OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

 Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v. OSHRC DOCKET No. 16-1655

RICHARD CARRIER TRUCKING, INC.,

Respondent.

Appearances: Attorney James L. Polianites

U.S. Department of Labor, Office of the Solicitor

Boston, Massachusetts

For the Complainant

Mr. Kris M. McKenna

Safety Manager, Richard Carrier Trucking, Inc.

Skowhegan, Maine

For the Respondent

Before: William S. Coleman

Administrative Law Judge

DECISION AND ORDER

The Respondent, Richard Carrier Trucking, Inc. (RCT), is a commercial trucking 

company based in Skowhegan, Maine, whose business includes hauling timber. On April 

18, 2016, a compliance safety and health officer (CO) from the area office of the 

Occupational Safety and Health Administration (OSHA) located in Bangor, Maine, 

conducted a complaint investigation at RCT’s workplace in Skowhegan. The CO

concluded that some of RCT’s truck drivers had engaged in the practice of putting diesel 

fuel in portable fire extinguishers, and then spraying the fuel onto the interior walls and 
2

floors of their trailers. The reason for coating the interior surfaces of the trailers with diesel 

fuel was to prevent wood chips from sticking to those surfaces in sub-freezing 

temperatures.

The Secretary alleges that RCT countenanced this alleged practice and thereby 

violated section 5(a)(1) of the Occupational Safety and Health Act of 1970 (Act), which is 

commonly known as the “general duty” clause. 29 U.S.C. § 654(a)(1). On September 9, 

2016, OSHA issued to RCT a one-item serious citation arising out of the inspection, which 

alleged the following violation of the general duty clause:

OSH Act of 1970 Section (5)(a)(1): The employer did not 

furnish employment in a place of employment which were 

free from recognized hazards that were causing or likely to 

cause death or serious physical harm to employees in that 

employees were exposed to burns and other injuries due to 

fire extinguishers containing pressurized diesel fuel:

Worksite – A 2.5 gallon Badger fire extinguisher served as 

an unapproved container for pressurized diesel fuel used 

by truck drivers to coat the trailer walls.

Among other methods, one feasible and acceptable 

abatement method to correct this hazard is to apply an 

approved non-stick or low friction surface to the trailer 

walls and floor in accordance with the manufacturer’s 

specification.

OSHA designated this alleged violation as “Citation 2 Item 1.”1 

 

1 The reason the citation item was not designated “Citation 1 Item 1” is because 

earlier, on July 18, 2016, OSHA had issued a single item serious citation to RCT arising 

out of the same inspection. That citation was designated “Citation 1 Item 1,” and alleged 

a violation of subparagraph (d)(2)(i) of 29 C.F.R. § 1910.106, “Flammable liquids,” which 

is located in subpart H, “Hazardous Materials.”

RCT timely contested “Citation 1 Item 1,” and the Executive Secretary of the 

Occupational Safety and Health Review Commission (Commission) docketed the matter, 
3

RCT timely contested the citation and thereupon the Secretary duly filed a 

complaint that incorporated by reference the allegations of the citation quoted above. Prior 

to the hearing, the Secretary filed a motion to amend the complaint to reflect the following 

changes to the originally filed citation [deletions are stricken through; additions are 

underscored]:

Worksite – A 2.5 gallon Badger fire extinguisher served as 

an unapproved container for pressurized diesel fuel used by 

truck drivers to coat the trailer walls.

Among other methods, one feasible and acceptable 

abatement method to correct this hazard is to apply an 

approved non-stick or low friction surface to the trailer walls 

and floor in accordance with the manufacturer’s 

specification remove from service and not allow fire 

extinguisher to be used to spray diesel fuel on the trailer 

walls and floors.

RCT did not object to the pre-hearing amendment, and the motion to amend was granted. 

(T. 6-8).

An evidentiary hearing was conducted on June 15, 2017, in Bangor, Maine. The 

Secretary presented two witnesses in his case-in-chief: the assistant area director of 

 

assigning it docket number 16-1363. Thereafter, the parties entered into an agreement 

dated August 26, 2016, in which the Secretary agreed to withdraw that citation and further 

agreed to the entry of an order dismissing it. The Commission approved the parties’ 

agreement and incorporated its terms by reference by an order that became a final order of 

the Commission on December 14, 2016. (T. 12, 54, 75; Exhibit C-3). See Copomon 

Enters., LLC, 24 BNA OSHC 2177, 2179 n. 1 (No. 13-0709) (ALJ) (taking judicial notice 

under Fed. R. Evid. 201 of documents contained in the case file of a different matter before 

the Commission), aff’d 601 F. App’x 823 (11th Cir. 2015) (unpublished). 

OSHA issued “Citation 2 Item 1” at issue here on September 9, 2016, after having 

agreed to the dismissal of “Citation 1 Item 1.” 
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OSHA’s Bangor area office (Samuel Kondrup), and RCT’s safety manager (Kris 

McKenna), who had been present during the CO’s inspection. The Secretary did not 

present the testimony of the CO who had investigated the complaint. She had retired about 

six months before the hearing. The record is silent as to whether her attendance at the 

hearing could have been secured by compulsory process or other reasonable means. 

RCT, in its case in chief, presented the testimony Derek DeFelice, who was present 

during the CO’s inspection and whose position at that time was “dispatcher.” At the time 

of the hearing, DeFelice’s position was terminal manager. (Ex. C-2, p. 2; T. 77).

The parties filed simultaneous post-hearing briefs, and both opted not to file a brief 

in reply. The briefing period concluded on August 25, 2017. (T. 107).

As set forth below, the Secretary has not met his burden to prove by a 

preponderance of the evidence that the equipment used to spray the diesel fuel had been

manufactured as a fire extinguisher. There being insufficient evidence to establish a fact 

that is essential to proving the alleged violation, the citation must be vacated.

Findings of Fact

1. The Respondent, Richard Carrier Trucking, Inc. (RCT), is a commercial 

trucking company headquartered in Skowhegan, Maine, whose business includes hauling 

timber materials in commerce. RCT has about 600 employees altogether, about 70 of 

whom are truck drivers involved in hauling timber materials. (Ex. C-2). 

2. On April 4, 2016, the OSHA area office in Bangor, Maine, received a 

complaint reporting that RCT drivers were using fire extinguishers to spray diesel fuel on 

the interior surfaces of their trailers. (T. 21, 30). 
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3. On Friday, April 15, 2016, CO Hilda Chow from OSHA’s area office in 

Bangor, Maine, was assigned to investigate the complaint. She conducted the investigation 

at RCT’s workplace in Skowhegan on Monday, April 18, 2016, over a period of about two 

hours and forty minutes. Among the persons she communicated with while at RCT were:

RCT’s safety manager (Kris McKenna); RCT’s terminal manager at the time (Rick 

Tucker); RCT’s dispatcher at the time (Derek DeFelice); and RCT’s owner (Richard 

Carrier) and his son (Jim Carrier). (Ex. C-2). 

4. CO Chow retired from OSHA in December 2016, and she did not testify at the 

hearing. (T. 30). Consistent with the regular practice of her office, CO Chow had prepared 

documents and taken photographs incident to her investigation. Those materials were

received in evidence without objection. (Exs. C-2, C-3, C-4, & C-9).

5. The only OSHA official who testified at the hearing was the assistant area 

director for the Bangor area office (Samuel Kondrup), who had not been present at the 

inspection on April 18, 2016. His knowledge of CO Chow’s investigation of RCT was 

derived from what CO Chow told him and the documents that she had prepared. (E.g., T. 

30, 34, 56-57).

6. For many years prior to the investigation on April 16, 2016, some RCT truck 

drivers had engaged in the practice of coating the interior surfaces of trailers with diesel 

fuel. The diesel fuel acted as a lubricant that prevented wood chips, sawdust and wood 

shavings from freezing onto those surfaces. (T. 79-80, 94). When materials such as wood 

chips freeze onto the interior surfaces of trailers, the drivers must use hand tools to remove 

them, which is an arduous and time-consuming task. (T. 92-93). Originally, the drivers
6

applied the diesel fuel to the floors and walls of a trailer by pouring the fuel from watering 

cans, such as the kind used in home gardening. (Ex. C-4, p. 5; T. 81).

7. Sometime after 2009, some RCT drivers began to use pressurized canisters to 

apply the diesel fuel. Using pressurized canisters enabled the drivers to spray the diesel 

fuel onto the surfaces. This avoided the use of a watering can to pour fuel while treading

inside the trailer, whose floors could become treacherously slick from the diesel fuel. (T. 

80-83, 95-96). When the pressurized sprayers were empty and not in use, drivers stowed

them in an exterior stow area. (T. 83-84, 99-100; Ex. C-4, p. 5).

8. It takes about one gallon of diesel fuel to coat the interior surfaces of a trailer 

when using a pressurized sprayer, and up to two gallons when using a non-pressurized 

watering can. (T. 94-96). 

9. The RCT drivers who used pressurized canisters to spray the diesel fuel 

obtained the canisters on their own initiative and at their own expense. (T. 102). The 

management of RCT was aware of the practice of using pressurized sprayers to apply diesel 

fuel, and management neither encouraged nor discouraged the practice. (Ex. C-2, p. 2; T. 

102).

10. In the course of her investigation on April 18, 2016, the CO inquired about the 

type of equipment that drivers were using to apply the diesel fuel to the trailer walls. There 

were no trailers at RCT’s Skowhegan workplace at the time of the CO’s inspection, so 

there was no spraying equipment available to show to the CO. (T. 101-102). RCT’s 

terminal manager at the time, Mr. Rick Tucker, was aware that some drivers had obtained

the equipment that they used to spray the diesel fuel from a nearby store named Kennebec 
7

Fire Equipment (KFE). In an effort to be responsive to the CO’s inquiry, Tucker traveled

to the KFE store to try to obtain the type of equipment that the drivers were purchasing 

there to show to the CO. (T. 65, 98). 

11. When Tucker arrived at KFE, the store did not have in stock the type of 

equipment that had been sold to some RCT drivers. Instead, the storekeeper supplied 

Tucker with a used 2.5 gallon water-type fire extinguisher manufactured by a company 

named Badger Fire Protection. The storekeeper did this because the fire extinguisher had 

similarities to the kind of equipment the KFE store was selling to RCT truck drivers for 

spraying diesel fuel. (T. 65, 67). But in actuality, the sprayers that KFE had been selling 

to RCT drivers were not fire extinguishers, even though they shared several features found 

in a typical water-type fire extinguisher. (T. 65-69, 72-73).

12. The fire extinguisher that Tucker obtained from KFE on April 18, 2016 is 

depicted in the photographs on pages 1 and 3 of Exhibit C-4. These photographs depict an 

unpainted stainless steel fire extinguisher that was obviously not new and far from being 

in pristine condition. Rather, its finish is worn and dull, and the informational and warning 

decals that had been affixed to it were partially scraped off or rubbed away. (T. 69). The 

writings on what remained of those decals are indecipherable in the photographic exhibits, 

and might have been unreadable in actuality. The only decipherable decal in the 

photographs is the one bearing the logo of the manufacturer, Badger Fire Protection. (See

Ex. C-7). 
8

13. Diesel fuel was never put in the fire extinguisher that Mr. Tucker obtained 

from KFE on April 16, 2016, and it was never used by any RCT employee for any purpose 

other than to show it to the CO. RCT returned the fire extinguisher to KFE on April 18, 

2016, two days after the CO’s inspection. (Ex. C-8; T. 73).

14. After the fire extinguisher that Mr. Tucker obtained at KFE was shown to the 

CO, the CO expressed the view that RCT drivers were using re-purposed fire extinguishers 

to spray the diesel fuel. At least one RCT employee disputed the CO’s view and stated that 

the spraying equipment that RCT drivers had obtained were not manufactured to be fire 

extinguishers. (T. 101, 104-05). 

15. RCT’s safety manager, Mr. Kris McKenna, did not challenge the CO’s 

impression that RCT drivers were using re-purposed fire extinguishers to spray the diesel 

fuel. At the time of the inspection, he was unaware that the drivers had been using any 

type of pressurized sprayers to apply the diesel fuel and he had no knowledge regarding

whether any pressurized sprayer being used had been manufactured as a fire extinguisher. 

Once freezing temperatures subsided in the springtime, RCT drivers stopped spraying 

diesel fuel. McKenna did not begin to closely examine whether any drivers had been using 

re-purposed fire extinguishers until after July 18, 2016, when OSHA issued the first citation 

arising out of the inspection (see footnote 1, supra). (T. 52, 64, 105-106; Ex. C-3, p.1). 

Once McKenna began to look closely into the matter, he determined that the equipment 

that RCT drivers had purchased from KFE were spray canisters that had not been

manufactured as fire extinguishers. (T. 64, 72-73). 
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16. The type of equipment that some RCT drivers used to spray the diesel fuel was

a cylindrical tank with a hose and nozzle that was capable of being pressurized, similar to 

the type of sprayer that is depicted in Exhibit R-1. (T. 80-81, 84-85). The cylinder depicted 

in Exhibit R-1 is pressurized by using its integrated hand pump, and it bears no labels or 

markings to indicate that it is a fire extinguisher. (T. 86-87). Other varieties of sprayers 

that are not manufactured as fire extinguishers are pressurized by connecting a pressurized 

air hose to a valve on the sprayer, in the same manner that the fire extinguisher that Tucker 

obtained from KFE is pressurized. (T. 89-91). 

17. No RCT drivers had ever used a re-purposed fire extinguisher for spraying 

diesel fuel on the interior surfaces of RCT trailers. (T. 88-89, 99). 

18. Diesel fuel has a flash point below 199.4 degrees Fahrenheit and is thus a 

“flammable liquid” as that term is defined in 29 C.F.R. § 1910.106(a)(19). (T. 40-41).

19. The National Fire Protection Association (NFPA) has promulgated a 

consensus standard designated as “NFPA 10 – Standard for Portable Fire Extinguishers,” 

the current version of which was issued in 2013. (Court Ex. 1). NFPA 10 includes a 

provision that “[f]ire extinguishers shall not be used for any purpose other than that of a 

fire extinguisher.” (Court’s Ex. 1, § 7.9.1). Another provision states that a “fire 

extinguisher that has been used for any purpose other than that of a fire extinguisher” “shall 

be condemned or destroyed.” (Ex. C-5, p. 4, § 8.4.2). 
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Discussion

The Commission obtained jurisdiction of this matter under section 10(c) of the 

Occupational Safety and Health Act (Act) upon RCT’s timely contest of the citation and 

proposed penalty. 29 U.S.C. § 659(c). At all relevant times, RCT was an employer covered 

by the Act because it met the Act’s definition of “employer.” 29 U.S.C. § 652(5).

The Act’s general duty clause mandates that each employer “furnish to each of his 

employees employment and a place of employment which are free from recognized hazards 

that are causing or are likely to cause death or serious physical harm to his employees.” 29 

U.S.C. § 654(a)(1). To prove a violation of the general duty clause, the Secretary must 

establish that: (1) a condition or activity in the workplace presented a hazard; (2) the 

employer or its industry recognized the hazard; (3) the hazard was causing or likely to 

cause death or serious physical harm; and (4) a feasible and effective means existed to 

eliminate or materially reduce the hazard. Peacock Eng'g, Inc., 26 BNA OSHC 1588, 1589

(No. 11-2780, 2017). 

The Secretary failed to prove the existence of the hazard alleged in the citation. 

Specifically, the evidence is insufficient to establish that any pressurized canister used or 

maintained by any RCT driver to spray diesel fuel had been originally manufactured as a 

fire extinguisher.

Derek DeFelice, the current terminal manager for RCT and its dispatcher at the time 

of the inspection, testified with poise and confidence that the sprayers some drivers were 

using were not manufactured to be fire extinguishers. Rather, they were simply liquid 

sprayers that had not been manufactured as fire extinguishers. DeFelice had personal 
11

knowledge of the practices of RCT’s drivers. No witness with personal knowledge of the 

drivers’ practices controverted DeFelice’s testimony. 

Some of the evidence presented to support the contrary conclusion involves the 

saga of RCT’s former terminal manager, Rick Tucker, going to the KFE store and returning 

with the battered Badger fire extinguisher provided by the storekeeper as a facsimile of the 

type of equipment KFE was selling to RCT drivers to spray diesel fuel. At the time of the 

hearing, Tucker was no longer serving as the terminal manager for RCT (T. 65, line 1), and 

the record is silent as to whether he remained in RCT’s employ. Either party was 

presumably capable of securing his presence at the hearing by compulsory process or other 

reasonable means, but neither party did. Thus, the account of the circumstances 

surrounding Tucker’s obtaining the fire extinguisher at KFE is based upon Kris McKenna’s 

testimony recounting his post-inspection conversation with the operator of KFE, which

took place sometime after July 18, 2016. (T. 67, 72-73). That hearsay testimony was not 

objected to and no evidence was presented to controvert it. McKenna’s hearsay testimony 

is reasonably probative and sufficiently reliable to support the findings of fact set forth in 

¶ 11, supra, that KFE had not been selling fire extinguishers to RCT drivers. See Monroe 

Drywall Constr., Inc., 24 BNA OSHC 1111, 1113 (No. 12-0379, 2012) (finding that 

Commission judge erred in failing to accord unobjected to hearsay testimony its “natural 

probative weight”). 

The Secretary contends that CO Chow’s one-page written narrative of her 

inspection establishes that RCT management admitted to the CO that RCT drivers were

using fire extinguishers to spray diesel fuel. The Secretary relies on the following
12

paragraph of CO Chow’s narrative report (Ex. C-2):

Mr. Carrier stated that all of his drivers were out of the 

shop. Many do not leave from the shop but rather from their 

home or other points. The drivers (Carrier employees) were 

not required to purchase the water fire extinguisher and fill 

it with pressurized diesel fuel. Mr. Carrier further stated that 

one of the drivers came up with the idea and shared it with 

others. This practice was not condoned by the employer but 

they did not stop it.

(The narrative does not indicate whether the person identified as “Mr. Carrier” in this 

paragraph is RCT’s owner, Richard Carrier, or his son, Jim Carrier. [See T. 97-98].) 

This paragraph of the narrative is of questionable reliability to prove that Mr. 

Carrier admitted or acknowledged that RCT drivers were using fire extinguishers to spray 

diesel fuel. There is no evidence indicating the date that CO Chow wrote the quoted 

paragraph, but she completed the narrative portion of her inspection report on July 14, 

2016, about three months after her inspection. Similarly, there is no evidence as to what 

extent CO Chow had an independent memory of what Mr. Carrier said on April 18, 2016,

or whether that part of her narrative was derived in whole or in part from notes she may 

have taken during her inspection (none of which were presented in evidence). There is no 

evidence to indicate the timing of the CO’s communication with Mr. Carrier—whether it 

was before or after Tucker returned from KFE with the used fire extinguisher. If the 

conversation with Mr. Carrier occurred before Tucker returned from KFE with the fire 

extinguisher, the CO could have conflated Mr. Carrier’s comments about drivers spraying 

diesel fuel with an erroneous presumption that such spraying was being done with fire 

extinguishers, rather than a pressurized sprayer that was not a fire extinguisher. It is clear 
13

from the CO’s narrative that part of her concern was the use of diesel fuel as a lubricant, 

as well as the equipment used to apply it. This is demonstrated by the following paragraph 

included in her narrative (Ex. C-2):

Mr. McKenna stated that the drivers should only use the 

diesel fuel for fueling their tractors. The drivers’ contact 

with diesel fuel is at the fuel pump when they are refueling 

their tanks. The only training involved is through their 

written haz comm, using SDSs to identify hazards. The 

drivers do not perform maintenance on their tractors 

involving the diesel lines.

This intermingling of dual concerns in the narrative makes it uncertain what the focus of 

the CO’s investigation was at any given time. The circumstances were ripe for the CO and 

Mr. Carrier to have been speaking past each other and for the possibility of 

miscommunication between them. 

This potential for confusion is further exemplified by the abatement method 

identified in the original citation (before it was amended). The original citation provided 

that “one feasible and acceptable abatement method to correct this hazard is to apply an 

approved non-stick or low friction surface to the trailer walls and floor in accordance with 

the manufacturer’s specification.” This described method of abatement appears directed 

to the practice of using a hazardous material to coat the trailer surfaces, not to the 

appropriateness of the equipment being used to apply the hazardous material. The original 

proposed method of abatement makes sense if the hazard that had been identified was the 

coating of the walls and floor of the trailers with a hazardous material. But that proposed 

abatement is a non sequitur with respect to the hazard alleged here of the potential use of a 

fire extinguisher, containing diesel fuel, to extinguish an actual fire. (T. 31).
14

If CO Chow had testified, she might well have dispelled such uncertainties about

her narrative, but she might also have come to recognize that she had misunderstood or 

mischaracterized what Mr. Carrier said. Of course, how CO Chow might have testified is 

unknown on this record. RCT presented credible testimony from Mr. DeFelice that no 

drivers were using re-purposed fire extinguishers to spray the diesel fuel. RCT also 

presented a plausible description of the circumstances surrounding the production of the 

fire extinguisher that Tucker obtained from KFE. In the face of that evidence, the CO’s 

spare written record of her inspection and other supporting evidence are not sufficiently

reliable to meet the Secretary’s burden to prove that the pressurized canisters being used 

were manufactured as fire extinguishers. 

The Secretary argues that the “missing witness” inference should be applied and 

that the trier of fact should conclude that if Mr. Carrier had testified, his testimony would 

have been unfavorable to RCT (and favorable to the Secretary). See Capeway Roofing 

Sys., Inc., 20 BNA OSHC 1331, 1342-43 (No. 00-1968, 2003) (“when one party has it 

peculiarly within its power to produce witnesses whose testimony would elucidate the 

situation and fails to do so, it gives rise to the presumption that the testimony would be 

unfavorable to that party”). The federal district court in Chevron Corp. v. Donziger, 974 

F. Supp. 2d 362, 700–01 (S.D.N.Y. 2014), aff'd, 833 F.3d 74 (2d Cir. 2016), recently 

described the contours of the missing witness inference in detail as follows (internal 

quotation marks and footnotes omitted):

A missing witness charge permitting the jury to infer that 

the testimony of an unproduced witness would have favored 

one party is appropriate if production of the witness is 
15

peculiarly within [the] power of the other party. Such an 

inference is equally permissible in bench trials. Hence, where 

one party alone could produce a material witness but fails to 

do so, an inference that the testimony would favor the 

opposing party may be appropriate. . . . By parity of 

reasoning, an adverse inference may be appropriate based on 

the failure to testify of someone closely allied with or related 

to a party, such as an employee. In the event that a witness is 

available equally to both sides, the failure to produce is open 

to an inference against both parties or neither party. Where 

the missing witness's testimony would be cumulative, 

however, the inference is not available.

In determining whether a witness is uniquely available to 

an adverse party, courts in [the Second Circuit] consider 

whether that witness is available to the party seeking the 

adverse inference, as the availability of the witness to an 

opposing party makes an adverse inference against the party 

with the closer relationship to the witness less appropriate. 

An adverse inference is not warranted, for example, where 

the controlling or related party makes the missing witness 

available to its opponent, the party seeking the adverse 

inference equally could obtain the missing witness's 

testimony, or the party seeking the adverse inference made no 

attempt to obtain the witness's testimony. Such a rule 

prevents a party from manipulating the system by choosing 

not to call a witness while claiming that the witness's 

testimony would be favorable. The availability determination 

rests on all the facts and circumstances bearing upon the 

witness's relation to the parties.

The inference that the Secretary seeks to have drawn is that if Mr. Carrier had 

testified, he would have corroborated CO Chow’s narrative that he acknowledged that 

drivers were using repurposed fire extinguishers to spray diesel fuel. The undersigned 

declines to indulge in the “missing witness” inference here for two reasons. See U.S. v. 

St. Michael's Credit Union, 880 F.2d 579, 597 (1st Cir.1989) (noting that the decision of 

whether or not to allow a missing-witness inference is within the sound discretion of the 
16

trial judge).

First, the Secretary had the burden to prove that the equipment used to spray the 

diesel fuel had been manufactured as a fire extinguisher. It was not RCT’s burden to 

disprove it. See U.S. v. Rohm & Haas Co., 47 F. App'x 125, 129 (3d Cir. 2002) (declining 

to apply adverse inference where the party urging the inference had the burden to prove the 

matter in issue and could have deposed the “missing witness” but chose not to); Boardman 

v. Nat'l Med. Enters., 106 F.3d 840, 844 (8th Cir. 1997) (noting that “[d]rawing an adverse 

inference from the failure of a party to put on key witnesses relevant to some issue is most 

reasonable when it is the party with the burden of proof on that issue who fails to do so”). 

The missing witness inference inevitably injects a substantial measure of speculation and 

supposition about what a witness would have said if called to testify. For such speculation 

to tilt the scale in favor of the party with the burden of proof effectively relaxes that party’s 

burden. The Secretary could have sought to present the testimony of Mr. Carrier in his

case-in-chief to confirm the accuracy of the CO’s narrative, particularly since the Secretary 

expected not to present CO Chow to testify respecting her communication with him. The 

Secretary, after all, called RCT’s safety manager to testify in his case-in-chief. The 

Secretary could have similarly sought Mr. Carrier’s testimony.

Second, RCT was self-represented in this matter by its safety manager, who is 

neither trained in the law nor experienced in the litigation of OSHA citations. While a

reasonably diligent attorney representing RCT may have endeavored to present Mr. 

Carrier’s favorable testimony, most pro se litigants cannot reasonably be expected to 

possess comparable litigation savvy. Cf. Wentzell, 16 BNA OSHC 1475, 1476 (No. 92–
17

2696, 1993) (noting that a “pro se employer can often be genuinely confused by legal 

terminology and the technicalities of judicial procedure; that is, even while trying to 

exercise reasonable diligence, a pro se employer can fail to grasp exactly what he is being 

asked to do”); Imageries, 15 BNA OSHC 1545, 1547 (No. 90-378, 1992) (noting that 

parties appearing pro se may “require additional consideration of their circumstances” ). 

The Secretary having failed to meet his burden to prove that any fire extinguishers 

had been used or maintained by RCT employees to spray diesel fuel, the citation must be 

vacated.2

ORDER

The foregoing decision constitutes findings of fact and conclusions of law in 

accordance with Federal Rule of Civil Procedure 52(a). If any finding is in actuality a 

conclusion of law or any legal conclusion stated is in actuality a finding of fact, it shall be 

deemed so, any label to the contrary notwithstanding. 

Based upon the foregoing findings of fact and conclusions of law, it is ORDERED 

 

2 For the citation here to have been issued before the six-month limitations period 

of 29 U.S.C. § 658(c) expired, the alleged hazardous condition would have had to have 

existed sometime after March 15, 2016. However, RCT did not raise the limitations 

defense, so that defense is deemed waived and it is not adjudicated here. See Charles W. 

Mason, DDS, & Assocs., PLLC, 25 BNA OSHC 1792, 1794 n. 4 (No. 10-2313, 2015). 

Nevertheless, it is notable that the Secretary did not allege the date or timeframe when the

alleged hazardous condition existed in his amended complaint, which is a requirement of 

Commission Rule 34(a)(2)(ii) (requiring that the complaint state “with particularity” the 

“time ... of each alleged violation”). 29 C.F.R. § 2200.34(a)(2)(ii). Similarly, no evidence 

was presented of any particular date or timeframe that any alleged re-purposed fire 

extinguisher had been present at RCT’s workplace or present on any of its vehicles or 

trailers. 
18

that Citation 2, item 1, alleging a violation of the 29 U.S.C. § 654(a), having not been 

proven, is VACATED.

SO ORDERED.

/s/William S. Coleman

WILLIAM S. COLEMAN

Administrative Law Judge

DATED: September 29, 2017