United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, D.C. 20036-3457 

SECRETARY OF LABOR,

Complainant, 

v. OSHRC Docket No. 22-0255 

LINK GENERAL CONTRACTING CORP., 

Respondent. 

Appearances:

For the Complainant 

Aaron R. Gelb, Esq. 

Conn Maciel Carey LLP

53 W. Jackson Blvd., Ste. 1328 

Chicago, IL 60604 

 

For the Respondent 

Before: Keith E. Bell, Administrative Law Judge 

DECISION AND ORDER

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

Commission) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29 

Seema Nanda, Solicitor

Jeffrey S. Rogoff, Regional Solicitor

Nicole Lancia, Esq.

Office of the Regional Solicitor

United States Department of Labor

201 Varick Street, Rm. 983

New York, NY 10014
2 

U.S.C. § 451 (the Act). On October 13, 2021, the Occupational Safety and Health Administration 

(OSHA) conducted an inspection of a worksite located at 1199 East 53rd Street, Brooklyn, N.Y. 

(worksite). As a result, on February 10, 2022, OSHA issued a Citation and Notification of Penalty 

(Citation) to Link General Contracting Corporation (Respondent), that alleged two violations of 

the Act. Citation 1 includes two (2) items and is classified as “serious”. This case is a simplified 

proceeding under the Occupational Safety and Health Review Commission Rules of Procedure 

Rule 202. 29 C.F.R. § 2200.202. Accordingly, no complaint or answer was filed. Respondent 

initially asserted the unpreventable employee misconduct (UEM) defense during the pre-hearing 

conference held pursuant to Rule 207 of the Commission Rules of Procedure. 29 C.F.R. 

§ 2200.207(b). By consent of the parties, a virtual hearing was held on August 30th through 31st, 

2022. In that hearing, Counsel for Respondent withdrew the UEM defense. Tr. 180. For the 

reasons that follow, Citation 1, Items 1and 2 are AFFIRMED. 

Jurisdiction

The evidence supports a finding that the Act applies, and the Commission has jurisdiction 

over this proceeding pursuant to section 10(c) of the Act, 29 U.S.C. § 659(c). At the hearing, the 

parties entered the following stipulations into the record: (1) Respondent is and at all times 

mentioned hereinafter was engaged in construction work1

; Respondent is an employer engaged in 

business affecting commerce within the meaning of §§ 3(3) and 3(5) of the Act; and Respondent 

is an employer within the meaning of section 3(5) of the Act, 29 U.S.C. § 652(5). Tr. 9-10. 

1 See Clarence M. Jones d/b/a C. Jones Co., 11 BNA OSHC 1529, 1530 (No. 77-3676, 1983) (holding that there is an 

interstate market in construction materials and services and therefore construction work affects interstate commerce).
3 

Stipulated Facts2

1. On the morning of Oct. 13, 2021, Respondent’s employees, Roberto Garcia, 

Francisco Garcia Mendoza, and another unidentified laborer, “the employees” were 

engaged in façade repair work for Respondent on the fifth and sixth floor balconies 

of the building located at 1199 East 53rd Street in Brooklyn, NY (aka “worksite”). 

2. The employees used the working platforms of a scaffold to perform façade repair 

work on fifth and sixth floor balconies. 

3. The employees, while working from the scaffold, wore fall protection harnesses 

with lanyards that were not connected to anchor points. 

4. The Secretary’s proposed exhibits marked GX-1 through GX-15 were taken by 

Compliance Safety and Health Officer Mahendra Taramal during his investigatory 

site visit on Oct. 13, 2021. 

Tr. 7-9. 

Background 

Respondent, Link General Contracting Corp. is a contractor doing business in New York 

and specializing in masonry and façade work. The owner of record is Mr. Lou Kaziu. CX-1. The 

worksite consists of a series of buildings in the same complex with various types of work being 

done. Tr. 177. 

OSHA Inspection 

OSHA Compliance Officer (CO) Mahendra Taramal works for the Manhattan Area Office. 

Tr. 17. He conducted an inspection of Respondent’s worksite on October 13, 2021, based on a 

random assignment from a local emphasis program bargaining list. Tr. 20. CO Taramal began his 

inspection at approximately 12:30 p.m. and it lasted for about an hour. After he observed 

employees on the top-tier of a scaffold who were performing construction work, he initiated the 

inspection. The employees were doing façade repair on the balcony areas and front face of the 

building. Tr. 21. 

2 At the start of the hearing, the parties stipulated certain facts which the undersigned admitted into the record. 
4 

Upon arrival at the worksite, CO Taramal made observations of employees working, took 

a picture, and made contact with Jorge Chavarria who identified himself as the site foreman. 

Together, they walked up to the top-tier of the scaffold where CO Taramal conducted a visual 

walkaround inspection, took more pictures, and interviewed employees3

 present on site. Tr. 22. 

Pursuant to the parties’ stipulation of facts: (1) the employees used the working platforms 

of a scaffold to perform façade repair work on the fifth and sixth floor balconies; and (2) the 

employees, while working from the scaffold, wore fall protection harnesses with lanyards that 

were not connected to anchor points. Tr. 8. 

Scaffold 

 The worksite had a support scaffold with a “bicycle” platform to allow access to facilitate 

the erection of cast-in-place concrete forms around the balconies. Tr. 162. A bicycle platform is 

part of a scaffold included by the manufacturer to accommodate employees and materials. Tr. 29. 

The scaffold also had a walkthrough frame attached and stairs to allow access to the main decks. 

Tr. 163. 

Discussion

To prove a violation of an OSHA standard, the Secretary must show, by a preponderance 

of the evidence, that (1) the cited standard applies; (2) the employer failed to comply with the 

terms of the cited standard; (3) employees had access to the violative condition; and (4) the 

employer either knew or could have known with the exercise of reasonable diligence of the 

violative condition. JPC Grp., Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009). A 

preponderance of the evidence is “that quantum of evidence which is sufficient to convince the 

3 There were three employees besides Foreman Jorge Chavarria on site and all preferred to speak Spanish. Tr. 50. 

CO Taramal was able to communicate with them with the assistance of CO Santiago who speaks English and Spanish 

and participated in the inspection in the role of an interpreter. Tr. 51, 249.
5 

trier of fact that the facts asserted by a proponent are more probably true than false.” Astra 

Pharma. Prods., 9 BNA OSHC 2126, 2131, n. 17 (No. 78-6247, 1981) aff’d in relevant part, 681 

F.2d 69 (1st Cir. 1982). 

Alleged Violation of 29 C.F.R. § 1926.451(e)(1)

Citation 1, Item 1 alleges a violation of 29 C.F.R. § 1926.451(e) (1) which states: 

Access: 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. Crossbraces 

shall not be used as a means of access.

Standard Applies 

As an initial matter, the parties stipulated that the work being conducted at the work site 

by Respondent’s employees on October 13, 2022, was covered by 29 C.F.R. § 1926.451. Citation

1, Item1 allegesthat on or about October 13, 2021, employees climbed the crossbraces and scaffold 

frames to access the working platforms. CX-1. The cited standard applies. 

Employer Failed to Comply 

CO Taramal testified that he observed an employee move from the top level of the scaffold 

platform down to the bicycle platform below by placing his right foot on the form work of the 

sixth-floor balcony and his left foot on the diagonal metal cross brace. Tr. 30-31, GX-3. CO 

Taramal further stated that he estimated a distance of more than 2 feet between the top-tier of the 

scaffold and the bicycle platform. Tr. 32. More specifically, CO Taramal estimated the distance 

between the two platforms to be approximately three (3) feet. Although CO Taramal did not 

measure the distance between the platforms, he made a visual observation and based his estimation 

on: (1) the height of an employee who was standing on the bicycle platform; and (2) the number 

of bricks he counted (12-14) in the building’s brick façade and determined that each brick was 
6 

approximately 2 1⁄2” top to bottom (thick). CO Taramal testified that he usually takes 

measurements when safe to do so; however, in this instance, he relied on visual observations and 

things relative to his own height. Tr. 95. The Commission acknowledges that estimates can be 

reliable evidence. A. L. Baumgartner Constr., 16 BNA OSHC 1995, 2001 (No. 92-1022, 1994) 

(A witness’ estimations of a dimension based on observations only, and even based on an 

observation from a distance away are admissible and can be dispositive in the absence of rebuttal). 

Here, Respondent produced two witnesses whose testimony contradicted CO Taramal’s estimation 

of the distance between the two platforms. Robert DeMarco, a safety consultant who worked for 

Respondent, testified that the distance between the top-tier of the scaffold and the bicycle platform 

was under 24”. Tr. 178. He based his determination of the distance on: (1) measurements he asked 

to be taken sometime after the inspection; and (2) his own visual observations of the bricks. Tr. 

192-93. He testified that the bricks were 2x6. Israel Yee4

, an employee of Respondent, measured 

the distance between the two platforms and found it to be 2 feet. Tr. 231-32. To resolve the 

conflict in testimony regarding the distance between the top-tier of the scaffold and the bicycle 

platform, the Court reviewed the photograph of the employee standing on the bicycle platform 

with his hand resting on the top-tier of the scaffold. GX-6. The top-tier of the scaffold platform is

above the employee’s waistline. Additionally, the Court finds that there are at least 12 bricks 

between the two platforms.5

 Relying on Mr. DeMarco’s testimony that the bricks only measured 

2” (thick) would make the distance between the platforms exactly 24inches or 2 feet. However, 

the photographs show that there is mortar between the bricks that would add to the height of the 

4 Mr. Yee testified that he was present at the worksite on the day of the inspection and spoke to COs Taramal and

Santiago. Tr. 224. He also testified that he was the foreman. Tr. 224. On rebuttal, CO Taramal testified that he did

not recall seeing or speaking to Mr. Yee neither did he remember seeing Mr. Yee speak to CO Santiago. Tr. 234-35. 

He also testified that Mr. Jorge Chavarria identified himself as the foreman on site. Tr. 235. 5 CO Taramal testified that he counted 13 bricks between the top-tier of the scaffold and the bicycle platform. Tr. 

241.
7 

bricks between the two platforms and thereby increase the distance. CO Taramal testified that he 

did not include the mortar in his measurements despite the fact that it would have added to the 

height. Tr. 240. The Court finds that the weight of the evidence supports CO Taramal’s estimation 

of the distance between the top-tier of the scaffold and the bicycle platform. 

CO Taramal testified that he did not see employees using any other access points to traverse 

between the top-tier of the scaffold and the bicycle platform. Tr. 33. Additionally, the CO did not 

observe any portable ladders on site. Tr. 32. During his interview with the site foreman, Jorge 

Chavarria, CO Taramal learned that the work process he observed was normal. Tr. 33. The 

Secretary has established that Respondent failed to comply with the cited standard. 

Employee Exposure

The Commission has held that, to establish employee exposure, the Secretary must prove 

that it was reasonably predictable, either by inadvertence or otherwise, that employees have been, 

are, or will be in the zone of danger. A.E. Staley Mfr. Co., 19 BNA OSHC 1207 (No. 91-0637, 

2000) (consolidated) aff'd, 295 F.3d 1341 (D.C. Cir. 2002). Employees may come within the zone 

of danger “while in the course of assigned working duties, personal comfort activities while on the 

job or their normal means of ingress-egress to their assigned workplaces.” Gilles & Cotting, Inc., 

3 BNA OSHC 2002, 2003 (No. 504, 1976); Donovan v. Adams Steel Erection, Inc., 766 F.2d 804, 

812 (3d Cir. 1985) (“ ‘access,’ not exposure to danger is the proper test”). The CO’s testimony 

that he observed an employee moving from the top-tier of the scaffold by stepping on the cross 

brace demonstrate employee exposure. The Court finds that the photographic evidence supports 

the CO’s testimony. GX-3, 4. Employee exposure is established.

Employer Knowledge

To establish constructive knowledge, the Secretary must show that the employer, with the 
8 

exercise of reasonable diligence, could have known of a hazardous condition. Kerns Bros. Tree 

Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000). It has been held that an employer has a 

duty “to take reasonably diligent measures to inspect its worksite and discover hazardous 

conditions; so long as the employer does so, it is not in violation simply because it has not detected 

or become aware of every instance of a hazard.” Texas A.C.A., Inc., 17 BNA OSHC 1048, 1051 

(No. 91-3467, 1995) (emphasis in original). The Commission has held that an employer is 

chargeable with knowledge of conditions which are plainly visible to its supervisory personnel. 

A.L. Baumgartner Constr. Inc., 16 BNA OSHC 1995, 1998 (No. 92-1022, 1994). “An employee 

who has been delegated authority over other employees, even if only temporarily, is considered to 

be a supervisor for the purposes of imputing knowledge to an employer.” Tampa Shipyards Inc., 

15 BNA OSHC 1533, 1537 (No. 86-630, 1992) (consolidated). Dover Elevator Co., 16 BNA 

OSHC 1281, 1286 (No. 91-862, 1993) (an “employee who is empowered to direct that corrective 

measures be taken is a supervisory employee;”; formal title of employee is not controlling, but 

rather substance of employee's duties). In this case, there is conflicting testimony over the identity 

of the site foreman. CO Taramal testified that, upon arrival, he made contact with Jorge Chavarria 

who identified himself as the site foreman and accompanied him during the walkaround inspection. 

Tr. 22. To the contrary, Respondent’s witness, Israel Yee, testified that he was the site foreman 

who was also present the day of the inspection. Tr. 224. Owner, Lou Kaziu told CO Taramal that 

he left Jorge Chavarria in charge. Tr. 93. The weight of the evidence supports a finding that Jorge 

Chavarria was the foreman/person in charge of the worksite on the day of the inspection. However, 

even if the Court found Mr. Yee to be the foreman, the testimony reflects that both were present 

for the inspection. 

Here, CO Taramal observed the violative condition during his walkaround inspection
9 

because it was in plain sight. With an exercise of reasonable diligence, Foreman Chavarria (or 

Yee) could have known of the hazardous condition. The Commission has held that factors 

indicative of reasonable diligence include adequate supervision of employees, and the formulation 

and implementation of adequate training programs and work rules to ensure that work is safe. 

Pride Oil-Well Svc., 15 BNA OSHC 1809, 1815 (No. 87-692, 1992). (emphasis added) CO 

Taramal testified that he sent a letter to request information, to include a copy of Respondent’s 

safety and health program, from Respondent/Owner, Lou Kaziu. RX-1A. However, he did not 

receive a response. During the hearing, Respondent did not offer a copy of its safety program. 

RX-1, pg. 009. The Court finds the absence of evidence that Respondent had a safety program to 

be indicative that there was a lack of reasonable diligence. Employer knowledge of the hazardous 

condition cited is established. 

The Secretary has proven, by a preponderance of the evidence, that Respondent violated 

29 C.F.R. § 1926.451(e)(1). 

Serious Classification

To prove a violation was “serious” under section 17(d) of the Act, 29 U.S.C. § 666(d), the 

Secretary must show there was a substantial probability that death or serious physical harm could 

have resulted from the cited condition and that the employer knew or should have known of the 

condition; the likelihood of an accident occurring is not required. Spancrete Ne., Inc., 15 BNA 

OSHC 1020, 1024 (No. 86-521, 1991). CO Taramal testified that he issued Citation 1, Item 1 

because the work process he observed exposed employees to fall hazards. Tr. 62. Based on his 

experience, CO Taramal testified that a fall from the top-tier of the scaffold to the shed below 

would be a distance of approximately five (5) stories or 50 feet. Tr. 124. Robert DeMarco testified 

that the distance from the top of the scaffold to the top of the sidewalk shed below was 40 feet. 
10 

The Court finds that 40 or 50 feet are both a considerable distance to fall. According to CO 

Taramal, a fall from the top of the scaffold could result in death. Tr. 65. The Secretary has met 

his burden of proof to establish that the violation alleged in Citation 1, Item 1 is properly classified 

as serious.

Alleged Violation of 29 C.F.R. § 1926.451(g)(1)(vii)6

Citation 1, Item 2 alleges a violation of 29 C.F.R. § 1926.451(g)(1)(vii) which states: 

For all scaffolds not otherwise specified in paragraphs (g)(1)(i) through (g)(1)(vi) 

of this section, each employee shall be protected by the use of personal fall arrest 

systems or guardrail systems meeting the requirements of paragraph (g)(4) of this 

section.

 29 C.F.R. 1926.451(g)(1) addresses fall protection and provides: 

Each employee on a scaffold more than 10 feet (3.1 m) above a lower level shall be 

protected from falling to that lower level. Paragraphs (g)(1) (i) through (vii) of this 

section establish the types of fall protection to be provided to the employees on 

each type of scaffold.

6 On cross-examination, CO Taramal agreed with Respondent’s Counsel that the abatement measure for 

Citation 1. Item 1 would also abate item 2. Tr. 149. The CO’s concurrence that the abatement measure 

would work for both citation items raises a question regarding the duplicative nature of the two violations 

cited. Respondent also makes this argument in its post-hearing brief. Resp’t Br. 14-15. In North Eastern 

Precast, LLC, the Commission reaffirmed its own precedent that violations are duplicative where the 

abatement of one violation necessarily results in the abatement of the other or requires the same abatement 

conduct. Ne. Precast, 26 BNA OSHC 2275, 2279 (No. 13-1169, 2018) (consolidated) aff’d, 733 F. App’x 

70 (2d Cir. 2019) (Unpublished). Abatement means action by an employer to comply with a cited standard 

or regulation or to eliminate a recognized hazard identified by OSHA during an inspection. 29 C.F.R. § 

1903.19(b)(1). Here, each of the cited standards sets forth the acceptable means of compliance which do not 

overlap. 29 C.F.R. § 1926.451(e)(1) prescribes ladders, ramps, stairways, walkways etc. as acceptable means 

of access while 29 C.F.R. § 1926.451(g)(1)(vii) requires the use of personal fall arrest systems or guardrails. 

The Court finds that the ladders used to abate the violation cited in Citation 1, Item 1 would not abate the 

violation cited in Citation 1, Item 2 based on the language of the cited standards and the work processes 

observed. Accordingly, Respondent’s argument that Citation 1, Item 2 is duplicative and should be vacated

is rejected.

. 
11

Standard Applies

Citation 1, Item 2 alleges that on or about October 13, 2021, employees worked on a 

scaffold that was not equipped with guardrails and employees were exposed to a fall of 12 feet. 

CX-1. The cited standard applies.

Employer Failed to Comply 

CO Taramal testified that he observed a missing guardrail on the left-side of the top-tier of 

the scaffold that exposed employees to a fall of approximately 50 feet/five stories above the top of 

the sidewalk shed. Tr. 39, 42, 135; GX-3, 4. Additionally, he testified that there was a gap between 

the bicycle platform and the balcony that also exposed employees to a fall. Tr. 42; GX-12. CO 

Taramal further testified that the gap between the 5th floor balcony railing and the bicycle platform 

was approximately 1 to 1 1⁄2 feet. Tr. 48. Again, he did not take actual measurements but made 

estimates based on his observations. Tr. 43. According to CO Taramal, a fall between the gap is 

a distance of approximately 12 feet and could occur based on employees’ maneuvers back and 

forth between the bicycle platform and the balcony. Tr. 53. CO Taramal observed that employees 

traversed between the bicycle platform and the balcony by holding on to the edge of the bicycle 

platform and the rail of the balcony instead of relying on a fall protection system using a harness 

and lanyard. Tr. 54. Notably, the employees working from the scaffold wore fall protection 

harnesses with lanyards that were not connected to anchor points. Tr. 8. The correct use of the

harness and lanyard to protect an employee from fall hazards on this worksite required the user to 

attach it to an anchor point on the building or another system. Tr. 46. CO Taramal did not observe 

any anchor points and, according to Forman Chavarria, there were no anchor points. Tr. 45, 50. 

 Respondent argues that the exception to this standard, 29 C.F.R. § 1926.451(b)(3), applies 

and the Secretary has not adduced evidence to establish non-compliance with this exception. 
12 

Resp’t Br. 7-8. 29 C.F.R. § 1926.451(b)(3) provides:

Except as provided in paragraphs (b)(3) (i) and (ii) of this section, the front edge of 

all platforms shall not be more than 14 inches (36 cm) from the face of the work, 

unless guardrail systems are erected along the front edge and/or personal fall arrest 

systems are used in accordance with paragraph (g) of this section to protect 

employees from falling. 

The Secretary acknowledges that, if applicable, § 1926.451(b)(3) is an exception to the cited 

standard requiring fall protection when employees are exposed to a fall of greater than 10 feet. 

Sec’y Br. 23.7

 Also, the Secretary correctly points out that Respondent has the burden of proof 

when it asserts an exception. See Triumph Constr. Corp. v. Sec’y of Labor, 885 F.3d 95, 98 (2d Cir.

2018) (Holding that the ALJ properly placed the burden of proof on respondent to demonstrate 

that its site fell within an exception to cited standard.) Here, Respondent offers no evidence that 

the balcony edge was the “face of the work” of this construction project at the time of the 

inspection, neither does it offer its own measurement of the distance between the bicycle platform 

and the balcony edge. Respondent’s assertion that § 1926.451(b)(3) applies is rejected. The 

Secretary has established that Respondent failed to comply with the cited standard. 

Employee Exposure 

CO Taramal testified that he observed two employees standing on the bicycle platform. Tr. 

26. He also testified that employees accessed the unguarded area at the top of the scaffold as part 

of their normal work process. Tr. 64. CO Taramal observed an employee going from the top-tier 

of the scaffold to the bicycle platform and over to the balcony. Tr. 118. The Secretary need not 

show it was certain that employees would be in the zone of danger, but he must show that exposure 

was more than theoretically possible. Fabricated Metal Prods., Inc. 18 BNA OSHC 1072, 1074 

(No. 93-1853, 1997); Phoenix Roofing, 17 BNA OSHC 1076,1079 (No. 90-2148, 1995) aff’d, 79 

7 According to the Secretary, OSHA issued an interpretive letter on December 11, 2001, that sets forth the applicability 

of this exception.
13 

F.3d 1146 (5th Cir. 1996) ; Kaspar Wire Works, Inc., 18 BNA OSHC 2178, 2195 (No. 90-2775, 

2000) (finding that it was “‘reasonably predictable’ that an employee would come into contact with 

the unguarded belt and pulley either while attempting to reposition the fan, or inadvertently while 

passing nearby”), aff'd, 268 F.3d 1123 (D.C. Cir. 2001). Based on CO’s observations (and Foreman 

Chavarria’s statement that what CO Taramal observed was the normal work process) of employees 

working on and accessing the top-tier of the scaffold where the guardrail was missing and moving 

back and forth between the fifth-floor balcony and the bicycle platform, it was reasonably 

predictable that employees would be in the zone of danger at this worksite. Employee exposure is 

established.

Employer Knowledge

CO Taramal testified, and the parties stipulated, that the employees were wearing fall 

protection harnesses with lanyards. He further testified that the harnesses were provided by 

Respondent. Tr. 66. The Court finds that Respondent’s provision of harnesses and lanyards 

reflects an awareness of the fall hazards present on this worksite. Additionally, the Court finds 

that, as with the hazardous condition in Citation 1, Item 1, the condition cited here was plainly 

visible to CO Taramal and therefore visible to or discoverable by Respondent’s on-site supervisor 

(Chavarria or Yee) with an exercise of reasonable diligence. Employer knowledge is established. 

The Secretary has proven, by a preponderance of the evidence, that Respondent violated 

29 C.F.R. §1926.451(g)(1)(vii).

Serious Characterization 

CO Taramal testified that a fall by an employee traversing the gap between the bicycle 

platform and the fifth-floor balcony could have resulted in broken bones, permanent disability, or 

death. Tr. 65. The Secretary’s characterization of this violation as “serious” is established. 
14 

Penalty Determination 

The Commission, as the final arbiter of penalties, must give due consideration to the gravity 

of the violation and to the employer's size, history and good faith. J.A. Jones Constr. Co., 15 BNA 

OSHC at 2213-14. These factors are not necessarily accorded equal weight, and gravity is 

generally the most important factor. Trinity Indus., Inc., 15 BNA OSHC 1481, 1483 (No. 88-2691, 

1992). The gravity of a violation depends upon such matters as the number of employees exposed, 

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

result. J.A. Jones, 15 BNA OSHC at 2213-14. Respondent does not dispute the proposed 

penalties.

Regarding the proposed penalties, CO Taramal testified that severity is rated “high” based 

on the injuries that could have resulted. Probability is rated “greater” because the exposure was 

part of the normal work process that the CO observed for an hour before he began his walkaround. 

Tr. 68. Gravity is rated “high”. Tr. 69. These classifications apply to both violations. A 70% 

discount was given on both items for the size of this employer which was determined to be “small”. 

The size determination was made from speaking to Mr. Lou Kaziu who is the owner of Link 

General. There was no “good faith” reduction given due to the high severity, greater probability, 

and high gravity. Tr. 74-75. No reduction was given for prior history because this employer had 

no inspection within the previous 5 years. Tr. 75. The evidence supports a finding that the 

penalties, as proposed, are appropriate.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The foregoing constitutes the findings of fact and conclusions of law in accordance with 

Rule 52(a) of the Federal Rules of Civil Procedure. 
15 

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:

1. Citation 1, Item 1a alleging a violation of 29 C.F.R. § 1926.451(e)(1) is AFFIRMED as 

issued and a penalty in the amount of $4, 351.00 is imposed. 

2. Citation 1, Item 2 alleging a violation of 29 C.F.R. § 1926.451(g)(1)(vii) is AFFIRMED as 

issued and a penalty in the amount of $4,351.00 is imposed. 

/s/ Keith E. Bell

 Keith E. Bell

 Judge, OSRC 

Dated: January 17, 2023 

Washington, D.C.