United States of America 

OCCUPAT ONAL SAFETY AND HEALTH REV EW COMM SS ON 

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

Washington, DC 20036-3457 

SECRETARY OF LABOR, 

Complainant, 

v. OSHRC DOCKET NO. 17-1689 

NDC CONSTRUCTION COMPANY,

 Respondent. 

APPEARANCES: 

Karen E. Mock, Esquire 

Austin N. Case, Esquire 

Department of Labor, Office of the Solicitor, Atlanta, Georgia 

For the Secretary 

Anthony Tilton, Esquire 

Cotney Construction Law, LLP, Tallahassee, Florida 

Daniel Auerbach, Esquire 

Cotney Construction Law, LLP, Tampa, Florida 

For Respondent 

BEFORE: 

Dennis L. Phillips 

Administrative Law Judge 

DEC S ON AND ORDER 

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

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

 

659(c) (the Act). On April 5, 2017, OSHA’s Compliance Safety and Health Officer (CO) 

Gerardo Ortiz,1 and Assistant Area Director (AAD) Maveline Perez-Ramos,2 inspected a 

residential construction site in Bradenton, Florida. (Tr. 24, 47). NDC Construction Company 

(NDC or Respondent) was the construction manager and general contractor at the site. (Tr. 24, 

618). The inspection was opened because AAD Perez-Ramos had seen employees working 

without fall protection when she drove by the site several days before. (Tr. 155-56, 202-03). 

OSHA issued a citation and notification of penalty (Citation) to NDC on September 1, 

2017, for one serious violation. The violation alleged four instances of noncompliance with 

OSHA's construction fall protection standard with a proposed penalty of $8,873. (Ex. A, at 6). 

NDC timely contested the Citation. (Tr. 26). A four-day trial was held in Tampa, Florida 

on July 19-20, 2018 and August 28-29, 2018. Five witnesses testified at the hearing: AAD 

Perez-Ramos; CO Ortiz; Charles Scott, project executive; 3 James Brumbaugh, project 

1

 CO Ortiz has been an OSHA CO for 14 years, including 5 years in the 1980’s and since 2008. He has conducted 

more than 50 OSHA inspections at construction sites, many involving residential fall protection. In between, he 

managed occupational safety and health matters at 10 manufacturing plants of the General Electric Company for five 

or six years and served as an Environmental Health and Safety Manager to the Eaton Cutler-Hammer Corporation. 

He also worked as an Environmental Health and Safety and Transportation Manager in Puerto Rico, a safety 

specialist at Progress Energy in Ocala, Florida, and an Environmental Health and Safety Manager at the Boeing 

Company. He was assigned to be the subject matter expert on fall protection at Boeing in Puget Sound. (Tr. 37-43). 

He earned a Bachelor of Science degree in Biology from Interamerican University of Puerto Rico in 1982, a Master’s 

degree in Environmental Health from the University of Puerto Rico in 1986, and a Doctoral degree in Public Health 

from the University of Texas Health Science Center, Houston in 2014. (Tr. 41, 141). 

2

 AAD Perez-Ramos has served as an OSHA AAD and Supervisory Safety Engineer since July 2014. Before that, 

she served as an OSHA safety engineer since December 2000. She has conducted more than 300 OSHA inspections, 

with about 50% relating to construction. In about 1999, she owned a safety consultant firm in Tampa, Florida. From 

about 1995 through 1999, she was a safety engineer for a general contractor construction company in Puerto Rico. 

From about 1992 through 1995, she was a compliance officer for the OSHA State Plan in Puerto Rico. She is a civil 

engineer. She received a Bachelor’s degree from the University of Puerto Rico and Polytechnic University of Puerto 

Rico in 1992 and earned a Master’s degree in Occupational and Safety and Health from Columbia Southern in 

Alabama in 2014. (Tr. 149-53, 172, 194-201). 

3

 From 1984 through 2003, Mr. Scott worked at Modern Continental. His final project there was as senior project 

manager overseeing the Terminal E reconstruction at Logan Airport. He then worked as a Project Director at 

Environmental Interiors in Florida until joining NDC. In 1980 he earned an Associate Degree in Architectural 

Engineering from Vermont Technical College and in 1984 he earned a Bachelor of Science degree in Civil 

Engineering from Wentworth Institute in Boston. He has worked in the construction industry for 34 years. (Tr. 609-

10). 

2 
 

 

superintendent;4 and James A. Miller, project supervisor.5 Post-hearing briefs were filed by both 

parties, as were reply briefs.6 

The key issues in dispute are: a) whether NDC was a controlling employer under OSHA’s 

Multi-Employer Citation Workplace Policy; b) what was NDC’s duty for the safety of its 

subcontractors’ and/or sub-subcontractor’s employees; and c) whether NDC had knowledge of the 

cited hazardous conditions. As set forth below, the Court finds the Secretary has proven his 

prima facie case and the serious Citation is affirmed and a penalty of $7,986 is assessed by the 

Court for the following reasons. 

Jurisdiction 

Based upon the record, the Court finds Respondent, at all relevant times, was engaged in a 

business affecting commerce and was an employer within the meaning of sections 3(3) and 3(5) 

of the Act, 29 U.S.C. §§ 652(3) and (5). (Tr. 25-26; Answer, at ¶¶1-3, at 1). The Court finds the 

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

Findings of Fact 

Stipulated facts 

The parties stipulated to the following facts. On and before April 5, 2017, Respondent 

was the general contractor of a construction project known as Preserve at the Villages located at 

1015 Manatee Avenue East, Bradenton, Florida 34208 (“the jobsite”, “worksite” or “work site”). 

4

 Mr. Brumbaugh has worked at NDC for four and one-half years. His duties include project scheduling, setting 

priorities for the work schedule, making sure subcontractors are in compliance with the plans and specifications, and 

coordination with the owner. He also was responsible for enforcing the safety rules at Exhibit “F”, Safety Rules for 

Employees, OSHA 1926.59 Hazard, Communication (NDC Safety Plan), that were in subcontracts. Before that, he 

worked in a supervisory capacity in the construction industry since 1980 at JM Williams, Shamrock, Derma Tech and 

Centex. Before that, he worked as a carpenter and lead man. (Tr. 272-74, 443-44, 545-46, 583; Exs. 30, Ex. 57, at 

Exhibit “F”). 

5

 Prior to working at NDC, Mr. Miller worked in construction at PAR in Houston, Texas, for about 3 years, as a Lead 

Superintendent at Colonial in Alabama from about 2005 through 2008, and as a Project Manager/superintendent at 

Power Contracting at Bradenton, Florida. Overall, he has been employed for more than forty years in the 

construction industry. (Tr. 808-09). He has a degree in criminology from Miami Dade South. (Tr. 810). 

6

 The trial transcript was 1,054 pages in length and the case involved many exhibits. (Tr. 1-1054). Post-trial briefs 

comprised 168 pages. (Sec’y Post Hrg. Br. and Reply Br., Respt’s. Post-trial Br. and Reply Br.) 

3 
 

(Tr. 24; Ex. 19, ¶11, at 3). The following people were Respondent’s employees at the job site on 

April 5, 2017: Project Superintendent, James Brumbaugh; Project Manager, Brando Fetzek;7 

Assistant Project Manager, Chris Barjuca; General Superintendent, Nick Kloepfer; and 

Supervisor, James A. Miller. (Tr. 24-25, 673; Ex. 19, ¶10, at 3). NDC had the authority to 

remove a subcontractor from the job site. (Tr. 25, 263). 

NDC as the General Contractor at the Jobsite 

NDC was a construction management firm with its principal place of business at 1001 3rd 

Avenue West, Bradenton, Florida 34205. (Tr. 26, 618). To oversee its construction projects, 

NDC employed project managers, superintendents, assistant project managers, assistant 

superintendents, and project engineers. (Tr. 615). NDC contracted with subcontractors to 

perform the labor at the construction sites. (Tr. 275, 618, 816-17). 

NDC was hired by Preserve Bradenton LLC, (Owner) to manage the construction of the 

Preserve at the Villages project (Preserve project or Project). (Ex. 57, at 1). The Preserve 

project was a multi-family residential apartment complex of fourteen structures on about twelve 

to twenty acres. (Tr. 47, 233, 274-75, 279, 620-21, 814). There were 252 units ranging from 

750 to 1200 square feet, each with a balcony or patio. About two-thirds of these units had 

elevated balconies. The third level units had patios that were 22-feet above the ground. The 

units were in seven multi-unit residential buildings that were three-story walkups with stairs and 

breezeways separating the units. (Tr. 94, 275, 367, 485, 621, 814). Additional buildings in the 

complex included the clubhouse, three garages, a maintenance facility, a mail kiosk building, and 

a dumpster compactor building. (Tr. 621). 

NDC worked with developers and architects for cost estimates, prepared schematics and 

7

 According to Mr. Brumbaugh, Messrs. Brumbaugh and Fetzek were “partners on the job site.” He said that they 

reported to each other and coordinated everything they did together. (Tr. 278). Later on, he said that Brando Fetzek 

was his superior. (Tr. 444). 

4 
designs, maintained project budgets, selected subcontractors, developed subcontracts, and 

managed the construction process through scheduling, jobsite reviews, dispute resolution, and 

weekly subcontractor meetings. (Tr. 274-76, 611-12, 618-19). NDC had over 48 different 

subcontractor agreements, involving 30 to 40 subcontractors, to provide the construction work. 

NDC employees did not provide labor at the Project. (Tr. 275, 618-19). At the peak of 

construction, about 150 to 172 laborers, including plumbers, roofers, painters, masons, drywall 

workers, electricians, carpenters8 and air conditioning technicians, worked at the jobsite. (Tr. 

276, 300, 618-19, 817). NDC contracted with the Emerald Coast Structure Company (ECS), 

located in Pensacola, as the framing subcontractor based on the complete scope of work in its 

bid (including materials) and the recommendation of a large construction contractor. (Tr. 70, 

291, 548, 620-26; Exs. 57, R). 

NDC generally had three to five employees at the jobsite each day. (Tr. 820). NDC 

oversaw the subcontractors’ work product and was ultimately responsible for the project’s 

completion. (Tr. 616). NDC inspected the subcontractors’ work for compliance with building 

plans, quality, cleanliness, and whether a subcontractor had enough materials and workers 

present to timely complete the job. (Tr. 813-16, 818-21, 870-71). The four instances alleged in 

the Citation pertain to A&D Berrios Framing Company (A&D Berrios or AD Berrios) and 

Cascade Renovation and Construction (CR Companies) workers who Respondent asserts were 

not its employees. (Ex. A, at 6, Ex. 22, ¶24, at 6). 

Weekly Subcontractor Meetings 

8

 Mr. Brumbaugh testified that there were 65 framing carpenters on site. (Tr. 589). 

5 
 

 

Each week, beginning August 31, 2016, NDC had a group meeting with subcontractors.9 

(Tr. 276; Exs. 59, S, at 1). Mr. Brumbaugh led the weekly meeting, which each subcontractor’s 

supervisor or foreman was supposedly required to attend. (Tr. 276, 282, 812, 830). The meeting 

was every Tuesday morning at 9 a.m. and lasted about 45 minutes to an hour. (Tr. 282). The 

purpose of the meeting was to discuss issues at the worksite and the project’s schedule for the 

next three weeks, so that everyone was equally informed. (Tr. 283). 

Each meeting began with a review of the safety issues from the prior week, outstanding 

safety issues, and safety reminders. (Tr. 281-83, 421, 425, 826). Safety topics discussed included 

hard hats, fall protection, safety rails, and cleanliness. (Tr. 826). Mr. Brumbaugh requested 

subcontractors share information about any safety violations they observed at the subcontractor 

meetings, but “there was no consequence if somebody didn’t tell me something.” (Tr. 425-26, 

440). NDC recorded minutes of the meetings and distributed them by email to all of the 

subcontractors. (Tr. 277-83). 

The Meeting Minutes show that on November 1, 2016, “Another ECS item: Controlled 

access zones will be required for trash (framing debris) or construction activities ongoing from 

elevated decks. Plan needs to be submitted to NDC for approval ASAP. NDC has advised that 

ECS will be shut down from operations if plan is not implemented.”10 (Tr. 482-91, Ex. 25, at 1, 

Ex. 63, at 1). The Meeting Minutes show that on November 8, 2016, NDC warned its 

subcontractors of its authority to withhold pay application payments “until correction[s] are 

9

 Neither ECS nor CR Companies attended the first subcontractors’ meeting. (Ex. S). The first meeting ECS 

attended occurred on September 6, 2016. The Meeting Minutes for that meeting state: “All proper PPE will be 

enforced throughout the project.” (Ex. S, at 7). There is a check mark to the right of CR Companies and Dan 

Gorecki on the attendance sheet for Subcontractor Meetings ## 23 and 24 that occurred on February 7 and 14, 2017. 

(Ex. X, at 5, 20). CR Companies’ Steve Smith attended Meetings ## 29 and 30 held on March 21 and 28, 2017. (Ex. 

Y, at 14, 19). 

10 Mr. Miller testified that a controlled access zone occurs when a subcontractor wants to haul materials up to a roof 

using a forklift or crane. The subcontractor ropes off the area below using tape and has someone standing down on 

the ground to ensure that nobody walks in the roped off area to avoid being exposed to a fall hazard. (Tr. 873). 

6 
 

made” to items which it noted in deficiency logs. (Ex. U, at 26). The Meeting Minutes show that 

on November 29, 2016, “ECS has not implemented a Controlled Access Zone program/protocol. 

Formal notice of safety violation will be issued today as a follow up. ... Tom Mair has 

committed to addressing both.”11 (Tr. 491-99, Ex. 26, at 1, 5). The Meeting Minutes show that on 

December 13, 2016, NDC advised ECS that “Tie-off of workers working along leading edges 

above 6’ is also not acceptable.” (Ex. W, at 15). The Meeting Minutes show that on December 

20, 2016, “NDC has observed continued breaches in company safety policies of ECS. NDC will 

continue to issue written safety notices.” (Tr. 516-17; Ex. W, at 1). The Meeting Minutes show 

that on January 10, 2017, “Reiterated Notice to Tighten up all Safety Rails throughout. ... Safety 

Officers to coordinate all Safety Issues across trades.” (Tr. 368-69; Ex. W, at 21). The Meeting 

Minutes show that on January 24, 2017, “Any safety railings that have been removed must be 

reinstalled.” (Ex. W, at 5). The Meeting Minutes show that on January 31, 2017, “Safety Rails at 

doors openings need to be reinstalled. Observe Warning signs on doors. Fall Protection 

Harnesses are not being properly utilized.” (Tr. 366-67, 532-33, 686-88, 785-87; Exs. 52, at 1, 66, 

at 1, W, at 10). The Meeting Minutes show that on February 7, 2017, “All crews instructed to tieoff on all patio work.” (Ex. 66, at 1, Ex. X, at 1). The Meeting Minutes show that on February 

21, 2017, “As Garcia crews move on to new Buildings, they will no longer be responsible for 

safety railings for buildings they are out of. Safety signs are posted on Blgs#1 & 2 – DANGER 

FALL PROTECTION REQUIRED. Post on other buildings as needed.” (Tr. 375-76, 478-79; Ex. 

67, at 1, Ex. X, at 6). The Meeting Minutes show that on February 28, 2017, “Superintendents 

requested to meet with their employeed (sic) to review proper PP&E.” (Ex. 68, at 1, Ex. X, at 

11). The Meeting Minutes show that on March 21, 2017, “Reminder for all subs to Attach Safety 

11 Mr. Brumbaugh testified that Mr. Mair (sometimes in the record spelled Maier) was ECS’s on site supervisor. (Tr. 

369, 578). 

7 
 

 

Rails as Needed.” (Ex. Y, at 10). The Meeting Minutes show that on March 28, 2017, “Blg 5 & 6 

need some safety rails re-attached.”12 (Tr. 380, Ex. 70, at 1, Ex. Y, at 15). The Meeting Minutes 

show that on April 4, 2017, “Reminder: Fall protection required on balconies w/o barriers.” (Tr. 

382; Ex. Z, at 1). The Meeting Minutes show that on April 11, 2017, “Extended discussion of 

OSHA Compliance ... Safety Rails continue to be insufficient.... Reiterated that the burden of 

Safety Practices lie[s] squarely on Subcontractor. Yesterday NDC had 2 specific meetings with 

... Cascade Renovation regarding specific Safety Issues that were identified in the field.”13 (Tr. 

382-86, 535-37; Ex. Z, at 5). The Meeting Minutes show that on April 18, 2017, “Reiterated that 

Safety Measures i.e. training, equipment, ladders, hoists, harnesses, hard hats, etc. are the 

responsibility of the Contractor, not NDC. Reminder to wear Fall Protection for all work 

performed on open patios.” (Ex. Z, at 10). 

NDC’s relationship with its subcontractors 

There was a standard contract (Subcontractor Agreement) between NDC and each 

subcontractor it originally hired. (Tr. 243, 302; Ex. 57; Ex. 19, at 1-2). The Agreement stated 

that the subcontractor had the “sole responsibility for the means and methods of performing the 

Work required under this Agreement” (Ex. 57, at Exhibit “A”, ¶2.I., at 7), for preventing 

accidents to its own employees (Ex. 57, at Exhibit “A”, ¶10.A., at 19), and was required to stop 

work when ordered by NDC until the condition was corrected in a satisfactory manner.14 (Ex. 

57, at Exhibit “A”, ¶10.A., at 19). The Subcontractor Agreement also gave NDC the right to 

remove a second tier subcontractor contractor, like AD Berrios, from the job site if AD Berrios 

12 Mr. Brumbaugh testified that the Jobsite Inspection Checklist dated 3-28-17 showed that safety rails at Building 

Nos. 5 and 6 needed to be reattached. (Tr. 534-36; Exs. 54-55). 

13 Mr. Brumbaugh testified that a supervisor named Carlos [Rodriguez] represented CR Companies at the meeting. 

(Tr. 386; Ex. H). 

14 The Subcontractor Agreement stated: “When so ordered, subcontractor agrees to stop any part of the work which 

contractor deems unsafe until corrective measures satisfactory to contractor have been taken and further agrees to 

make no claim for damages growing out of such stoppages.” (Tr. 701-02; Ex. 57, at Exhibit “A”, ¶10.A., at 19). 

8 
 

did not follow a Safety Policy adopted by AD Berrios.15 (Tr. 710-12; Ex. 57, at Exhibit “A”, ¶ 

10.A., at 20). Mr. Scott testified that NDC could stop an ECS employee working on a balcony 

from working if he was doing so unsafely. He also said that NDC could hire someone to replace 

missing safety rails if a subcontractor refused to fix the safety rails and NDC could charge the 

cost to the refusing subcontractor. (Tr. 702-10; Ex. 57, at Exhibit “A”, ¶¶10.A., at 19-20, 13.D., 

at 25). Exhibit “F” to the Subcontractor Agreement required, among other things, a 

subcontractor to appoint a competent person, instruct workers in safe work practices, 

immediately correct unsafe work practices when discovered, provide personal protective 

equipment (PPE) to workers, conduct weekly “tool box” meetings with workers, and notify 

NDC of hazardous conditions created by other subcontractors. (Tr. 650, 656, 663-64; Ex. 57, at 

Exhibit “F”, at 2-3). Mr. Brumbaugh testified that subcontractors provided PPE to their 

employees. (Tr. 292). The subcontractor meeting minutes for September 6 and 13, 2016 state 

that “All proper PPE will be enforced throughout project.” (Tr. 299; Ex. S, at 7, 14). 

Prior to beginning work at the site, each subcontractor had a preconstruction meeting 

with NDC to review the scope of work and the Agreement’s requirements. (Tr. 302). This 

meeting included the subcontractor’s onsite supervisor. (Tr. 302). Each subcontractor was 

required to provide a copy of its safety manual, which NDC kept in the worksite construction 

trailer.16 (Tr. 650, 656, 659-60, 827; Exs. II-JJ). The subcontractor was required to provide 

15 The Subcontractor Agreement stated, “If Subcontractor, or any person who enters the job site under an employment 

or a direct or indirect contractual arrangement with Subcontractor, fails to enforce Safety Policy, Contractor shall 

have the right to bar such party from the job site. Any resulting damage (including damage for delay) will be the 

responsibility of subcontractor.” (Tr. 711-12; Ex. 57, at Exhibit “A”, ¶10.A., at 19-20). 

16 ECS’s Safety Manual designated Tom Maier as ECS’s Competent Person to implement its Fall Protection Plan. 

ECS’s Safety Manual stated: 

 . Enforcement 

Constant awareness of and respect for fall hazards, and compliance with all safety rules are considered conditions of 

employment. The crew supervisor or foreman, as well as individuals in the Safety and Personnel Department, reserve 

the right to issue disciplinary warnings to employees, up to and including termination, for failure to follow the 

guidelines of this program. (emphasis in original) (Ex. JJ, at 8). 

9 
NDC with documentation of its weekly tool box talks. (Tr. 299-300). 

When more than one subcontractor worked in a building, the subcontractors sometimes 

conducted a group safety walkthrough on a non-routine basis. (Tr. 360, 363). The subcontractors 

used a two or three-page checklist of safety issues that included, first aid, PPE, housekeeping, fire 

protection, material storage, tools, welding, electrical, ladders, scaffolds, handrails, excavation, 

and foreman’s communication with the crew. (Tr. 358, 362-63; Ex. OO, Ex. 19, ¶7, at 2). The 

completed checklist was submitted to NDC. (Tr. 361-62; Ex. OO). 

The Subcontractor Agreement between NDC and ECS, dated July 11, 2016, called for 

NDC to pay ECS $2,696,000 for wood framing and rough carpentry.17 (Tr. 70, 291, 548, 620-26; 

Exs. 57, R). ECS built the framing, installed Tyvek house wrap, and installed all related framing 

hardware at the site.18 (Tr. 622-23). NDC “bought basically a complete shell from Emerald 

Coast.” (Tr. 623-24; Ex. WW, ¶1a., at 1-3). Mr. Brumbaugh testified that ECS had about 60 

men working at the job site.19 (Tr. 419-20). Mr. Brumbaugh testified that AD Berrios was a 

third-party working for ECS.20 He testified that he was “not sure” if AD Berrios was 

“financially” a subcontractor to ECS. He was not sure that AD Berrios was a “subcontractor or 

not” to ECS, but he believed that they were. (Tr. 70, 293-94, 430, 669). NDC did not have a 

contract with AD Berrios. (Tr. 669-70). AD Berrios workers were alleged to have been working 

without fall protection in instances (a), (b), and (c) of the Citation. 

On July 22, 2016, NDC hired CR Companies located outside of Chicago, Illinois, to 

install siding for the project at a cost close to two million dollars because it had completed 

17 ECS’s Final Revised Proposal, dated June 16, 2016, to NDC for the project is at Exhibit FF. NDC purchased the 

trusses at $754,000 directly from A-1 Truss reducing ECS’s proposal from $3,450,000 to $2,696,000. (Tr. 634-37; 

Ex. FF). 

18 Mr. Brumbaugh testified that NDC also contracted with the framing subcontractor to install safety rails. (Tr. 292-

93, 582). 

19 Mr. Scott testified that AD Berrios had “60, 70 guys on the job site at times.” (Tr. 797). 

20 Mr. Scott testified that AD Berrios was a second tier subcontractor to NDC and a third party working for ECS. (Tr. 

712-15). 

10 
several large multi-family unit projects before and NDC found no issues with its work at a 

nearby project. (Tr. 96-97, 291, 620, 639-42; Ex. Q). CR Companies was recommended by the 

HardiPlank siding manufacturer and another material supplier. (Tr. 640-41). A CR Companies 

employee was alleged to have been working without fall protection in instance (d) of the 

Citation. 

Key NDC Employees 

Charles Scott 

Since 2005, Charles Scott has been a Senior Vice President at NDC. He was the project 

executive for the Preserve project. (Tr. 608, 681-82). As a project executive, Mr. Scott worked 

with a project’s owner from the initial design phase to turnover at the end of construction. (Tr. 

611-13). At any given time, Mr. Scott was responsible for three or four NDC projects. (Tr. 613). 

For the Preserve project, Messrs. Brumbaugh and Fetzek reported directly to Mr. Scott. (Tr. 443, 

615). Mr. Scott said that the project superintendent is “in charge of the site work on a day-to-day 

basis. Overseeing the subcontractors, making sure the subcontractors are working where they’re 

supposed to be working.” (Tr. 616). He said NDC is a construction manager, with no NDC 

tradesmen, and not a general contractor. (Tr. 618). 

Mr. Scott visited the Preserve worksite one to three times a week. (Tr. 613-14). When 

there, he walked the site with the project manager and superintendent, discussed problems with 

them, and reviewed the project’s progress. (Tr. 613-14). He did not identify safety issues, 

including fall protection, as an issue in the field that he would need to get involved in. (Tr. 614). 

He said that he, the project manager, and superintendent all do site walks. (Tr. 616). Mr. Scott 

said sometimes NDC did safety walks with subcontractors. (Tr. 722-23; Ex. 23, ¶25, at 3). 

11 
 

If Mr. Scott observed a safety issue on a site walk, he had Mr. Brumbaugh contact the 

subcontractor to have it corrected. (Tr. 617, 663-64). To Mr. Scott’s knowledge the 

subcontractors corrected the safety issues when notified. (Tr. 617, 682, 775, 786). Mr. Scott 

would only get involved if a subcontractor refused to correct problems. (Tr. 775-76). He said, 

“It’s the responsibility of the subcontractor to make sure that their people are working safely.” 

(Tr. 656-58). He also said that “the subcontractor is responsible for monitoring their own safety, 

training their employees, making sure their employees have proper personal protective 

equipment.” (Tr. 663-64). 

Mr. Scott testified that NDC dealt with ECS’s on-site superintendent and fulltime safety 

monitor Tom Mair on a daily basis in the field. He said ECS’ owner, John Toth III, made “maybe 

four or five site visits.” (Tr. 629-30, 637, 652-53, Ex. JJ, at 2). He said ECS used a framing 

subcontractor, AD Berrios, to supplement its own framers. He said NDC had no contractual 

relationship with AD Berrios. Mr. Scott said that every two weeks ECS and AD Berrios put 

together a pay application and NDC issued joint checks to both ECS and AD Berrios until 

midway through the project.21 (Tr. 669-70, 714, 734, 796-97; Ex. 18, at 9-10, Ex. 22, ¶17, at 3, 

Ex. 23, ¶¶21-22, at 1-2, Ex. 57, at Exhibit “A”, ¶4E, at 14). He said that NDC had direct contact 

with AD Berrios employee, Louis (Louis or Luis) Garcia.22 Louis Garcia attended NDC’s 

subcontractor coordination meetings along with Mr. Mair. If Mr. Mair could not attend, Louis 

Garcia participated, at times, in the meetings representing ECS. (Tr. 670-71). Mr. Scott testified 

that one of the first topics at the meetings was “to remind all subcontractors that ... they’re 

21 Respondent’s Responses to Complainant’s First Set of Interrogatories, Interrogatory No. 14, states from midway 

through the project “NDC issued checks directly to AD Berrios” and “payment were issued from NDC to its subsubcontractor, AD Berrios, in order to facilitate the work, the subcontractor, Emerald Coast, failed to complete.” (Ex. 

18, at 9-10). 

22 Mr. Scott testified that Louis Garcia was an on-site foreman who worked for either ECS or AD Berrios. (Tr. 658-

59, 773). 

12 
responsible for the safety of their employees.” (Tr. 671). He stated NDC instructed 

subcontractors to use fall protection on all balconies above the first floor. (Tr. 688). 

On January 19, 2017, Mr. Scott said he sent ECS a “Notice of Default” letter by certified 

mail and email pursuant to Article 13, Default and Termination, of their Subcontractor Agreement, 

that put ECS on notice that it had repeatedly failed to provide sufficient skilled workers and 

materials to Buildings 3 and 4.23 (Tr. 631, 780-81; Ex. 57, at ¶13, at 23; Ex. 19, ¶4, at 2, Ex. 23, 

¶24, at 2-3, Ex. 85). On January 23, 2017, ECS asked NDC in an email, “With Garcia framing as 

usual is this contract still in process or have you terminated it? (Ex. QQ, at 5). On January 24, 

2017, NDC told ECS that it was not terminating their contract, but stated, “We are supplementing 

your contractual obligation.” (Ex. QQ, at 5). Later that day, ECS’s Mr. Toth sent an email to 

NDC’s Mr. Scott that stated, in part: “Okay I’ll play the game. By supplement do you mean you 

are now paying Garcia directly?” (Ex. QQ, at 4). In an email dated January 25, 2017 from Mr. 

Toth to Messrs. Fetzek and Brumbaugh, Mr. Toth stated, “It appears James [Brumbaugh] has told 

Tom [Mair] not to show up tomorrow [January 26, 2017].” (Ex. QQ, at 3). In an email response 

later that day, Mr. Scott told ECS their contract had not been terminated, but that NDC was 

supplementing ECS’s work force and would be paying ECS’s subcontractors and vendors directly. 

(Ex. QQ, at 3). 

Mr. Scott testified that he was aware of some safety and health issues with regard to ECS, 

but understood they were taken care of.24 He agreed that NDC issued nine or more fall protection 

23 Mr. Scott said he told ECS’s Mr. Toth a few days later that NDC had not terminated ECS and that AD Berrios was 

going to do the remaining work on Buildings 3 and 4. (Tr. 780-81; Ex. 23, ¶24, at 2-3, Ex. QQ, at 2-5). Mr. Scott 

testified and denied that NDC hired ECS’ subcontractor, AD Berrios, out from under ECS. (Tr. 781). Respondent’s 

Responses to Complainant’s Second Requests for Admissions states, in part, “Emerald Coast’s work was 

supplemented via executed change orders and back-charges resulting from Emerald Coast’s ongoing and repeated 

failure to supply enough skilled labor at the Jobsite.” (Ex. 23, ¶24, at 2-3). 

24 Mr. Scott testified: 

Q If ECS’s workers weren’t using fall protection, NDC would know? 

A If we saw them not using fall protection, we notified them. 

Q So the answer to my question is yes, then? 

A Yes. 

13 
violations to ECS and that he was aware of them.25 (Tr. 683, 753-63, 770, 782). Mr. Scott said 

NDC would not do anything more than just notify ECS of unsafe fall hazard violations as long as 

ECS continued to correct the reported fall hazard violations. (Tr. 753-63). He said “[t]here was 

no discipline” by NDC against anyone for a worker not wearing fall protection. (Tr. 774). He 

recalled seeing some emails where Mr. Toth said, “please remove these two men from the job 

site.” Mr. Scott stated employees that worked without fall protection “should be released by their 

employer.” (Tr. 684-85). He said that NDC did not terminate ECS for cause “[b]ecause they 

would correct the issue right away.” He also said that “it’s very difficult to terminate a 

subcontractor” for cause because it would “Probably be converted to convenience” and ECS 

would have received an equitable adjustment of revenue, profit and overhead. (Tr. 664-68, 785). 

Mr. Scott testified that he could not fire a subcontractor’s employee; but agreed NDC had the 

right to bar workers from the job site who were not following safety rules. (Tr. 685-86, 711-12). 

He said NDC could terminate any NDC employee, including Mr. Brumbaugh, if the employee 

“was not using fall protection and they put themselves in an imminent life threatening danger 

situation.” Mr. Scott further stated that NDC would notify the owner, or a superintendent, of ECS 

and have them deal with a worker who violated safety rules “by removing him from the job 

site.”26 (Tr. 685, 699, 719; Ex. 57, at Exhibit “F”, at ¶41, at 8). Mr. Scott stated NDC had the 

authority to correct safety violations itself or require others to correct them.27 (Tr. 749-52). 

(Tr. 769). 

25 The record shows that NDC notified ECS of fall protection violations on, at least, November 29, 2016, December 

6, 2016, December 7, 2016, December 12, 2016, December 13, 2016, January 9, 2017, January 10, 2017, January 20, 

2017, January 30, 2017, January 31, 2017, and February 7, 2017; a period of about two months and one week. (Exs. 

26-27, 30, 32, 35, 38, 41-42, 47, 51-52, 55, GG). 

26 The Sub-contractor Agreement between NDC and ECS included Exhibit “F”, NDC Safety Plan, that stated: “41. 

Willful Violation of these or other Safety Rules of the Project will be cause for Dismissal.” (Tr. 719; Ex. 57, at 

Exhibit “F”, ¶41, at 8). Mr. Scott said that he was unaware of any willful violation of safety rules on the project. (Tr. 

794). 

27 Mr. Scott’s testimony contradicts Respondent’s response to Interrogatory No. 24, NDC’s Answers to 

Complainant’s Second Set of Interrogatories, that states: “Respondent was not an employer who had general 

supervisory authority over the worksite, including the power to correct safety and health violations itself or require 

others to correct them.” (Tr. 731, 751-52; Ex. 22, ¶ 24, at 6). Mr. Scott was one of several NDC representatives that 

14 
 

 

Mr. Scott testified that CO Ortiz made him aware that employees of CR Companies were 

working without fall protection on April 5, 2017. He recalled seeing at least one photograph on 

either April 5 or April 7, 2017. (Tr. 779). Mr. Scott testified that NDC made sure CR Companies 

followed the CR Companies rules set forth in its “Accident Prevention and Safety Program for 

CR Companies Inc.”, but he could not say if NDC made sure CR Companies implemented every 

single one of these rules. (Tr. 777-79, 801-02; Ex. II). CR Companies safety manual called for an 

“immediate one-day suspension” for an employee who violated its fall protection policy a second 

time. Mr. Scott said he did not know whether CR Companies suspended anybody. (Tr. 777-78; 

Ex. II, at 10). 

Mr. Scott testified that ECS “was doing a good job” and despite having [at least] nine 

reported fall protection violations in eight months ECS was properly supervising its workers. (Tr. 

769-70). He said that both ECS and CR Companies finished the project. (Tr. 629, 643). Mr. 

Scott testified that he was unaware of any illnesses, injuries or fatalities at the Preserves project. 

(Tr. 680). 

James Brumbaugh 

Mr. Brumbaugh was the onsite project superintendent at the Preserve project from June 

2016 through June 2017. (Tr. 272, 278, 399). He did not have the authority to terminate a 

subcontractor. (Tr. 421). Each day, Mr. Brumbaugh either walked or drove a golf cart around the 

entire 12 to 20-acre Preserve worksite. (Tr. 276, 279, 368, 374-75, 412-13). This daily site 

review occurred at various times of day and lasted from 15 minutes to several hours. (Tr. 279, 

413). During his daily site review, he verified compliance with work plans and measurements, 

observed the size of the work crews, progress of scheduled priorities, and building placement. 

(Tr. 279-80). If Mr. Brumbaugh saw an unsafe condition or noncompliance with a safety policy, 

certified that NDC’s responses were accurate to the best of his knowledge. (Tr. 729-31). 

15 
 

he immediately called the supervisor or foreman to correct the unsafe condition; at times, he 

would also text a picture of the condition. He said NDC never tried to ascertain the name of 

anyone who committed a safety violation. (Tr. 450-51). He did not attempt to see if every worker 

had fall protection every day. He admitted that he observed AD Berrios employees working on 

balconies and not wearing harnesses. He did not communicate directly with subcontractor, nonsupervisory, employees about safety. He never told a subcontractor employee to use fall 

protection. He never asked a subcontractor employee if the employee had been provided a 

harness or had fall protection equipment. He said, he and NDC did not perform safety inspections 

since NDC was a construction manager. Mr. Brumbaugh said, “We’re not in charge of safety.”28 

He said they “pointed out something to subcontractors.” (Tr. 280-81, 401, 405-09, 414, 440). 

Neither he nor Mr. Scott ever checked about the safety history with OSHA of any NDC 

subcontractor, including ECS, CR Companies, and AD Berrios. (Tr. 410-11, 764-67). Mr. 

Brumbaugh said he was always able to contact the supervisor of a subcontractor’s employee who 

he had observed violating a safety rule within five minutes. (Tr. 450). Mr. Brumbaugh, or to his 

knowledge, NDC, never asked a subcontractor, including ECS and CR Companies, to take 

disciplinary action against one of their employees. (Tr. 451-52). He never issued a stand down 

from work order to ECS relating to fall protection. (Tr. 533-34). Mr. Brumbaugh had not heard 

that NDC had a safety tracking system to track safety occurrences. (Tr. 453). 

In addition to the telephone call, he sometimes emailed a written Notice of Safety 

Violation to the subcontractor’s management. (Tr. 296, 415-16, 448; Ex. W, at 26). He did not 

send a written Notice of Safety Violation or keep a record when a safety issue was promptly 

resolved by just a telephone call. (Tr. 414-19). He does not know how many safety violations 

ECS committed at the job site. (Tr. 419). 

28 “NDC does not contend it was a site safety police force.” (Resp’t. Post-Trial Br., at 27). 

16 
 

 

 

 

During the year that he worked at the project, he estimated that he brought safety issues to 

the attention of subcontractors about a half a dozen times, including a few times where he found 

balcony guard rails missing. Mr. Brumbaugh said he sent out about half a dozen written Notices 

of Safety Violations. (Tr. 296-97, 418). He said each time he notified a subcontractor about a 

safety issue, he believed it was corrected. (Tr. 281, 444-45). For fall protection issues, Mr. 

Brumbaugh testified that abatement meant that either fall protection equipment was used or the 

employee simply came down from the balcony and nothing more. (Tr. 435-36, 453-55). 

On November 29, 2016, NDC emailed a Notice of Safety Violation signed by Messrs. 

Brumbaugh and Fetzek to ECS addressed to Mr. Toth.29 The Reason for the Notice states: “This 

notice is to make you aware of safety issues that are presently Occurring on the project. 24 

hour notice of safety violations.”30 (emphasis in original). The Notice stated that the 

“LOCAT ON OF YOUR PROBLEM(S): Controlled Access Zone at buildings. (emphasis in 

original). The Notice further stated: 

Specifically related to Controlled Access Zone safety of all workers. NDC has now for 

the 4th week requested that ECS comply with unconditional effort of your company safety 

manual. To date, your firm continues to remove trash and load materials without 

installation of tape, barricades or other means of protection for workers from falling 

debris. 

As set forth in section INSTALLATION OF ROOF TRUSSES, specifically states a 

monitor will be present when on top of walls and installing rafters/trusses. Your firm 

installs the 2x4 post for rails on the exterior walls during erection of walls but does not 

install the rails until after completion of decking. Something needs to be done to protect 

them during the sheeting process. Additionally, as workers access patios beyond the 

double rails at the doorway, they need to be tied off. 

... NOTE: ALL V OLAT ONS MUST BE ADDRESSED AND RESOLVED 

 MMED ATELY (emphasis in original). 

29 Mr. Brumbaugh testified he did not recall speaking with Mr. Toth about the reported safety violation before 

sending out the notice. (Tr. 496; Ex. 26, at 6). NDC waited 28 days to issue the notice after ordering ECS to 

implement its Controlled Access Zone plan. (Tr. 488-92). In its Responses to Complainant’s First Request for 

Admissions, Respondent stated that it “[d]enied that Respondent issued safety notices for violations of NDC rules. 

Such rules were issued for perceived violations of OSHA standards.” (Ex. 19, ¶16, at 3-4). 

30 Mr. Brumbaugh testified that meant ECS had 24 hours to correct the safety violations. (Tr. 417, 495; Ex. 30). Mr. 

Scott said he was not aware that NDC’s Notice of Safety Violation gave subcontractors 24 hours to correct a reported 

safety violation. (Tr. 758-59). 

17 
 

 

 

 

 

 

 

 

(Tr. 491-99; Ex. 19, ¶16, at 3-4, Ex. 26, at 1, 6, Ex. JJ, at 4). 

On December 6, 2016, NDC emailed a Notice of Safety Violation signed by Mr. 

Brumbaugh to ECS addressed to Mr. Toth. The Reason for the Notice states: “This notice is to 

make you aware of safety issues that are presently Occurring on the project. 24 hour notice 

of safety violations 2nd notice of fall protection life safety issues”31 (emphasis in original). The 

Notice stated that the “LOCAT ON OF YOUR PROBLEM(S): Fall Protection (emphasis in 

original). The Notice further stated: 

Specifically related to Fall Protection. Yesterday, your team was escorted around site and 

in excess of 12 different balcony and breezeway openings were left with no handrails. As 

of this morning, several areas remain unsafe. NDC has daily pointed out areas of fall 

protection and now demands immediate abatement of all life safety issues and your firm is 

to maintain a full time safety personnel to mitigate ongoing issues. 

... NOTE: ALL V OLAT ONS MUST BE ADDRESSED AND RESOLVED 

 MMED ATELY (emphasis in original). 

(Tr. 499-504; Ex. 19, ¶6, at 2, ¶17, at 4, Ex. 27). 

On December 7, 2016, NDC emailed a Notice of Safety Violation signed by Mr. 

Brumbaugh to ECS addressed to Mr. Toth. The Reason for the Notice states: “This notice is to 

make you aware of safety issues that are presently Occurring on the project. 24 hour notice 

of safety violations Continuing notice of fall protection life safety issues” (emphasis in original). 

The Notice stated that the “LOCAT ON OF YOUR PROBLEM(S): Fall Protection (emphasis 

in original). The Notice further stated: 

Specifically related to Fall Protection. Today your firm has 2 men working out of a trash 

box 35’ in the air lifted by a lull. The box is not OSHA approved and neither of your 

employees are harnessed. Stop this unsafe practice immediately. Tom has been made 

aware. To further the insult, there is a boom lift at building 1 not being used. 

... NOTE: ALL V OLAT ONS MUST BE ADDRESSED AND RESOLVED 

 MMED ATELY (emphasis in original). 

31 Mr. Brumbaugh testified that there was a previous notice of fall protection/life safety issues issued to ECS. (Tr. 

501). He said when he issued the December 6, 2016 Notice of Safety Violation all of ECS’s fall protection violations 

had not been abated. (Tr. 501). 

18 
 

 

 

 

(Tr. 504-07; Ex. 30). 

On December 12, 2016, NDC’s Messrs. Brumbaugh, Fetzek and Barjuca, attended a 

Weekly Coordination Meeting with Messrs. Louis Garcia and Tom Mair. Louis Garcia is 

identified with ECS and as a “(Sub Sub).” Mr. Mair is identified with ECS. A Jobsite Inspection 

Checklist dated December 12, 2016 is attached to the summary of the meeting. An “X” appears 

under the “No” column for “B. Personal Protective Equipment 5. Safety harnesses and lanyards 

worn for fall protection?”32 “X”s also appear under the “No” column for “K Handrails and Hole 

Covers 1. Perimeters and drop-offs protected by rails or cables?33 and 2. Railings sturdy, 

continuous, and have midrails?” (Tr. 361-63, 507-08; Ex. V, at 11, 13-17, Ex. OO, at 1-3). 

On December 13, 2016, Mr. Brumbaugh sent an email to Messrs. Toth, Mair and Fetzek, 

Subject: Fall Protection, along with a photograph, that stated “This is your idea of fall protection 

37 feet down to ground.” Mr. Brumbaugh took the photograph shown at Exhibits 33 (in color) 

and 35, at 2 (in black and white). He said the photograph “depicted a man is up on – setting the 

roof trusses on a tower.” He admitted that the photograph showed a fall protection violation. (Tr. 

508-12; Exs. 33, 35). Mr. Brumbaugh said it was ECS’s responsibility to address the issue with 

their employees.34 (Tr. 512, 572-76). He said that he “dealt with them [ECS] every day all day.” 

(Tr. 574). 

On December 15, 2016, Mr. Brumbaugh sent an email to Messrs. Jose Garcia,35 Toth, and 

Mair with a cc to Mr. Fetzek, Subject: Preserve Safety on going violations, that stated: 

Gentlemen, your firm has not turned in a safety meeting [weekly report] since 12/01/16, if 

ECS/Garcia were doing safety as required weekly, I believe that the communication would 

get out there. NDC requires weekly safety tool box meeting by all subcontractors. With 

32 “N/A NOTE 1” also appears under the Comments column. (Ex. Y, at 15). Mr. Brumbaugh said he did not 

investigate whether or not the subcontractors identified anyone not wearing harnesses or lanyards. (Tr. 508). 

33 “Building 1,2, 7 NOTE 4” also appears under the Comments column. (Ex. V, at 17). 

34 Mr. Scott testified that he would expect Mr. Brumbaugh to direct the worker to get off the trusses. (Tr. 760-61) 

35 Mr. Brumbaugh testified that Jose Garcia was an ECS supervisor and Jose and Louis Garcia were brothers. (Tr. 

577). 

19 
 

 

 

 

 

that said, we are continuing to encounter repeat violations and a complete lack of control 

for safety by all of the framing crews. You have received several notices and pictures of 

these repeat violations as well as weekly subcontractor meeting minutes and the report 

from our team safety walk this week. 

John/Tom/Garcia Builders, we need to get the communication out to the workers. 

(Tr. 513-16, 578; Ex. 38). 

Mr. Brumbaugh testified that up to December 15, 2016, ECS was acting reasonably in terms 

safety because it had the largest number of men on the job site with different crews coming in and 

out. (Tr. 516). 

On January 9, 2017, NDC emailed a Notice of Safety Violation written and signed by Mr. 

Brumbaugh to ECS addressed to Messrs. Toth, Jose Garcia36 and Tom Mair.37 The Reason for the 

Notice states: “This notice is to make you aware of safety issues that are presently Occurring 

on the project. 24 hour notice of safety violations 2nd Notice of fall protection life safety 

issues.” (emphasis in original). The Notice stated that the “LOCAT ON OF YOUR 

PROBLEM(S): Fall Protection, safety rails at opening, failure to use PPE fall protection.” 

(emphasis in original). The Notice further stated: 

Specifically related to Fall Protection. Yesterday, your team was escorted around the site 

and in excess of 12 different balcony and breezeway openings were left with no handrails. 

As of this morning, several areas remain unsafe. NDC has daily pointed out areas of fall 

protection and now demands immediate abatement of all life safety issues and your firm is 

to maintain a full time safety personnel to mitigate ongoing issues. 

... NOTE: ALL V OLAT ONS MUST BE ADDRESSED AND RESOLVED 

 MMED ATELY (emphasis in original). 

(Tr. 369-70, 414-15, 518-20; Exs. 41; Ex. W, at 26). 

Mr. Brumbaugh testified that the fall protection was “abated immediately” and the railings were 

fixed within two hours. (Tr. 370). He did not watch ECS’s work any more closely after issuing 

ECS a Notice of Safety Violation. (Tr. 402-03). CO Ortiz testified that NDC was responsible for 

making sure that guard rails were being maintained. (Tr. 344-45). 

36 The Notice of Safety Violation was addressed to Louis Garcia. (Ex. 41). 37 Mr. Brumbaugh testified he had first spoken to Mr. Mair about the reported safety violation before sending out the 

notice. (Tr. 417-18; Ex. 30). 

20 
 

 

 

 

 

 

 

 

 

On January 10, 2017, NDC emailed a Notice of Safety Violation written and signed by Mr. 

Brumbaugh to ECS addressed to Messrs. Toth, Mair and Louis Garcia. The Reason for the Notice 

states: “This notice is to make you aware of safety issues that are presently Occurring on the 

project. notice of safety violations Continuing notice of fall protection life safety issues.” 

(emphasis in original). The Notice stated that the “LOCAT ON OF YOUR PROBLEM(S): 

Fall Protection Building 1.” (emphasis in original). The Notice further stated: 

See attached photos of improper/no fall protection being used. ... NOTE: ALL 

V OLAT ONS MUST BE ADDRESSED AND RESOLVED MMED ATELY 

(emphasis in original). 

(Tr. 520-21; Exs. 42-45). 

The referenced photographs were sent by an email dated January 10, 2017 addressed to Messrs. 

Toth, Louis Garcia, and Mair, with copies to Messrs. Fetzek, Kloepfer, and Miller, Subject: 

Preserve Safety Violations. The email stated: “Please see attached photos, one has no fall 

protection and the other is harnessed and not tied to anything. Please properly train your 

personnel and stop all unsafe practices.” (Tr. 521-25; Exs. 42-45).38 Mr. Brumbaugh testified that 

the two photographs depicted another fall protection violation. (Tr. 522-23, 579-81; Exs. 42-45). 

On January 20, 2017, NDC emailed a Notice of Safety Violation written and signed by Mr. 

Brumbaugh to ECS addressed to Messrs. Toth, Jose Garcia and Tom Mair. The Reason for the 

Notice states: “This notice is to make you aware of safety issues that are presently Occurring 

on the project. notice of safety violations notice of fall protection life safety issues.” (emphasis 

in original). The Notice stated that the “LOCAT ON OF YOUR PROBLEM(S): Fall 

Protection, safety rails at opening, failure to use PPE fall protection.” (emphasis in original). The 

Notice further stated: 

38 During the trial, the parties stipulated that “the notice in Exhibit 42 dated 1-10-2017 is the notice contained within 

Exhibit 43, dated 1-10-2017.” (Tr. 523; Exs. 42-43). 

21 
 

 

Specifically related to Fall Protection. Thru-out the week we have continued to address 

the safety rails. The same men installing them are taking them down to work on patios. 

Furthermore, the men on patios are standing on ladders and are not tied off. NDC has 

pointed out areas of fall protection and now demands immediate abatement of all life 

safety issues and your firm is to maintain a full time safety personnel to mitigate ongoing 

issues. 

... NOTE: ALL V OLAT ONS MUST BE ADDRESSED AND RESOLVED 

 MMED ATELY (emphasis in original). 

(Tr. 526-31; Exs. 48-50). 

The Notice of Safety Violation was sent in an email by Mr. Brumbaugh to Messrs. Toth, Mair, and 

Jose Garcia, with a copy to Messrs. Fetzek, Miler and Kloepfer, Subject: Preserve life safety fall 

protection, along with a photograph showing a worker working without fall protection and a 

harness on a third story balcony at about 3:04 p.m., January 20, 2017. (Tr. 526-31; Exs. 48, 50). 

Mr. Brumbaugh’s 3:49 p.m. email stated, “I tried to reach Tom twice at 3:04 and 3:08 this 

afternoon with no answer and not on site. Luis I sent you a picture and it is still not fixed. Again, 

supervision, quality control is needed.” (Ex. 48). 

A two-page Jobsite Inspection Checklist dated January 30, 2017, not identified to any 

particular subcontractor working on the Preserves Project, also had an “X” appearing under the 

“No” column for “B. Personal Protective Equipment 5. Safety harnesses and lanyards worn for 

fall protection?”39 (Tr. 530-31; Ex. OO, at 4-5, Ex. 19, ¶14, at 3). 

On April 6, 2017, Mr. Brumbaugh sent CR Companies an email that stated that “You have 

only had one safety meeting for all of the weeks you have been on site you are required to have 

one every week and turn in to NDC a copy.” (Tr. 542-45; Ex. 72). 

James A. Miller 

The Preserve project was Mr. Miller’s first assignment as an NDC employee. (Tr. 814). 

He was the assistant superintendent at the site, where he reported to Mr. Brumbaugh and worked 

39 “See Notes” also appears under the Comments column. (Ex. OO, at 4). 

22 
with project manager Fetzek. (Tr. 278, 807-08, 814). Mr. Miller was at the worksite from 

January 2017 to April 2017, and July 2017. (Tr. 814-15). 

Mr. Miller was at the Preserve project 8-10 hours each day and of that he spent 7-8 hours 

out in the field. (Tr. 816). He inspected the framing, checked structures for compliance with 

building plans, insured subcontractors were following NDC’s Safety Rules, and worked with 

inspectors. (Tr. 816, 898-99; Ex. 59, at 5-7). He walked through the structures with the trades to 

have quality issues corrected. (Tr. 816). Mr. Miller prepared the three-week lookahead 

construction schedule for the weekly subcontractor meeting. (Tr. 812). Fall protection was a 

topic brought up at these meetings and NDC reminded subcontractors that “they’re responsible 

for their own safety, we’re not, and they need to stay on top of it.” (Tr. 826, 885). 

Mr. Miller did not have a set time that he walked around the worksite to review 

compliance with the project’s plan. (Tr. 821). There were between 80 to 150 workers on the job 

site, depending on the work. (Tr. 817). He was not a safety officer. He said that he addressed 

subcontractor safety issues by going through subcontractor supervisors or foremen to have the 

issues corrected, either in-person or by telephone. (Tr. 403-04, 821-25, 865). He said it was NDC 

policy to contact the worker’s supervisor; he did not directly contact the worker. (Tr. 734-35, 865, 

871). Mr. Miller knew the issue was corrected when the supervisor called him back to tell him it 

was fixed or when he personally observed that it was fixed. (Tr. 821, 865, 869). If a safety issue 

that Mr. Miller observed was corrected, he did not inform Mr. Brumbaugh of the safety issue. (Tr. 

885). He said, “[h]e get[s] paid enough money to handle everything I can without bringing in 

anybody else.” (Tr. 888). Mr. Miller said that NDC’s Safety Rules gave NDC the power to 

remove a worker, provided Mr. Miller “knew the guy.” He further said that he was not expected 

23 
 

to identify the name of any subcontractor employee that he saw not following a safety rule. (Tr. 

900-01). 

At about 9:00 a.m., April 5, 2017, Mr. Miller was standing outside the west end of 

Building 2 at “A”, Exhibit HH, at 4, when he first saw CO Ortiz and AAD Perez-Ramos outside 

at the west end of Building 1, at “C”, Exhibit HH, at 4. He said the distance between the two 

locations was about 100 feet. (Tr. 838-39; Ex. HH, “A”, “C”). Mr. Miller said that the 

photograph at exhibit 15 shows two men on the third floor balcony of Building 4. (Tr. 840-42; 

Ex. 15, Ex. HH, at “E”, at 4). He said that the distance between where he was at “A” to where the 

two men were working at “E” was about 350 to 450 feet.40 (Tr. 842-43, 932; Ex. 15, Ex. HH, at 

“A”, “E”, at 4). 

Mr. Miller testified that he did not recall seeing any men working at Building 4 from 

where he was at “A” that morning. (Tr. 843; Ex. 15, at Ex. HH, at “A”, “E”, at 4). Mr. Miller 

testified that when he was standing with CO Ortiz and AAD Perez-Ramos on April 5, 2017 he did 

not look over in the direction of Building 4. Mr. Miller said CO Ortiz showed him his OSHA 

badge while they were standing at location “A”, Exhibit HH, at 4. Mr. Miller testified that CO 

Ortiz told him he was driving by and saw “man lifts” on the air.41 Mr. Miller further said CO 

Ortiz said to him, “I just want to ask you some questions.” Mr. Miller testified that he told CO 

Ortiz “no” and that he needed to go to the trailer and talk with James, the lead guy on the jobsite.42 

(Tr. 844, 861, 921-24; Ex. HH, at “A”). Mr. Miller further testified that he told CO Ortiz, “I’m 

not answering any questions.” He said CO Ortiz did not ask him any questions and did not 

40 The Court finds the distance between locations “A” to “E”, exhibit HH, as estimated by Mr. Miller to be of much 

less significance because of Mr. Miller’s later testimony that workers at location “E”, south side of Building 4, would 

have been visible to anyone looking in the direction of location “E” from location “A”, while standing at the north 

side of Building 2. (Tr. 932-33; Ex. 15, at “A”, “E”). 

41 Mr. Miller testified that a “man lift” is shown at the photograph at Exhibit 15, at “A”). (Tr. 924; Ex. 15, at “A”). 

42 Mr. Miller testified that the trailer was on the corner of 4th Avenue and 12th Street East, at Exhibit 15, at “G”, about 

700 to 800 steps away from where they were standing at “A”. (Tr. 844-45, 848; Ex. 15, at “A”, “G”). 

24 
 

 

 

attempt to talk with him about conditions at the jobsite. He said the conversation that occurred at 

location “A”, Exhibit HH, at 4, took “[t]wo to three minutes.” He admitted that his experience at 

that time was that if OSHA stopped at a jobsite it was because OSHA had seen something that 

gave them cause for concern from a safety perspective. (Tr. 850-51, 860-62, 921-22; Ex. HH, at 

“A”, at 4). Mr. Miller also said he had seen workers at the jobsite not properly protected from 

falls “a couple times a week.” (Tr. 864-65). Mr. Miller said he “adamant”[ly] asked CO Ortiz 

and AAD Perez-Ramos “[t]hree or four times” to go to the trailer. (Tr. 845, 850-51, 923). 

Mr. Miller said CO Ortiz did not show him any photographs or see CO Ortiz take any 

photographs. (Tr. 845). He said CO Ortiz did not try to direct Mr. Miller’s attention, or point, to 

Building 4. (Tr. 879-81). He further said he [Mr. Miller] did not recall looking over in the 

direction of Building 4 because he had no reason to after CO Ortiz and AAD Perez-Ramos 

walked away from him. Although he said that he personally did not actually see any workers at 

location “E”, on the balcony at Building 4, when speaking with CO Ortiz at location “A” standing 

outside the north side of Building 2 because he was at that time not looking in that direction 

toward Building 4, Mr. Miller testified workers on the balcony at location “E” would have been 

visible to him or anyone standing at location “A”. (Tr. 932-33; Ex. 15, Ex. HH, at “A”, “E”, at 4). 

But, he testified that after they walked away, he called the framer foreman, either Tom Mair43 or 

Louis Garcia,44 and CR Companies foreman, Carlos [Rodriguez], and told them “OSHA’s on site, 

tighten up.”45 (Tr. 432, 845-46, 859-60; Ex. H). He also called Manny at Bay City, the sheet rock 

company. (Tr. 847). 

43 Mr. Miller testified that he did not know whether Mr. Mair was at the job site on the morning of April 5, 2017. (Tr. 

882). 

44 Mr. Miller testified that he did not know whether Louis Garcia was at the job site before he [Mr. Miller] talked with 

CO Ortiz and AAD Perez-Ramos at about 9:00 a.m., April 5, 2017. (Tr. 883). 

45 Later, Mr. Miller testified that he thought that he called Louis Garcia. (Tr. 932). 

25 
Later, on April 5, 2017, Mr. Miller met with Mr. Scott about a photograph he was 

supposedly shown by CO Ortiz. Mr. Miller told Mr. Scott that he had not seen the photograph. 

(Tr. 998-99). Mr. Miller also testified he thought that on April 6, 2017 at least one OSHA 

inspector had a meeting with “the group” in the trailer office.46 He said he went to the trailer and 

was asked, and denied, if the male inspector had showed him any photographs the day before. He 

said, “they threw a photo out at me and said: ‘He said he showed you that.’” Mr. Miller said he 

had not previously seen that photograph. (Tr. 850). Mr. Miller said he did not recall speaking 

with CO Ortiz again after his 9:00 a.m., April 5, 2017 encounter. (Tr. 851). 

Mr. Miller initially testified that he did not recall CO Ortiz taking any photographs, 

including a photograph in the general direction of Building 4. He acknowledged preparing an 

initially written, later typed, statement for Mr. Scott on April 6 or April 7, 2017. His statement 

notes that CO Ortiz took a photograph in the general direction of Building 4 and that he [Mr. 

Miller] repeated that CO Ortiz needed to go to the office and see James [Brumbaugh]. He did not 

recall making the assertion in his written statement that he saw CO Ortiz take a photograph even 

after being reminded of it, but stated he would rely upon the written assertion since it was made 

“basically right then and there.” (Tr. 902-03, 996-97, 1006-08). 

The OSHA inspection 

CO Ortiz was assigned to conduct the April 5, 2017 inspection at the Preserve 

project after AAD Perez-Ramos had seen two workers without fall protection while at a stoplight 

on Manatee Avenue next to the Project about ten days before. (Tr. 46-47, 155-57, 202-05; Ex. 1, 

at 1). AAD Perez-Ramos accompanied CO Ortiz on the inspection in order to conduct an onthe-job evaluation of CO Ortiz. (Tr. 48, 155-57; Ex. 1, at 1). 

46 Mr. Miller did not identify those who were in this “group” when he was shown the photograph in the trailer. (Tr. 

850). 

26 
 

 

 

CO Ortiz said that because the site was so large and covered several blocks, they drove 

around the perimeter to understand the magnitude of the job site and determine if there were 

other workers exposed to fall hazards. (Tr. 54). When they spotted a possible exposure, they 

parked, and CO Ortiz took a photograph to verify no fall protection was used. (Tr. 57, 162-67; 

Exs. 1-14). 

CO Ortiz and AAD Perez-Ramos spent approximately one hour and fifteen minutes 

driving and walking around the Project’s perimeter and taking photographs before entering the 

worksite from the east side. During that time, CO Ortiz testified that he saw about twelve 

exposed workers without fall protection. (Tr. 55-61, 66, 102, 108, 162-67, 1028-30; Exs. 1-13, 

HH, Ex. WW, ¶1a., at 1-3). CO Ortiz testified: 

Q And okay, so did you encounter a NDC official? 

A I did, after numerous attempts of trying to find a management representative around 

the job site we went and asked several employees. Some of them said they did not know 

who even they worked for. They tried to contact their supervisor and they were not 

successful. So I continued looking for what would’ve been and appeared a management 

representative. 

(Tr. 62). 

NDC’s citation was based on four instances; identified as Citation One, Item 1, Instances 

(a) through (d). (Tr. 76). NDC was not cited for all the exposures CO Ortiz and AAD PerezRamos saw on April 5, 2017.47 CO Ortiz testified that the exposures other than instances (a) 

through (d) were not cited because the workers were not on the worksite after the opening 

conference. (Tr. 76-77). 

Instance (a): When they arrived at the street next to the Project, they saw two workers 

doing carpentry work sheeting a garage roof about nine feet from the eave to the next lower 

level, without fall protection. (Tr. 47-49, 89-90, 160-61; Ex. 1, at 2, Exs. 2-3, Ex. WW, ¶3, at 4). 

47 NDC was not cited for any fall violations shown in photographs 4-6, 8-10, and 14 that relate to at least 5 other AD 

Berrios employees working at Buildings 3 and 4, and elsewhere. (Exs. 4-6, 8-10, and 14). 

27 
 

 

 

 

 

 

 

 

 

 

 

CO Ortiz testified that “[f]rom the naked eye it was obvious that they were not wearing fall 

protection.” CO Ortiz photographed the workers, both with and without the OSHA camera’s 

zoom feature. (Tr. 49-50, 91, 1025; Ex. 1, at 2, Exs. 2-3). CO Ortiz used the zoom feature on 

the camera to verify the workers were not wearing personal fall arrest equipment and that no 

other fall protection was in use. (Tr. 50; Ex. 1, at 2, Exs. 2-3). These workers were employed by 

AD Berrios. (Tr. 89-90). It was obvious to him that they did not have harnesses on. (Tr. 91-92). 

When he saw them later that day, after the opening conference, the two workers had harnesses 

on and were using personal fall arrest equipment. (Tr. 90). OSHA’s Violation Worksheet states 

two AD Berrios employees, including Juan Pablo Hernandez, were exposed to the fall hazard 

alleged at Instance (a). (Ex. C, at 2, Ex. WW, ¶3, at 4). 

Instance (b): Instances (a) and (c) through (d) were seen by CO Ortiz and AAD PerezRamos while driving around the project’s perimeter and before they entered the worksite. They 

observed instance (b) after they entered the worksite. CO Ortiz and AAD Perez-Ramos were 

unable to find the jobsite’s construction trailer during that time, so they parked the car and 

walked into the jobsite to find a supervisor. (Tr. 61, 164, 212). They then saw a worker on a 

ladder near the edge of a third story balcony of Building 4, about thirty feet from the ground. 

(Tr. 64-65, 109-10, 170-71; Ex. 15, Ex. WW, at ¶4, at 4). The worker was not wearing a 

personal fall arrest system and there was no other fall protection used. (Tr. 65-66, 170; Ex. 15). 

This worker, and the other worker partially shown in the photograph at Exhibit 15, were 

employed by AD Berrios. (Tr. 231). 

Around 9:00 a.m., April 5, 2017, Mr. Miller saw the CO and AAD near Building 1, 

about 100 feet away. (Tr. 831, 834, 837, 839). After a worker “pointed to that manager, Jim 

Miller,” CO Ortiz and AAD Perez-Ramos came over to where Mr. Miller was standing outside 

28 
 

 

of an apartment at the first floor, Building 2. (Tr. 63-64, 109-10, 171, 1017; Ex. 1, at 5, Ex. HH, 

at “A”, at 4). CO Ortiz identified himself as an OSHA investigator and told Mr. Miller that he 

had observed several employees exposed to fall hazards. (Tr. 64; Ex. 1, at 5). Mr. Miller 

recalled that CO Ortiz introduced himself, presented his badge, mentioned that they had seen 

employees working from manlifts when they drove by, and they had some questions. (Tr. 843). 

Mr. Miller asked if they had checked in with Superintendent Brumbaugh at the construction 

trailer.48 Mr. Miller told the CO and AAD that NDC policy was that all safety matters had to be 

addressed by the site superintendent and instructed them to go to the company trailer to address 

any safety concerns. (Tr. 65, 171-72, 844-45, 851, 861, 922-23; Ex. 1, at 5). 

CO Ortiz testified that he directed Mr. Miller’s attention to two employees working 

without fall protection on a third-floor balcony in Building 4 and asked Mr. Miller to intervene 

and take action. (Tr. 65-66, 111, 331-32, 1018, 1032; Ex. 1, at 6, Ex. C, at 3, Ex. 15, Ex. HH, at 

“E”, at 4, Ex. XX, ¶9, at 3). OSHA’s Inspection Narrative states that CO Ortiz “asked Mr. Miller 

whether he could take action to protect an employee that was standing on a ladder at the edge of 

the balcony on the third floor (the balcony had no guard rails). Mr. Miller indicated for the 

second time that all safety matters needed to be dealt by the General Superintendent and 

instructed CSHO and AAD to go to the general contractor’s trailer.” The Inspection Narrative 

also states that “the fall exposure was obviously evident at plain sight from where the 

conversation was taking place.” (Ex. 1, at 6, 8, Ex. 15). Building 4 was about 125 yards across 

the worksite from Building 2. (Tr. 841-42, 932, Ex. HH, at “B”- “C”). CO Ortiz testified that 

the two employees were in “plain view” from Mr. Miller’s position at Building 2 and could be 

observed “without the need of any artificial enhancements.” CO Ortiz said, “It was a plain view. 

48 Mr. Miller testified that he was not the lead on the worksite and that he was following NDC’s protocol by 

referring AAD Perez-Ramos and CO Ortiz to Mr. Brumbaugh. (Tr. 65, 171-72, 844-45, 851, 861, 922-23). 

29 
 

 

 

There was no building, there was no structure, there was no environmental condition that would 

impede the visibility.” CO Ortiz stated that Mr. Miller could see the violative condition from 

where Mr. Miller was standing.49 He said that he made Mr. Miller “aware of a (sic) exposure 

that was taking place immediately in front of us.” (Tr. 331-32, 1018, 1031-32, Ex. HH, at “E”, 

at 4). CO Ortiz testified: “So it was right across where we were. Plus we indicated. We 

pointed out the direction and we described the scene. He [Mr. Miller] did not take any action.” 

(Tr. 65-66, 111, 331-32, 1018; Ex. 1, at 8, Ex. HH, at “A”, “E”, at 4, Ex. WW, ¶1a., at 1-3). CO 

Ortiz further said on cross examination: 

Q But you can’t tell me if Mr. Miller saw those individuals noncompliant; is that right? 

A Well, we told him. We indicated, we showed it to him. We – 

Q “You showed it to him.” What do you mean by that? 

A We directed him to look at this. This is happening right in front of us. And all he 

replied was go to the trailer, all safety issues need to be addressed by the site 

superintendent. Immediate action for me was that: Okay, let’s stop the operation right 

now and make that employee safe. That’s immediate to me. 

(Tr. 114). 

CO Ortiz explained that he took a photograph of the exposed employees from 

approximately where they talked to Mr. Miller. CO Ortiz believes he took the photograph at 

exhibit 15 after having spoken with Mr. Miller, but he is not 100 percent sure. (Tr. 110, 1018, 

1031; Exs. 15, HH, at “E”, at 4). AAD Perez-Ramos, standing with CO Ortiz, testified that she 

had a clear and unobstructed view of the worker. (Tr. 170-71; Ex. 15). AAD Perez-Ramos said 

she “saw employees working on balcony, standing on the ladder without fall protection and, of 

course, more than six feet.” (Tr. 170, 213). AAD Perez-Ramos testified that Mr. Miller 

repeatedly told CO Ortiz that he had to go to the office to address the noncompliance issue they 

had observed. (Tr. 171-72, 1032-33). AAD Perez-Ramos testified that she expected a general 

contractor would immediately seek to abate an unsafe situation. She said Mr. Miller did not 

49 CO Ortiz testified that he did not “know if he [Mr. Miller] saw them [the two employees] or not. I pointed it out to 

him, look in that direction.” (Tr. 1036; Ex. 15). 

30 
 

 

 

 

 

immediately seek to abate the unsafe situation that she and CO Ortiz brought to his attention. 

(Tr. 173, 232-33). CO Ortiz testified that NDC was responsible for immediately correcting the 

hazard that he brought to Mr. Miller’s attention. (Tr. 336-38). 

Mr. Brumbaugh testified that Mr. Miller called the construction trailer and said OSHA 

was there and had taken a picture and that there was an issue that he [Mr. Miller] was going to 

address. Mr. Brumbaugh said he did not recall all of the telephone conversation and could not 

recall if Mr. Miller said he saw a worker not using fall protection. (Tr. 433-35). Mr. Brumbaugh 

said OSHA showed him two photographs in the trailer, including one showing a worker on a 

ladder that Mr. Brumbaugh was unable to identify. He said that Mr. Miller “spoke to whoever 

out in the field” and “[t]he problem was abated” and “[t]he worker was off the patio.” (Tr. 432-

37). 

OSHA’s Violation Worksheet states two AD Berrios employees, including Salvador 

Collaza, were exposed to the fall hazard alleged at Instance (b).50 (Ex. C, at 2). 

Instance (c): As CO Ortiz and AAD Perez-Ramos drove and walked around the 

worksite’s perimeter and before entering the worksite, they observed two additional workers, 

about nine feet above the ground, sheeting the roof of the mailbox building. One of the workers, 

AD Berrios Foreman Louis Garcia, is shown on the right of the photograph at Exhibit 13.51 The 

50 Complainant’s Response to Respondent’s Interrogatories to Complainant No. 4 also identifies Freddie Reyes as a 

worker performing work near an open-sided balcony relating to Instance (b). (Ex. 15, Ex. WW, ¶4, at 4). The Court 

finds that two AD Berrios employees, including Mr. Collaza, were exposed to the fall hazard at Instance (b). (Ex. 

15, Ex. C, at 2). 

51 The Meeting Minutes for October 18, October 25, November 1, 2016, and November 29, 2016, identify Louis 

Garcia with ECS. (Tr. 310-11, 353-55; Ex, 61, at 6, Ex. 62, at 6, Ex. 63, at 6, Ex. T, at 19, 25, Ex. U, at 17). The 

Meeting Minutes for January 24, 2017, January 31, 2017, February 7, 14 and 21, 2017, March 7, 2017, and April 18, 

2017, identify Louis Garcia with Lacoste Framing and ECS. (Ex. 65, at 1, 5, Ex. W, at 10, 14, Ex. X, at 1, 5-6, 10-

11, 15-16, 20, 1, 5, Ex. Y, at 1, 5, Ex. Z, at 10, 14). The Meeting Minutes for November 15, 2016, identify Louis 

Garcia with ECS/Ed Barrios. (Tr. 352-53; Ex. 64, at 5, Ex. U, at 5). The Meeting Minutes for March 28, 2017, and 

April 4, 25, 2017, identify Louis Garcia with only Lacoste Framing. (Tr. 387-88; Ex. Y, at 15, 19, Ex. Z, at 1, 15, 

19). Mr. Brumbaugh also testified that Louis Garcia was an ECS supervisor. (Tr. 310). The Court finds that Louis 

Garcia was not employed by ECS on April 5, 2017. 

31 
 

 

 

 

 

 

 

other worker shown on the left is also an AD Berrios employee. (Tr. 60, 74, 106, 145-46, 333; 

Ex. 1, at 2, 4 (bottom photograph), Ex. 13, Ex. WW, ¶5, at 4-5). CO Ortiz and AAD PerezRamos saw that no fall protection was used by either worker. (Tr. 60, 108, 169-70; Ex. 13). CO 

Ortiz did not see any anchors on the roof. AD Berrios employees told him that there were no 

anchors on the roof. (Tr. 89). There were also no guard rails or safety nets. CO Ortiz 

photographed the workers from the street (Ex. 13) and later from inside the construction site (Ex. 

14). (Tr. 60-61, 74, 145-46, 169-70; Exs. 13-14). Both supervisor Louis Garcia and another 

worker were employed by AD Berrios. (Tr. 106-07; Ex. 1, at 4). CO Ortiz testified that when a 

supervisor “doesn’t follow the rule it will be hard, very difficult to expect their subordinates will 

follow with that, too.” (Tr. 343-45). OSHA’s Violation Worksheet identifies one AD Berrios 

employee, Freddie Reyes, as being exposed to the fall hazard alleged at Instance (c).52 (Ex. C, at 

2). 

Instance (d): As CO Ortiz and AAD Perez-Ramos continued to try to find the 

construction office trailer and the person in charge, they observed a worker on a third-floor 

balcony of Building 1 without any fall protection in plain view. (Tr. 55-56, 164-65; Ex. 1, at 5, 

Ex. 7). The worker, employed by CR Companies, was moving materials or looking for 

something while standing on a balcony that exposed him to a fall of more than six feet. The 

worker was not wearing a harness and was not tied off. CO Ortiz took a photograph of the 

worker while inside the car. (Tr. 55-57, 96, 164-65; Ex. 7, Ex. WW, ¶6, at 5). He said the 

exposed worker was a CR Companies supervisor [Carlos Rodriguez]. (Tr. 345-46). OSHA’s 

52 The Court finds that two AD Berrios employees, including Foreman Louis Garcia, were exposed to the fall 

hazard alleged at Instance (c). (Tr. 106-07; Ex. 1, at 4, Ex. 13, Ex. C, at 2). Complainant’s Response to 

Respondent’s Interrogatories to Complainant No. 5 identifies Luis Perez as a worker performing work on the 

mailbox relating to Instance (c). (Ex. WW, ¶5, at 4-5). Whether Mr. Perez or Mr. Reyes is the second worker 

shown in the photograph at exhibit 13 need not be resolved since the Court has found two AD Berrios employees 

were exposed to the fall hazard at Instance (c), including Foreman Louis Garcia. Respondent also does not dispute 

that workers were exposed to the fall protection hazards alleged in Instances (a) through (d) of the Citation. 

32 
 

 

 

Violation Worksheet states two CR Companies employees, including Luis Perez, were exposed 

to the fall hazard alleged at Instance (d).53 (Ex. C, at 2, Ex. WW, ¶6, at 5). 

Opening Conference: After talking with Mr. Miller about Instance (b), CO Ortiz and 

AAD Perez-Ramos headed toward the trailer. (Tr. 65-67, 845). Mr. Miller did not accompany 

them because he felt annoyed after telling them to see Mr. Brumbaugh several times. (Tr. 845, 

924-25). Mr. Miller called Messrs. Fetzek and Brumbaugh to let them know that OSHA was 

coming to the trailer. (Tr. 432, 845). 

NDC’s onsite construction office was a double-wide trailer located outside the jobsite on 

Fourth Street, approximately 100 feet from the construction jobsite’s east entrance. (Tr. 72, 928; 

Ex. HH, at “G”). There, CO Ortiz and AAD Perez-Ramos conducted the opening conference 

with Messrs. Brumbaugh, Fetzek, Kloepfer and Scott at about 9:30 A.M. (Tr. 67, 673; Ex. D, at 

1). Mr. Scott testified that CO Ortiz and AAD Perez-Ramos told them they were there because 

“they saw some fall protection issues.” Mr. Scott said he “was shown a picture on a camera of 

someone [on a building 4 balcony] in a fall hazard position by Mr. Ortiz.” (Tr. 673-74). He 

testified that CO Ortiz told him he had showed Mr. Miller the photograph. (Tr. 676-78). Mr. 

Scott testified that NDC helped OSHA determine that one of the photographs showed a CR 

Companies employee and another photograph showed an ECS employee. (Tr. 676-77). An 

NDC representative told CO Ortiz and AAD Perez-Ramos that ECS was hired by NDC to act as 

its shell contractor. (Tr. 623-24; Ex. WW, ¶1a., at 1-3). After the conference, Mr. Scott said he 

spoke with Mr. Miller because Mr. Ortiz had told him that he had walked up to Mr. Miller and 

pointed the fall hazard out to him. (Tr. 674). 

When CO Ortiz and AAD Perez-Ramos walked back onto the worksite after the opening 

53 The Court finds that two CR Companies employees, including Supervisor Carlos Rodriguez, were exposed to the 

fall hazard alleged at Instance (d). (Ex. 7, Ex. C, at 2, Ex. H, at 1-2). 

33 
 

 

 

 

conference, they saw no further fall protection violations. (Tr. 103, 267). CO Ortiz observed 

that some of the employees that had not been using fall protection earlier, were now using fall 

protection. (Tr. 103, 122, 130). He interviewed AD Berrios Foreman Louis Garcia at about 

1:00 p.m. Foreman Garcia told him he had about 15 employees but did not know if they all 

worked for AD Berrios. He also told him he arrived at the job site that day at 10:00 a.m.54 He 

told CO Ortiz that he screamed at the employees to tie off, but that it was a constant battle. 

Foreman Garcia stated to CO Ortiz that “[t]he employees that I saw on the picture are at risk of 

falls and I recognize it.” (Ex. I). Other employees that CO Ortiz had observed earlier were no 

longer at the jobsite. (Tr. 102, 106). He did not interview any NDC employee during the April 

5, 2017 inspection. (Tr. 112, 123-24). The NDC managers told CO Ortiz that ECS had 

supervisory responsibility over AD Berrios and for the safety of the carpenters. But, ECS did 

not have anyone at the worksite on April 5, 2017. (Tr. 70-71, 81-82; Ex. 1, at 6-7). 

On April 6, 2017, CO Ortiz spoke by telephone with ECS’s owner/GM John Toth III, 

who told him that ECS, including its equipment, had been contractually removed from the 

jobsite by NDC in December 2016/January 2017 because of a disagreement with scheduling.55 

ECS’s owner told CO Ortiz that since then ECS had no representative on site to address the 

safety of AD Berrios and other framers, including fall protection. (Tr. 81-82, 136-37, 622). Mr. 

Toth told CO Ortiz that ECS was not a contractor working on the project at the time of OSHA’s 

inspection.56 When asked by CO Ortiz and AAD Perez-Ramos who had oversight 

responsibilities over A&D Berrios, “NDC Construction Company admitted that they assumed 

oversight responsibilities previously held by Emerald Coast Structures, LLC over A&D Berrios 

54 The Court finds that Louis Garcia was at the job site earlier since he appears in a photograph taken by CO Ortiz 

shortly before about 9:00 a.m., April 5, 2017. (Ex. 13). 

55 Later, Mr. Toth told CO Ortiz in an email that “he was removed from the project on about 1/22/2017.” (Ex. 1, at 8, 

Ex. C, at 3). 

56 The Inspection Narrative states that at the time of the OSHA inspection NDC was directly responsible for A&D 

Berrios and A&D Berrios was not actually a subcontractor of a contractor. (Ex. 1, at 7). 

34 
 

(i.e. coordination of work schedule, sequence of work and payment to A&D Berrios).” (Tr. 255, 

Ex. 1, at 7, Ex. XX, at ¶14, at 4, Ex. WW, at ¶14, 10-11). Complainant’s Response to 

Respondent’s Interrogatories to Complainant No. 14, states, “Respondent’s assumed oversight of 

AD Berrios Framing, Inc. is evidence of Respondent’s authority to correct unsafe conditions 

affecting the employees of AD Berrios Framing, Inc. on matters of safety and health.” (Ex. WW, 

at ¶14, at 10-11). 

Complainant’s Response to Respondent’s Interrogatories No. 8 states that there is 

evidence that Respondent: 1) “directly supervised, inspected and paid for the work activities and 

materials of the employees of AD Berrios Framing, Inc. and CR Companies, Inc., and that it had 

general supervisory authority over the Jobsite[.]” 2) “had authority to pay for, order, inspect and 

approve equipment utilized by employees of AD Berrios Framing, Inc. and CR Companies, 

Inc.,” 3) could “determine when its employees could begin and end work, store materials, and 

keep equipment”, 4) “provided employees of AD Berrios Framing, Inc. and CR Companies, Inc. 

with safety training and instruction,” 5) “may have paid, employed, and had authority to 

discipline the employees of AD Berrios Framing, Inc. and CR Companies, Inc.” 6) “had 

authority to demand compliance with safety and health regulations from the employees of AD 

Berrios Framing, Inc. or CR Companies, Inc.” and 7) had “the authority to ‘stop employees of 

AD Berrios Framing, Inc. or CR Companies, Inc. due to safety violations.’” (Ex. WW, ¶¶8, 11, 

at 6-8). 

OSHA’s Inspection Narrative states (in part): 

APPL CAT ON OF THE MULT -EMPLOYER WORKS TE POL CY 

CSHO followed the multi-employer citation policy to determine the role of NDC Construction 

Company and whether their actions met their obligations. CSHO followed the two-step process 

as described in the Multi-Employer Citation Policy CPL 2-0.124 to accomplish this. 

Step one35 
 

 

 

What kind of employer was NDC Construction Company CPL 2-0.124? 

... The evidence supports the fact that NDC Construction Company was the controlling 

employer. They had general supervisory authority over the worksite including the power to 

correct safety and health violations itself (or require others to correct them). They claimed that 

they conducted (sic) regularly inspecting (sic) the site during their daily walkarounds and asked 

the contractors to correct safety violations and the fact that they assumed a direct supervisory 

role over AD Berrios. 

Step twoDid NDC Construction Company met(sic) their obligations with respect to OSHA requirements 

as a controlling employer? ... 

1. NDC Construction Company claimed that Emerald was responsible for the safety of 

their subcontractors ... 

2. The Emerald Coast Structures, LLC was not a contractor at the time of the inspection. 

Mr. Toth indicated that James and Brando Fetzek negotiated with Louis and Joe Garcia of 

Berrios (AD Berrios) to take over the remainder of the work at the project.” (emphasis in 

original). ... 

3. NDC Construction Company assumed the role of Emerald Coast Structures, LLC 

The NDC Construction Company admitted that they assumed all oversight responsibilities 

previously held by Emerald Coast Structures, LLC over A&D Berrios. This fact support (sic) 

the notion that NDC was directly responsible for A&D Berrios. In practice, A&D Berrios was 

directly contracted by the NDC Construction Company despite the absence of a contract. 

(emphasis in original). ... 

Conclusions 

The evidence in this case supports that the NDC Construction Company had controlling 

authority to prevent and detect violations at the site. The evidence also supports that NDC failed 

to exercise reasonable care in controlling the workplace hazards observed by CSHO and AAD 

during the inspection. 

In reaching this conclusion, CSHO is aware that the extent of the measures that a controlling 

employer must implement to satisfy this duty of reasonable care are less, than what is required of 

an employer with respect to protecting its own employees. Under normal circumstances, the 

NDC Construction Company as a controlling employer would not normally be required to 

inspect for hazards as frequently or to have the same level of knowledge of the applicable 

standards or of trade expertise as Emerald Coast Structures, LLC. However, the fact that 

Emerald Cast Structures, LLC was separated from the project and that NDC Construction 

Company assumed the day to day responsibilities on their behalf strongly supports their role as 

an employer of the AD Berrios employees. 

(Tr. 326-30; Ex. 1, at 7-9, Ex. C, at 3, Ex. P, Ex. WW). 

The NDC managers also gave CO Ortiz a telephone number for the project manager or 

superintendent for CR Companies located in Indiana. CO Ortiz spoke with CR Companies’ 

36 
project manager by telephone and told him about the exposure he had observed at the jobsite. 

(Tr. 71). Messrs. Scott and Brumbaugh testified that NDC dealt with three CR Companies 

representatives: Project Manager Steve Smith,57 owner Danny (also referred to as Denny) 

Deckinga, and Carlos [Rodriguez] for only a short time. (Tr. 556, 641-42, 661; Exs. 74, H). Mr. 

Scott spoke with Mr. Smith after the OSHA opening conference. The NDC managers also called 

an AD Berrios foreman Louis Garcia, and CO Ortiz spoke with Louis Garcia outside the trailer 

after the OSHA opening conference. (Tr. 71, 106, 674-75, 773). 

On April 6, 2017, NDC representatives walked around and saw that the missing rails 

were replaced and “they were wearing their fall protection equipment.” (Tr. 675). 

CO Ortiz returned to the worksite on Friday, April 7, 2017. (Tr. 116; Ex. D, at 1). He 

conducted a walkaround of the site with Messrs. Brumbaugh, Scott, and Kloepfer. (Tr. 118, 679-

80). He saw no instance of missing fall protection during the April 7 visit. (Tr. 118-19, 126, 

680). His primary objective that day was to interview employees of AD Berrios and CR 

Companies. (Tr. 118). AD Berrios Foreman Louis Garcia told him that some of the exposed 

employees that the CO had observed on April 5 were not at the jobsite on April 7, 2017 and 

Louis Garcia could not identify them. (Tr. 76-77, 106). CO Ortiz interviewed and the obtained 

written statements from some of the workers he had seen without fall protection two days before. 

He interviewed the AD Berrios worker who was photographed on the ladder at Building 4 on 

April 5, 2017. (Tr. 116, 142, 332; Ex. 15). He also interviewed CR Companies Supervisor 

Carlos Rodriguez. Supervisor Rodriguez admitted he was one of the two workers shown in the 

photograph presented by CO Ortiz. He admitted working on the unguarded third floor balcony, 

Building 1, without using fall protection because the job was quick. He also admitted that the 

other worker shown in the photograph was not wearing any fall protection. (Exs. 7, H). 

57 Mr. Scott said Mr. Smith visited the job site every two weeks. (Tr. 642-43). 

37 
During the course of his investigation, CO Ortiz learned that “personal protective 

equipment in the forms of fall protection was not necessarily provided to the employees and that 

training was not provided either.” CO Ortiz said employees told him “that they don’t get fall 

protection equipment.” (Tr. 74-75, 133, 144, 147). He learned that “the normal rule is that they 

[the workers] operate without fall protection” and that there were “no meaningful consequences” 

for doing so. (Tr. 76, 125, 137). CO Ortiz testified that AD Berrios and CR employees told him 

that they did not wear fall protection at all during the morning of April 5, 2017. (Tr. 131-33). 

He said he learned from his walk-around the worksite that “enforcement of fall protection is not 

the rule.” (Tr. 125, 256-57). 

CO Ortiz testified that NDC “had knowledge about the safety hazards of falls” based 

upon the past experience of one of its superintendents and its managers’ daily walks around the 

worksite, safety inspections, and “frequent safety meetings with their contractors.” (Tr. 80-81). 

CO Ortiz testified that NDC’s “means and methods to ensure that the unsafe operation 

gets promptly abated is not consistent with safety management practices.” He said that NDC’s 

“methods for abating hazards entailed sending electronic correspondence to the contractors and 

pictures of unsafe conditions of the violations they observed during either their walkarounds or 

during their safety meetings” and were “an ineffective way to correct unsafe conditions.” He 

said that NDC had “no way of knowing whether the contractor follows through on these 

observations.” (Tr. 80-81, 126). CO Ortiz testified that “NDC has control of the job site” and 

“failed to exercise control” when Mr. Miller took no quick action to “stop an immediate danger” 

involving an AD Berrios employee doing carpentry work on an open sided balcony at the third 

floor of building 4 on April 5, 2017, as alleged at Instance (b). (Tr. 115; Ex. 15). CO Ortiz 

testified that NDC’s safety program “wasn’t robust and I observed conditions that supported that 

38 
 

 

 

 

they had flaws.” (Tr. 135). 

CO Ortiz testified that “falls in the construction industry is the number one cause of 

death.” (Tr. 43). 

Secretary’s Burden of Proof 

To establish a violation of an OSHA standard, the Secretary must prove: (1) the cited 

standard applies; (2) the terms of the standard were violated; (3) one or more employees had 

access to the cited condition; and (4) the employer knew, or with the exercise of reasonable 

diligence could have known, of the violative condition. Astr Ph rm. Prods., No. 78-6247, 1981 

WL 18810, at *4 (O.S.H.R.C., July 30, 1981), ff’d in relev nt p rt, 681 F.2d 69 (1st Cir. 1982). 

The Secretary has the burden of proving his case by a preponderance of the evidence. Id. 

Multi-Employer Citation Worksite Policy 

Respondent was cited as a controlling employer under the Multi-Employer Citation 

Worksite Policy. Although Respondent stated that it “does not desire to litigate the validity of the 

multiemployer doctrine,” NDC asserts that Eleventh Circuit precedent does not impose liability 

on a general contractor for the actions of a separate entity’s employees under the multiemployer 

policy and cites to C llow y v. PPG Indus., Inc., 155 F. App’x 450, 455 (11th Cir. 2005) 

(unpublished) (C llow y), which relied on Fifth Circuit precedent, as support. (Resp’t. Post-Trial 

Br., at 20). This assertion fails for several reasons. C llow y is not an OSHA construction case 

and is about liability for a property owner that was not a general contractor and thus inapt. The 

cases relied upon in C llow y are no longer controlling case law for application of OSHA’s 

Multi-Employer Citation Worksite Policy.58 Hensel Phelps Constr. Co., 909 F.3d 723, 743 (5th 

58 In McDevitt St. Bovis, Inc., the Commission determined that the Eleventh Circuit had not “decided nor directly 

addressed the issue of multi-employer liability” and distinguished Respondent’s line of cases and applied 

Commission precedent. McDevitt St. Bovis, Inc., No. 97-1918, 2000 WL 35559662, at *2 (O.S.H.R.C., Sept. 28, 

2000; see lso S. P n Servs., 685 F. App'x 692, 695–96 (11th Cir. 2017) (unpublished) where the Eleventh Circuit 

abrogated the line of cases Respondent cites, calling it “in its entirety, our predecessor court’s opinion” and noting it 

was decided “before the Commission articulated the current exposing-employer doctrine in Anning-Johnson.” 

39 
 

 

Cir. 2018). In 2018, the Fifth Circuit reversed its prior position and determined the Secretary’s 

interpretation of the Act for its Multi-Employer Citation Policy must be deferred to and prior 

cases were obsolete to the extent they conflicted with the policy. Id. (“Br nd X,

59 in tandem with 

Chevron,

60 instructs us to defer to the Secretary’s reasonable interpretation that § 654(a)(2) 

authorizes him to issue citations to controlling employers at multi-employer worksites”). 

The Commission and seven courts of appeals, including the D.C. Circuit, have upheld the 

Multi-Employer Citation Policy as a proper exercise of the Secretary’s statutory authority.61 See 

Summit Contr ctors, Inc. v. Sec’y of L bor, 442 F. App’x. 570, 571-72 (D.C. Cir. 2011) 

(unpublished); Solis v. Summit Contr ctors, Inc., 558 F.3d 815, 818 (8th Cir. 2009); Univers l 

Constr. Co. v. Occup tion l S fety & He lth Review Comm'n, 182 F.3d 726, 727-32 (10th Cir. 

1999); United St tes v. Pitt-Des Moines, Inc., 168 F.3d 976, 982 (7th Cir. 1999); Te l v. E.I. 

DuPont de Nemours & Co., 728 F.2d 799, 803-04 (6th Cir. 1984); Be tty Equip. Le sing, Inc. v. 

Sec’y of L bor, 577 F.2d 534, 536-37 (9th Cir. 1978); Brenn n v. OSHRC (Underhill Constr. 

Corp.), 513 F.2d 1032, 1037-38 (2d Cir. 1975). And in M rtin v. OSHRC (CF&I), 499 U.S. 144 

(1991), the Supreme Court specifically affirmed OSHA’s authority to issue authoritative 

interpretations of OSH Act regulations such as 29 C.F.R. § 1910.12(a), which OSHA has 

interpreted to permit citation of controlling employers. 

Respondent’s argument the multi-employer worksite doctrine cannot be applied in the 

Eleventh Circuit is rejected. 

Respondent was a controlling employer 

Under OSHA’s multi-employer enforcement policy, a general contractor or other 

employer may be cited for a violation, whether or not its own employees were exposed to the 

59 N t’l. C ble & Telecomm. Ass’n., v. Br nd X Internet Serv., 545 U.S. 967 (2005). 60 Chevron U.S.A. Inc. v. N t. Resources Def. Council, Inc., 467 U.S. 837 (1984). 61 Respondent asserts that it “does not ask this Court to overturn OSHRC precedent which upholds the multiemployer 

doctrine.” (Resp’t. Post-Trial Br., at 20). 

40 
 

 

 

 

hazard. See Ex. P; OSHA Instruction CPL 2-00.124, Multi-Employer Cit tion Policy (Dec. 10, 

1999) https://www.osha.gov/pls/oshaweb/owadisp.show_document? 

p_id=2024&p_table=DIRECTIVE S. (CPL, Multi-Employer Citation Worksite Policy, or MultiEmployer Citation Policy). The CPL provides that an employer may be responsible for the 

existence of a violation that endangers workers employed by other companies if the controlling 

employer exercised control at the jobsite. Id. 

Under the policy, an employer is a “controlling employer” if it exercises general 

supervisory control of the worksite, and such an employer is citable if it should have detected and 

prevented a violation through the reasonable exercise of its supervisory authority. Centex-Rooney 

Constr. Co., No. 92-0851, 1994 WL 682931, at *2 (O.S.H.R.C., Dec, 2, 1994) (“An employer is 

responsible for the violations of other employers ‘where it could reasonably be expected to 

prevent or detect and abate the violations due to its supervisory authority and control over the 

worksite.”). A controlling employer is responsible for monitoring potential hazards with 

reasonable diligence and correcting them. Id. A court must first determine whether an employer 

is engaged in a common undertaking with another employer and had sufficient authority and 

control of the worksite. Once that is established, a court asks whether an employer has the ability, 

with reasonable diligence, to detect and abate the potential hazard. Id. 

The Commission’s application of the Multi-Employer Citation Worksite Policy is well 

established. See McDevitt St. Bovis, Inc., 2000 WL 35559662, at *1; see lso SummitContr ctors, No. 03-1622, 2009 WL 2857148, at *4 (O.S.H.R.C., July 27, 2009) (Summit I) (a 

general contractor is a controlling employer at a worksite where it has “the ability to prevent or 

abate hazardous conditions created by subcontractors through the reasonable exercise of 

supervisory authority”). As in McDevitt St. Bovis, Inc., NDC was engaged in a common 

41 
undertaking with its subcontractors and maintained control over the entire jobsite through the 

presence of on-site management personnel, including superintendents, assistant superintendents, 

project managers, and a senior vice president. (Tr. 24, 547, 615-16; Ex. 19, ¶11, at 3). NDC was 

directly involved in the construction process. It directly paid its framing subcontractor, AD 

Berrios, biweekly for labor and provided some equipment and material, including paying 

$754,000 for wood trusses. NDC had the authority to demand that a subcontractor comply with 

worksite fall protection rules. At times, NDC directed subcontractor compliance with its safety 

requirements, both verbally and through the use of formal violation notices. Mr. Brumbaugh 

testified that when he observed a subcontractor’s employees working without fall protection or 

breaking another safety rule, he would telephone the superintendent. (Tr. 414-16). If the 

violation was not fixed immediately, he would issue a formal “violation notice” that required the 

subcontractor to comply within 24 hours. (Tr. 822). By April 5, 2017, NDC had issued six 

violation notices and sent several additional emails demanding compliance with NDC’s fall 

protection safety rules. (Exs. 26-27, 30, 32, 35, 38, 41-42, 47, 51-52, 66, SS). NDC also told 

subcontractors to comply with its fall protection safety rules and requirements at weekly 

subcontractor meetings. (Tr. 299-300; Exs. 52, 66). NDC went beyond merely pointing out 

unsafe practices. At times, it directed its subcontractors to abate certain practices it found to be in 

violation of NDC safety rules relating to fall protection. (Ex. SS, at 3, 5, 16). 

 In McDevitt St. Bovis, Inc., the Commission found the general contractor’s authority to 

“stop subcontractor’s work” and “remove a subcontractor from the worksite” as strong evidence 

of control. NDC had authority by contract to do both of those things. NDC’s rules for the 

construction site directed that a subcontractor’s employee be removed from the jobsite after three 

safety violations and also required removal of a subcontractor’s employee if NDC determined the 

42 
 

 

employee unsatisfactory. (Exs. 57, S, at 4-5). NDC had the authority to terminate a 

subcontracted entity from the project for safety violations. It had the authority to withhold pay 

until corrections were made. 

AAD Perez-Ramos testified that NDC was issued the Citation on the basis that it was a 

“controlling employer.” She said NDC was a controlling employer based upon its “general 

supervisory control of the work site,” and its contract with ECS, which showed NDC had 

“authority to oversee subcontractors and employees. They [NDC] have rules there for 

subcontractor, venders and other parties plus employees. That’s the safety plan that they [NDC] 

presented to us.” AAD Perez-Ramos further stated that NDC controlled “the site so they have 

overall control of the site, so they tell the subcontractor what to do and when to behave in a 

construction site.” She said that the application of the Multi-Employer Citation Worksite Policy 

included consideration of “[g]eneral supervisory control of the work site and power to abate the 

situation, the unsafe situation itself or have other people to correct them” and the “employer’s 

actions to recognize safety and health violations.” (Tr. 174-82, 187-88, 205-07, 243; Exs. 57, at 

3, ¶2.A, Supervision, Exhibit “F”, at 2).62 

Here, NDC exercised a high degree of control over its framing subcontractor, AD Berrios, 

as of the date of the OSHA inspection. Just over two months earlier, in late January 2017, NDC 

ordered the removal of ECS and ECS’s supervisor/competent person, Tom Mair, from the jobsite. 

NDC sent ECS a “Notice of Default” letter that put ECS on notice that it had repeatedly failed to 

provide sufficient skilled workers and materials to Buildings 3 and 4. Thereafter, NDC “leapfrogged” over ECS and used AD Berrios, originally a second tier subcontractor to ECS, to 

perform framing on the remainder of the project. From the point on, NDC either “stood in the 

62 Mr. Brumbaugh testified that the NDC Safety Plan applied to ECS, AD Berrios, and CR Companies employees. 

(Tr. 430; Ex. 57, Ex. 23, ¶21, at 1-2). Mr. Scott testified that ECS and CR Companies had to follow NDC’s Safety 

Plan. Mr. Scott said that “AD Berrios would be required to follow the safety policies by Emerald Coast” and not 

NDC because NDC did not have a contract with AD Berrios. (Tr. 714-15). 

43 
shoes” of ECS and elevated AD Berrios, for practical purposes, from a second tier subcontractor 

to a first tier contractor to NDC, or left ECS’s shoes empty. Respondent argues its efforts were 

“realistic” given its inability to ensure 100% compliance from employees it did not pay. But here, 

NDC paid AD Berrios directly and relied upon AD Berrios’ superintendent/foremen, and not ECS, 

to supervise the framing work, including at Building 4 where Instance (b) occurred. With no 

contract between NDC and AD Berrios, there was no contractual limitation stopping NDC from 

withholding pay from AD Berrios for unsafe work performed by AD Berrios’ employees. AD 

Berrios used Superintendent/Foreman Louis Garcia to supervise the framing workers and he set a 

poor example for his workers by himself not using fall protection as shown in the photograph at 

exhibit 13, Instance (c). (Tr. 631, 780-81; Ex. 13, Ex. 15, Ex. 19, ¶4, at 2, Ex. 23, ¶24, at 2-3, Ex. 

57, at ¶13, at 23, Ex. 85, Ex. QQ; Resp’t. Reply Br., at 4). 

The parties stipulated that NDC was the general contractor at the Preserve project. (Tr. 

24). As the general contractor, NDC oversaw the entire construction process for the project. (Tr. 

611-12). The subcontractor Agreement between NDC and ECS gave NDC the authority to 

require a subcontractor to correct safety issues at the worksite.63 (Tr. 174-75, 184, 333, 650, 656, 

663-64, 694; Ex. 57, at 3, ¶ 2.A., Exhibit “F”, at 2). NDC had contractual authority to issue 

violation notices and discipline subcontractors.64 (Tr. 24-25). The Subcontractor Agreement also 

63 The contract stated any subcontractor employee “found in violation of Safety Rules or policies will be removed 

from Company Property and barred from working on any NDC Construction Co. Project.” (Tr. 176, 466-67; Ex. 57, 

at Exhibit “F”, at 2). NDC’s “Safety Rules & Regulations” stated: “If an employee is given (3) three written notices 

of a safety violation for any safety violation while on this project, NDC Construction will demand removal of that 

employee from the jobsite. ... Three safety violations constitute “unsatisfactory” supervision as defined in exhibit 

“A” of the subcontract agreement....” (Tr. 339-40; Ex. S, at 4-5). Mr. Scott testified that no NDC supervisor ever 

requested the removal of an individual from the project. (Tr. 790). 

64 See R.P. C rbone Constr. Co. v. OSHRC, 166 F.3d 815 (6th Cir. 1998) (“There is a presumption that a general 

contractor has sufficient control over its subcontractors to require them to comply with safety standard.”). 

44 
 

 

 

 

 

gave NDC the authority to remove a subcontractor from the job site.65 (Tr. 25, 176, 179-80, 263, 

694-98; Ex. 57, at Exhibit “F”, at 2, Ex. S, at 4-5). 

Under applicable Commission precedents, NDC was the controlling employer. It was a 

controlling employer for the Project due to its supervisory authority and high degree of control 

over the worksite, which was shown through its active oversight role at the site and the terms of 

the Agreements it had with each subcontractor. (Tr. 327-34; Exs. 1, P). Respondent’s assertion 

that it was not a controlling employer at the worksite is rejected. 

Duty of a controlling employer for the employees of its subcontractors 

A controlling employer is liable for a subcontractor's violations if the Secretary shows it 

has not taken reasonable measures to “prevent or detect and abate the violations due to its 

supervisory authority and control over the worksite.” Suncor Energy (U.S.A.) Inc., No. 13-0900, 

2019 WL 654129, at *4 (O.S.H.R.C., Feb. 1, 2009). “A controlling employer's duty to exercise 

reasonable care “is less than what is required of an employer with respect to protecting its own 

employees.” Id. citing Summit I, 2009 WL 2857148, at *4. 

The extent of the controlling employer’s duty to the employees of its subcontractors 

depends on the degree of its supervisory authority and control. Id.; see lso, Summit II, No. 05-

0839, 2010 WL 3341872, at *9 (O.S.H.R.C., Aug. 19, 2010) (A “general contractor’s duty to 

detect violations depends on what measures are commensurate with its degree of supervisory 

capacity.”). The controlling employer’s duty is based on its “secondary safety role as a 

controlling employer.” Suncor, 2019 WL 654129, at *6-7. 

Degree of NDC’s supervisory authority and control 

65 The Subcontract Agreement stated, “The Subcontractor [ECS] shall immediately remove from the Project any 

employee, including the superintendent, who is not satisfactory to Contractor’s [NDC] Project Manager [Mr. Fetzek], 

Owner, or Owner’s authorized representative at no cost to Contractor [NDC] and with no extension of time.” This 

provision includes, according to Mr. Scott, removing employee’s “who are not working safe.” (Tr. 694-98; Ex. 57, at 

Exhibit “A”, ¶ 2.A. Supervision, at 3). 

45 
NDC had a general supervisory oversight role at the worksite. It had contractual authority 

over the subcontracting entities. Excluding AD Berrios, NDC had a signed contractual agreement 

with each first-tier subcontractor. The agreements specified that the subcontractor was 

responsible for prevention of accidents and must adopt a safety policy for its employees. (Tr. 

428-29, 550; Ex. 57, at Exhibit “A”, ¶10.A., at 19-20, Exhibit “F”, Ex. 19, at 1-2). The 

agreements required NDC’s subcontractors, including ECS and CR Companies, to have a 

responsible and competent person “who, at the least, shall be in attendance full-time at the Project 

site during the progress of the Work” and “present at the project site at all times that 

subcontractors work is in progress,” provide personal protective equipment, immediately correct 

unsafe work practices, conduct weekly tool box talks and notify NDC of hazardous conditions 

created by other subcontractors at the site. (Tr. 243-44, 299-300, 636-38, 650, 656, 663-64, 713-

14; Ex. 57, at Exhibit “A”, ¶¶2.A., at 3, 10.A., 10.C., at 20, Exhibit FF). Mr. Scott initially 

testified that NDC’s Subcontractor Agreement with ECS did not require AD Berrios to have a 

competent person present at the job site at all times since NDC had no contractual relationship 

with AD Berrios. (Tr. 713-15). But, later Mr. Scott agreed that AD Berrios had to follow NDC’s 

safety rules and policies since NDC’s subcontract with ECS stated, “other third parties [including 

AD Berrios], while on Company Property and in the performance of their work, shall comply 

with all Safety Rules and Policies established by NDC Construction Company.” (Tr. 714-17; Ex. 

57, at Exhibit “F”, at 2). NDC’s subcontract with ECS also stated, “All work shall be in strict 

accordance with all Federal, State, and Local Codes and Ordinances and shall comply with all 

OSHA requirements” and “SAFETY The Subcontractor agrees that, its agents, employees and 

sub-subcontractors, will perform the contractual obligations of this Agreement in compliance with 

applicable regulations issued pursuant to the Construction Safety Act of 1969 and the 

46 
 

 

 

 

Occupational Safety and Health Act of 1970.” (Ex. 57, at Exhibit “C”, at 1, Ex. 19, ¶9, at 3). Mr. 

Scott said that he was unaware of any contractual relationship between ECS and AD Berrios.66 

(Tr. 715). NDC was allowed to terminate its Agreement with ECS for cause if ECS failed to cure 

a default within three days following written notice to the subcontractor. (Tr. 733-34, Ex. 57, at 

Exhibit “A”, ¶13.B., at 23-24; Ex. 19, ¶8, at 2). NDC’s Safety Rules and Regulations that were 

attached to subcontractor meeting minutes, stated: “8. Sub-contractors and sub-sub 

subcontractors are the responsibility of the subcontractor. This applies to safety and supervision.” 

(Tr. 286-89, 293; Ex. S, at 4-6). 

In its oversight role, NDC held a weekly meeting with the subcontractors’ foremen and 

supervisors, walked the site daily, reported any safety issues it observed to the subcontractor’s 

foreman or supervisor, and issued written safety notices to the subcontractor’s management. Mr. 

Brumbaugh walked the worksite at least once a day to check the progress of construction and 

verify quality compliance. (Tr. 279, 412). Mr. Miller spent most of his day on the worksite 

reviewing the progress and quality of construction and working with inspectors. (Tr. 816, 821). 

NDC’s policy was to immediately notify the subcontractor and request abatement when an unsafe 

condition was observed by its employees. (Tr. 280, 865). When Messrs. Miller or Brumbaugh 

saw a violative condition, they said they contacted the onsite foreman or supervisor to have it 

corrected. 

Here, Mr. Scott, NDC’s senior Vice President, testified that NDC had the authority to 

correct safety violations itself or require others to correct them.67 (Tr. 749-52). Mr. Scott also 

66 Respondent’s Answers to Complainant’s Second Set of Interrogatories, Interrogatory No. 25, states, “NDC is 

without knowledge as to the safety and health requirements or contractual terms negotiated between the Respondent’s 

subcontractor, Emerald Coast, and the Respondent’s sub-subcontractor, AD Berrios.” (Ex. 22, ¶25, at 6-7, Ex. 23, 

¶22, at 2). On the other hand, Respondent’s Response to Request for Admission, No. 20, states, in part, “As a 

contractually-bound subcontractor, AD Berrios served as representative and agent for Emerald Coast and was 

responsible for completing the scope of framing work originally contracted-for at the Jobsite.” (Ex. 23, ¶20, at 1). 

67 See OSHA Instruction CPL 02-00-124, Multi-Employer Citation Policy, § X.E.1 (Dec. 10, 1999) that defines a 

controlling employer as “[a]n employer who has general supervisory authority over the worksite, including the power 

47 
 

 

said he would expect Mr. Brumbaugh to direct the worker that Mr. Brumbaugh saw on December 

13, 2016 without fall protection to get off roof trusses that were 37 feet above ground. (Tr. 760-

61; Exs. 33, 35). He also said that NDC could stop an ECS employee working on a balcony from 

working if he was doing so unsafely. (Tr. 702-10). The subcontractor Agreement between NDC 

and ECS gave NDC the authority to require a subcontractor to correct safety issues at the 

worksite. (Tr. 174-75, 184, 333, 650, 656, 663-64, 694; Ex. 57, at 3, ¶ 2.A., Exhibit “F”, at 2). 

NDC operated in an oversight capacity at the worksite. Each subcontractor had the 

primary safety responsibility for its employees and was required to correct safety hazards at the 

site. NDC’s oversight role was consistent with Commission precedent that the controlling 

employer’s safety role may be secondary. See Suncor, 2019 WL 654129, at *6-7; Summit I, 2009 

WL 2857148, at *4. Whether NDC exercised reasonable diligence in implementing this 

secondary role is discussed below. 

Citation 1, Item 1 

The Secretary alleges that Respondent violated 29 C.F.R. § 1926.501(b)(13), which 

requires: 

(13) Residenti l construction. Each employee engaged in residential construction 

activities 6 feet (1.8 m) or more above lower levels shall be protected by guardrail 

systems, safety net system, or personal fall arrest system unless another provision 

in paragraph (b) of this section provides for an alternative fall protection measure. 

(Exs. A-C). 

Respondent does not dispute the Applicability, Violation and Exposure of the Cited Standard 

At trial and in its Post-Trial and Reply Briefs, NDC did not advance arguments against the 

first three elements that the Secretary must prove involving applicability, compliance, and 

to correct safety and health violations itself or require others to correct them.” See lso, Suncor, 2019 WL 654129, 

at *3 (same); Summit I., 2009 WL 2857148, at *3 (agreeing with and quoting the Multi-Employer Citation Policy’s 

definition of a controlling employer); FAMA Constr., LLC, 17-1173, 2019 WL 3210613, at *16 (O.S.H.R.C.A.L.J., 

June 5, 2019) (consolidated) (Employer a controlling employer where it had the power to correct safety violations or 

require others to correct them and exercised considerable control over subcontractor work crews). 

48 
 

employee access. Respondent has waived all arguments against these elements except those 

related to whether NDC was a controlling employer and knew or could have known about the 

hazards with the exercise of reasonable diligence. See Astr Ph rm . Prods., 1981 WL 18810, at 

*4. 

Employees were engaged in residential construction at the worksite and worked at heights 

6 feet or higher. The cited standard is applicable. The Secretary cited four instances where no 

fall protection measure was used at the Project. 

(a) Employee of the A&D Berrios Framing Company doing sheeting work on the 

roof of a garage building was exposed to a fall of more than 9 feet (distance from 

the eave to the next lower level). 

(b) Employee of the A&D Berrios Framing Company doing carpentry work on an 

open sided balcony at the third floor of building 4 was exposed to a fall of 

approximately 30 feet (distance to the next lower level according to blueprints). 

(c) Employee of the A&D Berrios Framing Company doing carpentry work on the 

mailbox building were exposed to a fall of 9 feet (distance to the next lower level 

according to blueprints). 

(d) Employee of the CR Companies that was working on an open sided balcony in 

building one was exposed to a fall of more than 30 feet (distance to the next lower 

level according to blueprints). 

(Ex. A, at 6). 

Respondent does not dispute that the subcontractors’ employees in these four cited 

instances were working without fall protection at heights greater than 6 feet at the time the CO 

and AAD observed them on April 5, 2017. The record shows, through photographs and 

testimony, there was a lack of fall protection in use for the four cited instances. Employee 

exposure and lack of compliance with, and applicability of, the cited standard is proved. 

Knowledge 

A. Overview 

49 
 

 

The Secretary asserts that NDC had constructive knowledge of all four cited instances and 

actual knowledge of cited instance (b).68 In his Response to Respondent’s Interrogatories to 

Complainant No. 13, Complainant stated that “Respondent was aware, or should have been 

aware, of the violative conduct committed by employees of the subcontracted entities.” (Ex. 

WW, at ¶14, at 10). Respondent asserts it had no actual knowledge of these conditions. Further, 

Respondent asserts it exercised reasonable diligence in its role as the controlling employer, so 

there was no constructive knowledge of the cited conditions. (Resp’t. Post-Trial Br., at 7, 10-14, 

19). Both agree that a general contractor has constructive knowledge if it could reasonably 

foresee the violation committed by its subcontractor. (Sec’y Reply Br., at 14-15; Resp’t. PostTrial Br., at 14-16). 

In the context of the Multi-Employer Worksite Policy, the Secretary must prove that an 

employer had knowledge of the violative condition despite not having any of its own employees 

exposed to it. If the Secretary proves actual knowledge, the analysis ends, and the Secretary need 

not prove that Respondent acted with reasonable diligence in general. Summit I, 2009 WL 

2857148, at *5 (holding that because the employer stipulated at hearing to having actual 

knowledge of the violative conditions, failure to inform the subcontractor of the violation alone 

demonstrates it did not take reasonable precautionary measures). In the absence of actual 

knowledge, the Secretary must prove that an employer had constructive knowledge of the 

violative conditions by showing that the conditions were open and obvious, or, relatedly, that the 

employer failed to exercise reasonable diligence in preventing or detecting the violative 

conditions. ComTr n Grp., Inc. v. U.S. Dep't of L bor, 722 F.3d 1304, 1307–08 (11th Cir. 2013); 

68 Complainant’s Response to Respondent’s Interrogatories No. 9 states that “Respondent had knowledge of the 

conditions and practices that created [the] hazard.” (Ex. WW, at ¶9, at 7). 

50 
H milton Fixture, No. 88-1720, 1993 WL 127949, at *10, 13 (O.S.H.R.C., Apr. 20, 1993), ff’d 

on other grounds, No. 93-3615 (6th Cir. July 1, 1994). 

Here, credible testimony from CO Ortiz and AAD Perez-Ramos prove that Mr. Miller had 

actual and/or constructive knowledge of the violative condition alleged at Instance (b). (Tr. 114). 

The conditions of all four instances at the jobsite on the morning of April 5, 2017 were open, 

obvious, and readily apparent to both to Superintendent Miller and Respondent’s other 

supervisors on the jobsite and knowledge is imputed to NDC based on the nature of the violative 

conditions and NDC’s supervisory presence on the Jobsite at that time. The open, obvious and 

readily apparent nature of the routine lack of use of fall protection at the jobsite by numerous 

subcontractor workers is based upon: 1) the recurring documented observations by NDC of ECS 

and AD Berrios workers not using fall protection from late November, 2016 through February, 

2017, and beyond, 2) AAD Perez-Ramos’s observation of two workers not using fall protection 

about 10 days before OSHA’s inspection as she was driving by the jobsite, 3) CO Ortiz’s and 

AAD Perez-Ramos’s finding a dozen AD Berrios and CR Companies’ workers not using fall 

protection in about 75 minutes during OSHA’s inspection, and 4) workers at the jobsite telling 

CO Ortiz that it was normal for workers to routinely not wear fall protection at the jobsite. The 

Court finds that NDC had constructive knowledge of the rampant lack of use of fall protection by 

subcontractor personnel at the jobsite in the months preceding the OSHA inspection and on April 

5, 2017. The Court further finds that NDC knew that its, and its subcontractor’s efforts, to abate 

the lack of use of fall protection by ECS, AD Berrios, and CR Companies workers was wholly 

ineffective. There was no consequence for workers not wearing fall protection. It was readily 

foreseeable to NDC that AD Berrios and CR Companies employees were not using fall protection 

during the morning of April 5, 2017. The Act requires more of a general contractor who is aware 

51 
 

 

of these shortcomings, even where it is measured while performing in a secondary safety role. 

Under OSHA’s Multi-Employer Worksite Policy, the Secretary has established the three factors 

of analysis that determine whether an employer acted with reasonable diligence in preventing or 

detecting the violative conditions. NDC did not act with reasonable diligence, and constructive 

knowledge is found for all four instances. 

The evidence in this case establishes that Respondent had actual and/or constructive 

knowledge of the violative condition alleged at Instance (b) and constructive knowledge of the 

violative conditions alleged in Instances (a), (c) and (d). 

B. NDC had actual and/or constructive knowledge of Instance (b) and constructive knowledge of 

Instances (a), (c), and (d) 

1. NDC had actual and/or constructive knowledge of Instance (b) 

In order to prove actual knowledge, the Secretary must prove that an employer’s 

supervisor was aware of the violative condition(s). ComTr n Grp., Inc. v. U.S. Dep't of L bor, 

722 F.3d at 1307–08 ([W]here the Secretary shows that a supervisor had either actual or 

constructive knowledge of the violation, such knowledge is generally imputed on the 

employer.”); The K ns s Power & Light Co., No. 11015, 1977 WL 8014 (O.S.H.R.C., Mar. 30, 

1977) (Actual knowledge shown when a supervisor sees misconduct). The Commission does 

not require the Secretary to secure an admission from a manager in order to prove that the 

employer had actual knowledge of violative conditions. In Horst Constr. db Horst Grp., Inc. 

No. 15-1482, 2016 WL 3960199 (O.S.H.R.C.A.L.J., June 14, 2016), the court credited “a CO’s 

own observations” that a supervisor had been “standing in the area where the employees were 

working in plain view” in order to find actual knowledge — even though the employer disputed 

that its manager had seen the violation. 

Credible testimony from CO Ortiz and AAD Perez-Ramos prove that Mr. Miller knew of 

52 
 

 

the violative condition alleged at Instance (b). CO Ortiz testified that Mr. Miller was aware of 

the fall protection violation alleged at Instance (b) that was taking place in front of them, saying, 

“I have no doubt the employer had knowledge of this [sic] conditions and situation. It was 

proven to me by the fact of my conversation with Jim Miller.” (Tr. 78; Ex. 15). CO Ortiz also 

testified: “And I asked him whether he can intervene and get him put in a safe condition.” (Tr. 

64-65; Ex. 15). CO Ortiz further testified: “Q So you pointed out to Superintendent Miller this 

gentleman that's on the third balcony up in the photo? A Yes, that was a plain view.” (Tr. 64-65; 

Ex. 15). 

At a minimum, Mr. Miller heard the words CO Ortiz spoke to him, and was made aware 

of the violative condition alleged at Instance (b). See Flintlock Constr. Servs. LLC, No. 13-

2181, 2016 WL 3856169, at *19-20 (O.S.H.R.C.A.L.J., June 6, 2016) (holding actual knowledge 

because employer “was informed by [the on-site safety manager] the scaffold was not in 

compliance.”). CO Ortiz testified, “I told him that, you know, the reason for me being there was 

the fact that I observed several instances of employees exposed to falls and that I had the 

intention of conducting a safety inspection at the time. Superintendent Miller acknowledged that 

and indicated that . . ..” (Tr. 64). 

At trial, Mr. Miller did not remember CO Ortiz telling him that workers in the building 

across from them were openly working without fall protection or that CO Ortiz took a 

photograph of the workers. (Tr. 434, 997, 1007; Ex. 15). Upon reviewing a statement that he 

had prepared within a day or two of the incident, he changed his testimony to say that he 

remembered writing that OSHA had taken a picture of Building 4 — even though he still did not 

remember that actually taking place.69 (Tr. 246, 434, 880; Ex. 15). The Court finds that Mr. 

69 Mr. Brumbaugh testified that when Mr. Miller called the trailer to alert them that OSHA was onsite and headed 

their way, he told him that the compliance officer had taken a photograph and that there was an issue that Mr. Miller 

was going to address. (Tr. 433-35). Mr. Scott also testified that, during the opening conference, CO Ortiz told him 

that he [CO Ortiz] had earlier shown Mr. Miller a photograph depicting a fall hazard. (Tr. 676-78). 

53 
Miller did not have an accurate memory at trial of what took place when he talked with CO Ortiz 

and AAD Perez-Ramos at about 9:00 a.m., April 5, 2017. (Tr. 997, 1007). Given CO Ortiz’s 

contemporaneous photograph of the fall protection violation shown in the photograph at Exhibit 

15, his testimony that the violation was open and obvious and in plain view from where they 

were standing using only the naked eye, and CO Ortiz’s testimony that he pointed out the 

violation to Mr. Miller, the Court finds that CO Ortiz’s testimony is far more credible than any 

testimony to the contrary by Mr. Miller.70 (Tr.91). 

AAD Perez-Ramos’s credible testimony also corroborates CO Ortiz’s testimony. AAD 

Perez-Ramos testified that CO Ortiz pointed out the violative conditions, which were in plain 

view. (Tr. 171-72). Moreover, CO Ortiz’s contemporaneous notes and narrative were reviewed 

for accuracy by AAD Perez, who was present during CO Ortiz’s conversation with Mr. Miller, 

and they demonstrate that Mr. Miller had actual knowledge of the violative condition on the 

balcony at Building 4. (Tr. 59, 157; Ex. B, at 5-6, Ex. G, at 8, Ex. 15). The OSHA Inspection 

Narrative states, “CSHO and AAD ... made him [Mr. Miller] aware of the safety conditions 

observed while walking around the construction jobsite . . .. CSHO and AAD also highlighted to 

Mr. Miller a safety hazard that was taking place immediately in front where the conversation was 

taking place. CSHO asked Mr. Miller whether he could take action to protect an employee that 

70 Based upon its observations of CO Ortiz’s courtroom demeanor while testifying, the Court finds CO Ortiz’s 

testimony to be credible. CO Ortiz testified in a direct, convincing, and clear manner. On the other hand, the Court 

finds, based upon its view of Mr. Miller’s courtroom demeanor, that Mr. Miller’s testimony that CO Ortiz did not 

point out to him the fall protection violation occurring before them and that Mr. Miller did not see the violation 

himself at that time, to not be credible. Mr. Miller appeared to be confused and had a loss of memory while 

testifying of what actually occurred when he met with CO Ortiz and AAD Perez-Ramos while standing on the north 

side of Building 2 on April 5, 2017. (Ex. HH, at 4, at “A”). The Court finds that, while standing on the north side 

of Building 2, Mr. Miller saw and had actual knowledge of the fall protection violative condition that occurred at 

about 9:00 a.m., April 5, 2017, on the balcony at Building 4. (Ex. 15). Alternatively, as discussed further in the 

following constructive knowledge section, the open and obvious violation, its duration, and the clear visibility from 

location “A” where the conversation between Mr. Miller, CO Ortiz, and AAD Perez-Ramos occurred and location 

“E”, Exhibit HH, at 4, shows that Mr. Miller had, at least, constructive knowledge of the fall protection violative 

condition that was occurring on the balcony of Building 4. (Tr. 233; Ex. 15, HH, at 4, at “A”, “E”). 

54 
was standing on a ladder at the edge of a balcony on the third floor (the balcony had no guard 

rails).” (Ex. B, at 5-6). Mr. Miller did not take immediate action to stop the fall hazard violation 

occurring before him. Instead, he called AD Berrios’s supervisor Luis Garcia and informed him 

that OSHA was on the job site and directed AD Berrios to “tighten up.” Mr. Miller did not 

identify the names of the two workers not wearing fall protection on the balcony of Building 4 

(Instance (b)), but thought that they may be framing workers. Since two of the four instances, 

Instances (c) and (d), involved supervisors/foremen who were themselves not wearing fall 

protection, Mr. Miller might have been able to adhere to his interpretation of NDC’s policy that 

he was not to directly interact with just workers had a supervisor been one of the two workers not 

wearing fall protection on Building 4’s balcony. The fall protection violative condition was 

eventually abated sometime later and may have been so by the workers simply moving away from 

the balcony to do other work elsewhere. Mr. Brumbaugh did not see any fall protection violation 

occurring on Building 4’s balcony when he looked toward it many hours later. NDC viewed all 

reports of fall protection violations as having been abated at the end of the day when all the 

workers got off the balcony and went home even though the cause of the violation had not been 

addressed and corrected. (Tr. 444-45, 551-52). 

2. NDC had constructive knowledge of Instances (a), (c), and (d). 

The Secretary asserts that NDC had constructive knowledge because the cited conditions 

were open and obvious. The Secretary also asserts that constructive knowledge is shown through 

NDC’s lack of reasonable diligence in its adequate onsite inspections, its ineffective method to 

obtain abatement of unsafe conditions, and its lack of discipline for its subcontractors. (Sec’y 

Post Hrg. Br., at 42). In his Response to Respondent’s Interrogatories to Complainant No. 13, 

Complainant stated “Respondent’s method to ensure that owners of subcontracted entities aided 

55 
 

 

 

 

 

by OSHA rules was inadequate because the work rules related to fall protection were not 

enforced, even after violations were discovered by Respondent....” (Ex. WW, at ¶13, at 10). 

a. Instances (a), (c), and (d) were readily apparent 

The Commission has held that where a cited condition is “‘readily apparent to anyone 

who looked,’ they ‘indisputably should have been known to management’”, and employers are 

found to have constructive knowledge. H milton Fixture, 1993 WL 127949, at *16. When a 

supervisor may not have directly seen the subordinate's misconduct, but he was in close enough 

proximity that he should have, he is said to have constructive knowledge of the misconduct. 

Id., at *16-19 (holding that constructive knowledge was shown where the supervisor, who had 

just walked into the work area, was 10 feet away from the violative conduct). Constructive 

knowledge is often found when the hazard is in plain view. See Kokosing Constr. Co., No. 92-

2596, 1996 WL 749961, at *2 (O.S.H.R.C., Dec. 20, 1996) (“The conspicuous location, the 

readily observable nature of the violative condition and the presence of the [employer’s] crews 

in the area warrant a finding of constructive knowledge.”); N tive Textiles Co., No. 01-1636, 

2003 WL 21077999, at *9 (O.S.H.R.C.A.L.J., Jan. 8, 2003) (holding employer has knowledge 

of a safety violation where the condition is in plain view and is “open and obvious.”). 

b. Knowledge is Imputed to Respondent. 

In this case, knowledge of violative conditions is imputed to Respondent through its 

Superintendents, including Messrs. Brumbaugh and Miller. See ComTr n Grp., Inc., 

722 F.3d at 1307–08 (“[W]here the Secretary shows that a supervisor had either actual or 

constructive knowledge of the violation, such knowledge is generally imputed on the 

employer.”). CO Ortiz credibly testified that the violative conditions “were right there in plain 

view in front of us” and that he made Mr. Miller aware “of at least one that was obviously in 

plain view.” AAD Perez-Ramos also credibly testified that she was able to see a worker 

56 
 

 

 

 

 

without fall protection while standing alongside Mr. Miller. (Tr. 171-72). Mr. Miller himself 

conceded that had he looked toward Building 4, it would have been possible to see the workers 

on the third floor balcony of Building 4 from where his conversation with CO Ortiz and AAD 

Perez-Ramos took place on the north side of Building 2 at location “A”, Exhibit HH, at 4. (Tr. 

933). He estimated that he was approximately 350-450 feet away from Building 4 when he 

spoke with OSHA’s representatives. (Tr. 842). Based upon his testimony that he believed 

OSHA’s representatives to likely be on site because they had spotted a violation, he was aware 

of the probability that a violation was then occurring on the jobsite. (Tr. 861, 997, 1007). 

Knowledge of the four instances of the violative conditions is also imputed to 

Respondent through its supervisory employees who had constructive knowledge of the 

presence of at least nine open and obvious fall protection hazards involving at least twelve 

workers on the jobsite during the morning of April 5, 2017. Respondent stipulated that it had 

five supervisory employees who were present on the jobsite on the day of the inspection. (Tr. 

24-25, 275). CO Ortiz and AAD Perez-Ramos saw, at least, twelve workers being exposed to 

fall hazards at Buildings 3 and 4, the garage, and the mailbox building over the course of an 

hour and fifteen minutes. (Tr. 61; Exs. 2-15). Ten of the exposed workers were visible from 

the city streets surrounding the project. (Id.). As is established by the many photographs in 

the record, the lack of guardrails and harnesses, as well as the ladders near the edges of 

balconies, would be obvious to anyone bothering to look. On the whole, the lack of fall 

protection on the jobsite can only be considered a pervasive, “open and obvious” and readily 

apparent condition. Accordingly, given the open and obvious nature of the condition and the 

daily presence of one or more of Respondent’s five supervisory employees within the jobsite, 

any one of whom had authority to correct the unsafe condition, constructive knowledge of 

Instances (a), (c), and (d), is imputed to Respondent. See e.g., Isl nd L thing & Pl stering Inc., 

57 
 

 

 

No. 92-1935, 1993 WL 369051 (O.S.H.R.C.A.L.J., Aug. 27, 1993) (holding that any of the 

employer’s multiple supervisors at the worksite could have seen the employee without fall 

protection in the aerial lift). 

NDC Did Not Exercise Reasonable Diligence in Preventing Hazards at the Jobsite. 

A. Overview 

In Anning-Johnson Co., No. 3694, 1976 WL 5967 (O.S.H.R.C., May 12, 1976) 

(consolidated), and Grossm n Steel & Aluminum Corp., No. 1275, 1976 WL 5968, at *4 

(O.S.H.R.C., May 12, 1976), the Commission articulated the position that: 

The general contractor is well situated to obtain abatement of hazards, either 

through its own resources or through its supervisory role with respect to other 

contractors ... Thus, we will hold the general contractors responsible for 

violations it could reasonably have been expected to prevent or abate by reason 

of its supervisory capacity. 

Id. 

Under the Commission’s Multi-Employer Citation Worksite Policy, “[A]n employer owes 

a duty under section 5(a)(2) of the Act not only to its own employees but to other employees at 

the worksite when the employer creates and/or controls the cited condition.” Summit II, 2010 WL 

3341872, at *8 (“[A]n employer's duty to exercise reasonable care where its own employees are 

not exposed to the hazard ‘is less than what is required of an employer with respect to protecting 

its own employees,’ such that a general contractor need not inspect the worksite as frequently as 

an employer whose own employees are exposed to the hazard.” See lso Summit I, 2009 WL 

2857148, at *5 (citing OSHA's Multi-Employer Citation Policy, OSHA Instruction CPL 02-00-

124 § X.E.2 (Dec. 10, 1999)). Under this precedent, a controlling contractor has a responsibility 

to seek to have worksite hazards corrected, if it was aware of the hazards or could reasonably be 

expected to have detected them. In Knutson Constr. Co., No. 765, 1976 WL 6122, at *2 

(O.S.H.R.C., Oct. 12, 1976), the Commission stated, “[W]e will hold a general contractor 

58 
 

 

 

 

 

 

 

 

responsible for violations it could reasonably be expected to prevent or abate by reason of its 

supervisory capacity . . . . since the general contractor is normally in an appropriate position to 

discover hazards and obtain abatement either through its own resources or through its supervisory 

role with respect to other contractors.” Aff’d, 566 F.2d 596 (8th Cir. 1977). See lso M rsh ll v. 

Knutson Constr. Co., 566 F.2d 596, 601 (8th Cir. 1977) (where the Eighth Circuit found that a 

general contractor's duty to detect violations depends on what measures are “commensurate with 

its degree of supervisory capacity”). This is especially so here, where the 

superintendents/foremen of both AD Berrios and CR Companies were themselves not complying 

with fall protection safety requirements at Buildings 1 and 4 at the time of the OSHA inspection. 

(Exs. 7, 13). 

A “general contractor’s duty to detect violations depends on what measures are 

commensurate with its degree of supervisory capacity.” Summit II, 2010 WL 3341842, at 9; see 

 lso, Am. Wrecking Corp., No. 96-1330, 2001 WL 1668964, at *8 (O.S.H.R.C., Dec. 20, 2001) 

(consolidated) (controlling employer “responsible for taking reasonable steps to protect the 

exposed employees of subcontractors”). The controlling employer’s duty is based on its 

“secondary safety role as a controlling employer.” Suncor, 2019 WL 654129, at *6-8. NDC’s 

duty to monitor safety and inspect the worksite is viewed “in light of objective factors—the nature 

of the work, the scale of the project, and the safety history and experience” of the subcontractors 

it hired. Id. The controlling employer’s duty of reasonable care is based on an objective standard 

not whether it implements its own safety program. Id. 

“Determining whether a controlling employer has met its duty to exercise reasonable care 

involves analyzing several factors: those that relate to the alleged violative condition itself and 

those that relate to the employer's duty to monitor or inspect.” Id. “Whether a controlling 

59 
 

 

 

 

employer should have known of the conditions giving rise to the violations of another employer 

depends in part on the ‘nature, location, and duration of th[e] conditions.”’ Id. quoting D vid 

Weekley Homes, No. 96-0898, 2000 WL 34338140, at *4 (O.S.H.R.C., Sept. 28, 2000). 

1. Three Factor Reasonable Diligence Analysis 

OSHA’s Multi-Employer Worksite Citation Policy contains three main factors for 

determining whether an employer exercised reasonable care: 1) whether the controlling 

employer “conducted periodic inspections of appropriate frequency”; 2) whether the 

controlling employer “implemented an effective system for promptly correcting hazards”; and 

3) whether the controlling employer enforced the other employer’s compliance with safety 

and health requirements through an effective, graduated system of enforcement and follow-up 

inspections.71 (Ex. P, § X.E.4, at 6). See lso Summit I, 2009 WL 2857148, at *5 (citing 

OSHA's Multi-Employer Citation Policy, OSHA Instruction CPL 02-00-124 § X.E.2 (Dec. 

10, 1999)). When analyzing whether an employer exercised reasonable diligence, the 

Commission evaluates the controlling employer “in its totality” and in terms of “whether a 

reasonable employer would have done more.” C pform, Inc., No. 91-1613, 1994 WL 530815, 

at *2 (citing Elec. Smith, Inc., 666 F.2d at 1273-74); All Fl . Tree & L ndsc pe, Inc., No. 13-

0373, 2015 WL 1201610 (O.S.H.R.C.A.L.J., Jan. 22, 2015); Centex-Rooney Constr. Co., 

1994 WL 682931, at *2 (holding that a controlling employer must exercise its responsibility 

of monitoring potential hazards with reasonable diligence on the worksite and correcting 

them.). In Summit II, the Commission specified that reasonable diligence requires the 

formulation and implementation of adequate work rules and training programs to ensure that 

work is safe, as well as adequate supervision of employees. Summit II, 2010 WL 3341872, at 

71 In its Reply Brief, Respondent states the “Three Factor Reasonable Diligence Analysis is simply the Unpreventable 

Employee Misconduct Defense in a different cloak.” (Resp’t. Reply Br., at 5). 

60 
 

 

*11 (quoting N & N Contr ctors, Inc., No. 96-0606, 2000 WL 665599, at *2 (O.S.H.R.C., 

May 18, 2000), ff'd, 255 F.3d 122 (4th Cir. 2001). 

In exercising diligence, a controlling employer may not simply rely on another 

employer. Stein, Inc., No. 94-810, 1995 WL 431486 (O.S.H.R.C.A.L.J., May 8, 1995) (citing 

C rlisle Equip. Co. v. Sec’y of L bor, 24 F.3d 790, 794 (6th Cir. 1994)) (“Reasonable 

diligence implies effort, attention, and action, not mere reliance upon the action of another.”). 

A controlling employer’s duty to detect violations depends on what measures are 

“commensurate with its degree of supervisory capacity.” M rsh ll v. Knutson Constr., 566 

F.2d at 601. 

NDC could have known of the violative conditions of, at least, Instances (a) through 

(d), with the exercise of reasonable diligence. Mr. Miller testified that he saw “two fall 

protection violations a week” at the job site.” (Tr. 547, 872-73). As discussed below, NDC 

failed to act with reasonable diligence because it failed to adequately and effectively detect 

and prevent the fall protection violative conditions described in the Citation. 

a. NDC did not inspect its framing and siding contractors’ work frequently or closely 

enough. 

The first factor of the CPL's three factor framework evaluates whether an employer 

inspected the work of its contractors closely or frequently enough. (Ex. P, at §X.E.4.a., at 6). 

See Pub. Utils. M int., Inc. v. Sec'y, 417 F. App’x 58, 63 (2d Cir. 2011) (unpublished) 

(citing N. L nding Constr. Co., No. 96-721, 2001 WL 826759, at *9 (O.S.H.R.C., July 20, 

2001) (“OSHRC has previously indicated that ‘reasonable diligence’ for the purpose of 

constructive knowledge involves, among other factors, an employer’s ‘obligation to inspect the 

work area, to anticipate hazards to which employees may be exposed, and to take measures to 

prevent the occurrence.’”). A controlling employer’s duty to inspect its subcontractors varies 

61 
 

 

 

 

 

 

 

and is lessened or heightened depending on circumstances particular to the jobsite and its 

relationship with its subcontractors. OSHA's CPL articulates five predecessor factors to 

determine a controlling employer's duty under factor one. (Ex P, at §X.E.3., at 6). 

The scale of the project may heighten a controlling employer’s duty to conduct more 

frequent and close inspections in order to prevent and detect hazards. (Ex. P, at § X.E.3.a., at 

6). Second, the nature and pace of the work matters, including the frequency with which the 

number or types of hazards change as work progresses. (Ex. P, at § X.E.3.b., at 6). A 

controlling employer may need to conduct more frequent and close inspections of a worksite 

with a myriad of dynamic, frequent hazards. Third, how much a controlling employer knows 

both about the safety and history practices of the employer it controls and about that 

employer’s level of expertise affects how frequently and closely it must inspect that employer. 

(Ex. P, at § X.E.3.c., at 6). If an employer does not have experience in or knowledge of 

working with the employer it controls, then it may need to conduct more inspections in the 

exercise of reasonable diligence. When the employer knows that the employer it controls has a 

history of noncompliance, or doesn’t know its compliance history at a particular phase of the 

project, then it may need to conduct more frequent and close inspections of that employer. 

Fourth, if a subcontractor has not demonstrated a consistently high level of compliance, a 

controlling employer may have to conduct more frequent and close inspections to exercise 

reasonable diligence. (Ex. P, at § X.E.3.d., at 6). Finally, a controlling employer’s knowledge 

or lack thereof regarding whether the employer it controls utilizes an effective, graduated 

system of enforcement for non-compliance with safety and health requirements, coupled with 

regular jobsite safety meetings and safety trainings, may determine how frequently and closely 

it must inspect the employer. (Ex. P, at § X.E.3.e., at 6; Resp’t. Post-Trial Br., at 16). 

62 
 

 

 

 

NDC had a heightened duty to conduct frequent inspections of AD Berrios and CR 

Companies as of April 5, 2017 due to the size and scale of their work on the project, the nature 

and fast pace of their work and the frequency with which fall protection hazards arose and 

changed,72 NDC’s knowledge of ECS/AD Berrios’73 and CR Companies’74 unsafe practices and 

noncompliance with fall protection safety rules, and NDC’s failure to enforce its graduated 

system for enforcement for non-compliance with safety rules.75 (Sec’y Post-Hrg. Br., at 52-68; 

Sec’y Reply Br., at 19; Tr. 54, 274-75, 335, 356, 367, 403, 411, 451-52, 546-47, 551, 687, 853; 

Ex. HH). 

NDC did not believe that looking for safety issues was its responsibility. 

Superintendent Brumbaugh testified, “No one was specifically looking for safety violations. 

We’re not safety officers.” (Tr. 547). NDC did not inspect ECS more closely or frequently 

even though it knew ECS had incurred a history of repeated fall protection violations at the 

jobsite in a relatively short period of time. Superintendent Brumbaugh noted that the framing 

crews were guilty of “repeat violations” and had “a complete lack of control for safety.” (Tr. 

403, 515-16, 768-69; Ex. 38). Even though it knew ECS committed repeated fall protection 

violations, its overall identification of fall protection hazards at the jobsite was inadequate. 

Superintendent Brumbaugh testified that he did not walk the jobsite when he arrived each 

morning — and would not get around to all the buildings for several hours. He testified that 

on some days, he would spend as little as fifteen minutes outside of the trailer. (Tr. 279, 411-

72 Given the number of workers, the number of balconies and the daily or hourly pace at which life-threatening 

fall protection hazards emerged, NDC ought to have conducted frequent and close inspections of AD Berrios’s and 

CR Companies’ workers to detect and prevent fall protection hazards. 

73 NDC knew of at least twelve fall protection violations by ECS/AD Berrios during the two-month, one week period 

from November 29, 2016 through February 7, 2017. (Exs. 26-27, 30, 32, 35, 38, 41-42, 47, 51-52, 55, GG). 

74 By April 5, 2017, NDC knew that CR Companies had only submitted meeting minutes from one tool box talk for 

all the weeks it had been on the job site. (Tr. 543-45; Ex. 72). 

75 NDC’s system of enforcement did not involve any investigation into the cause of the violation, the identity of the 

perpetrator, or whether progressive discipline was followed. (Tr. 451). 

63 
 

 

13). Mr. Miller also indicated that his walk-by on the day of the OSHA inspection was not 

comprehensive, saying, “I only walked by fleetingly.” (Tr. 833). 

NDC’s observations of the jobsite did not lead to effective abatement of fall protection 

hazards. It did not investigate the causes of fall protection violations or why repeated fall 

protection violations kept happening. (Tr. 437-38). When an NDC employee did see a fall 

protection violation, it was often addressed by a telephone call and no record was made of the 

violation and there was no attempt to ascertain the name of the person who had committed the 

violation. (Tr. 414, 451). NDC was mistaken about its responsibility as a controlling 

employer to conduct inspections for safety violations committed by subcontractors. NDC’s 

superintendents testified NDC was not responsible for the safety of any subcontractor’s 

workers at the job site at any time. (Tr. 440, 463, 685-86, 698, 826, 872-73). NDC’s 

confusion as to whether it was responsible in any way for the safety of its subcontractors’ 

employees is itself evidence of a lack of reasonable diligence. See e.g. Me dows Constr. Co., 

LLC, No. 12-2142, 2018 WL 1309479, at *38 (O.S.H.R.C., Feb. 26, 2018) (noting employer 

“testified that he was not responsible for safety[.]” and its belief that it was not responsible for 

safety at the worksite was one factor in determining it failed to act diligently in regard to 

safety).76 NDC did not participate in safety walks conducted by its subcontractors because it 

did not believe that it was responsible for inspecting its subcontractors. (Tr. 368, 532-33, 

779). NDC did not ensure that hazards identified on these safety walks were corrected 

because “they’re not my employees. I don’t correct them.” (Tr. 532). 

CO Ortiz and AAD Perez-Ramos saw, at least, twelve workers being exposed to fall 

hazards at Buildings 3 and 4, the garage, and the mailbox building over the course of an hour 

76 See Summit II, 2010 WL 3341872, at *10 (holding an employer cannot contract away its duties “under the Act by 

requiring another party to perform them.”) (quoting, e.g., Froedtert Mem'l Luther n Hosp. Inc., No. 97-1839, 2004 

WL 2308763, at *10 (O.S.H.R.C., Jan. 15, 2004)); see lso, Archer-W. Contr ctors, Ltd., No. 87-1067, 1991 WL 

81020 (O.S.H.R.C., Apr. 30, 1991), ff’d. 978 F.2d 744 (D.C. Cir. 1992). 

64 
and fifteen minutes. (Tr. 61; Exs. 2-15). See Meridi n Constr. & Dev., LLC, No. 06-0454, 

2006 WL 2781633, at *10 (O.S.H.R.C.A.L.J., Sept. 5, 2006) (“[T]he number of unsafe 

conditions observed . . . during [the OSHA Compliance Specialist’s] short walk-through of 

the worksite shows Meridian's inspection program was inadequate. Meridian's two 

superintendents on site failed to conduct proper inspections.”). 

b. NDC did not implement an effective system for promptly correcting fall hazards. 

NDC failed to implement an effective system for promptly correcting fall hazards. It used 

a system whereby it would call or contact a subcontractor’s superintendent and describe a 

violation it had seen and expect the subcontractor’s superintendent, who like CR Companies’ Mr. 

Smith might be away from the jobsite, to try and fix the problem. This system was ineffective 

and left workers exposed to fall hazards. (Tr. 80-82, 126). CO Ortiz testified that the system was 

“ineffective” and “set them up for failure” because NDC did not follow-up to find out more about 

why the incident happened, who was involved and if the reason was promptly and properly 

corrected. (Tr. 407-08, 450). Superintendent Brumbaugh never asked subcontractor employees if 

they received fall protection training, or whether they had fall protection equipment. (Tr. 81-83). 

CO Ortiz also testified that the person receiving NDC’s message was often not onsite and could 

not be reached.77 (Tr. 82). 

NDC’s claim that every safety violation it telephonically identified was abated 

immediately is contradicted by the fact that it sent at least six formal, written fall protection safety 

violation notices to ECS. NDC did not ensure that fall hazards were abated immediately or 

whether or not hazards were resolved at all. (Tr. 865-66). When asked if NDC waited to see if its 

safety issues were abated, Mr. Miller testified, “I would be lying if I told you yes” and indicated 

77 See St nley Roofing Co., Inc., No. 03-0997, 2006 WL 741750, at *2 (O.S.H.R.C., Mar. 3, 2006) (holding “offsite 

supervision via cellular phone communication . . . inadequate in this case.”). 

65 
 

after reporting a violation he would go about his business. In a Safety Violation Notice dated 

December 6, 2016, Superintendent Brumbaugh stated, “Yesterday, your team was escorted 

around site and in excess of 12 different balcony and breezeway openings were left with no 

handrails. As of this morning, several areas remain unsafe.” (Tr. 505-06; Ex. 27). The frequency 

of fall protection violations at the jobsite that NDC brought to the attention of ECS ranged from 

daily to approximately two per week. (Tr. 506; 825, 865; Exs. 26-27, 30, 32, 35, 38, 41-42, 47, 

51-52, 66). 

Senior Vice President Scott testified that a subcontractor could not be terminated, even 

after many repeated violations for the same conduct, if the subcontractor corrected the problem 

within 72 hours. (Tr. 489-90). Mr. Brumbaugh testified that that subcontractors were required to 

abate a fall protection violation, both immediately and within 24 hours. (Tr. 417; Ex. GG). At 

times, NDC's allowed subcontractors too much time to remedy life-threatening violations. OSHA 

stated and NDC's own superintendent admitted that getting a subcontractor to abate in 10 minutes 

(far less than 72 hours) is too long when the situation involves a worker on a balcony without fall 

protection. (Tr. 83, 759). Superintendent Miller’s failure to act upon CO Ortiz’s plea to abate an 

ongoing, serious threat to the life of two construction workers on a third-floor balcony was a 

failure in reasonable diligence sufficient to support a finding of constructive knowledge of the 

hazard. See C l ng Corp., No. 85-0319, 1990 WL 140086, at *2 (O.S.H.R.C., Sept. 12, 1990) 

(finding that the employer could not in good faith have believed that it complied with the 

standards after the compliance officer explained the requirements and pointed out deficiencies the 

employer failed to correct); Altor, Inc., No. 99-0958, 2011 WL 1682629, at *15 (O.S.H.R.C., Apr. 

26, 2011) (Failing to “to halt construction” and install guardrails in response to a CO pointing out 

66 
 

 

a hazard “plainly demonstrate a cavalier attitude towards employee safety” and even was 

sufficient for a finding of willfulness.) 

(Sec’y Post-Hrg. Br., at 68-74). 

c. NDC did not sufficiently enforce ECS’s, AD Berrios’ and CR Companies’ compliance 

with fall protection safety requirements 

Constructive knowledge of a violative condition also can be established by the Secretary’s 

demonstration that the employer’s safety program was inadequate. ComTr n Grp., Inc., 722 F.3d 

at 1308 (noting a lack of a safety program can establish the knowledge element “with the rationale 

being that—in the absence of such a program—the misconduct was reasonably foreseeable.”); see 

 lso, Eller-Ito Stevedoring Co., LLC v. Sec'y of L bor, 567 F. App'x 801, 803–04 (11th Cir. 2014) 

(same) (unpublished). An employer's safety program may be deemed inadequate if it is not 

effectively communicated to employees. Id. (citing PSP Monotech Indus., No. 06–1201, 2008 

WL 5432286, at *3 (O.S.H.R.C., Aug. 14, 2008); H.B. Z chry Co. v. OSHRC, 638 F.2d 812, 820 

(5th Cir. 1981) (finding, in the context of establishing a defense of negligent employee 

misconduct, substantial evidence in the record supported a finding that a company failed to 

communicate and enforce its work rules needed to comply with OSHA standards). 

The Secretary may show constructive knowledge when: (1) conditions prohibited by an 

OSHA standard could occur unless employees followed certain safety rules; and (2) the employer 

failed to take adequate steps to obtain their compliance with the necessary safety rules. CF&T 

Av il ble Concrete Pumping, Inc., No. 90-329, 1993 WL 44415 (O.S.H.R.C., Feb. 5, 1993); see, 

e.g., G ry Concrete Prods., No. 86–1087, 1991 WL 100580, at *2 (O.S.H.R.C., May 16, 1991) 

(holding an employer failed to use reasonable diligence to discover improper stacking of concrete 

pilings, because it failed to ensure adequate supervision of employee responsible for stacking, and 

failed to train employees effectively in avoiding the hazards). If an employer’s safety program 

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lacks the elements of an effective safety program, which include work rules designed to prevent 

violations, adequate communication of the rules to employees, methods of discovering whether 

violations occur and enforcement of the rules if violations are discovered, it is reasonable to 

conclude that the violation was preventable. Id. Furthermore, a violation is considered 

preventable and constructive knowledge will be found where an employer’s safety program does 

not have a series of progressively more severe consequences for violators. See Crowther Roofing 

& Sheet Met l of Fl ., No. 10-1081, 2010 WL 5128951 (O.S.H.R.C.A.L.J., Oct. 15, 2010). A 

general contractor does not act with reasonable diligence when it unreasonably relies on a 

subcontractor who lacks an effective safety program.78 See lso McDevitt Street Bovis, Inc., 2000 

WL 35559662, at *2. 

Evidence that an employer failed to implement a graduated system of enforcement and 

follow-up inspections is evidence that the employer did not act with reasonable diligence. Here, 

NDC failed to implement a graduated system of enforcement. It did not discipline its 

subcontractors and did not ask its subcontractors to discipline their offending employees.79 (Tr. 

452). When asked whether NDC had ever requested a subcontractor to take disciplinary action 

against an employee, Superintendent Brumbaugh said, “I never asked them to take disciplinary 

[sic] — spanking them, firing them, or otherwise.” Although NDC did notify its subcontractors 

of violations it happened to see, CO Ortiz testified that there were no meaningful consequences 

for violators. (Tr. 77, 137-38). The result was a construction site where lack of fall protection 

was a normal occurrence and even the supervisors for the framing and siding contractors exposed 

78 See Me dows Constr. Co., LLC, No. 12-2142, 2018 WL 1309479, at *25 (O.S.H.R.C., Feb. 26, 2018) (ALJ 

Decision and Order appended to Commission case which held that although Employer “was very responsive 

whenever he saw incidents of noncompliance . . . “the record does not show how effectively [it] enforced its machine 

guarding rule.”). 

79 See Prec st Servs., Inc., No. 93-2971, 1995 WL 693954, at *2 (O.S.H.R.C., Nov. 14, 1995) (holding program 

consisting only of pre-inspection verbal warnings is insufficient to establish employee misconduct defense), ff’d. 

106 F.3d 401 (6th Cir. 1997). 

68 
themselves to fall hazards. (Tr. 77, 343-46; Exs. 7, 13). Superintendent Miller testified that he 

saw and called on subcontractors to correct fall hazards twice a week. He never issued a violation 

notice or otherwise documented the incident. (Tr. 403-04, 419). 

Although NDC included a list of safety rules in its contracts with its subcontractors, it 

failed to communicate or effectively enforce those rules. (Tr. 289). NDC had a rule which stated 

that if an employee was given three notices of a safety violation on the project, then NDC would 

demand removal of that employee from the jobsite. (Tr. 899-901). Mr. Miller testified that 

although that rule applied to subcontractors, NDC did not enforce this rule because it did not keep 

track of the identity of the violators. (Tr. 899-901). NDC’s managers did not effectively 

communicate whether a subcontractor was responsible for following NDC’s rules regarding fall 

protection, or its own company’s rules, and what role, if any, the subcontractors had in enforcing 

NDC’s safety rules. (Tr. 65, 69, 407, 451-52, 469, 685-86, 779). 

NDC's near sole reliance on the ECS, AD Berrios and CR Companies to fully comply with 

OSHA’s fall protection requirements during the project was unreasonable given its knowledge of 

their repeated violations and their lack of enforcement of an effective safety program. NDC was 

aware of repeated, continuous health and safety violations by these subcontractors. (Tr. 77). CO 

Ortiz testified that no fall protection was the normal rule, with no meaningful consequences. (Tr. 

146). AD Berrios supervisor Louis Garcia admitted employees repeatedly failed to use fall 

protection and that he struggled with enforcement of fall protection safety rules. (Tr. 355). CO 

Ortiz testified that supervisors in charge of safety for ECS had not been at the construction site for 

months, and two supervisors responsible for safety on the day of the inspection were 

photographed while exposed to fall hazards themselves, with unprotected subordinate workers 

standing alongside them. (Tr. 83, 137, 343-346; Exs. 7, 13). See Bill C. C rroll Co., Inc., 1979 

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WL 8511, at *5 (No. 76-2748, 1979) (holding violations by supervisors “is strong evidence that 

implementation of the safety policy is lax.”). NDC knew that CR Companies was not holding 

tool box talks. (Tr. 545). NDC believed that ECS had a “complete lack of control for safety” and 

was not training or communicating safety rules to its employees. (Tr. 524-25; Ex. 38). 

(Sec’y Post-Hrg Br., at 74-81). 

Respondent’s Policy Arguments that OSHA’s: 1) Multi-Employer Citation Policy 

Disincentivizes General Contractors from taking an Active Safety Role and 

2) Alleged Inability to Provide Compliance Insight is Highly Prejudicial are Without 

Merit and Offer No Defense to the Citation. 

A. The Multi-Employer Citation Policy does not Disincentivize Safety with General Contractors. 

“It is Respondent’s position the Multi-Employer Citation Policy, as it was applied to this 

Project, disincentivizes general contractors from taking an active role in safety and health at 

worksites.” It makes a policy argument that requiring it to enforce its safety program and 

conduct safety inspections does not further the purposes of the Act. Respondent asserts general 

contractors who encourage safety at their worksites will cease doing so if they are fined by 

OSHA. (Resp’t. Post-Trial Br., at 32-33). 

The Commission has repeatedly upheld OSHA’s position that the controlling employer 

doctrine furthers the goals of the Act. Grossm n Steel & Aluminum Corp., 1976 WL 5968, at *3 

(“We therefore conclude that, on a construction site, the safety of all employees can best be 

achieved if each employer is responsible for assuring that its own conduct does not create hazards 

to any employees on the site, and that imposing liability on this basis would not place an 

unreasonable or unachievable duty on contractors.”). “General contractors normally have the 

responsibility and the means to assure that other contractors fulfill their obligations with respect 

to employee safety where those obligations affect the construction worksite.” M rsh ll v. 

Knutson Constr. Co., 566 F.2d at 599. And “[a]s a practical matter, the general contractor may be 

70 
 

 

the only on-site person with authority to compel compliance with OSHA safety standards.” 

Univers l Constr. Co., 182 F.3d at 730. A general contractor who is a controlling employer who 

encounters a life-threatening safety violation may not ignore it. A general contractor, who is a 

controlling employer, who knew or should have known of a serious safety violation and had the 

power to correct it, needs to do so or risk receipt of an OSHA citation for not taking prompt, 

meaningful, and effective corrective action. 

B. Lack of Prejudice Regarding OSHA’s Compliance Insight. 

Respondent argues Complainant must identify conduct that Respondent should have 

pursued to avoid receiving the Citation. It asserts CO Ortiz and AAD Perez-Ramos were unable 

to provide any insight into what conduct NDC should have engaged in to absolve itself from the 

Citation. Consequently, citing to the Commission decision in D vid Weekley Homes, 2000 WL 

34338140, at *3, Respondent argues that it ought to be absolved of its responsibility as a 

controlling employer under the Act. (Resp’t. Post-Trial Br., at 28-29; Resp’t Reply Br., at 4, n. 

1). 

The Secretary, on the other hand, argues that Respondent is misreading D vid Weekley 

Homes and asserts OSHA’s CPL case law provides adequate guidance as to what a controlling 

employer must do to comply with the Act. He asserts that D vid Weekley Homes does not require 

OSHA to provide NDC with “an unrealistic amount of detail as to how to comply with the cited 

standard.” The Secretary also asserts that OSHA provided Respondent with a great deal of notice 

pertaining to what went into its determination that NDC had knowledge of the violative 

conditions. The Court agrees with the Secretary. Complainant cites to his post-hearing brief and 

testimony presented by CO Ortiz and AAD Perez-Ramos at trial concerning what NDC should 

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have done, constructive knowledge, and what OSHA expected of NDC as a controlling employer. 

(Sec’y Post Hrg. Br., at 68–81, Sec’y Post Hrg. Reply Br., at 23-25; Tr. 136-38, 257). 

The Secretary further argues D vid Weekley Homes holds that, only where there is an 

ambiguous regulation, the Secretary must explain how the employer’s conduct fell short and what 

it could have done to comply.80 (Sec’y Post Hrg. Reply Br., at 25). There is no ambiguous 

regulation. The regulation at issue provides three well-defined options to protect employees: “by 

guardrail systems, safety net system, or personal fall arrest system . . ..” 29 C.F.R. § 1926.510(b) 

(13). 

This case involves a standard with specific ways to comply identified. Cf. See Buckeye 

Indus., Inc., No. 8554, 1975 WL 5244, at *3 (O.S.H.R.C., Dec. 22, 1975) (“We do not consider it 

incumbent upon the Secretary to demonstrate what the employer should have done to comply 

with section 1910.212(a)(3)(ii). The standard itself prescribes the performance performance [sic] 

required by guarding.”). While the Commission vacated the four citations issued to David 

Weekley Homes as the controlling employer, it did not hold in its constructive knowledge 

analysis that OSHA must define “reasonable diligence” with the same level of specificity. D vid 

Weekley Homes, 2000 WL 34338140 at *4-6. In McDevitt St. Bovis, Inc., the Commission held a 

general contractor responsible for subcontractor violations it could reasonably have been expected 

to prevent. Here, OSHA’s representatives testified NDC should: 1) have conducted safety 

80 In D vid Weekley Homes, an employer was given two citations as the creating employer and four “substantive” 

citations as the controlling employer. D vid Weekley Homes, 2000 WL 34338140 at *4-5. Although all of the 

citations were vacated, only the creating employer citations were vacated due to the ambiguity concerning what 

constituted compliance. Id., at *5. With regard to the first citation alleging the employer failed to inspect and provide 

a safe and healthful workplace, the Commission held “the Secretary has not shown that Weekley’s conduct was 

insufficient, particularly in light of the combination of its limited onsite presence and actual exercise of safety 

responsibilities.” Id., at *3. Similarly, it vacated the second citation, for failing to provide fall protection training, 

because the Secretary failed to define what would have constituted compliance under the circumstances and how 

Weekley’s conduct was deficient. Id., at *4. 

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inspections instead of ad hoc quality control walks, 2) not just have sought immediate abatement 

through phone calls, and 3) have documented and implemented a graduated system of 

enforcement of its work rules. (See Sec’y Post Hrg. Br., at 74-80). OSHA is not required to 

affirmatively define in detail every element as to how an employer is to comply with the standard 

with the specificity demanded by Respondent. Respondent has not been highly prejudiced by 

OSHA not doing so. 

Respondent has Abandoned any Greater Tripping Hazard Defense 

In its answer, Respondent asserted the defense of greater hazard as its nineteenth 

affirmative defense. (Answer, at 5). In its Answers to Complainant’s Second Set of 

Interrogatories, Respondent asserted that “the use of Personal Fall Arrest Systems in the 

constrained work spaces at the jobsite would create a greater tripping hazard to employees than 

the harm the protective equipment is designed to prevent.” (Ex. 22, ¶23, at 5-6). “To establish a 

defense of greater hazard, an employer must prove that: (1) the hazards created by complying 

with the standard are greater than those of noncompliance, (2) other methods of protecting 

employees from the hazards are not available, and (3) a variance is not available or application for 

a variance is inappropriate.” Seibel Modern Mfg. & Welding Corp., No. 88-821, 1991 WL 

166592 (O.S.H.R.C., Aug. 9, 1991). 

Respondent has not established its defense of greater hazard. It failed to present any 

evidence in support if its nineteenth affirmative defense of greater hazard at the trial and did not 

raise it further at trial or in its Post-Trial and Reply Briefs.81 Consequently, the Court finds that 

Respondent has abandoned its greater hazard affirmative defense and that it has no merit. Fl. G s 

81 In its Answer, Respondent asserted twenty “affirmative” defenses. (Answer, at 2-7). Many of these defenses were 

not raised further at trial or in its Post-Trial and Reply Briefs. With the exception of the Court finding merit in 

Respondents “Second Affirmative Defense” pertaining to a penalty reduction for a lack of prior history with OSHA, 

the Court finds all of the remaining defenses lack merit and are rejected. 

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Contr ctors, Inc., No. 14-0948, 2019 WL 995716, at *7 (O.S.H.R.C., Feb. 21, 2019) (failure to 

raise any argument results in abandonment of that argument). 

Citation 1, Items 1(a) through (d), was Properly Classified as Serious and 

the Penalty Assessed by the Court is Appropriate

 Section 17(j) of the Act, 29 U.S.C. 666(j), requires the Complainant to consider four 

factors in proposing penalties: the gravity of the violation and the employer’s good faith, history, 

and size. The Act does not prescribe how or what weight to apply to the factors. Atl s Roofing 

Co. v. OSHRC, 518 F.2d 990, 1001 (5th Cir. 1975), ff’d, 430 U.S. 442 (1977) (OSHA penalties 

are meant to “inflect pocketbook deterrence”). Penalty assessment requires application of 

administrative discretion. D.S. Gr ding Co., Inc. v. Sec’y of L bor, 899 F.3d 1145, 1148 (11th 

Cir. 1990). Usually, the gravity of the violation is the factor of greater significance. C terpill r, 

Inc., No.: 97-922, 1993 WL 44416, at *15 (O.S.H.R.C., Feb. 5, 1993). Under section 17(k) of the 

Act, 29 U.S.C. § 666(k), a serious violation exists where there is substantial probability that death 

or serious harm could result from a condition that exists in a place of employment. 

Respondent’s failure to comply with 29 C.F.R. §1926.501(b)(13) on April 5, 2017 at the 

Preserve at the Villages in Bradenton, Florida exposed employees to fall hazards and serious 

physical injury. The evidence in this case establishes that there is a high probability of death or 

serious bodily harm if an accident occurs. (Tr. 112, 164; Ex. C). On April 5, 2017, the workers 

were observed at varying heights from greater than six feet to greater than thirty feet. (Tr. 162-

64, Exs. B-C). When asked what the likely injury would be from a six-foot fall, AAD PerezRamos said the likely result would be serious bodily injury. She further said, “Can be serious 

injuries. Can have broken bones depending on how you fell. You can die from that height, too.” 

(Tr. 112, 160-64). CO Ortiz further testified that: 

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[t]he probability of an accident in this case was high. Employees were working 

continuously. The severity of an incident. Falling from 40 feet is definitely a greater 

severity. People most likely will not survive a fall from a balcony while standing on a 

ladder. Or if they survive they will have irreversible injuries, there’s no question about it. 

(Tr. 83). 

The gravity-based penalty proposed for Citation 1, Item 1 was $12,675. The violation was 

assigned a high severity, greater probability, and high gravity. (Tr. 83; Ex. C). The item was 

assigned high severity because workers were exposed to heights that could cause irreversible 

injury and or death. It was assigned a greater probability because workers were continuously 

exposed to fall hazards every day. (Tr. 83, 112-13; Ex. C). The Secretary reduced the proposed 

gravity-based penalty by 30% for size. (Tr. 83, 186; Ex. C, at 2, Ex. D, at 4). The calculated 

proposed penalty was $8,873. (Ex. C, at 2, WW, at ¶10, at 7). The Secretary did not give any 

reductions for good faith or history. (Tr. 84, 184-85, 120-21, 208-09; Ex. C, at 2, Ex. XX, at ¶7, 

at 2). AAD Perez-Ramos testified that a good faith reduction is based upon the Area Director’s 

discretion. She said the Tampa OSHA office provides no good faith reduction in fall hazard 

cases. (Tr. 186). 

Respondent argues that it is entitled to a penalty reduction in consideration of its lack of 

prior history with OSHA. (Answer, Second Affirmative Defense, at 2; Resp’t. Post-Trial Br., at 

34-35). Respondent is correct. The record shows that NDC had a history of no proven OSHA 

violations.82 The FOM calls for a 10% reduction for no prior OSHA history.83 (Tr. 139-43; Ex. 1, 

at 2, Ex. XX, at ¶6, at 2). OSHA made appropriate and supported determinations of all of the 

82 The record shows that OSHA conducted a prior inspection of NDC, #1139126, opened on April 7, 2016, that led to 

no substantiated violation. (Tr. 139-40, 143, 210; Ex. 1, at 2, Ex. XX, ¶5, at 2). AAD Perez-Ramos testified that 

OSHA did not decrease or increase the penalty by 10 percent due to history because a citation OSHA previously 

issued to NDC was “deleted.” She said OSHA would “give a 10 percent reduction in penalty” if NDC had no 

previous history with OSHA. (Tr. 184-86, 209-12). 

83 Ch. 6, § III.B.2.a., FOM, states: 

Allowable Percentage Reduction. 

A reduction of 10 percent shall be given to employees who have been inspected by OSHA nationwide, or by any 

State Plan State in the previous five years, and the employers were found to be in compliance or were not issued 

serious violations. (Ex. XX, at ¶6, at 2). 

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required factors, except history. (Tr. 83-84). This evidence is sufficient to support a serious 

citation. The violation was properly classified as “Serious.” The Court has considered all of the 

required factors and affirms Citation 1, Item 1, Instances (a) through (d), as a serious violation 

and assesses a penalty of $7,986, calculated as $8,873 less a 10% reduction of $887 for history. 

(Sec’y Post Hrg. Br., at 81-83, Sec’y Reply Br., at 28-29; Resp’t. Post-Tr. Br., at 34-35). 

Conclusion 

NDC was a controlling employer at the Preserve project. As discussed above, the 

elements of applicability, employee exposure, violation and knowledge of the cited condition are 

proved. 

Findings of Fact and Conclusions of Law 

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

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

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

Order 

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

Citation 1, Item 1, Instances (a) through (d), alleging a Serious violation of 29 C.F.R. § 

1926.501(b)(13), is AFFIRMED and the Court assesses a penalty in the amount of $7,986. 

__/s/ Dennis L. Phillips________

 The Honorable Dennis L. Phillips 

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U.S. OSHRC Judge 

Dated: September 4, 2020 

Washington, D.C. 

77