, and good faith (Tr. 88-89), the Court assesses a zero penalty

which is consistent with the recommended penalties of the other Items classified as other-thanserious having the same gravity, severity, and probability factors as this Item.

2. Citation 1, Item 2 (Capitol Hill)

Next, RNV Construction was cited for a serious violation of 29 C.F.R. § 1926.405(j)(1)(i), 

a standard regulating wiring methods for lighting fixtures and receptacles, which provides: 

Live parts. Fixtures, lampholders, lamps, rosettes, and receptacles shall have no live 

parts normally exposed to employee contact. However, rosettes and cleat-type 
22

lampholders and receptacles located at least 8 feet (2.44 m) above the floor may 

have exposed parts.

The Secretary described the violation as follows:

Fixtures, lampholders, lamps, rosettes, or receptacles had live parts normally 

exposed to employee contact:

a. Master bedroom floor: The receptacle box used to power the extension cord for 

the light was missing a cover, exposing employees to electrical hazards[; and]

b. Light pole in master bedroom: The receptacle box used to power the light was 

missing a cover, exposing employees to electrical hazards. 

Capitol Hill Citation at 7.

The cited standard is set forth in Part 1926, Subpart K of the regulations. This Subpart 

addresses electrical safety requirements necessary for the practical safeguarding of employees 

doing construction work which involves electrical work. The parties stipulated, (Jt. Stip. 25, 33) 

and the Court concludes, the standard applied because the Capitol Hill worksite used fluorescent 

lights which should not have exposed wires.

Before addressing whether the Secretary established the standard was violated, the Court 

finds Citation 1, Item 2, Instance (b) (receptacle box mounted on the light pole in master bedroom)

is duplicative of Citation 1, Item 1, Instance (b) (receptable box on the light pole in the master 

bedroom). Both Citation Instances involved the same receptacle box on the same light pole in the 

same room. Violations are considered duplicative “where the standards cited require the same 

abatement measures, or where abatement of one citation item will necessarily result in the 

abatement of the other item as well.” Rawson Contractors, Inc., No. 99-0018, 2003 WL 1889143, 

at *6 n.5 (OSHRC, Apr. 4, 2003). Here, the abatement of the receptacle box located on the light 

pole in the master bedroom is the same under Citation 1, Item 1, Instance (b) and Citation 1, Item 

2, Instance (b): The receptable box can either be removed or installed properly. The evidence 
23

supports a finding “The cords with junction boxes were removed” and no longer used at the 

worksite. (Ex. C-6 at 2; C-12 at 2); see Ne. Precast, LLC and Masonry Services, Inc., No. 13-1169,

2018 WL 1309480, at *6 (OSHRC, Feb. 28, 2018) (consolidated) (finding citation items 

duplicative because abatement for both items consisted of removing and relocating the power line)

aff’d, 773 F. App’x 70 (2d Cir. 2019) (unpublished). In addition, alternatively, if the receptacle 

box was properly installed as required under Citation 1, Item 1, Instance (b) then there would be 

no violation under Citation 1, Item 2, Instance (b) since the installation and use the receptacle box 

per manufacturer’s requirements required the receptable box to be placed in the wall with the use 

of face plates. (Tr. 84). Accordingly, the Court vacates Citation 1, Item 2, Instance (b) as being 

duplicative. 

Therefore, the Court will only consider whether the receptacle box on the master bedroom 

floor violated the cited standard and is not duplicative of Citation 1, Item 1. The electrical 

receptacle box on the master bedroom floor was not identified in Citation 1, Item 1. It was wholly 

separate from the electrical receptacle box mounted on the light pole, although it was connected 

as part of a makeshift extension cord. Even if the electrical receptacle box mounted on the light 

pole was properly mounted in the wall, it could still theoretically be improperly connected to the 

electrical receptacle box on the floor. Therefore, the receptacle box on the floor would require a 

different abatement method and is thus not duplicative of any of the instances cited in Citation 1, 

Item 1.

It is undisputed that a live electrical receptacle box on the floor of the master bedroom, 

which was designed for installation in the wall, was being used as part of an extension cord to 

power the light pole. (J. Stip. 23). This electrical receptacle box was missing a protective cover. 
24

(J. Stip. 24). An electrical receptacle box that is not properly installed in a wall exposes workers 

to energized electrical parts. (Tr. 78). The Secretary has established a violation of the standard.

The Secretary has established exposure to an electrical hazard. If an employee were to 

make contact with those live electrical components, he could be exposed to electrical hazards. (Tr. 

84). The foreman and other workers were working in the master bedroom, which is a small room,

so they were in close proximity to the electrical receptacle box on the floor. (Tr. 85). It is 

reasonably foreseeable that an employee would come into contact with or trip over the electrical 

receptacle box, exposing that employee to an electrical hazard. The employees were therefore 

located in the zone of danger while performing work. The Secretary has established employee 

exposure.

Lastly, the Secretary established actual and constructive knowledge. The foreman was 

working in the master bedroom and could see the unprotected electrical receptacle box on the floor. 

See Hamilton Fixture, No. 88-1720, 1993 WL 127949, at *18 (OSHRC, Apr. 20, 1993) (finding 

knowledge when “a physical condition or practice is ‘readily apparent to anyone who looked”) 

(citation omitted) aff’d, 28 F.3d 1213 (6th Cir. 1994). The foreman’s knowledge may be imputed 

to the employer. See discussion in Section VII(A)(1) on imputation of knowledge. The Secretary 

has established a violation of 29 C.F.R. § 1926.405(j)(1)(i).

The Secretary failed to establish that Citation 1, Item 2, Instance (a) should be classified as 

serious. See Pete Miller, Inc., No. 99-947, 2000 WL 1810060, at *3 (OSHRC, Dec. 8, 2000) (a

violation is serious under section 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.”). The CSHO found the gravity of the 

violation to be low. (Ex. C-12). He testified the severity was low because the most serious injury 

that would probably result was temporary with no hospitalization, and the probability was lesser 
25

because employees would not frequently come into contact with the receptacle box. (Tr. 99, 100). 

Based on the evidence, the Court finds the proper classification of this Citation item is other-thanserious.

A penalty reduction is therefore warranted based on the change in characterization. The 

Court incorporates it discussion of RNV Construction’s size, history and good faith as set forth in 

Citation 1, Item 1. After giving due consideration to the gravity, severity, probability of the 

violation, the employer’s size, history of violations, and good faith (Tr. 100-01), the Court assesses 

a zero penalty which is consistent with the recommended penalties of the other Items classified as 

other-than-serious having the same gravity, severity, and probability factors as this Item.

3. Citation 1, Item 3 (Capitol Hill)

The next Citation Item was a serious violation of 29 C.F.R. § 1926.405(j)(1)(iii), which 

requires portable lamps to be wired with a flexible cord and an attachment plug of the polarized or 

grounding type. The Secretary described the violation as follows:

Master bedroom: The plug was missing from the cord used to power the light and 

the electrical connection was accomplished by inserting the wires into the 

receptacle. Employees were exposed to electrical hazards. 

Capitol Hill Citation at 8.

Based on the record, the Court concludes the standard applies. The cited standard is set 

forth in Part 1926, Subpart K of the regulations. This Subpart addresses electrical safety 

requirements necessary for the practical safeguarding of employees doing construction work which 

involves electrical work. The parties stipulated (J. Stip. B9), and the Court concludes, the standard 

applied. The cited regulation applies to portable lamps and the regulation sets forth the 

requirements the flexible cord must meet along with any attachment.
26

The CSHO observed a light in the master bedroom being powered by wires inserted 

directly into the electrical receptacle box because the plug head was missing. (J. Stip. 26; Ex. C17). Mr. Regaton was working in the master bedroom and explained he had to connect the light 

directly to the outlet because the cord had no plug. (J. Stip. 27; Ex. C-11). The master bedroom 

was small, and the light was in the middle of the room, so the men were in close proximity to the

electrical hazard while performing the work. (Tr. 85). Employees were also exposed to a hazard 

every time they had to insert the wires into the outlet or remove them because it could create sparks 

or arc flashes. The Court finds employees were within the zone of danger of the hazard. (Tr. 105)

The Secretary has established the standard was violated and there was employee exposure to the 

electrical hazard. 

RNV Construction had actual knowledge since the foreman was working in the master 

bedroom and explained they had to power the light in this way due to lack of supplies and 

equipment at the worksite. (Tr. 85; 106). The foreman’s knowledge can be imputed to RNV 

Construction under the analysis set forth in Section VII (A)(1). The Secretary has established a 

violation of 29 C.F.R. § 1926.405(j)(1)(iii).

However, the Secretary again failed to establish the classification of the violation as 

serious. See Pete Miller, 2000 WL 1810060, at *3 (a violation is serious under section 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.”). Here, the CSHO found the gravity of the violation to be low. (Ex. C-16). He noted 

the severity was low because the most serious injury or illness that could reasonably be expected 

to occur would be temporary and not require hospitalization, and exposure would be of short 

duration (Ex. C-16; Tr. 106-07). Accordingly, the Court affirms Citation 1, Item 3, but reclassifies 

the Item to other-than-serious. 
27

Taking into account the size of the employer’s business, gravity of the violation, good faith, 

and prior history of violations which are discussed in Section VII(A)(1), and which are applicable 

here, the Court assesses a zero penalty which is consistent with the recommended penalties of the 

other Items classified as other-than-serious having the same gravity, severity and probability 

factors as this Item. (Tr. 107).

4. Citation 1, Item 4 (Capitol Hill)

Next, RNV was cited for a serious violation of 29 C.F.R. § 1926.451(e)(1), which provides:

When scaffold platforms are more than 2 feet (0.6 m) above or below a point of 

access, portable ladders, hook-on ladders, attachable ladders, stair towers (scaffold 

stairways/towers), stairway-type ladders (such as ladder stands), ramps, walkways, 

integral prefabricated scaffold access, or direct access from another scaffold, 

structure, personnel hoist, or similar surface shall be used. Cross braces shall not 

be used as a means of access.

The Secretary described the violation as follows:

Front of building: Employees climbed the scaffolding braces to access the 

scaffolding work on the roof. Employees were exposed to fall hazards.

Capitol Hill Citation at 9.

The cited regulation is set forth in Part 1926, Subpart L governing scaffolds. This Subpart 

applies to all scaffolds used in construction workplaces covered by the regulation. It does not apply 

to cranes or derrick suspended personnel platforms nor to aerial lifts. The Court finds the standard 

applies and is supported by the stipulation of the parties. The Capitol Hill worksite used scaffolding 

at the front of the building that had platforms more than 2 feet above the point of access. (J. Stip. 

28, 29). 

The standard was violated. The CSHO observed employees climbing the scaffolding cross 

braces to perform work on the roof because it lacked a ladder or other means of access. (J. Stip. 

30; Ex. C-18 at 3; Tr. 114).
28

The CSHO interviewed a worker, who explained that climbing the braces was the only 

means of climbing the scaffold. (Tr. 117). This means of access not only exposed workers to a fall 

hazard but placed them in the zone of danger. A worker could slip or miss a cross brace, resulting 

in a fall up to 25 feet. (Tr. 118). In addition to the Secretary establishing employee exposure to the 

hazard, these facts also support the finding the standard was violated.

Lastly, the Secretary established actual as well as constructive knowledge. The foreman 

admitted the scaffold had been in its then-existing condition for “some time.” See Phoenix Roofing, 

Inc., No. 90-2148, 1995 WL 82313, at *3 (OSHRC, Feb. 24, 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). Moreover, the lack of a ladder or other means of 

access was open and obvious. See Hamilton Fixture, 1993 WL 127949, at *18 (finding 

constructive knowledge when “a physical condition or practice is ‘readily apparent to anyone who 

looked’ ”) (citations omitted). The foreman’s knowledge can be imputed to RNV Construction 

under the analysis set forth in Section VII (A)(1). The Secretary has established a violation of 29 

C.F.R. § 1926.451(e)(1),

The Secretary properly characterized the violation as serious. See Pete Miller, 2000 WL 

1810060, at *3 (a violation is serious under section 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.”). Although the 

duration of exposure was short, a fall from the scaffold could lead to serious injury or death. (Tr. 

119). The Court affirms Citation 1, Item 4 as a serious citation. 

In making his penalty assessment, the CSHO found the gravity of the violation to be 

moderate. (Ex. C-18). The duration of exposure was short, so the probability was lesser. (Tr. 119). 

However, the severity was high because a worker could fall 25 feet to his death. (Tr. 119). Taking 
29

into account these gravity, severity, and probability ratings and the size of the employer’s business, 

good faith, and prior history of violations, which are discussed in Section VII(A)(1), and which 

are applicable here, the Court assesses a penalty of $9,324.

5. Citation 2, Item 1 (Capitol Hill)

RNV Construction in Citation 2, Item 1 was cited for an other-than-serious violation of 29 

C.F.R. § 1926.405(a)(2)(ii)(E), which requires that “[a]ll lamps for general illumination shall be 

protected from accidental contact of breakage.” The Secretary described the violation as: “Master 

bedroom: The fluorescent light used for illumination during painting was not protected from 

breakage, exposing employees to laceration hazards.” Capitol Hill Citation at 10. The Secretary 

proposed a zero penalty.

The cited standard is set forth in Part 1926, Subpart K of the regulations. This Subpart 

addresses electrical safety requirements necessary for the practical safeguarding of employees 

doing construction work which involves electrical work. The parties stipulated (J. Stip. 25; Ex. B10), and the Court concludes, the standard applied. The cited standard applied to lights being used 

at the Capitol Hill worksite. 

The standard was violated in addition to finding there was employee exposure. The CSHO 

observed a fluorescent light without a cover mounted on a pole in the master bedroom. (J. Stip. 

25; Tr. 122). The light was standing in the middle of the small master bedroom, and the foreman 

and Mr. Regaton maneuvered around it while using tools to plaster the walls. (Tr. 122). This 

establishes the employees were within the zone of danger and exposed to a laceration hazard, as 

these employees could hit the light and break it while executing their work. (Tr. 122). 

Actual knowledge has been established. The foreman admitted to the CSHO he was aware 

of the condition of the light. (Tr. 123). The foreman’s awareness regarding the violation can be 
30

imputed to RNV Construction under the analysis set forth in Section VII (A)(1). The Secretary has 

established a violation of 29 C.F.R. § 1926.405(a)(2)(ii)(E).

The CSHO noted the severity of the violation was minimal because any injury would be 

temporary and require only minor supportive treatment. (Ex. C-25). In addition, the CSHO 

determined the probability was lesser due to the short period of exposure. Taking into account 

these factors, and the size of the employer’s business, good faith, and prior history of violations

which are discussed in Section VII(A)(1) and which are applicable here, the Court finds the 

Secretary has properly classified Citation 2, Item 1 as an other-than serious citation and assesses a 

zero penalty. 

6. Citation 2, Item 2 (Capitol Hill)

In Citation 2, Item 2 RNV Construction was cited with another other-than-serious 

violation, this time of 29 C.F.R. § 1926.405(a)(2)(ii)(F). The cited standard provides: “[t]emporary 

lights shall not be suspended by their electric cords unless cords and lights are designed for this 

means of suspension.” 29 C.F.R. § 1926.405(a)(2)(ii)(F). The Secretary described the violation as: 

“Kitchen ceiling: The temporary lighting string was suspended overhead from the electrical cord 

by metal wire. Employees were exposed to electrical hazards.” Capitol Hill Citation at 11. The 

Secretary proposed a zero penalty.

The Court concludes the cited standard applied. The cited standard is set forth in Part 1926, 

Subpart K of the regulations. This Subpart addresses electrical safety requirements necessary for 

the practical safeguarding of employees doing construction work which involves electrical work. 

The parties stipulated (J. Stip. B11), and the Court concludes, the standard applied. The cited 

standard applied to lights being used at the Capitol Hill worksite.
31

The standard was violated. Temporary lights were present at the Capitol Hill worksite, and, 

while walking through the kitchen, the CSHO observed a temporary light suspended from the 

ceiling with only the support of a metal wire (J. Stip. 33; Ex. C-29; Tr. 123-24). The temporary 

light was not designed to be installed and used in this manner. (Tr. 124).

In addition, the Secretary established employees were in the zone of danger and were 

exposed to the hazards. It is undisputed the foreman, Mr. Regaton, and another employee were

working in the kitchen. (J. Stip. 34; Tr. 125). Work was taking place all around the kitchen, 

bringing workers into close proximity with the light. (Tr. 125). The CSHO testified the light could

have fallen, breaking the bulb and exposing workers to laceration hazards. (Tr. 124-25). He also 

testified the wire to the light itself could have been damaged, exposing workers to electrocution 

and shock hazards. (Tr. 123-24).

Lastly, the Secretary established actual knowledge. The foreman was aware of the 

condition of the light since he was working in the kitchen, and he explained that the electrician 

had to rig the light in this way so they could do the work in the kitchen. (Tr. 125-26). The foreman’s 

awareness regarding the violation can be imputed to RNV Construction under the analysis set forth 

in Section VII (A)(1). The Secretary has established a violation of 29 C.F.R. 

§ 1926.405(a)(2)(ii)(F).

The CSHO listed the severity and gravity of the violation as minimal because any injury 

would not cause death or serious physical harm. (Ex. C-28). He noted the probability was lesser 

because exposure to the hazard was of short duration. (Ex. C-28). Thus, taking into account these

ratings and the size of the employer’s business, good faith, and prior history of violations, which 

are discussed in Section VII(A)(1) and which are applicable here, the Court finds the Secretary has 

properly classified Citation 2, Item 2 as an other-than serious citation and assesses a zero penalty.
32

7. Citation 2, Item 3 (Capitol Hill project)

Citation 2, Item 3 identifies a violation of 29 C.F.R. § 1926.405(g)(2)(iii), which requires 

that “[f]lexible cords shall be used only in continuous lengths without splice or tap.” The Secretary 

described the violation as follows:

a. Outside the laundry room: Wires were spliced and used as extension cord to 

power a chipping gun, exposing employees to fire and electrical hazards.

b. Middle of hallway: Spliced wires were used to power a light, exposing employees 

to fire and electrical hazards.

Capitol Hill Citation at 12. The Secretary proposed a zero penalty. 

The cited standard is set forth in Part 1926, Subpart K of the regulations. This Subpart 

addresses electrical safety requirements necessary for the practical safeguarding of employees 

doing construction work which involves electrical work. The parties stipulated (Jt. Stip. B12), and 

the Court concludes, the standard applied. Flexible extension cords to power equipment were used 

at the Capitol Hill worksite. (Tr. 126). 

The standard was violated in two specific instances, both located in the same high-traffic 

hallway. In the first, the CSHO observed the power cord to the chipping gun was spliced13 and 

covered with electrical tape. (Tr. 127; Ex. C-31). In the second, the CSHO observed a spliced wire 

hanging on the side of a hallway. (Tr. 129). The CSHO explained these spliced wires posed an 

electrocution and shock hazard if an employee came into contact with a live wire or if water came

into contact with the wire. (Tr. 127-28; 130). 

The spliced wires were in a high-traffic hallway, and Mr. Reyes was working primarily in 

this area. (Tr. 128). Other employees passed through the area and were exposed to the hazard posed 

by the spliced wires. The Secretary has established employee exposure. 

13 A wire is “spliced” when a wire is cut and then connected again and taped. (Tr. 127).
33

Lastly, RNV Construction possessed the requisite knowledge. When the CSHO noted the 

spliced cord during his inspection, the foreman admitted he took one spliced wire from Mr. Reyes 

and gave him the other spliced wire to power the chipping gun. (Tr. 130). Both spliced wires ended 

up being used in the high traffic hallway, and the foreman handled both. (Tr. 130). Actual 

knowledge is established. The foreman’s awareness regarding the violation can be imputed to 

RNV Construction under the analysis set forth in Section VII (A)(1). The Secretary has established 

a violation of 29 C.F.R. § 1926.405(g)(2)(iii).

The CSHO testified the severity and gravity of the violation was minimal because any 

injury that might occur would not cause death or serious physical harm. (Tr. 130; Ex. C-30). The 

CSHO noted on the violation worksheet that the short period of duration resulted in a probability 

rating of lesser. (Ex. C-30). Taking into account these ratings and the size of the employer’s 

business, good faith, and prior history of violations, which are discussed in Section VII(A)(1) and 

which are applicable here, the Court finds the Secretary has properly classified Citation 2, Item 3 

as an other-than serious citation and assesses a zero penalty. 

8. Citation 2, Item 4 (Capitol Hill project)

The final citation item issued on the Capitol Hill project identified a violation of 29 C.F.R. 

§ 1926.405(g)(2)(iv), which requires that “[f]lexible cords shall be connected to devices and 

fittings so that strain relief is provided which will prevent pull from being directly transmitted to 

joints or terminal screws.” The Secretary described the violation as: “Generator outside the laundry 

room: The outer insulation to the cord used to provide power to the lights was pulled from the 

plug, exposing employees to electrical hazards.” Capitol Hill Citation at 13. The Secretary 

proposed a zero penalty. 
34

The cited standard is set forth in Part 1926, Subpart K of the regulations. This Subpart 

addresses electrical safety requirements necessary for the practical safeguarding of employees 

doing construction work which involves electrical work. The parties stipulated (Jt. Stip. B13), and 

the Court concludes, the standard applied. The record establishes the Capitol Hill project used 

flexible cords at the worksite. (Tr. 127; Ex. C-31). 

The standard was violated. During his inspection, the CSHO observed an extension cord

plugged into the generator that caused him concern. (Tr. 131-33). The extension cord was 

connecting the generator to the chipping gun, and its outer insulation was pulled back from the 

plug. (Tr. 132-33; Ex. C-35 at 2). Pulling on the extension cord could damage the interior wire’s 

insulation, exposing live wires, in violation of the cited standard. (Tr. 132; Ex. C-35 at 2).

Employees were exposed to an electrical hazard because if they were to pull on the 

extension cord while using it, they would uncover live wires that then posed an electrocution or 

shock hazard. (Tr. 132). The CSHO observed a worker using a chipping gun connected to the 

extension cord, and that worker would likely come into contact with the live wires when 

unplugging the extension cord. (Tr. 133).

The Secretary also established actual knowledge. The foreman himself handled the

violative extension cord and allowed Mr. Reyes to use it. (Id.). The foreman’s awareness regarding 

the violation can be imputed to RNV Construction under the analysis set forth in Section VII 

(A)(1). The Secretary has established a violation of 29 C.F.R. § 1926.405(g)(2)(iv). 

The CSHO determined the gravity and severity of the violation to be minimal because any 

injuries sustained would be minor. (Tr. 134; Ex. C-35). The CSHO noted the probability as lesser 

due to the short period of exposure. (Ex. C-35 at 2). Taking these ratings and the size of the 

employer’s business, good faith, and prior history of violations, which are discussed in Section 
35

VII(A)(1) and which are applicable here, the Court finds the Secretary has properly classified 

Citation 2, Item 4 as an other-than serious citation and assesses a zero penalty. 

B. COTA Building Citation

The day after the CSHO completed his inspection of the Capitol Hill worksite, he 

conducted an inspection of another RNV Construction worksite located at the COTA Building. 

The CSHO ultimately issued four Citation items. 

1. Citation 1, Item 1a (COTA Building)

The CSHO identified two violations of 29 C.F.R. § 1926.451(b)(1) at the COTA Building 

worksite. This scaffold platform construction standard, which is the focus of Citation 1, Item 1(a),

requires “[e]ach platform on all working levels of scaffolds shall be fully planked or decked 

between the front uprights and the guardrail supports.” 29 C.F.R. § 1926.451(b)(1). The standard 

then sets out more specifically that:

Each platform unit (e.g., scaffold plank, fabricated plank, fabricated deck, or 

fabricated platform) shall be installed so that the space between adjacent units and 

the space between the platform and the uprights is no more than 1 inch (2.5 cm) 

wide, except where the employer can demonstrate that a wider space is necessary 

(for example, to fit around uprights when side brackets are used to extend the width 

of the platform).

29 C.F.R. § 1926.451(b)(1)(i). The standard also provides that where the employer establishes 

proper planking, the remaining open space between the platform and the uprights shall not exceed 

9 1⁄2 inches. 29 C.F.R. § 1926.451(b)(1)(ii). 

The Secretary described the violations as follows:

29 CFR 1926.451(b)(1): Each platform on all working levels of scaffolds was not 

fully planked or decked between the front uprights and the guardrail supports as 

specified in paragraphs 1926.451(b)(1)(i)-(ii) 

a. East scaffolding: An Employee was pulling electrical wire while standing on 

mobile scaffolding that was not fully decked, and was exposed to fall hazards. 
36

b. West scaffolding: Employees were painting the wall from a scaffolding that was 

not fully decked, and were exposed to fall hazards.

COTA Building Citation at 6. The violations were grouped for penalty purposes because they 

involved similar or related hazards. Id.

The cited regulation is set forth in Part 1926, Subpart L governing scaffolds. This Subpart 

applies to all scaffolds used in construction workplaces covered by the regulation. It does not apply 

to cranes or derrick suspended personnel platforms nor to aerial lifts. The Court finds the standard 

applied because the COTA Building jobsite used scaffolding, and that finding is supported by the 

stipulation of the parties. (J. Stip. 55-63). 

The CSHO testified he observed employees working on scaffolding platforms—referred 

to as the east scaffold and the west scaffold—that were not fully planked. (Tr. 144-45; Ex. C-44, 

CC-45, C-57). RNV Construction does not offer any evidence the scaffolds were properly planked. 

Thus, the standard was violated.

With regard to employee exposure to a hazard on the west and east scaffold, which also 

supports the finding of the standard being violated, the CSHO observed Mr. Hernandez standing 

on a single plank on the east scaffold performing work. (Tr. 145; 148). The foreman had directed 

Mr. Hernandez to pull wires for lighting. (Tr. 148; Ex. C-54). The east scaffold was 15 feet high, 

and there were “big fall-off area[s]” to Mr. Hernadez’s left and right sides, as well as behind him. 

(J. Stip. 56; Tr. 145, 147; Ex. C-44, C-45). An employee standing on the inadequate planking was 

in the zone of danger and could fall, resulting in injury. The Secretary established employee 

exposure to a hazard with regard to the east scaffold. 

As for the west scaffold, the CSHO testified he observed three employees, including Mr. 

Jiminez, painting while standing on the west scaffold. (Tr. 152). RNV Construction contends that 

“there is no worker on the scaffold” because it was “[in] the state of demolition.” (Resp’t Post-
37

Trial Br. 2). At trial, Mr. Tagle testified the bottom of the scaffold was already dismantled. (Tr. 

307). However, RNV Construction stipulated workers were on the west scaffold doing work. (J. 

Stip. 61, 63). The CSHO testified he saw no evidence the scaffold was being dismantled and no 

one told him the scaffold was being dismantled. (Tr. 292-93). The CSHO’s testimony, which is in 

accord with the stipulated facts, is more credible than the contradictory testimony provided by Mr. 

Tagle. The Court concludes workers were standing on the west scaffold, which was 11 feet high,

on planks that did not fully cover all the crossbeams and left gaps large enough that a person could 

fall or trip. (Tr. 153, 155-56; J. Stip. 62; Ex. C-59). The Secretary established employee exposure 

to a hazard with regard to the west scaffold.

The Secretary established actual and constructive knowledge regarding the condition of 

both scaffolds. The foreman could plainly see the inadequate planking on both east and west 

scaffolds. (Tr. 161). He directed workers to use the scaffolds for various tasks. (Tr. 161). Moreover, 

Mr. Tagle admitted that even though the east scaffold was not fully planked, it was fine because 

the electrician was performing a quick job. (Tr. 311). The foreman—and Mr. Tagle—knew or 

could have known with the exercise of reasonable care about the violative condition. The 

foreman’s knowledge regarding the violation can be imputed to RNV Construction under the 

analysis set forth in Section VII (A)(1). The Secretary has established a violation of 29 C.F.R.

§ 1926.451(b)(1)(i) and 29 C.F.R. § 1926.451(b)(1)(ii). 

The Court affirms Citation 1, Item 1a as a serious violation because a fall from 11 to 15 

feet could result in death or serious physical harm. 29 U.S.C. § 666(k). The CSHO testified an 

employee could die or sustain very serious injuries from such heights (Tr. 161), and the Court 

agrees.
38

The Secretary proposed a penalty of $9,324.00. The CSHO concluded the gravity of the 

violation was moderate. (Ex. C-43). He testified the severity was high due to the severity of 

potential injury that could occur. (Tr. 161-62). He rated the probability as lesser. (Tr. 162; Ex. C43). Specifically, he testified there was only one employee on the east scaffold, and he was 

stationary. (Tr. 162). On the west scaffold, the CSHO explained that although there was a missing 

plank, there was still a guardrail, which could provide a worker with additional stability. (Tr. 162). 

Taking into account the gravity, severity and probability ratings discussed above and the 

size of the employer’s business, good faith, and prior history of violations, which are discussed in 

Section VII(A)(1), and which are applicable here, the Court assesses a penalty of $9,324.

2. Citation 1, Item 1b (COTA Building)

Next, the CSHO cited RNV Construction for a violation of 29 C.F.R. § 1926.502(d)(15), 

which requires: 

Anchorages used for attachment of personal fall arrest equipment shall be 

independent of any anchorage being used to support or suspend platforms and 

capable of supporting at least 5,000 pounds (22.2 kn) per employee attached, or 

shall be designed, installed, and used as follows:

(i) as part of a complete personal fall arrest system which maintains a safety 

factor of at least two; and

(ii) under the supervision of a qualified person.

The Secretary described the violation as follows: “East scaffolding: The mobile scaffolding 

railing was used as an anchor point for a personal fall arrest system. Employee was exposed for 

fall hazards.” COTA Building Citation at 7.

The cited regulation is set forth in Part 1926, Subpart L governing scaffolds. This Subpart 

applies to all scaffolds used in construction workplaces covered by the regulation. It does not apply 

to cranes or derrick suspended personnel platforms nor to aerial lifts. The CSHO observed Mr. 
39

Hernandez standing on the east scaffold on which the railing was used as an anchor point for a 

personal fall arrest system. (J. Stip. 57; Tr. 169; Ex. C-47). The Court finds the standard applies.

However, the Secretary has not established the standard was violated. Mr. Hernandez was 

using the top rail of the east scaffold as an anchor. (Tr. 169; Ex. C-47). The CSHO testified the top 

rail did not meet the cited standard, which requires anchor points for personal fall arrest systems 

to support 5,000 pounds. (Tr. 170). He stated that in the event of failure, the employee could fall 

and be seriously injured. (Tr. 170). The CSHO offered no explanation to support his conclusion 

the rail or anchorage point could not support 5,000 pounds. The 5,000-pound threshold is a specific 

requirement of the standard. Therefore, since the Secretary bears the burden of proof, she must 

affirmatively establish the scaffold rail was not able to withstand 5,000 pounds. More evidence 

than the CSHO’s opinion is needed for the Secretary to meet her burden of proof on this matter. 

The CSHO testified the scaffold should have had rails on all four sides of the platform, negating 

the need for using the rail as an anchor point. (Tr. 170-71; Tr. 273). However, this is not relevant 

to the question of the rail’s ability to serve as an anchor or withstand 5,000 pounds. After reviewing

the record, the Court concludes the Secretary has not met her burden on this Citation Item. See 

Caterpillar Tractor Co., No. 80-4061, 1986 WL 53446, at *3 (OSHRC, Apr. 16, 1986) 

(“Normally, where the record in a case lacks sufficient evidence on a disputed issue, we would 

resolve that issue against the party having the burden of proof.”). Citation 1, Item 1b is therefore 

vacated.

3. Citation 1, Item 2 (COTA Building)

The CSHO also cited RNV for a violation of 29 C.F.R. § 1926.451(e)(1), which applies to 

“scaffold access for all employees” and requires: 

When scaffold platforms are more than 2 feet (0.6 m) above or below a point of 

access, portable ladders, hook-on ladders, attachable ladders, stair towers (scaffold 
40

stairways/towers), stairway-type ladders (such as ladder stands), ramps, walkways, 

integral prefabricated scaffold access, or direct access from another scaffold, 

structure, personnel hoist, or similar surface shall be used. Cross braces shall not 

be used as a means of access.

The Secretary described the violation as follows: “East scaffolding: The scaffolding braces 

were used to access the top of the mobile scaffolding to pull electrical wire. Employee was exposed 

to fall hazards.” COTA Building Citation at 8.

The cited regulation is set forth in Part 1926, Subpart L governing scaffolds. This Subpart 

applies to all scaffolds used in construction workplaces covered by the regulation. It does not apply 

to cranes or derrick suspended personnel platforms nor to aerial lifts. The Court finds the standard 

applied and was supported by the stipulation of the parties. The standard applied because scaffolds 

were being used at the worksite and accessed by workers. (J. Stip. 58; Tr. 176). 

During his inspection, the CSHO testified he observed a worker using the cross-braces of 

the scaffold to climb it, access the top platform, and pull electrical wire for lights in the hall. (Tr. 

176; Ex. C-62 at 2). The CSHO testified there was no ladder or other means of access to get up 

and down the scaffold. (Tr. 176; Ex. C-62 at 2; Ex. C-47). As noted previously the CSHO’s

testimony directly contradicts the written statement signed by Mr. Hernandez. Mr. Hernandez 

explained in his written statement he climbed the “side braces” because there was no ladder. (Ex. 

C-54). The CSHO testified he wrote the information given by Mr. Hernandez on the statement 

form, and then Mr. Hernandez reviewed and signed it. (Tr. 148-149, 257). Since the CSHO is the 

author of the signed statement and he wrote the term “side braces,” he would have known the side 

braces were different than the cross braces of the scaffold. The Court provides the written 

statement more weight as to what Mr. Hernandez used to climb to the top of the scaffold then the 

conflicting verbal testimony of the CSHO. The statement written and affirmed by Mr. Hernandez 

states he climbed the side braces—not the cross braces—which means to the Court he used the 
41

vertical rungs on the side of the scaffold to climb to the top. The pictures clearly show what is 

the front side of the scaffold where the cross braces are located and the sides of the scaffold where 

the vertical rungs are located. (Ex. C-44; C-47(a)).

RNV Construction contends the standard was not violated and advances two arguments to 

support its position. In its post-trial brief, RNV Construction maintains workers climbed an Aframe ladder to access it. (Resp’t Post-Trial Br. 2). But there is nothing in the record establishing 

the presence of an A-frame ladder, and none of the photographs depict an A-frame ladder next to

the east scaffold. 

At trial, Mr. Tagle also testified the east scaffold had an integrated end frame ladder, and 

he pointed to a photograph depicting what appear to be rungs along both sides of the scaffold. (Tr. 

314; Ex. C-44). Pictures clearly denote there are rungs vertical above one another from the bottom 

of the scaffold to the top of the scaffold on both sides of the scaffold. The evidence, which was not 

rebutted by the Secretary, is sufficient for the Court to conclude this permanent arrangement which 

is part of the scaffold is an “integral prefabricated scaffold” access. “Integral prefabricated scaffold 

access” is listed as an acceptable means of access under the cited standard, and § 1926.451(e)(6) 

provides specific guidance for such access. The Secretary did not present evidence to contradict 

RNV Construction’s argument that its scaffolding complied with the standards. Instead, the 

Secretary characterizes RNV Construction’s position as an affirmative defense and argues RNV 

Construction failed to present sufficient evidence of that defense. (Sec’y Post-Trial Br. 47). In 

essence, what the Secretary is attempting to do is the shift the burden of proof to RNV Construction

to prove the vertical rungs were an integral prefabricated scaffold access means when she bears 

the burden of proof to establish that those vertical were not a compliant integral prefabricated 

scaffold access means under her regulation.
42

Affirmative defenses under Commission Rule 34(b)(3) must be raised in the Respondent’s 

Answer and assert arguments or new facts that, if proven, defeat the Secretary’s claim, even if the 

allegations in the complaint are true. United States Postal Service, No. 08-1547, 2014 WL 

5025978, at *2 (OSHRC, Sept. 29, 2014). “[I]f the defense involved is one that merely negates an 

element of the plaintiff’s prima facia case it is not truly an affirmative defense.” Id. (internal

citation omitted).

Here, RNV Construction has asserted facts and offered evidence that may negate one of 

the Secretary’s prima facia elements: violation of the cited standard, which is not an affirmative 

defense. Mr. Tagle’s testimony and the photographs of the scaffold certainly call into question 

whether the scaffolding did in fact comply with the standards, which allow an integrated end frame 

ladder for access. (See Tr. 314; Ex. C-44, C-47B). Also, Mr. Hernandez in his signed written 

statement stated he used the side braces to access the top of the scaffold. It is the Secretary’s burden

to prove all of the elements of her case and, in this instance, show the scaffolding did not have a

compliant integrated end frame ladder. In addition, the Secretary bears the burden to prove Mr. 

Hernandez used the cross braces and not the side braces to access the top of the scaffold. The 

Secretary has failed to meet her burden on both elements. While the Secretary did offer evidence 

from the CSHO as to what Mr. Hernandez used to climb to the top of the scaffold, which the Court 

has discounted, she did not offer any testimony on the point the vertical rungs running from the 

bottom to the top of the scaffold on both sides of the scaffold are not an integral prefabricated 

scaffold access method. The record is devoid of any other evidence refuting RNV Construction’s 

claim of compliance. Accordingly, Citation 1, Item 2 is vacated.
43

4. Citation 2, Item 1 (COTA Building)

Lastly, the CSHO cited RNV Construction for an other-than-serious violation of 29 C.F.R. 

§ 1926.416(e)(2), which provides that “Extension cords shall not be fastened with staples, hung 

from nails, or suspended by wire.” The Secretary described the violation as follows: “East wall: 

Extension cords used to power tools were suspended by wire from the wall, exposing employees 

to electrical hazards.” COTA Building Citation at 9. The Secretary proposed a zero penalty. 

The cited standard is set forth in Part 1926, Subpart K of the regulations. This Subpart 

addresses electrical safety requirements necessary for the practical safeguarding of employees 

doing construction work which involves electrical work. The parties stipulated (J. Stip. B6), and 

the Court concludes, the standard applied. It is undisputed that during his inspection, the CSHO 

observed extension cords suspended by wire from the wall used to power to power tools. (J. Stip. 

64; Tr. 180-82; Ex. C-65). Thus, the standard applied and was violated. 

The Secretary established exposure to a hazard. The extension cords were live, meaning 

they posed an electrocution or shock hazard in the event they fell or were pulled by employees 

using them while working. (Tr. 180-81). The CSHO testified the suspended extension cords were

located in a busy hallway with workers in the area. (Tr. 182). 

The Secretary established actual and constructive knowledge. The foreman was working 

about 40 feet away and could see the suspended extension cords from across the large hall. (Tr. 

183-84). The Secretary established that the foreman, with the exercise of reasonable diligence, 

could have known of the violation. Dun-Par Engineered Form Co., No. 82-928, 1986 WL 53522, 

at *4 (OSHRC, July 30, 1986). And this knowledge is imputed to RNV Construction utilizing the 

criteria discussed in Section VII(A)(1). 

The CSHO testified the severity of the violation was minimal because any injuries 
44

sustained would be minimal. (Tr. 184). He concluded the probability was lesser due to the short 

duration of exposure when plugging or unplugging equipment. (Ex. C-63 at 2). These ratings 

support the Secretary’s classification of the violation as other-than-serious. Accordingly, the 

Court affirms Citation 2, Item 1 as an other-than-serious violation. See Crescent Wharf & 

Warehouse Co., No. 1, 1973 WL 4327, at *3 (OSHRC, Apr. 27, 1973) (“Accordingly, a nonserious violation is one in which there is a direct and immediate relationship between the violative 

condition and occupational safety and health but not of such relationship that a resultant injury or 

illness is death or serious physical harm.”).

The Secretary did not impose a monetary penalty for this violation. Based on the 

classification and the totality of the evidence, the Court will assess a zero penalty.

ORDER

The foregoing decision constitutes the Court's findings of fact and conclusions of law in 

accordance with Commission Rule 90(a), 29 C.F.R. § 2200.90(a). Based upon the foregoing 

Findings of Fact and Conclusions of Law, it is ORDERED that:

1. Capitol Hill Citation 1, Item 1, alleging a violation of 29 C.F.R. § 1926.403(b)(2) is 

AFFIRMED in PART as an Other-than-Serious violation, and assesses a zero penalty.

2. Capitol Hill Citation 1, Item 2, alleging a violation of 29 C.F.R. § 1926.405(j)(1)(i) is 

AFFIRMED in PART as an Other-than-Serious violation, and assesses a zero penalty,

3. Capitol Hill Citation 1, Item 3, alleging a violation of 29 C.F.R. § 1926.405(j)(l)(iii) is 

AFFIRMED in PART as an Other-than-Serious violation, and assesses a zero penalty.

4. Capitol Hill Citation 1, Item 4, alleging a Serious violation of 29 C.F.R. § 1926.451(e)(1)

is AFFIRMED, and a penalty of $9,324 is ASSESSED. 
45

5. Capitol Hill Citation 2, Item 1, alleging an Other-than-Serious violation of 29 C.F.R.

§ 1926.405(a)(2)(ii)(E) is AFFIRMED with a zero-penalty assessed.

6. Capitol Hill Citation 2, Item 2, alleging an Other-than-Serious violation of 29 C.F.R.

§ 1926.405(a)(2)(ii)(F) is AFFIRMED with a zero-penalty assessed.

7. Capitol Hill Citation 2, Item 3, alleging an Other-than-Serious violation of 29 C.F.R.

§ 1926.405(g)(2)(iii) is AFFIRMED with a zero-penalty assessed.

8. Capitol Hill Citation 2, Item 4, alleging an Other-than-Serious violation of 29 C.F.R.

§ 1926.405(g)(2)(iv) is AFFIRMED with a zero-penalty assessed.

9. COTA Building Citation 1, Item 1a, alleging a Serious violation of 29 C.F.R. 

§ 1926.451(b)(1) is AFFIRMED, and a penalty of $9,324 is ASSESSED.

10. COTA Building Citation 1, Item 1b, alleging a Serious violation of 29 C.F.R. 

§ 1926.502(d)(15) is VACATED.

11. COTA Building Citation 1, Item 2, alleging a Serious violation of 29 C.F.R. 

§ 1926.451(e)(1) is VACATED.

12. COTA Building Citation 2, Item 1, alleging an Other-than-Serious violation of 29 C.F.R. 

§ 1926.416(e)(2) is AFFIRMED with no penalty assessed.

SO ORDERED.

 /s/ Patrick B. Augustine 

Patrick B. Augustine

First Judge, Denver OSHRC

Date: November 21, 2023

Denver, Colorado