THIS CASE IS NOT A FINAL ORDER OF THE REVIEW COMMISSION AS IT IS 

PENDING COMMISSION REVIEW

Some personal identifiers have been redacted for privacy purposes. 

 OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

721 19th Street, Room 407 

Denver, Colorado 80202-2517 

 

 

 OSHRC DOCKET NO. 20-0541 

Attorneys and Parties:

 For Complainant 

Michael D. Schoen, Esq., U.S. Department of Labor, Office of the Solicitor, Dallas, TX 

 For Respondent 

 Steven R. McCown, Esq. 

 Kelli Fuqua, Esq. 

 Littler Mendelson, P.C., Austin Texas 

JUDGE: Administrative Law Judge Peggy S. Ball 

DECISION AND ORDER

After being notified of an injury to a worker that required hospitalization, the Occupational 

Safety and Health Administration (OSHA) commenced an investigation of Harvey Builders’ 

(Harvey) construction worksite located at 8701 FM 2244, Austin, Texas. (Ex. C-3.) Harvey was 

hired as the general contractor for the project and oversaw the work of several sub-contractors, 

including Eco-Crete, LLC (Eco). On September 30, 2019, one of Eco’s employees fell 

approximately fifteen feet and suffered head injuries. (Tr. 143; Ex. C-3.) He was admitted to the 

hospital but could not recover from the injuries and died. (Tr. 317; Ex. C-3.) 

SECRETARY OF LABOR, 

 Complainant,

 

 v. 

 

HARVEY BUILDERS d/b/a HARVEYCLEARY BUILDERS, and its successors,

 

 Respondent.
2 

The following day, on October 1, 2019, Compliance Officer Mark Moravits (CO) arrived 

at the worksite and conducted an opening conference with representatives of both Harvey and Eco. 

(Tr. 317, Exs. C-2, C-3; Resp’t Br. 4.) The on-site portion of the inspection continued on October 

2nd and 3rd. Id. The Secretary later issued a Citation and Notification of Penalty (Citation) to 

Harvey on March 9, 2020. (Ex. C-1.) The Citation alleges Harvey committed: (1) a serious 

violation of 29 C.F.R. § 1926.501(b)(4)(ii) by failing to properly cover a hole, (2) a serious 

violation of 29 C.F.R. § 1926.602(c)(1) because an industrial truck in use did not meet applicable 

requirements; (3) an other-than-serious violation of 29 C.F.R. § 1926.251(a)(2)(i) for failing to 

ensure rigging equipment had legible identification markings; and (4) an other-than-serious 

violation of 29 C.F.R. § 1926.403(b)(2) for permitting two power taps to be connected to each 

other and then an extension cord. Id. 

Harvey timely filed a Notice of Contest, bringing the matter before the Commission. A 

two-day hearing was held on July 27 and 28, 2021, in San Antonio, Texas. Both parties filed posthearing briefs. Based on what follows, Citation 1, Items 1 and 2, and Citation 2, Item 1 are 

affirmed. Citation 2, Item 2 is vacated. 

I. Jurisdiction

As indicated in their joint stipulation statement, the parties agree the Commission has

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

Respondent is an employer engaged in a business affecting commerce within the meaning of

section 3(5) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 652(5).1 (Sec’y Br. 

1 The parties stipulated: 

1. The Commission has jurisdiction over this proceeding under Section 10(c) of the Occupational 

Safety and Health Act of 1970, 29 U.S.C. § 659(c) (“Act”).
3 

1; Resp’t Br. 4-5.) The record supports finding the Commission has jurisdiction over this matter.

Slingluf v. OSHRC, 425 F.3d 861 (10th Cir. 2005). (Ex. C-2.) 

II. Factual Background 

Harvey was retained as the general contractor to construct a large commercial office project 

called Seven Oaks. (Tr. 34; Exs. C-34, C-25, R-18.) Harvey oversaw its own employees at the 

site as well as the work of many subcontractors. (Tr. 34; Ex. C-34.) Around the time the inspection 

commenced, Harvey typically had twelve to fifteen employees at the worksite. (Tr. 35.) These 

employees included superintendents, engineers, and field workers. (Tr. 35, 39-41.) Daniel 

Kieschnick was the lead superintendent. He had a long experience in the construction industry, 

including working for Harvey as a superintendent for about ten years. (Tr. 33.) His responsibilities 

included ensuring all workers followed Harvey’s safety program.2 (Tr. 113.) 

Eco was one of the subcontractors for the project. (Tr. 151.) Its role was to place and 

finish concrete at the worksite, including in the planned parking structure. Id. By the time the 

inspection commenced, Eco had been on the site repeatedly over the course of four months. (Tr. 

271; Exs. C-17, C-19.) 

Harvey oversaw Eco’s work. (Tr. 48-49, 68, 82, 391-92.) Mr. Arce, the assistant 

superintendent, supervised the concrete pours. (Tr. 44, 135; Ex. C-33.) He had the ability to 

control Eco and tell them how to perform their nighttime pours. (Tr. 135-36.) He could stop or 

change their work if it was being done in an unsafe manner or was of poor quality. Id. He could 

2. Harvey Cleary is an employer engaged in a business affecting commerce within the meaning 

of Section 3(5) of the Act, 29 U.S.C. § 659(5).

2 Mr. Kieschnick had worked for Harvey for about twelve years when the OSHA inspection commenced. (Tr. 32-33.) 

He stopped working for Harvey approximately four months before the hearing began. (Tr. 31.) 
4 

tell Eco what type of materials to use, the tools to use, and how to lay the concrete. (Tr. 136, 158-

59, 163-64.) 

On September 30, 2019, Eco employees arrived at the site around 1:00 a.m. (Tr. 272.) 

They had tasks to complete on the second level of the parking structure. (Tr. 51-52, 155, 170, 

272.) This work required certain tools and equipment. (Tr. 123; Exs. C-17, C-37 at 15-16.) 

Harvey employees routinely transported tools and equipment for Eco. (Tr. 65, 86, 88-90, 118, 

152-53, 182-83, 188-89, 360-61; Exs. C-18, C-20.) The Eco employees did not have the training 

or appropriate certifications to operate forklifts.3 (Tr. 123, 138, 152, 157-58, 193-94, 312; Ex. C37 at 9, 11.) Instead, Harvey’s employees typically performed this task for subcontractors like 

Eco. (Tr. 63-65, 88-90, 152-53, 193-94; Ex. C-20.) 

Mr. Arce selected a wooden box for Eco to put the tools they needed for the planned work. 

(Tr. 349; Ex. C-17.) He then directed another Harvey employee, [redacted], to assist Eco. (Tr. 

169-70, 182; Exs. C-17, C-18, C-20.) [redacted] was a foreman and certified equipment operator. 

(Tr. 39, 102-3, 123; Exs. R-18 at 2; C-20, C-33.) The Eco employees were told to put the tools 

and equipment they needed into the box. (Tr. 182-83; 303.) After they did so, the Eco workers 

headed to the second level of the parking structure. (Tr. 295, 305-6; Ex. R-11.) 

As the workers went to the second level, [redacted] picked up the load with a forklift and 

moved it from the staging area to a location outside the parking structure.

4

 (Tr. 225-26, 354, 356-

3 The witnesses referred to the industrial truck differently at different points. Some called it a forklift, others a 

telehandler, some used both terms. (Exs. C-21, R-13.) When asked directly how he referred to the equipment 

[redacted] operated on the night of the incident, Mr. Kieschnick, the site superintendent said: “I always called them a 

forklift.” (Tr. 51.) Various training materials use the term “forklift,” as opposed to telehandler. (Exs. C-10, C-15 at 

2, C-22.) The terms forklift and industrial truck will be used herein. 

4 The box belonged to a different Harvey subcontractor, Skyline Forming (Skyline). (Tr. 118.) Skyline had boxes 

built by a third party according to specifications. (Tr. 119.) The box used by [redacted] was three feet deep and three 

feet wide. (Tr. 192-93, 195, 234-35, 266; Ex. C-7.) 
5 

57, 361; Exs. C-33 at 12, R-18 at 9.) The operator could not drive the forklift onto the second 

level, which was still under construction. (Tr. 306; Ex. C-18.) However, there was a dirt mound 

workers could walk up to reach the second level. (Tr. 305-6.) Running from the edge of this 

mound alongside the structure was a depressed area referred to as a “moat.”5 (Tr. 140, 358, 374; 

Ex. R-18 at 13.) The plan was for [redacted]to drive the forklift to the edge of the moat. (Tr. 51, 

171, 268, 304.) He would then maneuver the load over a barricade before extending the forks 

above the moat and towards the structure’s second level. (Tr. 381-82; Ex. R-18.) At this location, 

the load was about fifteen to sixteen feet above the ground. (Tr. 86; Exs. C-3; R-18 at 9.) The 

Eco workers were to remove the contents of the box. (Tr. 87, 295.) After delivering the tools and 

equipment, [redacted] was to retract the forks and return the forklift to a resting position nearby.6 

(Tr. 144.) 

The parking structure was not fully enclosed. (Ex. R-18 at 9.) A partial wall ran along the 

structure’s edge on each level. Id. at 9, 12. Above this partial wall, an approximately 46-inch 

opening extended from the top of the wall to the ceiling. (Tr. 266; Ex. R-18.) The wall was 

approximately eight inches deep. (Ex. R-18 at 13.) 

[redacted] manipulated the forks to move the box toward the second level. (Tr. 234, 276.) 

The forklift was capable of moving loads in multiple directions. (Tr. 171, 228; Ex. C-8.) If a load 

did not exceed the size of the opening, it would be possible to move it into the opening and then 

5 Mr. Kieschnick described this depression in more detail, referring to it as an “area way around the building.” (Tr. 

116.)

6 Respondent claims [redacted]’s task was complete once he extended the forks across the moat. (Resp’t Br. 3.) The 

site superintendent rejected this argument. (Tr. 144.) [redacted] could not have left his vehicle with the load extended. 

Id. The assigned task included retracting the forks and returning the forklift to a resting position. Id. 
6 

set it down on the floor on the other side of the opening.7 (Tr. 171; Ex. C-8.) However, in this 

instance, [redacted] was unable to move the box into the opening above the partial wall. (Tr. 346.) 

Instead, the workers had to reach through the opening and over the wall to remove the contents of 

the box. (Tr. 171, 173, 234, 269, 298; Ex. R-18 at 9, 12.) They could not reach all items they 

needed because of the box's position and how things had moved during transport.8 (Tr. 173, 196, 

203.) 

At that point, an Eco employee went over the wall and onto the forklift. (Tr. 262-63, 283, 

293.) He then climbed into the box. (Tr. 230, 262, 281.) Shortly thereafter, he fell to the ground, 

as did the box. (Tr. 85-87, 114-15, 263.) Emergency personnel took the worker to the hospital, 

where he later died of his injuries. (Tr. 87, 140, 317; Exs. C-3, C-16, R-10, R-36.) 

All work ceased at the site after the worker fell. (Tr. 319-20.) A representative of Eco 

notified OSHA of the incident. (Tr. 317; Ex. C-3.) The CO arrived at the worksite the following 

day (October 1, 2019) and spent three days at the site.9 (Exs. C-3, C-35.) His review included 

conducting interviews and obtaining information from Harvey. (Tr. 318-20, 323-24; Exs. C-3, C10, C-17 thru C-20, C-35, C-36.) At the conclusion of OSHA’s investigation, the Secretary issued 

Harvey two citations, each containing two separate items. (Ex. C-1.) 

7 While cranes were on site and operated by Harvey employees to move equipment for Eco, a crane could not be used 

to deliver a load to the parking structure because of its configuration. (Tr. 40, 62-63, 89.) 

8 The items in the box may have shifted to the bottom while being transported and/or during the unloading. (Tr. 341, 

346-47, 383-84.)

9 At the time of the inspection, the CO had worked for OSHA for approximately ten years. (Tr. 317.) By the time of 

the hearing, he was the Assistant Director for OSHA’s Austin Area Office. (Tr. 316.) 
7 

III. Discussion

For most standards, including the ones at issue here, the Secretary is not required to prove 

the existence of a hazard each time a standard is enforced. Bunge Corp. v. Sec’y of Labor, 638 

F.2d 831, 834 (5th Cir. 1981); Greyhound Lines-West v. Marshall, 575 F.2d 759, 762 (9th Cir. 

1978) (Secretary not required to prove violation related to walking and working surfaces

constituted a hazard). Instead, the hazard is presumed, and the Secretary’s burden is limited to 

showing: (1) the cited standard applies; (2) the employer failed to comply with the terms of the 

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

knew or could have known with the exercise of reasonable diligence of the violative condition. 

JPC Grp., Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009); Sanderson Farms, Inc. v. Perez, 

811 F.3d 730, 735 (5th Cir. 2016); Atl. Battery Co., 16 BNA OSHC 2131 (No. 90-1747, 1994). 

A. Citation 1, Item 1 – Hole Covers

Citation 1, Item 1 alleges a serious violation of 29 C.F.R. § 1926.501(b)(4)(ii). This 

standard requires working and walking surfaces to have protection to prevent workers from 

tripping in or stepping through holes.10 The standard defines a “hole” as any “gap or void 2 inches 

(5.1 cm) or more in its least dimension” in any “walking/working surface.” 29 C.F.R § 1926.500. 

The Secretary alleges there was a 3.5-inch gap in the middle of each row of stairs.

11 (Sec’y 

Br. 16-17.) These stairs lead from the ground to the entrances of two jobsite trailers. (Exs. C-4, 

C-5.) Respondent acknowledges there were gaps but argues the cited standard does not apply to 

the condition. (Resp’t Br. 6-8.) 

10 “Each employee on walking/working surface shall be protected from tripping in or stepping into or through holes 

(including skylights) by covers.” 29 C.F.R. § 1926.501(b)(4)(ii). 

11 The Citation alleged: “On or about 1 October 2019, and at times prior thereto, the worksite trailer had two sets of 

stairs paired together that left a hole in the middle. The hole was approximately 3.5 inches wide and the depth of all 

four stair treads, creating a hazard of tripping or stepping into the hole.” (Ex. C-1.) 
8 

1. Applicability and Violation

The worksite had two trailers near each other which served as on-site offices for Harvey

employees. (Tr. 37; Exs. C-4, C-5, R-18 at 3.) Harvey built a small platform to connect the two 

trailers. (Tr. 65-67; Ex. R-18 at 24.) A single set of stairs led to this platform. (Tr. 37; Exs. C-4, 

C-5; R-18.) The stairs were the only way to enter or exit the trailers. (Tr. 42.) In the middle of 

each stair, a 3.5-inch gap separated the right side from the left side. (Tr. 42, 66, 130, 377; Exs. C4, C-5; R-18.) The gap was present on each stair, from the bottom of the flight up to the platform. 

(Exs. C-4, C-5.) 

Mr. Kieschnick agreed the stairs were a “walking and working surface” within the meaning 

of the cited standard, and the gap constituted a “hole” under the cited standard. (Tr. 67-69.) He 

knew the construction standard defines a “floor hole” as anything larger than two inches. (Tr. 67-

69.) Harvey’s policies similarly define a “floor hole” and specify that “any hole larger than two 

inches must be covered.” (Tr. 67-69, 71; Ex. C-27 at 28.) 

The Court agrees. The gap was in an area employees had to traverse daily. (Tr. 66-67, 69-

71.) The photographic evidence confirms the other record evidence of the gap’s size and the need 

for Harvey to cover or eliminate it. (Tr. 66, 70, 377; Exs. C-5; R-18.) Contrary to Respondent’s 

assertion, the gap had unprotected edges and was not analogous to a depression in the earth. 

(Resp’t Br. 7; Ex. C-5.) 

Respondent notes that the cited standard is part of a section of regulations concerning fall 

protection. (Resp’t Br. 6-7.) 29 C.F.R. § 1926.501 applies to both horizontal and vertical surfaces. 

29 C.F.R. § 1926.500 (defining walking/working surfaces to include “any surface, whether 

horizontal or vertical”); Major Constr., 20 BNA OSHC 2109, 2111 (No. 99-0943, 2019) 

(upholding ALJ’s finding employer violated 29 C.F.R. § 1926.501(b)(4)). Further, while the cited 
9 

standard has subsections focused on hoist areas and excavations, it is not limited to such areas. Id. 

Subsection (4) is titled “holes” and requires protection from any “gap or void” which exceeds 2 

inches “in its least dimension.” 29 C.F.R. §§ 1926.501(b)(4), 1926.500 (defining hole). The cited 

standard’s requirements are not dependent upon the depth of the hole. Id. There is no exception 

for situations where walking around the floor hole is possible.12 Id. As the CO explained, although 

each stair was several inches long, someone could be close to the opening if multiple people were 

using the stairs.13 (Tr. 377.) 

The Secretary established the cited standard applied, and Respondent violated it. 

2. Exposure 

Tim Sullivan, Harvey’s engineer, and another employee worked in one trailer while Mr. 

Kieschnick and the other superintendents worked in the adjacent trailer. (Tr. 43.) Mr. Kieschnick 

and other employees stepped near the holes identified in the Citation whenever they entered the 

trailer. (Tr. 37-38, 69.) Twelve to fifteen field employees went up and down the stairs to sign in 

and out of the worksite at least twice a shift. (Tr. 37-38, 43; Ex. C-19.) These employees also 

visited the trailers for meetings and other purposes. (Tr. 37-38, 111.) The Secretary established 

exposure of Respondent's own employees to the cited condition. 

12 Similarly, and contrary to Respondent’s argument, the presence of handrails does not allow there to be holes in the 

walking surface. (Resp’t Br. 8-9.) As Respondent itself notes, 29 C.F.R. § 1926.501, also has requirements regarding 

protection at the edges of elevated walking or working surfaces. The presence of protection at one edge in compliance 

29 C.F.R. § 1926.501(b)(1), does not eliminate the separate requirement to cover holes set forth in subpart (b)(4). The 

standard requires protection from unprotected sides, edges, and holes. 29 C.F.R. §§ 1926.501(b)(1) (“Unprotected 

sides and edges”), 1926.501(b)(2) (“Leading edges”), 1926.501(b)(4) (“Holes”). 

13 Respondent’s arguments about the likelihood of injury from the gap are not relevant to assessing whether the 

standard applies and was violated. See Bunge, 638 F.2d at 834 (finding the type of “hazard” to be “irrelevant to 

whether some condition or practice constitutes a violation”). The probability of injury and the severity of any injury

that could result from exposure to the hazardous conditions goes to the appropriate classification and penalty, not 

whether the standard was violated. Id.
10 

3. Knowledge 

The Secretary must prove the employer either knew, or with the exercise of reasonable 

diligence could have known, of the violative condition. Revoli Constr. Co., 19 BNA OSHC 1682, 

1684 (No. 00-0315, 2001). The employer's knowledge is directed to the physical condition 

constituting a violation. Phoenix Roofing, Inc., 17 BNA OSHC 1076, 1079-1080 (No. 90-2148, 

1995), aff’d, 79 F.3d 1146 (5th Cir. 1996). It is not necessary to show the employer knew or 

understood the condition was hazardous or violated an OSHA standard. Id. Although it challenges 

the applicability of the cited standard and contends it complied with it, Respondent does not raise 

any specific challenges regarding its knowledge of the condition. (Resp’t Br. 5-9.) 

Harvey employees assembled the stairs leading up the decking connecting the two trailers. 

(Tr. 65-66, 71.) Mr. Kieschnick was aware of how the stairs were constructed. (Tr. 71; Ex. C19.) Initially, there was a railing in the middle of the stairs. (Ex. C-19.) This railing was removed

in mid-April 2019, not long after the stairs were placed. (Tr. 69-71; Exs. C-5, C-19, R-10.) Mr.

Kieschnick was aware that removing the railing left gaps in the middle of the steps.14 (Tr. 71.) He 

walked by it daily. (Tr. 69, 325.) The gap in the middle of the stairway remained uncovered for 

months. (Tr. 65-7, 325; Exs. C-4, C-19.) 

Mr. Kieschnick was the site superintendent, and his actual knowledge of the violative 

condition is attributable to Respondent. See e.g., Dover Elevator Co., 16 BNA OSHC 1281, 1286

(No. 91-862, 1993) (“when a supervisory employee has actual or constructive knowledge of the 

violative conditions, that knowledge is imputed to the employer, and the Secretary satisfies his 

14 The holes were in plain view of Respondent’s employees. (Exs. C-4, C-5.) Multiple supervisors passed by the 

identified floor holes whenever they went into either jobsite trailer. (Tr. 69.) The condition was open, obvious, and 

readily observable. See Am. Wrecking Corp., 19 BNA OSHC 1703, 1710 (No. 96-1330, 2001) (finding knowledge, 

and imputing it to employer, where supervisor worked in the area of the violative condition), aff'd in relevant part, 

351 F.3d 1254 (D.C. Cir. 2003). 
11 

burden of proof without having to demonstrate any inadequacy or defect in the employer’s safety 

program”); Revoli, 19 BNA OSHC at 1864 (actual or constructive knowledge of a supervisor can 

be imputed to the employer). The Secretary established knowledge of the violative condition. 

4. Classification & Penalty

The Secretary classified the violation as serious because stepping into or over the holes 

could lead to broken bones, fractures, sprains, lacerations, contusions, and possibly concussions. 

(Exs. C-1, C-4, C-19; Sec’y Br. 25.) Someone’s foot could go into the gap and cause them to fall. 

(Tr. 69-71; Exs. C-4, C-19.) 

While Respondent argues this item should be vacated, it does not raise any specific 

challenges to characterizing such a violation as serious. The record supports the characterization 

as serious. See Chapman Constr. Co., Inc., 9 BNA OSHC 1175, 1178 (No. 76-2677, 1980) 

(affirming a violation of 29 C.F.R. § 1926.501(b) for issues related to stairs as serious). 

Turning to the appropriate penalty, section 17(j) of the Act requires the Commission to

give due consideration to four criteria: (1) the size of the employer’s business, (2) the violation’s 

gravity, (3) the employer’s good faith, and (4) the employer’s prior history of violations. Gravity 

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

of the exposure, the precautions taken against injury, and the likelihood of an actual injury. J.A. 

Jones Constr. Co., 15 BNA OSHC 2201 (No. 87-2059, 1993). The Commission and its judges 

conduct de novo penalty determinations and have full discretion to assess penalties based on the 

facts of each case and the applicable statutory criteria. Valdak Corp., 17 BNA OSHC 1135, 1137-

38 (No. 93-0239, 1995). 

Looking first at the violation’s gravity, the stairs were in good condition overall. (Tr. 326; 

Ex. C-5.) Many workers used them without any reported incidents with the gap. (Tr. 326, 377.) 
12 

The CO assessed the severity of the violation the probability of an injury as low. (Tr. 325-26.) 

The stairs were not particularly high: the first step with a hole was about 7 inches above the ground, 

and the top stair with a hole was approximately 30 inches above the ground. (Tr. 129, 405.) 

As for good faith, although the cited hazard had not resulted in injury and Respondent 

promptly abated it, the Secretary argues a reduction for good faith is not appropriate when there 

had been a fatality at the worksite. (Tr. 67, 130; 327-28; Ex. C-15 at 6.) Turning to size, 

Respondent had approximately 120 employees. (Tr. 327; Ex. R-7.) In terms of history, OSHA 

previously inspected Respondent, but those inspections did not result in any citations for serious 

violations. (Tr. 328; Ex. R-7.) Respondent’s size and history of compliance warranted a decrease 

in the penalty amount in the Secretary's view. (Ex. R-7.) Based on these factors, the Secretary 

believes a penalty of $4,684 is appropriate for the violation. (Tr. 328; Ex. C-1.) 

The proposed penalty does not completely reflect the low probability of injury from the 

condition. The stairs were made of steel and were in good condition. (Tr. 326.) They were 

sufficiently wide, with handrails on both sides and netting covering the area between the handrail 

and stairs. (Tr. 405; Ex. C-5.) Respondent had a rule regarding footwear that limited the tripping 

risk from the holes. (Tr. 406.) Accordingly, the Court finds $2,432 is an appropriate penalty that 

properly accounts for the section 17(j) factors. See 29 U.S.C. § 666(j). 

B. Citation 1, Item 2 – Compliant Industrial Trucks

Citation 1, Item 2 alleges a serious violation 29 C.F.R. § 1926.602(c)(1)(vi), which 

addresses material handling equipment, including lifting and hauling equipment. The cited 

provision is part of Subpart O-Motor Vehicles, Mechanized Equipment, and Marine Operations. 

It requires industrial trucks in use to meet the applicable requirements of design, construction, 

stability, inspection, testing, maintenance, and operation, as defined by the American National 
13 

Standards Institute’s (ANSI) B56.1 Safety Standards for Powered Industrial Trucks (B56.1).15 29 

C.F.R. § 1926.602(c). B56.1 details how operators are to use powered industrial trucks. (Ex. C9.) Among other things, B56.1 addresses loading the truck and maintaining stability when 

transporting loads. See A.L. Baumgartner Constr., Inc., 16 BNA OSHC 1995, 2000-01 (No. 92-

1022, 1994) (finding a violation of 29 C.F.R. § 1926.602(c) when the operator of equipment failed 

to comply with B56.1); Lee Way Motor Freight, Inc., 2 BNA OSHC 1735, 1737 (No. 1932, 1975)

(employer violated standard that incorporated B56.1 by reference). 

1. Applicability

Respondent first challenges the assertion that the equipment its employee used was an 

industrial truck. Respondent used the equipment to handle materials. (Tr. 64-65, 140, 148, 336.) 

For example, an employee lifted and hauled the wooden box of tools and equipment from one 

location to another. (Ex. C-8.) Respondent attempts to obfuscate the cited standard’s applicability 

by referring to the equipment as a “telehandler” rather than a forklift. (Resp’t Br. 15.) However, 

its own employees often referred to the equipment as a forklift, and it functioned similarly.

16 (Tr. 

51, 84, 117, 138, 142, 191, 225, 241, 394; Ex. C-8.) The title used to refer to the equipment is not 

determinative of whether it qualifies as an industrial truck subject to the application of the standard.

More importantly, the cited standard is not limited to forklifts. 29 C.F.R. § 1926.602(c). 

The standard, including the incorporated information from B56.1, does not distinguish between 

elevating materials or extending them down, in, or out. (Tr. 382-83.) [redacted] picked the load 

15 “Industrial trucks shall meet the requirements of § 1926.600 and the following ... All industrial trucks in use shall 

meet the applicable requirements of design, construction, stability, inspection, testing, maintenance, and operation, as 

defined in [ANSI] B56.1 ....” 29 C.F.R. § 1926.602(c)(1)(vi).

16 Respondent also cites to materials that use the term forklift but not telehandler to show [redacted] was trained and 

certified to operate the machinery at issue. (Exs. C-10; R-22.) Mateo Reyes of Eco also referred to the equipment as 

a forklift. (Tr. 296-97.)
14 

up and transported it from the staging area to another location. (Ex. C-20.) He then lifted it over 

the safety barricade and across the moat, suspending it about fifteen feet in the air. (Tr. 86, 381-

82; Ex. R-18.) 

As the CO explained, the equipment used was a “forklift or lift truck” that primarily moves 

materials. (Tr. 336.) Such equipment constitutes a powered industrial truck. (Tr. 336, 340.) The 

express terms and intent of the cited standard show it applies to the equipment [redacted] was 

operating. This remains true regardless of whether one calls the industrial truck a forklift or a 

telehandler.

17 See e.g., Meadows Constr. Co. LLC, 25 BNA OSHC 1797, 1800, 1804-10 (No. 14-

1636, 2015) (ALJ) (finding 29 C.F.R. § 1926.602(c)(1) applicable to a “telehandler” and affirming 

a violation thereof when it was not operated in accordance with B56.1); Durco Contractors, 26 

BNA OSHC 1090 (No. 15-0693, 2016) (ALJ) (concluding 29 C.F.R. § 1926.602(c) applies to 

“lifting and hauling equipment” like “forklifts”). 

2. Violation

Respondent first argues B56.1’s requirements as incorporated “are just recommendations 

for best practices.” (Resp’t Br. 9-11, 16.) Respondent cites no authority for this view. Its 

disingenuous attempt to equate the cited standard with a “best practice” is rejected.18 The cited 

17 See also Ne. Precast, LLC & Masonry Servs., Inc., No. 13-1169, 2018 WL 1309480, (O.S.H.R.C.A.L.J., Sept. 28, 

2015) (consolidated) (applying 29 C.F.R. § 1926.602(c)(1)(vi) to “telehandler forklifts” and concluding the employer 

violated the requirements of B56.1 as incorporated by reference), aff’d in part, 26 BNA OSHC 2275, 2276 (No. 13-

1169, 2018) (judge’s finding of a violation of 29 C.F.R. § 1926.602(c)(1)(vi) not reviewed), aff’d, 773 F. App’x 70 

(2d Cir. 2019) (unpublished); Meadows Constr. Co., LLC, No. 12-2142, 2018 WL 1309749 (O.S.H.R.C.A.L.J., Feb. 

26, 2018) (equating a “telehandler” to a “rough terrain forklift” and finding 29 C.F.R. § 1926.602(c)(1)(vi) applicable), 

aff’d, 26 BNA OSHC 2265 (No. 12-2142, 2018).

18 Respondent does not allege 29 C.F.R. § 1926.602 was improperly promulgated. It only attempts to distract from 

the cited standard’s use of the mandatory word “shall” and the language of what has been incorporated by reference. 

See e.g., CBI Servs., Inc., 19 BNA OSHC 1591, 1595-97 (No. 95-0489, 2001) (upholding the incorporation by 

reference of an ANSI standard).
15 

standard repeatedly uses the mandatory word “shall” to indicate what actions operators need to 

take when using industrial trucks: 

Industrial trucks shall meet the requirements of § 1926.600 and the following: ...

(vi) All industrial trucks in use shall meet the applicable requirements of design, 

construction, stability, inspection, testing, maintenance and operation, as defined in 

[B56.1].

29 C.F.R. § 1926.602(c)(1)(4) (emphasis added). It requires operators of industrial trucks to 

adhere to requirements related to, among other things, stability, loading, testing, and operation.19 

(Tr. 339; Exs. C-1, C-9.) See Merchant’s Masonry, Inc., 17 BNA OSHC 1005, 1007-9 (No. 92-

424, 1994) (upholding a violation of 29 C.F.R. § 1926.602(c)(1)(vi) when forklift was not operated 

in a manner consistent with B56.1); Sal Masonry Contractors, Inc., No. 87-2007, 1989 WL 

298917, at *2 (O.S.H.R.C.A.L.J., Feb. 3, 1989) (finding a violation of 29 C.F.R. § 1926.602(c)(1) 

when vehicle did not meet ANSI requirements), aff’d in part, vacated in part, 15 BNA OSHC 

1609 (No. 87-2007, 1992) (not reviewing violation of 29 C.F.R. § 1926.602(c)(1)); A.L. 

Baumgartner Constr., Inc., No. 92-1022, 1993 WL 737997, at *6 (O.S.H.R.C.A.L.J., Apr. 9, 1993)

(stating 29 C.F.R. § 1926.602(c)(1)(vi) “makes the provisions of [B56.1] applicable to industrial 

trucks”), aff’d, 16 BNA OSHC 1995 (No. 92-1022, 1994); Doyle K. Beckham, 24 BNA OSHC 

1878, 1884 (No. 12-2151, 2013) (ALJ) (29 C.F.R. § 1926.602(c)(1)(vi) “requires” industrial trucks

to meet the requirements set out in B56.1); Dandy Masonry, Inc., No. 10792, 1975 WL 4964, at

*4 (O.S.H.R.C.A.L.J., June 26, 1975) (stating the requirements set out in B56.1 are “mandatory 

by operation of 29 C.F.R. § 1926.602(c)(1)(vi)”). Cf. Andrew Catapano Enters., Inc., 17 BNA 

OSHC 1776, 1782 (No. 90-0050, 1996) (upholding violation when conditions did not comply with 

the ANSI standard incorporated by reference in 29 C.F.R. § 1926.305(j)); Paschen Contractors, 

19 Likewise, the specific subsections of B56.1 relied on by the Secretary do not use permissive language. 
16 

Inc., 14 BNA OSHC 1754 (No. 84-1285, 1990) (finding the cited standard did not apply because 

the equipment did not fit within the definitions contained in the ANSI standard incorporated by 

reference). 

B56.1 informs operators that “dynamic and static forces” affect stability. Stability may be 

affected by conditions, grade, speed, how the truck is loaded, and the operator's actions. (Tr. 340-

41, 383-94; Ex. C-9 at 4.4.2.) Operators must consider operating conditions.20 (Ex. C-9 at 4.4.4.) 

Part of this evaluation includes assessing the load the operator is transporting. Id. Operators must 

“[h]andle only stable or safely arranged loads.” Id. at 5.4, 605. To do this, the operator must 

“[c]ompletely engage the load with the load-engaging means.” Id. at 5.4.2. The Secretary alleges 

[redacted] failed to adhere to these stability requirements.21 

Load Stability - Failure to Secure Box 

As a preliminary matter, the Secretary raises issues with the type of box and [redacted]’s 

failure to secure it in any way. (Sec’y Br. 5-6.) While the cited standard does not prescribe specific 

requirements about the type of box to use or explicitly state that all loads must be secured, these 

facts impacted the load’s stability. (Tr. 339-41.) 

Typically, Harvey employees used a metal box with two pockets at the base to transport 

items with the forklift. (Tr. 91, 120.) The fork tines could slip into these pockets to reduce the 

20 Manufacturers may establish more stringent requirements than those in B56.1 for stability: “Some users may decide 

to establish, for their own use, stability requirements that will vary from those in para. 7.6. However, the requirements 

in para. 7.6 should serve as a guide for the user, working with the manufacturer, in establishing his own more stringent

requirements.” (Ex. C-9 at 4.4.5 (emphasis added).) Respondent does not suggest nor is there evidence that the 

actions [redacted] took were equivalent to or more stringent than those set out in B56.1. (Ex. C-18.)

21 The Citation alleges: 

a forklift was used to move tools and equipment in a wooden box to the second level of a garage for 

unloading. The wooden box was not attached to the forklift, did not have fork pockets, did not have 

the tare weight identified, and was not placed up against the backstop of the carriage. The forks 

were not adjusted for maximum width and the load was not assessed for center and operating 

conditions, exposing the workers to an unstable load and struck-by hazards where operation did not 

account for dynamic forces.
17 

possibility of the box falling off the machine. (Tr. 91.) However, the wooden box given to Eco 

on September 30th, did not have spaces for the forklift tines to secure the box. (Tr. 91; Exs. C-17, 

C-33 at 12.) According to Respondent’s employees, the box given to Eco was meant for use with 

straps and a crane, not for unsecured loads transported by a forklift.22 (Tr. 201, 204, 388; Exs. C10, C-16, C-19, C-20.) 

Despite the lack of fork pockets, neither [redacted] nor anyone else secured the load to the 

machine. (Tr. 92, 202, 205, 363; Exs. C-20, C-33 at 12, R-12, R-14.) Mr. Kieschnick explained 

that the wooden box used “wasn’t designed to be lifted overhead with a forklift.” (Tr. 92-93; Ex. 

C-19.) If a wooden box without fork pockets was not secured, it was at risk of falling off the tines

and injuring workers on a lower level. (Tr. 92.) Thus, “if you are lifting the box overhead, it 

should have fork pockets on it to secure the box to the fork carriage.” (Tr. 94.) Mr. Arce agreed, 

explaining he would have strapped the box to the forklift when raising the load up.23 (Ex. C-18.) 

As [redacted] explained, operators should not operate the forklift with a box that cannot be 

secured. (Ex. C-20.) Even if no one got into the box, [redacted] recognized it could have still 

fallen off the forklift because it was not secured. Id. Securing the box would have prevented this. 

(Exs. C-20, R-12, R-14, R-17.) 

22 In an email, a representative of Skyline, the owner of the box, states it was possible to use the box with a “forklift.” 

(Exs. C-15 at 5; C-34 at 54.) However, the email does not indicate the box could be used to move materials without

making sure the box was stable by securing it to the forklift or through other means. Id. The email also states the box 

should not have been used without Skyline’s permission. Id. Even accepting it may have been possible to use the 

box to move materials with a forklift, this does not mean Respondent did so in compliance with the cited standard. 

23 Respondent suggests its employee did not lift the box up, but instead merely moved it over the moat. (Resp’t Br. 

3.) The record shows [redacted] lifted the box off the ground and moved to a position equivalent to the second level 

of the garage. (Tr. 116, 356; Exs. C-3, C-6, C-20.) At that point, the load was suspended approximately fifteen feet 

in the air. (Tr. 86; Ex. R-30.) The box then fell from that height and landed on top of a worker. (Tr. 115; Exs. R-11, 

R-31.) The site superintendent acknowledged [redacted] was “lifting” and “extending” the box. (Tr. 51; Ex. C-20.) 

Likewise, [redacted] admitted he put the forks under the box and lifted it up before moving it forward toward the 

garage. (Tr. 225-26; Ex. C-20.) Respondent’s claim there was not a lift is rejected. Moreover, as discussed above, 

the cited standard mandates compliance with the “operation” requirements set out in B56.1. 29 C.F.R. 

§ 1926.602(c)(1)(vi). The requirements do not only apply when a load is being lifted. Id.
18 

Load Stability - Failure to Assess Weight of the Load and Its Center of Gravity 

Even though employees did not typically use the wooden box with the forklift, [redacted]

failed to take sufficient steps to assess the suitability of the box for the task or how he might need 

to adjust operating procedures. (Tr. 340-41; Ex. C-20.) He did not know the weight of the box. 

(Tr. 338; Exs. C-6, C-20.) Nor did he know the weight of the items Eco placed in it. (Tr. 338; Ex. 

C-20.) 

Although the record does not establish the loaded box exceeded the rated capacity for the

forklift, the operator could not properly assess the load’s stability or determine if the load was 

“safely arranged,” as the standard requires if he did not look in the box. (Tr. 341, 369, 400-1; Exs. 

C-6 at 3, C-9 at 605A, C-15, C-20.) [redacted] did not know how the materials were loaded into 

the box or what exactly the items were. (Tr. 342, 338-39; Exs. C-6, C-20.) He did not evaluate 

whether the materials were leaning to one side or whether the weight was distributed evenly. (Tr. 

267, 341; Exs. C-6, C-20.) Because of this, he could not know where the loaded box’s center of 

gravity was at the start of the transport. (Tr. 341.) He then transported the unsecured load across 

the “rough terrain” with a “sloping grade.” (Tr. 116-17, 355, 367, 399; Exs. C-6, C-24, R-18.) 

The contents could shift during transport and/or the unloading process. (Tr. 265, 267, 340-41, 347, 

383.) 

Besides not knowing the center of gravity initially, [redacted] could not assess shifts in the 

center of gravity as the Eco workers began removing items. (Tr. 362-63.) He transported the box 

with Eco’s tools in the middle of the night. (Tr. 43, 182; Exs. R-13, R-15.) It was dark, and he 

could not see very well.24 (Tr. 204, 219; Exs. C-20, R-15, R-16.) He could not see the load he 

was carrying. (Tr. 146.) 

24 Similarly, the Eco employees could not see [redacted] as they unloaded their tools and equipment. (Tr. 279, 289.)
19 

Mr. Reyes was in the parking structure and could see the load as [redacted] transported it. 

(Tr. 166-67; Ex. C-19.) According to him, [redacted] never centered the box on the forklift. (Tr. 

265.) It was always out of balance. Id. 

Nor could [redacted] see the load or the Eco employees as they pulled their tools and 

equipment out of the box to accommodate any change in weight distribution. (Tr. 204, 219, 230, 

251-52.) Removing items can shift the box’s center of gravity, but [redacted] could not determine 

what the workers pulled out or whether the center of gravity was shifting because he could not see 

what was occurring. (Tr. 362-63; Ex. C-20.) He could not even see the Eco worker get into the 

box or tell when it fell off the forklift. (Tr. 230; Ex. C-20; Resp’t Br. 4.) He only realized 

something had happened when another worker ran over to his location. (Tr. 230; Ex. R-13.) 

Load Stability During Transport - Failure to Extend Forks 

Despite not assessing the weight of the loaded box or its center of gravity and knowing he 

had not secured the box, [redacted] did not extend the forks to the maximum allowable width as 

required. (Tr. 337, 363-64; Ex. C-6 at 2.) [redacted] knew operators were supposed to adjust the 

fork tines to the maximum width. (Tr. 205.) As the operations manual explained, “Loads can fall 

off incorrectly spaced forks. Always space the forks correctly for the load.” (Tr. 337-38; Ex. C8 at 2.) 

Load Stability During Transport - Placing load against the backrest

B56.1 also directs operators to: “Place the load engaging means under the load as far as 

possible and carefully tilt the mast backward to stabilize the load.” (Tr. 369; Ex. C-9 at 605.) 

[redacted]’s supervisor, Mr. Arce, explained how to position a load like the box of tools 

appropriately. The operator should tilt the forks “slightly back so the box is against the backrest.” 

(Tr. 387; Ex. C-18.) Titling the forks to move the box against the backrest would have made the 

load more stable. (Tr. 363, 369, 370, 387; Ex. C-18.) [redacted] did not adhere to this. (Tr. 266, 
20 

342; Exs. C-6, C-37 at 15.) He failed to position the box against the backrest to stabilize it and 

prevent it from flipping off the forks. (Tr. 206, 337-38, 342; Exs. C-6, C-8.) 

Respondent Violated the Cited Standard 

Respondent argues it is not liable under the multi-employer worksite doctrine for the 

violation. (Resp’t Br. 11-13.) In so doing, it misconstrues the Secretary’s allegation and the 

record. The Secretary did not cite Respondent for the failure of the Eco employee to use fall 

protection when he stepped over the wall. (Ex. C-1.) Respondent was cited for its employee’s 

failure to operate an industrial truck in accordance with the requirements of 29 C.F.R. § 1926.602. 

(Tr. 344, 347-48.) Respondent’s foreman operated the forklift, not anyone employed by Eco. (Tr. 

169, 312, 442.) This failure to appropriately operate the forklift is the basis for Citation 1, Item 

2.25 

Respondent also suggests [redacted] merely exercised his judgment in a manner different 

than the Secretary would like. (Resp’t Br. 16-17.) However, while what the standard requires 

varies depending upon the load, machine used, operating conditions, and other factors, the failures 

discussed above were not activities within the operator’s discretion. (Ex. C-9.) His actions did 

not comply with the equipment manual for the forklift or how other Harvey employees indicated 

the industrial truck should be operated. (Tr. 337, 387; Exs. C-6, C-8, C-18, C-19.) The standard 

does not give an operator the discretion to fail to assess a load’s stability, maneuver it two stories 

above the ground without securing it, without being able to see it while it was transported or tasking 

a “spotter” to watch it, and without any way to monitor if it was unstable or falling. 

25 As discussed in the next section, the Secretary does rely on the multi-employer worksite doctrine for purposes of 

establishing exposure. (Tr. 344-45.) 
21 

Respondent’s employee moved tools and equipment in a wooden box not attached to a 

powered industrial truck. (Ex. C-33 at 12.) The box did not have fork pockets and was not attached 

or secured to the forklift.26 (Tr. 92, 97, 341-42; Exs. C-6, C-33.) Nor was the box placed up 

against the backstop of the carriage. (Tr. 342, 363; Ex. C-6.) The operator did not adjust the forks 

for maximum width or place them fully under the load. (Tr. 205-6, 337-38, 364.) He did not know 

the weight of the box or its contents. (Tr. 338.) No one assessed the load’s center of gravity or 

other operating conditions, such as dynamic forces. Id. During transport, “tools can move.” (Tr. 

361.) For example, Mr. Reyes indicated they placed “come alongs,” a type of tool, upright in the 

box. (Ex. 37 at 17.) “But, when the forklift moved them, they fell.” Id. [redacted] could not 

assess how the stability of his load changed both during transport and as the workers removed the 

tools and equipment. (Tr. 204, 293, 339, 345, 361-63, 383-84.) 

The operating conditions were “dark” and “hard to see.” (Tr. 204; Exs. C-20, R-15, R-16.) 

[redacted] was not able to see if anyone entered the zone of operation. (Tr. 348-49; Ex. C-20.) 

Nor could he see the workers as they unloaded the materials.27 (Tr. 204.) He could not see if the 

box shifted or was about to fall. (Tr. 204, 230; Ex. C-20.) The operation of the forklift did not 

comply with B56.1, so it violated the cited standard. (Tr. 343-44, 363.) 

26 Respondent admitted “a Harvey Cleary employee operated a forklift at the worksite on or about September 30, 2019 

to move tools and equipment in a wooden box which was not attached to the forklift and did not have fork pockets.” 

(Ex. C-33 at 12.) 

27 Neither [redacted] nor the workers in the garage were in radio communication. (Tr. 425-26.) 
22 

3. Exposure 

Initially, [redacted] was the only Harvey employee in the area.28 (Tr. 290; 344-45.) He 

remained in the forklift until after the box and the Eco employee fell. (Tr. 230.) However, there 

is no evidence Harvey employees or others were prohibited from the area when [redacted] moved 

the load to the second level of the parking structure.29

Rather than rely on the exposure of Harvey employees, the Secretary cites to the exposure 

of the Eco employees to the hazardous condition. In his view, Harvey created and controlled the 

violative condition and was also the employer who could correct it. (Sec’y Br. 11, 27.) 

Respondent disputes this contention. (Resp’t Br. 12.) It also argues that neither its employees nor 

those of any subcontractors were exposed to the violative condition. Id. at 18-19. 

Respondent Created the Violative Condition, Controlled the Worksite, and Could 

Have Corrected the Violation 

Respondent was the general contractor. (Tr. 108.) It controlled and supervised this 

worksite. Respondent identified the box and was responsible for moving it to the second-floor

work area. (Tr. 158-59, 169, 192, 349; Exs. C-17, C-20.) Its employee operated the forklift and 

was responsible for doing so compliant with the cited standard. (Ex. C-16.) Its employee was in 

charge of the box and the forklift. (Tr. 349-50, 442.) Eco had neither the ability nor the authority

to direct or control the forklift operator. (Tr. 123, 169, 312.) When the box could not be 

maneuvered over the partial wall and into the work area, Respondent’s employee positioned it on 

the outer side of the wall. (Tr. 266; Ex. C-20.) This action forced the Eco employees to lean over 

28 Mr. Arce and another assistant superintendent, Brian Castagna, were both at the worksite. (Tr. 45; Ex. R-21.) Mr. 

Arce was not around the area when [redacted] was delivering the load to the Eco workers. (Tr. 45-46; Ex. R-21.) It

is unclear where Mr. Castagna was. Mr. Kieschnick believed Mr. Castagna had not seen the worker fall but did not 

know if he was present in the area. (Tr. 45-47.) 

29 There were four Eco employees on site. (Tr. 166-67, 271; Ex. C-16.) Two were working on the second level of the 

parking structure. (Tr. 166-67; Ex. C-16.) Another was in a vehicle uphill from where the worker fell. (Tr. 167.) 

The fourth employee was in a meeting in the same area. (Tr. 167, 280.)
23 

the wall to obtain the items from the box. (Tr. 269, 345.) The box was not secured, so the box 

could shift on the forks as the load’s weight and center of gravity changed with the removal of 

items. (Tr. 97, 345; Ex. C-17.) Such a change “could make the box flip and strike someone who 

is leaning over and trying to obtain items from the box.” (Tr. 269, 345.) 

[redacted] did not assess the load for stability before he began transport or after extending 

the forks to the second level of the parking structure. In fact, he could not even see the load or the 

workers. (Tr. 146, 204.) [redacted] was the operator and created this condition. He did not speak 

to the Eco workers to let them know he had not secured the box to the forks. (Tr. 198-99; Ex. C17.) The superintendent acknowledged multiple failings with the transport of the items on 

September 30, 2019. For instance, the box was inappropriate for the task, and no employee should 

have been using it in the way [redacted] was. (Tr. 92-93.) 

In contrast to Harvey’s authority and control, Eco’s role at the site was limited to placing 

and finishing concrete. (Tr. 151, 169; Ex. C-31.) Respondent’s employees oversaw Eco’s work. 

(Tr. 135-36.) They could stop work if Eco was being unsafe or not doing the work properly.

30 

(Tr. 136.) Respondent could tell Eco what type of materials or tools to use. Id. It could tell them 

how to lay the concrete. Id. Eco employees could not, and did not, operate forklifts at the worksite. 

(Tr. 123, 153-54.) Nor did they rig equipment for transport or operate cranes.31 (Exs. C-16, C-23 

at 5, C-31 at 33.) Eco employees had no ability or training to direct, control, or correct the Harvey 

forklift operator. (Tr. 312; Ex. C-37 at 9.) Eco did not have any “say” or direction in choosing 

30 [redacted] completed a JSA for the pouring of the concrete on September 30, 2019. (Tr. 207; Ex. C-23.) Harvey 

also required a JSA to be completed by Eco, but it is unclear if it did so. (Tr. 48-49, 51, 53.) The JSA in evidence 

does not refer to Harvey transporting the tools and equipment to the second floor of the garage and there is no JSA

from Eco for the transport either. (Tr. 53, 207, 417-18; Ex. C-23.) 

31 Respondent’s JSA for the concrete pours states, in all capital letters, “ONLY CERTIFIED RIGGERS TO RIG 

EQUIPMENT ECOCRETE EMPLOYEES DO NOT RIG.” (Ex. C-23 at 5.) 
24 

the box used to transport the tools with the forklift. (Tr. 158-59, 189.) They did not control how 

Harvey moved the tools. (Tr. 169-70.) 

Respondent had the authority and responsibility to determine the manner and means of how 

its employees transported the tools and equipment to the second level. (Tr. 163-64, 198.) The 

ability to operate the forklift in compliance with B56.1 was entirely under Respondent’s control. 

(Ex. C-6.) It had control over the task, and the industrial truck used to complete it. Respondent 

controlled the lift, created the hazard, and had the sole ability to correct it. 

The Secretary Established Exposure to the Violative Condition 

Harvey’s employee failed to take sufficient steps to ensure the dynamic forces did not 

impact the load’s stability. (Tr. 339-41.) This failure created a risk for struck-by hazards. (Tr. 

344-45; Ex. C-6.) Although the Harvey employee in the area was protected, other workers were 

not. (Tr. 344-45.) Harvey’s employee placed the load outside the wall, forcing the Eco employees 

to reach over it and into the three-foot-deep box. (Tr. 266, 345, 349; Exs. C-6, C-20.) The dynamic 

forces of people reaching into the unsecured box and removing objects impacted the box’s 

stability. (Tr. 339-40; Ex. C-6.) [redacted] could not see the employees or the box, which 

prevented him from realizing if the load was no longer stable. (Tr. 204, 348-49.) The dynamic 

forces could cause the box to flip over and strike someone, such as a worker removing tools. (Tr. 

340-41; Ex. C-6.) [redacted] failed to account for the dynamic forces and the risks of the load 

becoming unstable when it was not secured. (Ex. C-6.) 
25 

After the Eco employee fell, he was struck by the box Harvey transported.32 Id. The 

Secretary met his burden of establishing exposure. 

4. Knowledge 

Knowledge of a violative condition may be imputed to an employer through the knowledge 

of a supervisory employee. See e.g., Access Equip. Sys., Inc., 18 BNA OSHC 1718, 1726 (No. 95-

1449, 1999.) [redacted] was a foreman and a competent person. 18 BNA OSHC at 1726 (imputing 

the knowledge of employee who was, at least temporarily, a “leadman” or “supervisor”); Mercer 

Well Serv., Inc., 5 BNA OSHC 1893, 1895 (No. 76-2337, 1977) (crew chief’s knowledge could 

be imputed because he maintained contact with the supervisor to relay orders and report problems). 

He was in sole control of the forklift at the time alleged in the Citation. The record establishes 

[redacted] was a supervisory employee. His knowledge of the violative condition is imputable to 

Respondent.33

32 Respondent’s argument resembles an unpreventable employee misconduct defense to exposure. But it cannot argue 

the defense to refute the evidence of exposure in this matter. The unpreventable employee misconduct “defense is 

predicated on the notion that the cited violative condition was caused by an employee's misconduct if that misconduct 

was not reasonably foreseeable.” Calpine Corp., 27 BNA OSHC 1014, 1020 (No. 11-1734, 2018), aff'd, 774 F. App'x 

879 (5th Cir. 2019) (unpublished). The violative condition here is the failure to operate the forklift in compliance 

with B56.1, not the failure of the Eco worker to use fall protection. See id. (rejecting the claim of unpreventable 

employee misconduct claim because “the violative condition was the absence of either railings or an attendant at a 

temporary floor opening on the platform,” and so employer's “rule requiring employees to use personal fall protection 

... is not equivalent to the cited standard”). Further, as discussed in more detail below, any misconduct on the part of 

the decedent was done by a non-employee. The box could have fallen off the forklift even without the worker entering 

it. (Ex. C-20.) The Eco employee’s actions made the consequence of [redacted]’s failures worse, but they did not 

cause or contribute to violative conduct of Harvey’s employee. 

33 Respondent twists the Secretary’s burden to imply the Secretary had to show it knew the Eco employee would climb 

into the box on the forklift. (Resp’t Br. 19-20.) The knowledge requirement goes to the violative condition. “The 

knowledge element of a violation does not require a showing that the employer was actually aware that it was in 

violation of an OSHA standard; rather it is established if the record shows that the employer knew ... of the conditions 

constituting a violation.” Peterson Bros. Steel Erection Co., 16 BNA OSHC 1196, 1199 (No. 90-2304, 1994), citing

ConAgra Flour Milling Co., 15 BNA OSHC 1817, 1823 (No. 88-2572, 1992), aff'd, 26 F.3d 573 (5th Cir. 1994). The 

Secretary does not have to establish knowledge of the way an accident could or did occur. See e.g., Am. Wrecking,

19 BNA OSHC at 1707 n.4. The violation relates to the operation of the forklift. [redacted] knew how he was 

operating the forklift, knew the load was unsecured, knew he could not see the workers removing the tools, and knew 

there was not a spotter. 
26 

[redacted] knew the forks and the box could not fit inside the opening between the partial 

wall and roof of the garage level where the Eco employees were.

34 (Tr. 192, 345-46; Exs. C-20, 

R-18 at 9, 13-15, R-11.) He knew he would only be able to bring the box to the outside of the 

wall.35 (Tr. 192, 345-46; Ex. R-18 at 9, 13-15.) He knew anyone trying to obtain the items from 

the box would have to reach over the wall and into the box. (Tr. 346.) [redacted] knew he did not 

secure the box to the forklift like he had done on previous lifts when he used a metal box. (Tr. 

193-95.) He knew the box was not secure and could fall off. (Tr. 205.) Before he began moving 

the box, he understood that workers could not reach the bottom of the box from their position 

inside the garage. (Tr. 203.) He also understood how someone would need to get inside the box 

if they had to “get something out at the bottom and in the back.” (Tr. 202, 385; Ex. C-20.) 

[redacted] was a foreman and designated competent person to move the tools. (Tr. 103.) 

“[H]e was in charge of lifting the box.” (Tr. 442.) [redacted] completed a jobsite analysis (JSA)

before beginning work on the night of the incident. (Tr. 55, 206-7; Ex. C-23.) This JSA addressed 

the pouring of the cement in the garage. (Tr. 207, 244-46; Ex. C-23.) It did not discuss carrying 

the tools for Eco or who would be involved with transporting the items. (Tr. 207, 244-46; Ex. C23.) It does not list any hazards associated with the task or address how they could be mitigated 

or eliminated. Id.

Besides [redacted]’s actual knowledge of the violative condition, the Secretary also points 

to Respondent’s lack of reasonable diligence. (Sec’y Br. 13, 33-34.) [redacted] had received 

training operating a forklift but was never observed transporting a box similar to the one used on 

34 As noted above, another Harvey employee, assistant superintendent Arce, directed Eco to use the wooden box. (Ex. 

C-17.) 

35 On other occasions, [redacted] was able to place the loads into the parking structure beyond the parapet wall. (Ex. 

C-20.) 
27 

the night of the incident.36 (Tr. 205, 386, 429; Ex. C-10.) Respondent held safety meetings and 

had policies which required the completion of a JSA for most tasks. (Tr. 98.) However, the 

Secretary showed Respondent failed to ensure all subcontractors attended safety meetings. (Tr. 

98-99, 101-4.) Likewise, Respondent failed to enforce the requirement to prepare JSAs. (Tr. 100-

1, 312-13, 418-19.) Neither Harvey nor Eco prepared a JSA for the transport of the tools. (Tr. 

207, 244, 417-18.) In fact, Harvey never received a JSA from Eco for any task it performed on 

this worksite. (Tr. 417-18.) 

If Mr. Kieschnick saw [redacted] or any other operator use the forklift with an unsecured 

load like the wooden box, he would have stopped the activity. (Tr. 93.) However, not all 

supervisors shared his diligence. Prior to September 30, 2019, [redacted] used other wooden boxes 

without securing them to prevent them from falling off the fork tines. (Tr. 92.) Mr. Arce was the 

assistant site superintendent in charge of the overnight concrete pours and other projects related to 

the parking structure. (Tr. 44; Ex. C-18.) He saw [redacted] move boxes without them being 

secured either by fork pockets or with chains. (Tr. 200, 349; Ex. C-20.) He never expressed 

concern, corrected [redacted], or disciplined him. (Tr. 92, 200, 349; Ex. C-20.) See The Halmar 

Corp., 18 BNA OSHC 1014, 1016 (No. 94-2043, 1997) (finding that even though crew was 

expected to work near electrical wires, employer still had a duty “to inspect the work area, to 

anticipate hazards to which employees may be exposed, and to take measures to prevent the 

occurrence”), aff’d, 152 F.3d 918 (2d Cir. 1998). 

36 [redacted]’s “Forklift Operators Evaluation” includes a list of twenty-five actions. (Ex. C-10.) Next to four of these 

actions “N/A” is written. (Exs. C-10, C-34 at 27, 48.) Dennet Wenske, Respondent’s Vice President, asserted that in 

this context “N/A” was shorthand for “not available,” rather than “not applicable.” (Tr. 428-29.) One of the actions 

with “N/A” written next to it is: “Carried parts/stock in approved containers.” Id. [redacted] and Mr. Wenske agreed 

no one evaluated [redacted] doing this action. (Tr. 429.)
28 

Respondent argues it had a reduced duty of diligence under Stormforce of Jacksonville, 

LLC, No. 19-0593, 2021 WL 2582530 (O.S.H.R.C., Mar. 8, 2021). (Resp’t Br. 13.) Unlike the 

present matter, the employer in Stormforce did not create the violative condition. 2021 WL 

2582530, at *3. In contrast, Harvey is the creating, controlling, and correcting employer.

37 As

such, it had a duty of reasonable diligence to detect and abate violative conditions.38 See e.g., 

Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1537 (No. 86-360, 1992) (consolidated) (“the 

Secretary may establish the requisite employer knowledge by showing that a supervisor knew or 

with the exercise of reasonable diligence could have known of the violative conditions”); Sw. Bell 

Tel. Co., 19 BNA OSHC 1097, 1099 (No. 98-1748, 2000) (imputing supervisor’s knowledge when 

the employer failed to take reasonable steps to monitor supervisor’s compliance), aff’d, 277 F.3d 

1374 (5th Cir. 2001). 

37 Further, in this matter the Secretary relies on the multi-employer worksite doctrine only for exposure to the violative 

condition. (Sec’y Br. 27-29.) He alleges, and established, Harvey created the violative condition, had control of the 

violative condition, had knowledge of it, and could have corrected it. Id. at 1-3, 13, 27. For this reason, Respondent’s 

citation to Suncor Energy (U.S.A.) Inc., No. 13-0900, 2019 WL 654129 (O.S.H.R.C., Feb. 1, 2019) is also inapposite. 

(Resp’t Br. 13.) Like Stormforce, and unlike the present matter, the employer in Suncor did not create the violative 

condition. 2019 WL 654129, at *3. A controlling employer does not have a lesser duty of reasonable diligence on a 

multi-employer worksite for violative conditions it creates. See Summit Contractors, Inc., 23 BNA OSHC 1196, 1199-

1203 (No. 05-0839, 2010) (discussing liability of creating and controlling employers); OSHA Instruction CPL 02-00-

124, Multi-Employer Citation Policy § X.E.1 (Dec. 10, 1999). 

38 The violation occurred in Texas and any final Commission decision could be appealed to either the Fifth Circuit or 

the D.C. Circuit. See 29 U.S.C. § 660(a) (parties may appeal to circuit where worksite is located or employer is 

headquartered; employer may also appeal to D.C. Circuit). (Ex. C-2.) The D.C. Circuit indicated it was “skeptical” 

of imposing the burden of proving a violation was foreseeable on the Secretary. Wayne J. Griffin Electric, Inc. v. 

Sec'y of Labor, 928 F.3d 105, 109 (D.C. Cir. 2019) (“Given the background common law of agency, we are skeptical 

of such a [foreseeability] requirement”). The Fifth Circuit has required such a showing in particular circumstances. 

See W.G. Yates & Sons Constr. Co. v. OSHRC, 459 F.3d 604, 605-09 (5th Cir. 2006) (requiring additional analysis 

when foreman knew his own conduct violated company policy and the law and still exposed himself to the violative 

condition). Respondent does not cite to Yates or otherwise allege the Secretary had to show [redacted]’s conduct was 

foreseeable. The Court agrees this analysis is not applicable when there is no contention of supervisory misconduct

and where the Secretary does not rely on the exposure of the supervisor to meet his burden. Unlike Yates, there is no 

contention [redacted] was “disobedient.” Id. at 607-8. (Tr. 426.) In any event, because Respondent lacked appropriate

and enforced work rules, [redacted]’s conduct was foreseeable. As noted, another supervisor saw [redacted] operate

the forklift with loads at risk of falling off and did not take any action. (Tr. 91-92; Ex. C-20.)
29 

5. Defense

While arguing it should not be considered the deceased worker's employer, Respondent 

simultaneously asks for the decedent to be treated as an employee for purposes of the 

unpreventable employee misconduct defense. (Resp’t Br. 14-15.) The unpreventable employee 

misconduct defense has never been applied to such a situation. 

Before the Eco worker stepped over the wall and onto the forks, Respondent had violated 

the cited standard. The decedent’s conduct did not cause the violation. Instead, the failure of 

Respondent’s employee to operate the vehicle in compliance with the cited standard is the basis 

for finding a violation. (Tr. 335, 347-48.) Whether [redacted] or anyone else knew an Eco 

employee would climb over the wall does not impact whether Respondent violated the cited 

standard. Respondent was cited for how [redacted] operated the forklift, mainly how he used the 

box and its positioning. (Tr. 347-48.) Any inappropriate actions taken by the decedent do not 

relieve Harvey of its obligation to operate industrial trucks in accord with the cited standard. 

Respondent does not allege any of its employees, including [redacted], engaged in 

unpreventable employee misconduct. Nor would the record support the defense. While 

Respondent has a safety program, according to Vice-President Wenske, [redacted] violated no 

work rules. (Tr. 426; Exs. C-30, C-34.) Assistant superintendent Arce agreed. Harvey did not 

have a work rule regarding securing boxes without fork pockets to the forklift. (Tr. 349-50, 426; 

Exs. C-18, C-20.) Without an effectively communicated and enforced work rule regarding the 

violative condition, the Respondent cannot meet the affirmative defense’s requirements.

39 See, 

39 Respondent cites to “Aquatek Sys. Inc. v. OSHRC, 223 Fed. Appx. 404, 405 (5th Cir. 2007)” for support of its claim 

that the deceased Eco employee’s action excuses its violation. (Resp’t Br. 14-15.) The holding of this unpublished 

decision relates to an ALJ’s denial of legal fees and expenses pursuant to an application. Aquatek, 223 F. App’x at 

405. 
30 

e.g., Manganas Painting Co., 21 BNA OSHC 1964, 1997 (No. 94-0558, 2007) (setting forth the 

unpreventable employee misconduct defense). 

6. Classification & Penalty

The Secretary argues the violation was serious and his proposed penalty of $9,639 is 

appropriate. (Sec’y Br. 34.) He argues the violative condition created struck by and other hazards. 

(Sec’y Br. 34; Tr. 344; Ex. C-6.) To prove a serious violation, the Secretary does not have to show 

that an accident arising from the violation is probable. Instead, the burden is met by showing that 

the probable results would be death or serious physical harm if an accident were to occur. See e.g.,

Shaw Constr., Inc. v. Sec’y of Labor, 534 F.2d 1183, 1185 (5th Cir. 1976) (violations are serious 

“if they make possible an accident involving a substantial probability of death or serious physical 

harm”). Respondent makes no specific arguments regarding the classification of the violation or 

the proposed penalty. 

Looking first at the violation’s gravity, unlike Item 1, the Court finds the record for Item 2 

appropriately supports a finding the violation to be of high gravity. The violation presented the 

risk of being struck by objects falling from a significant height. (Tr. 344.) The proposed penalty 

reflects reductions for Respondent’s size and positive inspection history. (Tr. 353.) In terms of 

good faith, while Respondent had a safety program, the Secretary identified significant lapses. (Tr. 

53-54, 58-59, 61, 99-100, 102, 104, 205, 418-19; Exs. C-10, C-25, C-26.) 

Considering the section 17(j) penalty factors, with the greatest weight given to the 

violation’s gravity, the proposed penalty of $9,639 is appropriate. See 29 U.S.C. § 666(j). 

C. Citation 2, Item 1 – Labels for Rigging Equipment 

Citation 2, Item 2 alleges an other-than-serious violation of 29 C.F.R. § 1926.251(a)(2)(i). 

This standard requires employers to ensure rigging equipment has permanently affixed and legible 
31 

identification markings indicating the recommended safe working load.40 The Secretary alleges 

that the load specifications could not be read on the identification tags for wire rope slings at the 

worksite.41 (Exs. C-11, C-12.) Respondent does not dispute that the tags were illegible. (Resp’t 

Br. 20-22.) Rather, it argues they could have become illegible in the time between when their last 

use and when the CO inspected the site. Id. 

1. Applicability and Violation

There is no dispute that the rigging equipment used at the worksite had to comply with the 

cited standard. The site superintendent, Mr. Kieschnick, was experienced with rigging 

equipment.42 (Tr. 74-75.) He agreed that the cited standard applied to the equipment. (Tr. 78-

79.) 

Nor is there a dispute that the tags on equipment belonging to Respondent were not legible, 

as the cited standard requires, at the time of the inspection.43 (Tr. 76, 78; Exs. C-12, R-18 at 4-5.) 

Employees could not read any of the required information for the rigging equipment tags. (Tr. 

78.) It was readily apparent that Respondent needed to replace the tags.44 (Tr. 79, 131-32.) 

40 This standard addresses rigging equipment for material handling. “Employers must ensure that rigging equipment 

... has permanently affixed and legible markings prescribed by the manufacturer that indicate the recommended safe 

working load ....” 29 C.F.R. § 1926.251(a)(2)(i).

41 The allegation in the Citation is:

On or about 1 October 2019, and at times prior thereto, two wire rope slings used to lift metal baskets 

with a crane at the site did not have permanently affixed and legible markings to indicate the 

recommended safe work load, exposing workers near the path of movement to the hazard of being 

struck by the basket or materials in the basket.

42 Mr. Kieschnick previously had a rigger training certification, but it expired by the time of the inspection. (Tr. 74.) 

43 The Secretary argues some rigging equipment was not labeled at all and other equipment had identification tags but 

there was no legible information on them. (Sec’y Br. 35.) 

44 When asked by Respondent’s counsel whether the slings were in good condition, Mr. Kieschnick indicated they 

were “other than the tags.” (Tr. 131-32.) There is no evidence the slings were frayed. However, this goes to the 

violation’s gravity, not whether the slings had “affixed and legible markings ... that indicate the safe working load,” 

as the cited standard requires. 29 C.F.R. § 1926.251(a)(2)(i).
32 

Respondent challenges whether the equipment was in use. At the hearing, its counsel asked 

the narrow question of whether the slings were in use at the time of the inspection. (Tr. 131, 407.) 

At that time, the site “was shut down” with no work taking place. (Tr. 319.) However, the slings 

at issue were still attached to a large metal container used for debris. (Tr. 329, 379, 407.) The 

slings had not been “red tagged” or taken out of service. (Tr. 329.) And, Mr. Kieschnick told the 

CO the slings had been at the worksite for approximately three months and were used “on a daily

basis up to six times per day.” (Tr. 76-79, 329-30, 379; Exs. C-11, C-19, C-16.) Mr. Kieschnick 

acknowledged that the equipment with the damaged tags belonged to Harvey and was used at the 

worksite.45 (Tr. 76-77, 131, 328-29; Exs. C-12, C-19, C-16.) The Secretary showed the slings 

without the required information were in use at the worksite.

Respondent then attempts to argue that the information could have become worn off right 

before the inspection commenced. (Tr. 408.) The CO refuted this contention. The tags appear to 

be pock-marked and are entirely unreadable. (Ex. C-12.) While wear and tear occurs, a tag does 

not go from readable to completely unreadable in about a day. (Tr. 329-30.) Such a drastic change 

is not instantaneous. Id. Legibility fades slowly over time with prolonged use. Id. Respondent’s 

argument becomes even less plausible when multiple tags are missing or illegible. Id. The claim 

that two tags could go from readable to illegible in a day and two could disappear after the last use 

is entirely speculative and not supported by the record. (Tr. 329-30; Ex. C-12.) The inspection 

occurred not long after work had ceased, and the CO’s testimony about the information on the tags 

not disappearing in this short time is credited. Id.

The Secretary established the applicability of the cited standard and its violation. 

45 The slings were used “daily,” and thus had last been used in the hours before the site was shut down. (Tr. 329-30.) 
33 

2. Exposure 

Mr. Kieschnick admitted the slings with the unreadable identification tags were the hoisting 

equipment Harvey operators used at the worksite. (Tr. 76-77, 131, 328-29; Ex. C-12.) Employees 

used the slings on a large metal trash container and other things. (Tr. 76, 329-30; Exs. C-11, C12.) Each use lasted for a few minutes at a time. (Tr. 76.) If the rigging equipment failed, the 

objects being lifted could fall on Respondent’s employees or other workers at the site.46 (Tr. 80-

81.) Respondent’s employees were exposed to the hazardous condition. 

3. Knowledge 

As noted, workers at the site used the rigging equipment four to six times a day, with each 

use lasting a few minutes. (Tr. 76; Exs. C-11, C-19.) Mr. Kieschnick understood that the riggers 

needed the information from the tags to move loads safely. (Tr. 332.) He also understood that 29 

C.F.R. § 1926.251(a)(2) requires rigging equipment to have “legible” markings. (Tr. 77.) While 

Mr. Kieschnick indicated that “at a glance” a person just “walking through the site” might not have 

realized there was something wrong with the tags for the slings, the slings were in plain view, and 

one could easily discover some slings had no tags and other tags were illegible. (Tr. 132.) Indeed, 

Mr. Kieschnick acknowledged that if he “had looked” at the rigging equipment, he would have 

been able to tell the tags needed to be replaced. (Tr. 79-80.) 

The slings were used multiple times a day and had not instantly become unreadable. (Tr. 

329-30.) For the information to become illegible on two different tags, they must have been 

deteriorating for some time. (Tr. 329-30; Ex. C-12.) Respondent does not explain how the tags 

could have become removed from the rigging equipment when all work at the site ceased after the 

worker fell from the forklift. 

46 Respondent’s employees engaged in rigging loads and moving them by crane. (Tr. 75, 442.) Certain subcontractors, 

such as Eco, never rigged loads or used rigging equipment. (Ex. C-23 at 5.) 
34 

While someone just walking by might not have seen the issue, this does not constitute an 

inspection or reasonable diligence. JPC, 22 BNA OSHC at 1861. “Reasonable diligence includes 

taking into account all available, factual information relating to whether hazardous conditions 

exist, or reasonably could exist, where work is being performed.” Id. Employers must “inspect 

and perform tests to discover safety-related defects.” Id. The condition was in plain view for an 

extended time, and an employee could easily discover the issue through a quick visual inspection. 

See Kokosing Constr., Inc., 17 BNA OSHC 1869, 1871 (No. 92-2596, 1996); Simplex Time 

Recorder Co. v. Sec’y of Labor, 766 F.2d 575, 589 (D.C. Cir. 1985) (non-compliant conditions 

were readily apparent). The Secretary established knowledge of the violative condition. 

4. Classification and Penalty

The Secretary characterized the violation as other-than-serious. Respondent does not raise 

any challenges to the violation’s characterization or the proposed penalty amount. 

Although the tags could not be read, the slings themselves were in good condition. (Tr. 

331-32; Ex. C-11.) There is no evidence that employees' use of the rigging equipment exceeded 

the load limits. Id. The Court agrees with the other-than-serious characterization. 

Because of the low gravity nature of the violation, the Secretary proposed no penalty for 

this violation. (Sec’y Br. 36.) Respondent promptly abated the condition. (Ex. C-15 at 6.) After 

duly considering the section 17(j) penalty factors, the Court agrees with assessing no penalty. 

D. Citation 2, Item 2 – Failure to Use Equipment in Accordance with Instructions

Citation 2, Item 2 alleges an other-than-serious violation of 29 C.F.R. § 1926.403(b)(2). 

This standard requires that certain equipment must be installed and used according to specified 
35 

instructions.47 The CO saw two electrical power strips interconnected or daisy-chained into an 

extension cord in a worksite trailer.

48 (Ex. C-14.) As with Citation 2, Item 1, rather than dispute 

this condition’s presence during the CO’s inspection, it argues the Secretary failed to prove the 

condition violated the cited standard. (Resp’t Br. 23-26.) 

1. Applicability & Violation

In one of the jobsite trailers, the CO observed power strips and extension cords being 

improperly used. (Tr. 81-82; Exs. C-13, C-14.) They were connected to one another rather than 

each being plugged into a single outlet.49 Id. Power strips are listed electrical equipment in the 

Underwriters Laboratories (UL) General Information for Electrical Equipment Directory (“UL 

Directory.” (Tr. 379; Ex. C-13.) The UL Directory requires power strips to be connected directly 

into a branch circuit receptacle. (Ex. C-13.) They are not to be series connected to other power 

strips or extension cords. Id.

Mr. Kieschnick acknowledged that the power strips were connected improperly. (Tr. 81-

82.) It does not matter that they were not permanent and could be relocated. The standard applies 

to “both temporary and permanent” installations. 29 C.F.R. § 1926.402 (addressing the 

applicability of §§ 1926.403-1926.408). 

47 This standard is part of the Subpart K, which addresses electrical safety requirements. The cited provision concerns 

the examination, installation and use of equipment. “Listed, labeled, or certified equipment shall be installed and used 

in accordance with instructions included in the listing, labeling, or certification.” 29 C.F.R. § 1926.403(b)(2).

48 The Citation alleges:

On or about 1 October 2019, and at times prior thereto, an office within the General Contractor’s 

worksite trailer had two relocatable power taps connected in series and then connected to an 

extension cord that was plugged into a wall outlet, creating a potential hazard for electrical shorts, 

overloads and fires.

49 At times this equipment was referred to as “Relocatable Power Taps.” (Tr. 379; Ex. C-13.)
36 

Respondent argues that this did not create a hazard. (Resp’t Br. 25.) However, for specific 

standards, such as the one cited here, the Secretary is not required to prove a hazard for the 

violation to be affirmed.50 Bunge, 638 F.2d at 834 (“Unless the general standard incorporates a 

hazard as a violative element, the proscribed condition or practice is all the Secretary must show; 

hazard is presumed and is relevant only to whether the violation constitutes a ‘serious’ one ”); 

Nat’l Eng’g & Contracting Co. v. Sec’y of Labor, 928 F.2d 762, 768 (6th Cir. 1991) (employer 

could not “escape liability” by showing equipment did not comply with an OSHA standard was 

“safe for employee use”). In any event, the CO explained that the condition presented a fire 

hazard.51 (Tr. 380.) 

2. Exposure 

The violative condition was present in the jobsite trailer used by the project engineer and 

his assistant. (Tr. 41-43, 81-82.) Respondent employed both directly. (Tr. 43.) In addition, other 

employees were regularly in the location of the power strips. (Tr. 82.) Mr. Kieschnick 

acknowledged being in the trailer where the CO observed the violative condition “several times a 

day.” Id. The Secretary established exposure to the violative condition. 

3. Knowledge 

The Secretary indicates a Harvey “superintendent or engineer had to have plugged these 

cords in initially.” (Sec’y Br. 37.) A non-supervisor also worked in the relevant jobsite trailer. 

(Tr. 81-82.) Non-employees were also routinely present in the location. Id. The Secretary did not 

establish who created the violative condition. In addition, no witness indicated they ever say the 

50 As discussed below, Respondent’s arguments about the likelihood of harm from the condition are relevant to the 

characterization and penalty for the violation.

51 Mr. Kieschnick viewed the power strips as a hazard that could cause an electrical problem. (Tr. 82-83.)
37 

power taps connected improperly.52 (Tr. 132-33.) The Secretary failed to establish actual 

knowledge of the violative condition. 

As for constructive knowledge, Respondent had a work rule preventing daisy-chaining or 

connecting power cords improperly. (Tr. 82-83.) Respondent’s weekly auditing procedures

required a supervisor to check the jobsite trailers. (Tr. 83, 105-6; Ex. C-28.) The audits also 

specifically directed employees to check for electrical issues. (Tr. 83, Ex. C-28.) The condition 

violated Respondent’s rules and was within the scope of these weekly audits. (Tr. 82-83, 105-6; 

Ex. C-28.) Mr. Kieschnick knew the condition was improper and had looked for it in the past. 

(Tr. 81, 83; Ex. C-28.) Considering Respondent’s training programs and auditing procedures, the 

Court finds the record does not support finding a lack of reasonable diligence to detect and correct 

violations of this type. 

Accordingly, Citation 2, Item 2 is vacated. 

ORDER

The foregoing Decision constitutes the Findings of Fact and Conclusions of Law in 

accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Based upon the foregoing 

Findings of Fact and Conclusions of Law, it is ORDERED that: 

1. Citation 1, Item 1 is AFFIRMED, as a serious violation and a penalty of $2,432 is 

ASSESSED; 

2. Citation 1, Item 2 is AFFIRMED, as a serious violation and a penalty of $9,639 is 

ASSESSED; 

52 Mr. Kieschnick indicated he was familiar with the desk in the relevant trailer. (Tr. 133.) He did not recall seeing 

the power strips on the desk prior to the CO’s investigation. (Tr. 133-34.) He agreed with Respondent’s counsel that 

the power strips may have been behind the desk rather than on top of it as depicted in the CO’s photos. (Tr. 133.)
38 

3. Citation 2, Item 1 is AFFIRMED, as an other-than-serious violation and no penalty is 

assessed; and

4. Citation 2, Item 2 is VACATED and no penalty is assessed. 

SO ORDERED.

 /s/ Peggy S. Ball

 Peggy S. Ball, OSHRC ALJ 

Date: January 18, 2022 

Denver, Colorado