United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, DC 20036-3419

SECRETARY OF LABOR,

Complainant,

v. OSHRC DOCKET No. 14-1384

DAVID DZENUTIS d/b/a ROYAL 

CONSTRUCTION COMPANY,

Respondent.

Appearances: 

Mark A. Pedulla, Esq., Office of Regional Solicitor, U.S. Department of Labor, Boston, 

Massachusetts. 

 For the Complainant. 

David Dzenutis, pro se, Royal Construction Company, Canton, Connecticut 

For the Respondent. 

Before: Administrative Law Judge Keith E. Bell 

DECISION AND ORDER 

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

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

U.S.C. §§ 651-678 (OSH Act or the Act). Following an inspection of a worksite located in 

Farmington, Connecticut, the Occupational Safety and Health Administration (OSHA) issued 

two citations to David Dzenutis DBA Royal Construction Company (Respondent or Royal 

Construction), alleging seven violations of the OSH Act, and proposing a total of $20,240 in 

penalties. 

Specifically, Citation 1, Item 1 alleges a serious violation of 29 C.F.R. § 1926.59, for 

failing to have to have a written hazard communication program and proposes a $2,200 penalty. 

Citation 1, Item 2 alleges a serious violation of 29 C.F.R. § 1926.150(c)(1)(vi), for failing to 

have a fire extinguisher and proposes a $2,200 penalty. Citation 1, Item 3 alleges a serious 
2

violation of 29 C.F.R. § 1926.502(b)(1), for failing to use fall protection and proposes a $2,200 

penalty. Citation 1, Item 4 alleges a serious violation of 29 C.F.R. § 1926.1051(a), for failing to 

provide a ladder at a point of access and proposes a $3,080 penalty. Citation 1, Item 5 alleges a 

serious violation of 29 C.F.R. § 1926.1053(b)(1), for failing to properly extend a ladder and 

proposes a penalty of $3,080. Citation 1, Item 6 alleges a serious violation of 29 C.F.R. 

§ 1926.1053(b)(22), for improperly carrying a load on a ladder and proposes a penalty of $3,080. 

Finally, Citation 2, Item 1 alleges a repeat violation of 29 C.F.R. § 1053(b)(21), for failing to 

grasp a ladder with at least one hand and proposes a penalty of $4,400. 

Respondent filed a timely notice of contest, bringing this matter before the Commission. 

A hearing was held on August 12, 2015, with the Respondent appearing pro se. Afterwards, 

both parties filed post-hearing briefs. For the reasons set forth below, I affirm all of the Items in 

Citation 1 and Citation 2. 

JURISDICTION 

Based upon the record, I find that at all relevant times Royal Construction was engaged in 

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

3(5) of the OSH Act. (Compl. at ¶¶ II, III; Answer), I conclude that the Commission has 

jurisdiction over the parties and subject matter in this case. 

BACKGROUND

Compliance Office Gagnon (CO) observed several individuals working on the roof of a 

building (the Farmington Inn) without any apparent fall protection. (Tr. 39-40). He commenced 

his investigation by approaching a worker that was coming down a ladder from the roof to the 

upper level of a parking structure and asked the worker to speak to the boss or foreman of the 

site. (Tr. 41). The worker yelled up to the roof and Mr. Dzenutis came down the ladder to meet 

the CO. Id. The CO asked if he was “the boss of the site” and Mr. Dzenutis said that he was. 

(Tr. 42). Next, the CO asked if the workers were his employees. Id. Mr. Dzenutis asserted that 

two of the workers were subcontractors but indicated that the others were his employees. (Tr. 42, 

44). 

The CO continued his investigation by interviewing the workers identified by Mr. 

Dzenutis as his employees. (Tr. 42-44, 46). Each stated that they were hourly employees paid by 

Royal Construction. (Tr. 44-45). They indicated that Mr. Dzenutis gave them orders regarding 
3

the work to be done and provided all the materials and equipment needed for the job. (Tr. 44-45, 

47, 50. 120-21, 153, 155-56). 

The CO then interviewed the two workers who Mr. Dzenutis identified as 

subcontractors-Jerimiah Dillion and Alexandro Diaz.1

(Tr. 47; Ex. C-38). Mr. Dillion stated that 

he was not a licensed contractor and that he did not carry workers’ compensation insurance. (Tr. 

48-50). He told the CO that he was paid by the hour and followed Mr. Dzenutis’ orders. Id. 

Like the other workers, Mr. Dillion indicated that Royal Construction provided all of the tools, 

equipment, and materials. (Tr. 48-50). Alexandro Diaz responded similarly, indicating that he 

did not have a contractor’s license and was being paid by the hour.2(Tr. 48-50). 

After the worker interviews, the CO and Mr. Dzenutis proceeded up to the roof of the 

building to continue the inspection. The CO and Mr. Dzenutis discussed various issues, 

including fall protection, the chemicals being used at the worksite, whether there was a hazard 

communication program, how to properly extend a ladder, and whether there was a fire 

extinguisher. (Tr. 53-56). The two also discussed abatement. (Tr. 55-56). Mr. Dzenutis directed 

the workers to immediately abate two of the hazards—the lack of fall protection and the 

insufficient extension of the ladder. (Tr. 54-56, 156, 186).

DISCUSSION 

Coverage 

At the onset, it must be determined whether Royal Construction had any employees at the 

worksite on April 18, 2014, the date of the inspection. Only employers may be cited for a 

violation of the OSH Act, but a single employee satisfies this requirement. See 29 C.F.R. 

§§ 1975.3(d)(5); 1975.4(a); Elmer Vath, Painting Contractor, 2 BNA OSHC 1091, 1093 (No. 

773, 1974) (noting that employer has only one regular employee does not exempt employer from 

coverage of the OSH Act); Poughkeepsie Yacht Club, Inc., 7 BNA OSHC 1725, 1727 (No. 76-

 

1 At the hearing, the CO referred to these two individuals as Alexandro and Dillion. (Tr. 47). In 

his discovery responses, Mr. Dzenutis appears to refer to them as Jerimiah Dillion and Alex 

Diaz. (Ex. C-38). 

2

The CO also attempted to interview an additional person he saw at the site. (Tr. 202). 

However, that person left the site before the CO could obtain sufficient information to determine 

his role. (Tr. 202-3). I find that the Secretary did not establish that this individual was an 

employee, and as a consequence I have not considered him to be one for coverage or penalty 

purposes. 
4

4026, 1979) (finding single employee sufficient to invoke coverage under the Act). To assess 

whether an employer/employee relationship exists, the Commission looks to the hiring party’s 

right to control the manner and means by which the work is accomplished. See e.g., Allstate 

Painting & Contracting Co., Inc., 21 BNA OSHC 1033, 1035 (No. 97-1631, 2005) 

(consolidated) (discussing Nationwide Mutual Insurance Company v. Darden, 503 U.S. 318 

(1992) (Darden)); Barbosa Group, Inc., 21 BNA OSHC 1865, 1867 (No. 02-0865, 2007) (noting 

Commission uses common law agency test expressed in Darden), aff’d, 296 Fed. Appx. 211 (2d 

Cir. 2008) (unpublished); Restatement (Second) of Agency § 220(1) (defining servant as 

“employed to perform services...subject to the other’s control"). The factors relevant to this 

inquiry include: 

the skill required; the source of the instrumentalities and tools; the location of the 

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

party has the right to assign additional projects to the hired party; the extent of the 

hired party's discretion over when and how long to work; the method of payment; 

the hired party's role in hiring and paying assistants; whether the work is part of 

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

provision of employee benefits; and the tax treatment of the hired party. 

Darden, 503 U.S. at 323-24, quoting Community for Creative Non-Violence v. Reid, 490 U.S. 

730, 751-52 (1989). 

The Secretary argues that not only did Mr. Dzenutis concede that he had employees on 

the day of the inspection, other evidence mandates finding that there was an employer/employee 

relationship between Royal Construction and the workers the CO interviewed at the site. (Sec’y 

Br. at 16-19). Royal Construction responds that all of the workers at the site were subcontractors 

who were under their own supervision, supplied their own tools, and made their own hours. 

(Resp’t Br. at 1-2). He does not dispute the Secretary’s other contentions. Id. 

After review, I find that the Secretary established that Royal Construction had employees 

at the worksite. Mr. Dzenutis does not deny that he himself was working on the project and this 

alone subjects Royal Construction to the Act. See Poughkeepsie Yacht, 7 BNA OSHC at 1727. 

(Tr. 101, 103, 149; Jt. Ex. 15). Further, I also find that all of the individuals the CO interviewed 

at the worksite were employees of Royal Construction. During the inspection, Mr. Dzenutis did 

not claim that any of the workers on the roof were unaffiliated with Royal Construction and all 
5

of the workers identified Royal Construction as their employer.3(Tr. 42, 44-45, 170). Mr. 

Dzenutis had the right to control their work and actually demonstrated this ability before the CO. 

(Tr. 42-5, 108, 121, 153, 155-56, 186). For example, Mr. Dzenutis called to workers to come 

down to speak with the CO and they did. (Tr. 43-44). In addition, after the CO explained that a 

ladder was not extended appropriately, Mr. Dzenutis directed a worker to extend the ladder and 

the worker complied. (Tr. 55, 108, 186). Workers also followed Mr. Dzenutis’ request to get 

safety equipment from the worksite trailer. (Tr. 56, 156, 164). Respondent points to no evidence 

indicating that it lacked the authority to control the work being done at the site.4

(Tr. 43, 50). 

Accordingly, I find that Respondent had the authority to control the workers and safety at the 

worksite and that Mr. Dzenutis actually exercised that control. See Restatement (Second) of 

Agency § 220, comment 1(d) (right to control as element articulated in definition of servant). 

In addition to the most important control factor weighing in favor of finding an employer 

relationship, other Darden factors also support that conclusion. See Allstate, 21 BNA OSHC at 

1035. Royal Construction provided the materials, tools, trailer, and equipment needed for the 

project. (Tr. 45, 47, 50, 136; Jt. Exs. 33-34 (inspection sticker indicating Royal Construction as 

the trailer’s owner)). It determined when the individuals would work and for how long. (Tr. 45, 

48-49). Mr. Dzenutis had worked with some of the individuals on other projects. (Tr. 18, 25; Ex. 

C-45). And the work being done was part of the regular business of Royal Construction.5

(Tr. 

39; Ex. C-40). Finally, Royal Construction paid hourly wages to the individuals the CO 

 

3

 I note that in his Response to Complainant’s First Set of Interrogatories, Mr. Dzenutis lists six 

individuals as working on his behalf on the date of the inspection. (Exs. C-37, C-38). 

4

 I note that in his discovery responses, Mr. Dzenutis appears to deny various aspects of the 

employment relationship. (Exs. C-38, C-42, C-43). I find the CO’s testimony about how the 

workers themselves described the relationship is more convincing and entitled to more weight 

than Mr. Dzenutis’ unsworn discovery responses. (Tr. 44-45, 47, 50, 120-21, 153, 155-56). See 

29 C.F.R. §§ 2200.55 (requiring interrogatories to be answered under oath or affirmation), 

2200.59 (requiring witness testimony to be given under oath or affirmation), Fed. R. Evid. 603, 

802.

5

 In his Complaint, the Secretary alleged that Respondent was a business engaged in commercial 

construction. (Compl. ¶ II). As this was not challenged by Respondent in his Answer, it is 

deemed admitted. Commission Rule 34(b)(2), 29 C.F.R. § 2200.34(b)(2) (any “allegation not 

denied” in the Answer is deemed admitted). 
6

observed working at the site.6(Tr. 44-45, 48-49). See All Star Realty Co., D/B/A All Star Realty 

& Constr. Co., 24 BNA OSHC 1356, 1359 (No. 12-1597, 2014) (finding payment by time 

suggests a master-servant relationship). Although Respondent raises some contrary assertions in 

its Post-Hearing Brief, namely, that one worker had no affiliation with the company and it denies 

paying hourly wages, it points to no evidence supporting its unsworn contentions.7(Tr. 42, 44). 

The Secretary has shown that Mr. Dzenutis had the authority to control the workers and 

safety issues and offered other evidence that an employer/employee relationship existed. Mr. 

Dzenutis admitted on the day of the inspection that he had employees working on the roof of the 

Farmington Inn, and has offered no evidence to the contrary. (Tr. 42, 170). Therefore, I find that 

the Secretary has met his burden of establishing an employment relationship between Royal 

Construction and the workers interviewed by the CO. Accordingly, I find that Respondent is 

covered by the Act. 

Merits of the Citation Items 

Turning to the citation themselves, to establish a violation of an OSHA standard, the 

Secretary must prove that: (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. 

Astra Pharm. Prods., 9 BNA OSHC 2126, 2129 (No. 78-6247, 1981), aff'd in relevant part, 681 

 

6

Even the two workers Mr. Dzenutis identified as independent contractors (Dillion and 

Alexandro) were paid hourly. (Tr. 44-45, 48-49). They did not carry workers’ compensation 

insurance and were not licensed. (Tr. 44-45, 48-49). As a result, I find no support in the record 

for the contention that they were independent subcontractors. 

7 As noted above, in his Response to Complainant’s First Set of Interrogatories, Mr. Dzenutis 

identified six individuals as working on his behalf at the site. (Exs. C-37 at 5, C-38 at 1-2). 

Respondent claims that all of these workers signed agreements indicating that they were 

subcontractors. (Resp’t Br. at 2). No subcontractor agreements were offered into evidence and 

Respondent has not sought to re-open the record for their submission. See e.g., Baker Tank Co., 

17 BNA OSHC 1177, 1181 (No. 90-1786-S, 1995). I note that even if the agreements had been 

offered into evidence, such documentation does not automatically establish that there is no 

employment relationship. See Sharon & Walter Constr., Inc., 23 BNA OSHC 1286, 1289-90 

(No. 00-1402, 2010) (finding existence of a subcontractor disclaimer form and fact that company 

was paid as a subcontractor did not mean there was not an employer/employee relationship for 

purposes of the OSH Act). 
7

F.2d 69 (1st Cir. 1982). The Secretary has the burden of proving his case by a preponderance of 

the evidence. Id. 

All of the alleged violations arise under the construction standards. An employer must 

comply with the construction standards if its employees are “engaged in construction work,” an 

activity defined as “work for construction, alteration, and/or repair, including painting and 

decorating.” 29 C.F.R. § 1910.12(b). Respondent does not dispute that it was engaged in 

construction and I find that the roofing repair work Royal Construction was performing fits 

within the standard’s definition of construction.8

 

1. Citation 1, Item 1 – Hazard Communication - 29 C.F.R. § 1926.59 

Section 1926.59 requires compliance with the general industry standard found in 29 

C.F.R. § 1910.1200(e)(1), which compels employers to “develop, implement and maintain at 

each workplace, a written hazard communication program.” The program must include “a list of 

hazardous chemicals known to be present” as well as the “methods the employer will use to 

inform employees of the hazards of non-routine tasks ... .” 29 C.F.R. § 1910.1200(e)(1)(i)-(ii). 

The standard defines a “hazardous chemical” as “any chemical which is classified as a physical 

hazard or a health hazard, simple asphyixiant, combustible dust, pyrophoric gas, or hazard not 

otherwise classified.” 29 C.F.R. § 1910.1200(c). The standard’s purpose is to ensure that 

employers transmit information concerning the hazards is to employees. 29 C.F.R. 

§ 1910.1200(a). 

I find that the standard applies. The CO observed bonding adhesive, cleaner, and other 

hazardous materials at the worksite and determined that employees had applied the bonding 

adhesive the same day as the inspection. (Tr. 57, 59-62, 64, 72, 159; Jt. Exs. 19-21, 44). I also 

find that Respondent violated the standard. Mr. Dzenutis admitted that he did not have a hazard 

communication program and the CO did not see such a program during his inspection. (Tr. 54-

55, 62). I note that in his unsworn Second Supplemental Response to Discovery, Mr. Dzenutis 

indicated that subcontractors “had a file/folder with safety information in their trailer” and that 

 

8

 In its Answer, Respondent failed to challenge the Secretary’s allegation that it was a business 

engaged in commercial construction. (Compl. ¶ II). As such, this fact is deemed admitted. 

Commission Rule 34(b)(2), 29 C.F.R. § 2200.34(b)(2). 
8

they had access to “most MSDS of the materials they use on their phones.”9(Ex. C-45 at 1-2; Tr. 

209). Attached to this Second Supplemental Response to Discovery were MSDS forms for 

various hazardous substances. (Ex. C-45 at 2). However, Mr. Dzenutis does not claim that all of 

these forms were available in the trailer or on the workers phones (or even that the workers all 

had phones). Nor does he indicate whether any hazardous materials besides the ones for which 

he provided MSDS were used at the worksite. (Ex. C-45 at 1-2). Moreover, although Mr. 

Dzenutis alleges that “the elements and component part of the hazard communication program 

would be a subject that has been previously discussed with subcontractors,” he provides no 

evidence as to what the discussions covered, whom was included in the discussions, when they 

occurred, or what written documentation he provided to employees. Id. Specifically, he does 

not claim that the safety information he allegedly provided included, as required by the standard, 

“a list of the hazardous chemicals known to be present” or that the program specified “methods 

the employer will use to inform employees of the hazards of non-routine tasks.” 29 C.F.R. 

§ 1910.1200(e)(1)(i)-(ii). At the hearing, Respondent did not present any evidence of a hazard 

communication program or otherwise dispute the CO’s testimony. Consequently, I find that 

there is no credible evidence of a hazard communication program that complies with the cited 

standard. See Austin Indus. Specialty Servs., L.P., 765 F.3d 434, 444-45 (5th Cir. 2014) 

(considering mere availability of MSDS forms insufficient). 

As for exposure to the violative condition, all of the employees present at the worksite, 

including Mr. Dzenutis, were exposed to the lack of a hazard communication program because 

they were all working in close proximity to the materials. (Tr. 59-60; Jt. Ex. 15). Finally, in 

terms of knowledge, as noted above, Mr. Dzenutis admitted to the CO that he did not have a 

program and did not provide the CO with any relevant documentation. (Tr. 54-55, 62). He was 

at the worksite and in close proximity to the hazardous materials, including those plainly labeled 

as dangerous or flammable. (Tr. 62, 121, 204; Jt. Exs. 15, 19-21, 44). Thus, I find that the 

Secretary has met his burden of establishing a violation of 29 C.F.R. § 1926.59.

 

9

 In his response to the Secretary’s Request for Admission, Mr. Dzenutis indicated that he did not 

see anyone using any hazardous or flammable products. (Exs. C-39, C-40). However, in his 

Supplemental Response to Request for Production and Responses, he appeared to acknowledge 

that hazardous materials were being used but alleges that workers had “proper protection.” (Ex. 

C-43). 
9

2. Serious Citation 1, Item 2 – Fire Extinguisher- 29 C.F.R. 

§ 1926.150(c)(1)(vi) 

Employers must provide a fire extinguisher “within 50 feet of wherever more than 5 

gallons of flammable or combustible liquids or 5 pounds of flammable gas are being used on the 

jobsite.” 29 C.F.R. § 1926.150(c)(1)(vi). The CO observed flammable materials on the roof that 

employees were using on the day of the investigation. (Tr. 59-60, 62, 72; Jt. Exs. 19-21, 44). 

Some of the observed materials include labels stating that the products are “flammable” or 

“extremely flammable” (Jt. Exs. 19-21, 44). The photographic evidence shows bucket type 

containers that the CO identified as being five gallon cans. (Tr. 62; Jt. Exs. 19-21, 44). 

Respondent does not dispute either the presence or the quantity of the flammable materials at the 

worksite. (Resp’t Br. 1-2).

During the inspection, Mr. Dzenutis acknowledged that he did not have a fire 

extinguisher and the CO did not see one. (Tr. 55, 72-73). Through his cross-examination at the 

hearing, Respondent suggested that there might have been a fire extinguisher located inside the 

Farmington Inn. (Tr. 55, 174). The CO denied seeing one and re-iterated that he looked around 

the worksite for a fire extinguisher without success. (Tr. 73, 174; Jt. Ex. 22). Respondent offered 

no testimony or other evidence of a fire extinguisher being present anywhere at the site, 

including within fifty feet of the flammable materials, as the standard requires. See 29 C.F.R. 

§ 1926.150(c)(1)(vi). 

I find that the Secretary established applicability by showing the presence of flammable 

materials in excess of five gallons. Mr. Dzenutis’ admission that he did not have a fire 

extinguisher and the CO’s inability to find one shows that Respondent violated the standard. (Tr. 

55, 72-73). Mr. Dzenutis’ admission also shows that he knew there was no fire extinguisher on 

the roof. (Tr. 55, 120-21). The flammable materials also were boldly labeled as hazardous and 

located in an open area of the worksite. (Jt. Exs. 19-21, 44). Considering these facts, I find that 

the Secretary met his burden of showing Respondent’s knowledge of the violative condition. 

Finally, in terms of exposure, I find that the Secretary established that Royal Construction 

employees, including Mr. Dzenutis, were working on the roof near flammable materials and 

were exposed to the hazard associated with not having a fire extinguisher within fifty feet. (Jt. 

Exs. 15, 19-22, 23, 25, 44). As a result, the Secretary has met his burden and established a 

violation of 29 C.F.R. § 1926.150(c)(1)(vi). 
10

3. Serious Citation 1, Item 3 – Fall Protection - 29 C.F.R. 

§ 1926.502(b)(1) 

Under the construction standards, “[e]ach employee on a walking/working surface ... 

with an unprotected side or edge which is 6 feet (1.8 m) or more above a lower level shall be 

protected from falling by the use of guardrail systems, safety net systems, or personal fall arrest 

systems.” 29 C.F.R. § 1926.501(b)(1). As used in this standard, a “walking/working surface” is 

any surface “on which an employee walks or works, including, but not limited to, ... roofs.” 29 

C.F.R § 1926.500(b). Also, the standard defines “unprotected side or edge” as “any side or edge 

...of a ... roof ... where there is no wall or guardrail system at least 39 inches (1.0 m) high.” Id. 

I find that the standard applies. The roof of the Farmington Inn was at least 10 feet high. 

(Tr. 86-87). Although a parapet wall ran along the sides of the roof, this wall was only 27 inches 

tall. (Tr. 80, 81-84, 203; Jt. Exs. 3-4). As the roof height exceeded six feet and the wall along the 

edges was a full foot shorter than then 39 inches the cited standard requires, it constitutes a 

working surface with an unprotected edge and the employees needed fall protection. 29 C.F.R. 

§§ 1926.501(b)(1); 1926.502(b)(1). 

I also find that Respondent violated the standard. The CO did not observe guardrails, 

safety nets, or employees wearing personal fall arrest systems. (Tr. 39-40, 123, Jt. Exs. 7, 35). 

When asked what employees were using for fall protection, Mr. Dzenutis expressed his belief 

that the parapet wall provided protection. (Tr. 53; Ex. C-43). However, as explained above, the 

wall was not high enough to serve as sufficient protection under the standard. 29 C.F.R. 

§§ 1926.501(b)(1); 1926.502(b)(1). 

Finally, I find that there was exposure and knowledge of the violative condition. The CO 

observed employees working on the roof near the parapet wall without sufficient fall protection.

(Tr. 39-40, 123, 203; Jt. Exs. 7, 23, 25, 27, 35). Mr. Dzenutis himself was on the roof and 

acknowledged that only the low parapet wall was serving as protection. (Tr. 53; Ex. C-40; Jt. Ex. 

15). Therefore, the Secretary met his burden of proving a violation. 

4. Serious Citation 1, Item 4 – Ladders - 29 C.F.R. § 1926.1051(a) 

As discussed above, the parapet wall at the edge of the roof was 27 inches high. 

Employees accessed the roof via a ladder that extended to the top of parapet wall, and then 

jumped down to roof deck itself. (Tr. 44, 90, 94-95, 97-98; Jt. Exs. 5, 13). 
11

Section 1926.1051(a) requires that: “[a] stairway or ladder shall be provided at all 

personnel points of access where there is a break in elevation of 19 inches (48 cm) or more, and 

no ramp, runway, sloped embankment, or personal hoist is provided.” There was a 27-inch 

break in elevation between the top of the parapet wall and the roof deck. (Tr. 90, 92; Jt. Exs. 3-

4). Considering these undisputed facts, I find that the standard applies and that the Respondent 

had to provide an additional stairway or ladder, so that there would not be break in elevation of 

more than 19 inches between the ladder and the roof deck. 29 C.F.R. § 1926.1051(a). 

By failing to provide steps or a stepladder inside the roof area to lessen the break in 

elevation between the parapet wall and roof deck, Respondent violated the standard. (Tr. 90, 92, 

97-98; Jt. Ex. 22). I also find that there was actual exposure to and knowledge of the violative 

condition. The CO observed employees stepping down from the parapet wall onto the roof as 

well as stepping up from the roof to the top of the parapet wall before descending the ladder, 

thereby being exposed to the hazard. (Tr. 44, 90, 94-95, 100; Jt. Exs. 5, 13, 22). In terms of 

knowledge, Mr. Dzenutis was present at the roof when the CO observed the employees accessing 

the roof deck from the ladder and he himself used the ladder.10 (Tr. 43-44, 100-101, 120-21; Ex. 

C-45 at 3; Jt. Ex. 15). This is sufficient to show his knowledge of the cited condition. 

Accordingly, the Secretary met his burden of establishing a violation of 29 C.F.R. 

§ 1926.1051(a). 

5. Serious Citation 1, Item 5 – Ladder Extension - 29 C.F.R. 

§ 1926.1053(b)(1) 

When portable ladders11 are used to access an upper landing surface, the ladder’s side 

rails must extend at least three feet above the surface to which the ladder is used to gain access. 

29 C.F.R. § 1926.1053(b)(1). There is no dispute that Respondent was using at least one 

portable ladder at the jobsite, and therefore the standard applies. (Tr. 41, 44, 55, 99-100, 108-9, 

 

10 In his brief, Respondent denies that the people the CO observed using the ladder were his 

employees, but does not dispute that there was only a single ladder for workers to use to access 

the roof deck. (Resp’t Br. at 1-2). As indicated above, Respondent’s claim that these workers 

were all subcontractors rather than employees has not been proven and is therefore rejected. 

Further, Mr. Dzenutis does not deny that he himself used the ladder. (Ex. C-45 at 2). 

11 The standard defines a portable ladder as “a ladder that can be readily moved or carried.” 29 

C.F.R. § 1926.1050(b). 
12

116, 161-62, 165, 200; Jt. Exs. 5, 8, 9, 11, 13, 15, 17; Ex. C-45). Respondent violated this 

standard by not extending the ladder at least three feet above the upper landing surface. (Tr. 84, 

101-3; 106-7; Jt. Exs. 4, 11, 13, 15, 17). In terms of exposure, the CO saw employees, including 

Mr. Dzenutis, using the insufficiently extended ladder. (Tr. 39, 41, 44, 99-100, 108-9, 112-13, 

124; Jt. Exs. 5, 8-9, 15, 17, 23; Ex. C-45 at 2). Although employees could access the roof by 

going through the building, the ladder was the main access point to the roof deck for the workers 

carrying tools, materials, and debris. (Tr. 44, 51, 170). Finally, there is no dispute that Mr. 

Dzenutis had knowledge of the violative condition. The ladder was in plain sight and Mr. 

Dzenutis himself used it during the inspection. (Tr. 41, 43-44, 55, 101-3; Jt. Exs. 5, 9, 15, 17; Ex. 

C-45 at 2). Accordingly, the Secretary proved a violation of 29 C.F.R. § 1926.1053(b)(1). 

6. Serious Citation 1, Item 6- Carrying a load on a ladder - 29 C.F.R. 

§ 1926.1053(b)(22) 

The cited standard prohibits employees from carrying “any object or load that could 

cause the employee to lose balance and fall.” 29 C.F.R. § 1926.1053(b)(22). The CO observed 

an employee carrying a garbage can while going down a ladder. (Tr. 100, 109-10,112, 116; Jt. 

Exs. 5, 8-9, 15, 17). 

I find that the standard applies and that Respondent violated it. According to the CO, 

carrying the garbage can in the manner he witnessed could have caused the employee to fall 

because he had to let go of the ladder completely to move his hand from one rung to another. (Tr. 

112, 119; Jt. Exs. 5, 15, 17). The CO’s testimony regarding the employee descending the ladder 

in a manner that violates the cited standard satisfies the Secretary’s burden of showing exposure. 

(Tr. 101-3, 109-10, 112, 116; Jt. Exs. 5, 8-9, 15, 17). In terms of knowledge, I find that 

Secretary established actual knowledge of the hazard because Mr. Dzenutis was present on the 

worksite and saw the employee carrying the garbage can on the ladder. (Tr. 101-3, 112-113, 120-

1; Jt. Exs. 8, 15). In fact, the CO observed Mr. Dzenutis attempt to steady the load as the worker 

descended the ladder. (Tr. 101-3; Jt. Ex. 15). 

In his brief, Respondent does not dispute that the standard applies, was violated, or that 

he had knowledge of it. Instead, he appears to argue that the individual the CO observed was not 

performing roofing work and was unaffiliated with Royal Construction. (Resp’t Br. at 1; Tr. 

183). There is no testimony or other evidence to support this claim. The CO testified that he 

saw the same person carrying a garbage can while descending the ladder also performing roofing 
13

work during his inspection. (Tr. 112-113; 124-134; Jt. Exs. 5, 8, 9, 17, 23, 25, 27). Hence, I find 

that there is insufficient evidence to support Respondent’s claim and that the Secretary has 

carried his burden of proving a violation of 29 C.F.R. § 1926.1053(b)(22). 

7. Repeat Citation 2, Item 1 – Grasping the ladder- 29 C.F.R. 

§ 1926.1053(b)(21) 

The cited standard requires employee to “use at least one hand to grasp the ladder when 

progressing up and/or down the ladder.” 29 C.F.R. § 1926.1053(b)(21). As discussed above, 

Respondent’s employees were using a ladder at the worksite, and I find that the cited standard 

applies to that ladder. (Tr. 112, 116; Jt. Exs. 5, 8, 9, 15, 17). I also find that the Secretary 

established a violation through the CO’s testimony that he saw an employee failing to grasp the 

ladder with at least one hand when traveling down it. (Tr. 112, 118-19; Jt. Exs. 8, 15, 17). 

I note that Respondent does not dispute that the standard was violated or that he had 

knowledge of it. (Resp’t Br. at 1-2). Instead, as with Citation 1, Item 6, his only contention is 

that the person observed by the CO to be descending the ladder with only one free hand is not a 

Royal Construction employee. (Resp’t Br. at 1). In contrast to Respondent’s unsubstantiated 

claim, the Secretary presented evidence that the person photographed carrying a garbage can 

down the ladder was also seen performing roofing work. (Tr. 112-113, 116, 119; 124-134; Jt. 

Exs. 5, 8, 9, 15, 17, 23, 25, 27). I find that this is sufficient evidence of employee exposure. I 

also find that Secretary established actual knowledge of the hazard because Mr. Dzenutis was 

present at the worksite and saw the employee carrying the garbage can on the ladder. (Tr. 101-3, 

120-1; Jt. Exs. 8, 15). Thus, the Secretary has carried his burden of proving a violation of 29 

C.F.R. § 1926.1053(b)(21).

Characterization and Penalty Determination 

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

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

Co., 15 BNA OSHC 2201, 2213-14 (No. 87-2059, 1993). These factors are not necessarily 

accorded equal weight, and gravity is generally the most important factor. Trinity Indus., Inc., 

15 BNA OSHC 1481, 1483 (No. 88-2691, 1992). The gravity of a violation depends upon such 

matters as the number of employees exposed, duration of exposure, precautions taken against 

injury, and the likelihood that an injury would result. J.A. Jones, 15 BNA OSHC at 2213-14. 
14

With respect to all of the violations, I find that the Secretary established that Royal 

Construction had six employees. (Tr. 42, 165-6; Ex. C-38 at 1). I find that the Respondent 

exhibited some evidence of good faith by abating two of the hazards during the inspection and 

have taken that into account in determining the appropriate amount of the penalty for each 

affirmed Item. 

With respect to Serious Citation 1, Item 1, I affirm the characterization as serious because 

Respondent’s employees worked with chemicals that, according to the CO’s testimony, 

presented serious health hazards, without a hazard communication program. (Tr. 68-71). 

Respondent and his employees were present in close proximity to the hazardous materials and 

Respondent admitted that he did not have a hazard communication program. (Tr. 54-55, 68-70,

159). Taking into account the seriousness of the hazard, the probability of harm, Royal 

Construction’s violation history, the number of employees exposed, the company’s size, and the 

evidence of good faith, I assess a penalty of $2,200. 

For Serious Citation 1, Item 2, I find that this violation was properly characterized as 

serious because of the amount of flammable liquid on the roof and the CO’s testimony about 

how serious fires are when they occur at heights. (Tr. 78). As the CO stated, while all fires 

represent serious hazards, had a fire occurred on the roof, there would have been limited means 

of egress and it could also create a panic, which could create more hazards. Id. I have 

considered the penalty factors and find that a penalty of $2,200 adequately takes into account the 

seriousness of the hazard, the probability of harm, Royal Construction’s violation history, the 

number of employees exposed, the company’s size, and the evidence of good faith.

Turning to Serious Citation 1, Item 3, I find that the violation was properly characterized 

as serious based on the CO’s testimony concerning the seriousness of all fall hazards and the 

effect of the height of the roof, the lack of any fall protection, and the nature of the work being 

done. (Tr. 86-89, 109). I have considered the penalty factors and find that a penalty of $2,200 

adequately takes into account the seriousness of the hazard, the probability of harm, Royal 
15

Construction’s violation history, the number of employees exposed, the company’s size and the 

evidence of good faith.12

As for Serious Citation 1, Item 4, I find that the violation was properly characterized as 

serious given the CO’s testimony that stepping down from the parapet wall to the roof and going 

from the roof to the wall could result in a fall and serious injury, such as a broken neck. (Tr. 99, 

109). I have considered the penalty factors and find that a penalty of $3,080 adequately takes 

into account the seriousness of the hazard, the probability of harm, Royal Construction’s 

violation history, the number of employees exposed, the company’s size, and the evidence of 

good faith.

In terms of Serious Citation 1, Item 5, I find that the violation was properly characterized 

as serious, because, as the CO discussed, this hazard could result in serious injuries such as 

broken necks, spines, and bones. (Tr. 109). I have considered the penalty factors and find that a 

penalty of $3,080 adequately takes into account the seriousness of the hazard, the probability of 

harm, Royal Construction’s violation history, the number of employees exposed, the company’s 

size, and the evidence of good faith.

With regard to Serious Citation 1, Item 6, I find that the violation was properly 

characterized as serious considering the CO’s testimony that all falls are serious and having 

employees use only one hand to descend a ladder could result in a fall each time the employee 

failed to maintain contact with the ladder. (Tr. 109, 117-18). I have considered the penalty 

factors and find that a penalty of $3,080 adequately takes into account the seriousness of the 

hazard, the probability of harm, Royal Construction’s violation history, the number of employees 

exposed, the company’s size, and the evidence of good faith.

Finally, the Secretary characterizes Citation 2, Item 1 as repeat. “A violation is repeated 

under section 17(a) of the Act if, at the time of the alleged repeated violation, there was a 

Commission final order against the same employer for a substantially similar violation.” 

Potlatch Corp., 7 BNA OSHC 1061, 1063 (No. 16183, 1979). The Secretary establishes a prima 

 

12 Although there was testimony that Royal Construction had been cited for a lack of fall 

protection at another worksite, the Secretary does not allege that Citation 1, Item 3 should be 

characterized as repeat and has not offered evidence in support of such a characterization. (Tr. 

16, 18, 26-27). 
16

facie case of similarity by showing that both violations are of the same standard. Capform, Inc., 

16 BNA OSHC 2040, 2045 (No. 91-1613, 1994). 

In 2011, Royal Construction was cited for a violation of the same standard at issue in the 

present matter (29 C.F.R. § 1926.1053(b)). (Tr. 120). Royal Construction never contested the 

citation because it reached an informal settlement agreement with OSHA, conceding the 

violation, on August 17, 2011.13 (Tr. 120). Because a citation was issued and Respondent did 

not contest it, the citation became a final order of the Commission under section 10(a) of the Act, 

29 U.S.C. § 659(a). Potlatch, 7 BNA OSHC at 1062. Thus, there was a previous final order for 

a violation of the same standard at issue in the present matter. This satisfies the Secretary’s 

burden to show that the violation should be characterized as repeat. Capform, 16 BNA OSHC at

2045. Respondent presented no evidence to rebut the Secretary’s showing. Consequently, I find 

that Citation 2, Item 1 should be characterized as repeat. 

Although, as a repeat citation, the statutory maximum is $70,000, I find that a penalty of 

$4,400 sufficiently addresses the nature of the hazard, which the CO described as serious based 

on the risk presented by falling, the probability of harm, the number of employees exposed, the 

company’s size, its characterization as repeat, and the evidence of good faith. (Tr. 109, 120). 

ORDER 

 Based upon the foregoing decision, it is hereby ORDERED: 

1. Item 1 of Citation No. 1, alleging a serious violation of 29 C.F.R. § 1926.1200(e)(1) is 

AFFIRMED, and a penalty of $2,200 is assessed. 

2. Item 2 of Citation No. 1, alleging a serious violation of 29 C.F.R. § 1926.150(c)(1)(vi) is 

AFFIRMED, and a penalty of $2,200 is assessed. 

3. Item 3 of Citation No. 1, alleging a serious violation 29 C.F.R. § 1926.502(b)(1) is 

AFFIRMED, and a penalty of $2,200 is assessed. 

4. Item 4 of Citation No. 1, alleging a serious violation of 29 C.F.R. § 1926.1051(a) is 

AFFIRMED, and a penalty of $3,080 is assessed. 

 

13 The Secretary did not submit the actual citation from the 2011 inspection. According to the 

OSHA Inspection database, publicly available at 

https://www.osha.gov/pls/imis/establishment.html, Royal Construction was cited on July 21, 

2011 and an informal settlement was reached on August 17, 2011. See 

https://www.osha.gov/pls/imis/establishment.violation_detail?id=314405168&citation_id=01001

visited January 20, 2016). 
17

5. Item 5 of Citation No. 1, alleging a serious violation of 29 C.F.R. § 1926.1053(b)(1) is 

AFFIRMED, and a penalty of $3,080 is assessed. 

6. Item 6 of Citation No. 1, alleging a serious violation of 29 C.F.R. § 1926.1053(b)(22) is 

AFFIRMED, and a penalty of $3,080 is assessed. 

7. Item 1 of Citation No. 2, alleging a repeat violation of 29 C.F.R. § 1926.1053(b)(21) is 

AFFIRMED, and a penalty of $4,400 is assessed. 

SO ORDERED. 

Dated: February 12, 2016 /s/ 

 Keith E. Bell 

 OSHRC Judge