Western World, Inc.
Theme-park firearms safety citation affirmed
Apply this to your situation
This order from 2014 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
Western World operated Wild West City, a New Jersey theme park where employees used firearms in staged gunfights. An employee was seriously injured when he was shot during a performance after live ammunition had been brought to the worksite. Although the company prohibited live ammunition, it allowed performers to bring operable firearms and their own ammunition without daily inspection or centralized control. The judge found that appointing a designated safety officer to inspect and distribute firearms and ammunition was feasible and would materially reduce the recognized projectile hazard. The company's reliance on every performer as a safety officer did not provide adequate inspection or enforcement, so its employee-misconduct defense failed. The general duty clause citation was affirmed with a $1,250 penalty.
Decision snapshot
- Cited standard(s): 29 U.S.C. § 654(a)(1)
- Outcome: The general duty clause citation was affirmed with a $1,250 penalty.
- Key point: A written ban on live ammunition was inadequate without inspections and clear responsibility for controlling operable firearms and ammunition.
Full text (OSHRC public release)
Some personal identifiers have been redacted for privacy purposes
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
OSHRC DOCKET NO. 07-0144
v.
WESTERN WORLD, INC., and its successor
CAYUSE, LLC, d/b/a WILD WEST CITY,
Respondent.
Appearances:
David M. Jaklevic, Esq. and Evan R. Barouh, Esq., Office of the Solicitor, U.S. Department of Labor, New
York, New York
For Complainant
Michael Stabile, President and Mary Benson, Secretary, Western World, Inc., Netcong, New Jersey
For Respondent
Before: Administrative Law Judge Patrick B. Augustine
DECISION AND ORDER
I. PROCEDURAL HISTORY
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 et seq. (“the Act”). In response to a referral from local law enforcement, the
Occupational Safety and Health Administration (“OSHA”) began an inspection of a Western
World, Inc. (“Respondent”) worksite in Stanhope, New Jersey on July 10, 2006. 1 The referral
was made because one of Respondent’s employees had been shot during a reenactment of an Old
West-style gunfight. As a result of the inspection, OSHA issued a Citation and Notification of
Penalty (“Citation”) to Respondent alleging a single violation of Section 5(a)(1) of the Act, and
Respondent timely contested the Citation.
- Western World was the party originally named by Complainant; however, in an amendment to the Complaint,
Complainant also included Cayuse, LLC—Respondent’s successor in interest—as a party to the proceeding.
On March 12, 2007, the Court 2 issued a stay in this case in response to Complainant’s
representation that criminal charges were pending against Respondent, its owner, as well as other
individuals associated with Respondent. The criminal matter involving Respondent and
associated parties was resolved on October 12, 2012. Subsequently, Complainant filed a Motion
to Remove the Case from Simplified Proceedings, which was granted by the Court. The parties
proceeded to trial for four days on August 21–26, 2013 in New York, New York. 3 Both parties
filed post-trial briefs.
At trial, Complainant called the following witnesses: (1) Compliance Safety and Health
Officer (CSHO) Robert Markow; (2) Scott Cunneely, employee of Respondent; (3) [redacted],
former employee of Respondent; 4 (4) Michael Stabile, President of Respondent; (5) Kris
Hoffman, Area Director of OSHA’s Parsippany Office; and (6) Richard Ryder Washburn II. 5
Respondent called the following witnesses: (1) Robert Erven, former employee of Respondent
and current member of the Arizona Territorial Rangers (hereinafter “AZTR”) re-enactment
group; (2) Kenneth Hill, member of AZTR; (3) Albert Schnellbacher, current employee of
Respondent and member of AZTR; (4) Rigoberto Reyes, member of AZTR; (5) Michael Stabile;
(6) Paul Van Eeckhoven, member of AZTR; and (7) Andrew Drysdale, former employee of
Respondent and current member of AZTR.
Based upon the testimony, evidence, and after reviewing the parties’ briefs, the Court
finds that Respondent violated Section 5(a)(1) of the Act because it failed to take adequate steps
to prevent the use of and detect the presence of live ammunition at the worksite. This failure, in
turn, exposed Respondent’s employees to the hazard of being struck by projectiles during the
- This case was originally assigned to Judge John Schumacher, who dealt with the pre-trial phase of this case;
however, due to unforeseen circumstances, the case was reassigned to Judge Patrick B. Augustine, who presided
over the trial. - The trial began on Wednesday, August 21, 2013 and concluded on Monday, August 26, 2013.
- [redacted] deposition testimony was replayed for the Court in lieu of live, in-person testimony.
- Complainant called Mr. Washburn to provide expert testimony regarding the industry standard for weapons
handling in the entertainment industry. The Court subsequently struck his testimony from the record.2course of their duties at their place of employment, which could result in serious bodily harm or
death.
II. FINDINGS OF FACT
A. Background
Respondent runs a western theme park called Wild West City in Stanhope, New Jersey.
(Tr. 68). The theme park is modeled after Dodge City, Kansas in the 1880’s. It has been in
operation since 1957 and run by the Stabile family since 1963. (Tr. 856). The theme park is
typically open from Memorial Day to Columbus Day and houses exhibits, stores, and rides;
however, the primary attractions are live action shows, which include reenactments of historical
and quasi-historical events in the Wild West, such as the Gunfight at the OK Corral and the
Sundance Kid. (Tr. 68, 219, 768; Ex. C-1 at 19). There are 22 reenactments or performances
that are performed daily by approximately 25 of Respondent’s employees, as well as by
members of the AZTR, a non-profit reenactment group that works in conjunction with
Respondent and is housed on Wild West City grounds. (Tr. 69, 78, 88). The performances
primarily take place along what is known as Main Street and include, as is relevant to the present
proceeding, staged shootouts between “good cowboys” and “bad cowboys”. (Tr. 79, 219–20).
According to Stabile, approximately ten of the performances include gunfight sequences, though
most if not all performances include guns as part of the performers’ costumes. (Tr. 878).
B. Handling and Use of Firearms and Ammunition
For the gunfight sequences, performers 6 use different types of guns, including prop guns,
which are rubber, wooden, or otherwise non-functioning; blank-firing guns, which are capped
and cannot fire projectiles; and operable firearms, which are capable of firing live ammunition.
- The Court shall use the term “performer” when it is referring generally to participants in the
reenactments/performances. As noted above, not all of the performers are employees of Respondent; some of the
performers are members of the AZTR reenactment group. When necessary, the Court will refer to specifically to
Respondent’s employees or members of the AZTR; otherwise, it shall use the general term.3(Tr. 89, 863). Respondent provides some of these guns to the performers depending on their role
in the performance; however, performers are allowed to bring their own blank-firing or operable
firearms. (Tr. 363; Ex. C-1 at 34). In July 2006, at least ten performers brought their own
firearms to the worksite for use in the performances. (Tr. 107, 363–366, 742, 837, 958, 997; Ex.
C-1 at 34). Of the ten performers that brought their own firearms, at least six of them brought
operable firearms capable of firing live ammunition. (Id.).
Prior to the first performance of the day, a senior cowboy would retrieve the firearms
owned by Respondent from a safe located in the Town Hall building. (Tr. 644; Ex. C-1 at 43–
45). The senior cowboy brought the guns to the Opera House, which Respondent’s employees,
including Stabile, used as a dressing room. 7 (Tr. 236, 239, 652; Ex. C-1 at 45). The dressing
room also contained a gun rack that housed an operable shotgun. (Tr. 370; Ex. C-8, C-9, C-10).
The guns were either distributed directly to the employees or were placed in an open shelving
unit located in the dressing room. (Ex. C-1 at 38, 54). Once the guns were removed from Town
Hall, they were not locked or secured; however, many of the performers testified that the guns
were typically maintained on their persons for the entire day. (Ex. C-1 at 38). Although
uncommon, some of the witnesses testified that guns were exchanged throughout the day if an
employee needed a particular gun for a show. (Ex. C-1 at 43).
As noted above, not all employees used the guns provided by Western World; some of
them used their own privately purchased guns. If an employee wished to use his own gun, that
employee was required to submit his Firearms I.D. card and purchase permit to Stabile for
approval. (Tr. 108, 823, 880). In addition to reviewing the Firearms I.D. card and purchase
permit, Stabile inspected the firearm. (Tr. 366). Once approved, employees were allowed to
bring their own firearms to the worksite and use those firearms in performances. (Tr. 107–109,
- According to Scott Cunneely, Stabile was in the Opera House dressing room at least one time per day. (Tr. 236).
4366, 667, 840). The initial approval was the only time that the firearm or certification was
inspected by Respondent. (Id.). This is so even though Respondent did not prohibit employees
from using their privately owned firearms outside of the worksite. (Tr. 368–69, 923–25).
Even though operable firearms were permitted, Respondent only allowed the use of blank
ammunition for performances. (Tr. Ex. C-13). According to the written Gun Safety Review, no
live ammunition was allowed on the worksite. (Ex. C-13; R-3). At the beginning of the day, in a
manner similar to the distribution of firearms, Respondent supplied approximately 150 to 200
blank rounds, nearly all of which were used over the course of the entire day’s performances.
(Tr. 882; Ex. C-1 at 121). One person, typically Rick McPeek, would retrieve the blank
ammunition from the safe in Town Hall and bring it to the Opera House dressing room. (Tr.
111, 178–79, 643–44, 882). McPeek would then give one box of blanks each (approximately 50
rounds) to two or three senior cowboys, who would then distribute the blanks to the remaining
actors as needed throughout the day. (Tr. 239, 882). According to [redacted], a senior cowboy,
the ammunition was distributed in a number of ways: boxes were left on an open shelf or dresser
in the Opera House dressing room; blank rounds were kept in a glass bowl; blanks were
distributed by senior cowboys who kept extras in their costume pockets; and some were kept in a
vest that was hung in the dressing room. (Tr. 111, 644, 844; Ex. C-1 at 47–50). Employees were
also allowed to exchange ammunition with one another—if an employee ran out or needed
additional blanks, he could ask another performer for ammunition without going through a safety
officer or centralized distribution scheme. (Tr. 110–12, 239, 372). A number of Respondent’s
witnesses disputed this version of the facts; however, the Court finds that those witnesses were
not in a position to closely observe the distribution scheme in the Opera House dressing room.
Many of Respondent’s witnesses were members of the AZTR, which used the Surrey Shop as its
dressing room and only came into the Opera House once a day in the morning in order to check
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the daily performance schedule. (Tr. 111, 661, 760). Thus, the Court credits [redacted]
testimony regarding how ammunition and guns were distributed by Respondent.
Respondent was not the only supplier of blank rounds. Employees were permitted to
bring their own blank rounds, so long as they complied with the Gun Safety Review, which
indicated what types of blank rounds were acceptable. (Tr. 371; C-1 at 50–52, C-13). This
included nail gun blanks that could be purchased at a hardware store. (Tr. 113). Respondent did
not have a designated employee or safety officer to inspect the personally supplied blank
ammunition. (Tr. 113–114, 371). In that regard, Stabile testified that he could tell that it was
blank ammunition “by the sound it made.” (Tr. 371).
Even though the Gun Safety Review on its face called for a single safety officer,
according to Stabile, “everyone [was] a safety officer” at Wild West City, which meant that, in
practice, there was no designated safety officer. (Tr. 360; Ex. C-13). Respondent contends that
the context of the document clearly indicates that safety officers were only required for off-site
events; however, this explanation stands in contrast to how AZTR understood and implemented
the policy that it drafted and that Respondent subsequently adopted. As described more fully
below, AZTR utilized a safety officer for both off-site events and for events at Wild West City.
(Tr. 980–83).
C. Training
In order to become a performer in Wild West City performances involving firearms,
employees were required to take part in a training program that consisted of three parts. First,
employees reviewed and discussed the Gun Safety Review and took a gun safety course.
Second, employees were placed on a probationary period wherein they were only allowed to use
prop guns, which allowed them to practice the basics involving where to aim and how far to
stand away from other performers when firing. Finally, at the end of the probationary period,
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employees were required to do a review of the policy with a senior performer to ensure they
knew and understood the requirements. (Tr. 227–28, 673–77, 754; Ex. C-13, R-3).
During training, each employee signed a form, which provided the various rules and
restrictions regarding the use of firearms at Wild West City. (Ex. C-13). Those rules were
memorialized in a document entitled “Wild West City Gun Safety Review” and included the
following:
REAL guns of any type are NOT ALLOWED at WWC without
EXPRESS permission from the owners of WWC . . . ALWAYS check
with the Unit Safety Officer or the designated Event Safety Officer
FIRST.
Preferred Pistols are blank firing only style “non-guns” . . . Real .22 cal.
single action six gun – firing .22 cal. #1, 2, 3, 4 blanks (ONLY WITH
WWC PERMISSION).
Real Guns REQUIRE: . . . Lock case for transport of any hand gun . . . 2nd
lock case for ammo transport . . . All guns will be locked in trunk of car or
in a locked case if no trunk.
NEVER allow anyone access to your gun, keep it strapped in, do not hand
it to customers for any reason EVEN NON-GUNS!
NO ONE may load, let alone discharge a weapon at any event until briefed
by the safety officer as to if, where and when.
NO REAL AMMO EVER! NOT EVEN LOCKED IN YOUR CAR!!
(Ex. C-13). Other than the few remaining signed copies of the Safety Review, there is very little
in the way of training documentation. According to Van Eeckhoven, many of the signed copies
went missing during an office move. (Tr. 956).
Respondent hired a number of individuals with varying degrees of experience: Scott
Cunneely was hired having never handled a gun before, whereas people like Hill and
Schnellbacher had previously worked as police officers and had extensive experience in weapons
handling. (Tr. 224–26, 670, 735). While it appears that a number of Respondent’s employees
participated in the aforementioned training, including former police officers, there were a few
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individuals that did not go through the training course. These individuals included Chuck
McCloud, who was a Hollywood stuntman with previous experience handling firearms, and Ron
Benson, who grew up at Wild West City and maintained a hunting license. (Tr. 916–918).
[redacted] testified that he did not receive training and did not sign the Safety Review sheet until
after the incident that led to the present action; however, Van Eeckhoven testified that he
provided [redacted] training and struggled to get [redacted] to sign the Safety Review sheet. (Tr.
952–53; Ex. C-1 at 32, 84).
D. Arizona Territorial Rangers
The AZTR is a non-profit, volunteer reenactment group that was formed in 1998 by Paul
Van Eeckhoven and Andrew Drysdale. 8 (Tr. 938). According to Van Eeckhoven, prospective
members had to have a “desire to relive the old west” and “show proficiency in the knowledge
about firearms.” (Tr. 938). Because not all individuals that wanted to join had such proficiency,
AZTR drafted safety policies and provided safety courses. (Tr. 939). In developing the AZTR
policy, the group reviewed standards from various reenactment groups, insurance company
policies, as well as a target shooting group known as the Single Action Shooters Society, which
is a group that seeks to portray living history through the use of old west style guns. (Tr. 941–
43; Ex. R-14). Ultimately, the policy developed by AZTR was adopted by Respondent. (Tr.
945; Ex. R-3).
AZTR members participated in the reenactments at Wild West City alongside
Respondent’s employees, but they are not employees of Respondent. 9 (Tr. 938, 979). On
occasion, however, AZTR members, such as Van Eeckhoven, would provide training to
Respondent’s employees when it was requested by Respondent. (Tr. 951). Otherwise, AZTR
- Another founding member was Bob Copax; however, Mr. Copax did not testify at trial.
- Some members of the AZTR, such as Paul Van Eeckhoven and Robert Erven, used to be employees of
Respondent and then became members of AZTR. In other cases, such as Albert Schnellbacher, were originally
members of the AZTR and then became Wild West City employees; however, Schnellbacher did not become an
employee of Respondent until the summer of 2010.8members dressed and prepared in a different building (Surrey Shop) than Respondent’s
employees and, although based on the same document (Ex. C-13), implemented a more rigorous
safety policy than Respondent with respect to the use, distribution, and handling of firearms and
ammunition. (Tr. 980–82).
According to Van Eeckhoven, regardless of whether an event was off-site or on Wild
West City grounds, AZTR had a designated safety officer or NCO (non-commissioned officer) to
distribute ammunition and perform daily checks of the personally owned firearms that were
brought to the worksite. (Tr. 980–982). Stabile, on the other hand, stated that the singular
“safety officer” indicated in the Gun Safety Review was for off-site events only. (Tr. 908). As
previously noted, Respondent considered every employee to be a safety officer while on Wild
West City grounds.
E. The [redacted] Incident
On July 7, 2006, [redacted], a senior cowboy employed by Respondent, was seriously
injured while performing in the Sundance Kid show at Wild West City. (Tr. 377). According to
medical reports that were submitted into evidence, Dr. Devashish Anjara found a “bullet hole
through [Mr. [redacted]] left frontal bone”, a “bullet tract extending from the left frontal scalp in
a parasagittal pan through the frontal, parietal, and occipital lobes”, and a bullet fragment lodged
“above [Mr. [redacted]] tentorium cerebelli in the midline against the calvaria.” (Ex. C-18). Put
simply, [redacted] had been shot in the head during a performance at Wild West City.
On the day of the incident, [redacted] brought two boxes of live ammunition to Wild
West City. (Tr. 114–116, 245–46, 377–80; Ex. C-1). [redacted] left the live ammunition in his
gun case, which was unlocked and left in the open on a dresser in the Opera House dressing
room, alongside a box of blank ammunition. (Tr. 120–21, 240–41, 928–32; Ex. C-1 at 57, 69, C-
12). Respondent did not check [redacted] case or the ammunition he brought to the worksite.
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(Tr. 384). [redacted] testified that he brought live ammunition to work every day that season and
that he told other employees about it, though he admitted that he did not tell Stabile or Mary
Benson. (Ex. C-1 at 67–68). According to [redacted], other performers, including [redacted]
and Ed Schanings, also brought live ammunition to Wild West City. (Ex. C-1 at 69, 85).
Before the Sundance Kid show began, the performers, including [redacted] and
[redacted], were in the Opera House dressing room getting ready for the performance. (Tr. 233,
245, 647). In accordance with procedure, the performers obtained ammunition and loaded their
firearms for the show. (Tr. 247; Ex. C-1 at 66–67). At the time, at least four of the performers
used operable firearms for the Sundance Kid show. (Tr. 167–68; 384). Once the performers
were dressed and their guns were loaded, they left the Opera House a few minutes prior to the
start of the performance and got ready to start the show. (Tr. 261, 821–22).
The show began as scripted and culminated in a gun fight in which the good cowboys and
bad cowboys stand across from each other and fire their weapons until only the good cowboys
are left standing. (Tr. 79–80). As part of the training, performers are taught not to aim their
guns directly at their targets; rather, they are instructed to aim to the side and towards the ground.
(Tr. 127). On this day, however, [redacted], who was one of the good cowboys, fell to the
ground at the conclusion of the gun fight, which was inconsistent with the script. (Tr. 114–15,
245–46; Ex. C-1 at 65–67). The other performers realized that something was amiss and went to
check on [redacted]. (Id.). The performers noticed that [redacted] leg was twitching and that
there was a pool of blood next to his head. (Id.). Someone called emergency services and
[redacted] was taken to New Jersey University Hospital. (Id.).
After the incident, Stabile searched the Opera House Dressing Room and found the live
ammunition in [redacted] gun case. (Tr. 379). Stabile removed the live ammunition and placed
it in a safe in his office until the police asked him to turn it over approximately three days later.
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(Tr. 379–82). Even though this was a clear violation of Respondent’s firearms policy, Stabile
did not fire [redacted] until three weeks after the ammunition was found in his gun case. (Tr.
384).
Local law enforcement referred the incident to the Parsippany Area Office, which sent
CSHO Markow to Wild West City. CSHO Markow began his inspection the following day. (Tr.
79). As a result of the inspection, Respondent was cited for a violation of the general duty clause
for failing to protect its employees from the hazards associated with the use of operable firearms.
F. Post-Incident Policy Changes
Since the incident involving [redacted], Respondent has implemented a number of
changes to its firearms and ammunition procedures. First, only blank-firing guns are allowed for
performances. (Tr. 388). Second, the guns are no longer brought to the Opera House. They are
taken to the Marshal’s Office at the beginning of the day, and a single designated safety officer
(this person may change depending on the day) is responsible for the distribution of guns and
keeping a log of gun assignments. (Tr. 388, 401–405, 656). Once a gun is issued, the performer
is required to use the same gun throughout the course of the day. (Id.). Any guns that are not
being used remain locked in the Marshal’s Office. (Id.). At the end of the day, all performers
are required to return their guns to the safety officer for inspection. Performers are allowed to
use their personal, blank-firing guns; however, those guns must also be inspected by the safety
officer both prior to use and at the end of the day. At the conclusion of the day’s performances,
the guns owned by Respondent are returned to the safe in the Town Hall. (Id.).
Similarly, Respondent now issues its blank ammunition from the Marshal’s Office
through a designated safety officer. (Tr. 401–403, 656–57). Each performer is allocated six
blank rounds per individual performance. (Tr. 656). If a performer needs additional rounds for
another performance, he must return to the Marshal’s Office prior to the beginning of the next
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show. (Tr. 657). Performers are no longer allowed to exchange ammunition or firearms. (Tr.
401). Kenneth Hill, a performer at Wild West City, testified that the new process of distribution
is actually faster than it was under the system as it existed prior to July 6, 2006. (Tr. 714).
III. JURISDICTION
The Court finds that the Act applies and the Commission has jurisdiction over this
proceeding pursuant to § 10(c) of the Act, 29 U.S.C. § 659(c). The Act covers employers, which
is defined as a “person engaged in business affecting commerce who has employees.” 29 U.S.C.
§ 652(5). According to Section 3(4) of the Act, a “person” is defined as “one or more
individuals, partnerships, associations, corporations, business trusts, legal representatives, or any
organized group of persons.” Id. § 652(4). Both Western World, Inc. and Cayuse, LLC are
business entities located in and organized under the laws of the State of New Jersey. (Resp’t
Answer at ¶ 2; Tr. 359–361). Both Western World and Cayuse were (or are) in the business of
operating Wild West City, a western theme park. (Resp’t Answer at ¶ 2). Thus, Respondent is a
“person” as defined by the Act.
Respondent’s business also affects commerce, which is defined as “trade, traffic,
commerce, transportation, or communication among the several States, or between a State and
any place outside thereof . . . .” 29 U.S.C. § 652(3). This term has been broadly interpreted by
the Commission to apply to employers who use products or tools that have moved in interstate
commerce and those whose business attracts out of state customers. See, e.g., U.S. v. Dye
Constr. Co., 510 F.2d 78, 83 (10th Cir. 1975) (holding that purchase and use of equipment from
out-of-state sources is sufficient); Avalotis Painting Co., 9 BNA OSHC 1226 (No. 76-4774,
1981) (finding jurisdiction where employer made use of products made out of state and that had
moved in commerce); Deauville Operating Corp., 5 BNA OSHC 1959 (No. 77-118, 1977) (ALJ)
(finding jurisdiction where hotel attracted interstate and intrastate customers). Respondent
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admitted that it uses materials and supplies shipped from outside of New Jersey, sells souvenirs
that are shipped from both California and Tennessee, and attracts customers from outside New
Jersey. (Resp’t Answer at ¶ 3; Tr. 361–362). These activities illustrate that Respondent is
engaged in a business affecting commerce pursuant to the Act.
Finally, the Court also finds that Respondent is an employer that has employees. See 29
U.S.C. § 652(6). Respondent admitted that it employed approximately 75 employees at the time
of the OSHA inspection of Wild West City. (Tr. 77–78, 361; Ex. C-26).
Based on the foregoing, the Court finds that, at all times relevant to this matter, it was an
employer engaged in a business affecting commerce within the meaning of § 3(5) of the Act, 29
U.S.C. § 652(5). Slingluff v. OSHRC, 425 F.3d 861 (10th Cir. 2005).
IV. Conclusions of Law
A. Citation 1, Item 1
Complainant alleged a serious violation of the Act in Citation 1, Item 1 as follows:
Section 5(a)(1) of the Occupational Safety and Health Act of 1970: the
employer did not furnish employment and 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 hazards from projectiles during performances involving
shooting.
The employer exposed employees to a hazard of being struck by bullets or
projectiles when firearms were used by employees reenacting shootouts.
Among other methods, one feasible and acceptable abatement method to
correct this hazard is to appoint an armorer/safety officer who inspects and
distributes all firearms and ammunition for everyone on site for every
performance/show.
The cited standard provides:
Each employer shall 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.
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29 U.S.C. § 654(a)(1).
To establish a prima facie violation of Section 5(a)(1) of the Act, also known as the
general duty clause, Complainant must prove by a preponderance of the evidence that: (1) a
condition or activity in the workplace presented a hazard to employees; (2) the employer or its
industry recognized the hazard; (3) the hazard was likely to cause death or serious physical harm;
and (4) a feasible and effective means existed to eliminate or materially reduce the hazard.
Kokosing Constr. Co., 17 BNA OSHC 1869 (No. 92-2596, 1996). The evidence must also show
that the employer knew or with the exercise of reasonable diligence, should have known of the
hazardous condition. Otis Elevator Company, 21 BNA OSHC 2204 (No. 03-1344, 2007).
i. The Use of Operable Firearms and the Presence of Live Ammunition
Presented a Hazard to Respondent’s Employees
“As part of [his] burden, the Secretary must define the cited hazard in a manner that gives
the employer fair notice of its obligations under the Act by specifying conditions or practices
over which the employer can reasonably be expected to exercise control.” Otis Elevator Co., 21
BNA OSHC 2204 at *3 (No. 03-1344, 2007) (citations omitted). Complainant does not need to
show that an actual injury occurred to prove a violation of the general duty clause; rather,
Complainant must show that it was “reasonably certain that some employee was or would be
exposed to the danger” of the cited hazard. See Mineral Indus. & Heavy Constr. Group, 639
F.2d 1289, 1294 (5th Cir. 1981); see also Usery v. Marquette Cement Mfg. Co., 568 F.2d 902,
910 (2d Cir. 1977); Kansas City Power & Light Co., 10 BNA OSHC 1417, 1423 (No. 76-5255,
1982) (holding that it is the hazard, not the specific incident resulting in injury, that is relevant in
determining existence of hazard).
As noted above, Respondent allowed its employees to use operable firearms during
performances at Wild West City. Some of the firearms were owned by Respondent and others
were brought to the worksite by Respondent’s employees. CSHO Markow testified that the use
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of operable firearms exposed Respondent’s employees to the hazard of being struck by
projectiles or bullets during the course of the choreographed gunfights, wherein performers
would aim their weapons in the “general direction” of other performers. (Tr. 81, 135, 205).
Throughout the course of the day, approximately 150 to 200 shots were fired during these
performances.
Many of Respondent’s witnesses, including Stabile himself, testified to the hazards
associated with the use of firearms in reenactments. Paul Van Eeckhoven, one of the founding
members of the AZTR who was instrumental in drafting the Gun Safety Review, testified that
there are a number of inherent risks associated with the use of firearms, including the possibility
of being shot. (Tr. 936–37). Kenneth Hill and Glenn Schnellbacher, who were both members of
the AZTR at the time of the incident and were former police officers, testified that there are
serious risks in using operable firearms, including serious injury and death. (Tr. 669–71).
Underscoring the concern about the possibility of being shot, Van Eeckhoven testified
that members of AZTR were prohibited from ever using live ammunition in the operable
firearms that they used in Wild West City performances. (Tr. 970–71). The purpose of this, of
course, was to prevent the possibility that live ammunition could be inadvertently brought to the
worksite, which, according to Van Eeckhoven, was “always on everyone’s mind.” (Tr. 964). In
contrast, however, Respondent imposed no such restrictions, nor, as will be seen below, did
Respondent conduct inspections of privately owned, operable firearms to prevent the presence or
use of live ammunition.
Although Complainant is not required to show that the presence of a particular hazard
resulted in an injury, the fact that an injury occurred is strong evidence that the hazard existed.
[redacted] testified that, on July 7, 2006, he brought live ammunition to the worksite. 10 On that
- In fact, according to [redacted], he had brought live ammunition to Wild West City every day that he worked
15same day, during a simulated gunfight at Wild West City, [redacted] was shot in the head. The
only reasonable inference from this state of affairs is that [redacted] was shot by a live bullet that
was fired from an operable firearm. Okland Construction Co., 3 BNA OSHC 2023, 2024, (No.
3395, 1976) (reasonable inferences can be drawn from circumstantial evidence). This, in and of
itself, is sufficient to show that Respondent’s employees were exposed to a hazard. See Otis
Elevator, 21 BNA OSHC 2204 (“Indeed, the record establishes that McQuillen’s death was the
result of the hazard posed by a load free falling into an elevator pit while an employee is riding
in the car sling.”).
Nevertheless, Respondent contends that there was no hazard because it had a policy
prohibiting the presence of live ammunition on Wild West City grounds and that, in 49 years of
operation, [redacted] was the only person that was shot. The Court disagrees. The fact that no
injuries have occurred over the course of 49 years does not disprove the existence of a hazard.
See Kaspar Electroplating Corp., 16 BNA OSHC 1517 at * 7 (No. 90-2866, 1993) (“Although
there was testimony that no injuries had occurred involving the grinder in its 32–year history,
that in itself does not disprove the existence of a hazard.”). As to Respondent’s argument that its
policy was sufficient to negate or materially reduce the hazard, the Court shall address that issue
in Section IV.B, which addresses the defense of unpreventable employee misconduct. See
Connecticut Light & Power Co., 13 BNA OSHC 2214 (No. 85-1118, 1989) (holding that an
employer is not in violation of section 5(a)(1) if it has established work rules designed to prevent
the hazards from occurring, has adequately communicated the work rules, has taken steps to
discover noncompliance, and has effectively enforced the rules).
Ultimately, the presence of operable firearms, the fact that [redacted] brought live
ammunition to the worksite, and the fact that [redacted] was shot during a Wild West City
during the summer of 2006. (Ex. C-1 at 67).
16
performance clearly establish that Respondent’s employees were exposed to the hazard of being
shot by live ammunition.
ii. Respondent Recognized the Hazard
Not only were Respondent’s employees exposed to a hazard, Respondent recognized
dangers associated with allowing the use of operable firearms during Wild West City
performances. According to the Commission, “a hazard may be recognized by the individual
employer itself or by its industry.” Wiley Organics, Inc., 17 BNA OSHC 1587, 1591 (No. 91-
3275, 1996). Complainant’s burden can be met by showing that Respondent had a work rule
prohibiting a practice that presents a hazard. See Otis Elevator Co., 21 BNA OSHC 2204 at *4
(holding that evidence of a work rule established that respondent recognized the hazard) (citing
Ted Wilkerson Inc., 9 BNA OSHC 2012, 2016 (No. 13390, 1981)). In this instance,
Complainant’s burden is easily met.
Respondent’s recognition of the hazard in this instance is two-fold. First, Stabile testified
that Respondent “always recognized that there are hazards associated with firearms” at Wild
West City. (Tr. 871). Secondly, Respondent had a work rule that addressed the hazard. The
Gun Safety Review document, which was adopted by Respondent, specifically states “NO REAL
AMMO EVER! NOT EVEN LOCKED IN YOUR CAR!!” (Ex. C-13) (emphasis in original).
The contents of the Gun Safety Review were discussed prior to an employee performing at Wild
West City, reiterated during the employee’s probationary period, and was reviewed again prior to
any employee using an operable or blank-firing firearm. As noted above, Van Eeckhoven
testified that the possibility of live ammunition being brought to the worksite was “always on
everyone’s mind.” (Tr. 964). This clearly indicates that Respondent not only recognized the
hazard, but it also ensured that each of its employees were aware of the hazard as well.
17
Although both parties presented evidence related to how Respondent’s business should
be characterized—thus calling into question the proper industry standard—the Court finds that
such evidence is unnecessary to resolve the question of whether Respondent recognized the
hazard. 11
iii. The Hazard was Likely to Cause Death or Serious Physical Harm
The Court also finds that the hazard was likely to cause death or serious physical harm.
Such a finding is akin to the determination that a violation of a specific standard is “serious”,
which means that there is a substantial probability that death or serious physical harm could
result from the violative condition. 29 C.F.R. § 666(k). In that regard, Complainant need not
show that there was a substantial probability that an accident would actually occur; he need only
show that if an accident occurred, serious physical harm could result. Phelps Dodge Corp. v.
OSHRC, 725 F.2d 1237, 1240 (9th Cir. 1984).
In this case, almost every single witness testified that that the use of operable firearms
poses the dangers of serious injury and potentially death. (Tr. 135, 671, 736, 937). Further, the
fact that [redacted] was injured also demonstrates how dangerous the use of operable firearms
can be. See Marquette Cement Mfg. Co., 568 F.2d at 910 (“The fact that the activity in question
actually caused death or serious injury constitutes at least prima facie evidence of likelihood.”).
[redacted] was shot in the head with a bullet from an operable firearm during a performance at
Respondent’s worksite, and his injury resulted in serious physical injury. (Ex. C-18).
Complainant has met his burden by establishing the hazard that existed was likely to cause
serious physical injury or death if left unabated.
iv. A Feasible and Effective Means Existed to Eliminate or Materially
Reduce the Hazard
- In that regard, the Court finds that the testimony of Complainant’s expert, Richard Ryder Washburn II, is
unnecessary to reach the conclusion that Respondent recognized the hazard.18To prove a violation of the general duty clause, Complainant must “specify the particular
steps a cited employer should have taken to avoid citation, and . . . demonstrate the feasibility
and likely utility of those measures.” Nat’l Realty & Constr. Co. v. OSHRC, 489 F.2d 1257,
1268 (D.C. Cir. 1973). As part of his burden, Complainant “must define the hazard in a manner
that gives the employer fair notice of its obligations under the Act by specifying conditions or
practices which are within the employer’s control.” Mark A. Rothstein, Occupational Safety and
Health Law 290 (2013) (citing Beverly Enterprises, Inc. v. Herman, 119 F. Supp. 2d 1 (D.D.C.
2000)). A feasible abatement measure is one that will eliminate or materially reduce the hazard.
See Arcadian Corp., 20 BNA OSHC 2001. Thus, it is incumbent upon Complainant to introduce
evidence that the measures employed by Respondent were inadequate. See United States Postal
Svc., 21 BNA OSHC 1767 (No. 04-0316, 2005). The Court finds that Complainant has met his
burden.
Although Respondent contends that the measures it employed prior to July 7, 2006 were
effective, the evidence belies that contention. To be sure, there are facial similarities between the
policy previously employed by Respondent and the measures proposed by Complainant;
however, as a whole, the measures employed by Respondent were clearly inadequate to the task
of materially reducing the hazards associated with operable firearms. In particular, the Court
finds that Respondent’s program as it existed prior to July 2006 exhibited two major problems.
First, and perhaps most important, was the fact that Respondent did not inspect
personally owned weapons or personally purchased ammunition prior to their use in Wild West
City performances. Stabile testified that personally owned firearms were inspected the first time
they were brought to Wild West City; however, there is no indication that any subsequent
inspections of those firearms ever occurred. Likewise, Respondent did not inspect personally
purchased blank ammunition. In fact, Stabile underscored this failure when he testified that he
19
could tell whether someone was using blanks “by the sound it made.” (Tr. 371). Such a process
of inspection, if it may be so called, does nothing to prevent a live round from being fired in the
first place. The Court recognizes that the new regime does not guarantee that a rogue performer
will not slip a live round into the gun, but regular, daily inspections of a performer’s personally
owned firearm will materially reduce the hazards associated with allowing their use. See
Morrison-Knudsen Co., Inc., 16 BNA OSHC 1105, 1122 (No. 88-572, 1993) (“[T]he Secretary
need only show that the abatement method would materially reduce the hazard, not that it would
eliminate the hazard.”).
Along those same lines, the Court finds that, by allowing personally owned, operable
firearms, Respondent had a heightened obligation to perform the type of inspection proposed by
Complainant. According to the Commission, “Effective implementation of a safety program
requires a diligent effort to discover and discourage violations of safety rules by employees.”
American Sterilizer Co., 18 BNA OSHC 1082, 1087 (No. 91-2494, 1997). The failure to
conduct any inspection beyond the initial review of a performer’s firearm or ammunition they
bring to the worksite represents a critical failure to perform the type of inspections that would
materially reduce the hazards associated with the use of firearms capable of firing live
ammunition.
Second, Respondent effectively shifted its responsibility to ensure a safe workplace to
each of its employees. In the words of Stabile, “We consider every actor that passes the Wild
West City gun safety review to be a safety officer . . . .” (Tr. 928). While this sounds appealing,
the practical effect is that each individual is only responsible to him/herself and that no one is
taking responsibility for anyone else. See, e.g., Armstrong Cork Co., 8 BNA OSHC 1070, 1074
(No. 76-2777, 1980) (“An employer cannot shift responsibility to its employees by relying on
them to, in effect, determine whether the conditions under which they are working are unsafe.”).
20
While everyone was a designated “safety officer”, Stabile testified that none of those “safety
officers” had the authority to take action against a fellow employee for a breach of the rules, i.e.,
fire or take disciplinary action. (Tr. 385). The Court agrees with Complainant that “when
everyone is responsible, no one is responsible.” Compl’t Br. at 34. Complainant has established
Respondent’s measures that were in place prior to the July 2006 incident were inadequate. The
Court will now proceed to evaluate the feasibility of the proposed abatement method.
In the citation, Complainant proposed the following abatement method:
Among other methods, one feasible and acceptable means of abatement to correct
this hazard is to appoint an armorer/safety officer who inspects and distributes all
firearms and ammunition for everyone on site for every performance/show.
Citation and Notification of Penalty at 6. CSHO Markow, as well as a number of Respondent’s
own witnesses testified that the abatement method proposed in the Citation has been used by
other reenactment groups. (Tr. 134, 999–1004). Andrew Drysdale and Paul Van Eeckhoven
both testified that reenactment groups typically employ a safety officer (sometimes referred to as
an armorer or NCO) to inspect all weapons and ammunition prior to the beginning of a
performance, as well as at the conclusion thereof. (Tr. 959–60, 999–1004). Van Eeckhoven,
who drafted the Gun Safety Review that was subsequently adopted by Respondent, testified that
he relied on Old West Living History Foundation’s “Safety Guidelines” in formulating the Gun
Safety Review. (Tr. 941; Ex. R-14). The Foundation’s Guidelines require all individuals to
check-in their firearms with a designated safety officer, who is also in charge of maintaining all
ammunition under his control and supervision. (Ex. R-14). These safety measures are designed
to prevent the possibility that an individual would improperly load his firearm with live
ammunition and, thus, materially reduce the risks associated with the use of operable firearms.
That other similarly situated performance groups utilize the proposed abatement measures is a
testament to their feasibility.
21
Complainant, through its examination of Stabile and its cross-examination of
Respondent’s witnesses, was able to show that its proposed abatement methods were both
technologically and economically feasible. As noted above, Respondent acknowledged that it
has implemented the changes suggested by Complainant: personally owned firearms are
inspected at the beginning of the day; company-owned firearms are distributed by a designated
safety officer from the Marshal’s Office; and blank ammunition is distributed on a performance-
by-performance basis from a central source, with no more than six rounds being issued at one
time to any individual performer. That these measures have been in place since the incident
involving [redacted] in 2006 and Respondent continues to operate under these measures is
further evidence that the proposed measures are feasible. 12 In fact, as previously noted, Kenneth
Hill, a performer at Wild West City, testified that the new process of distribution and inspection
is actually faster than it was under the regime that existed prior to July 6, 2006. (Tr. 714).
That Respondent has gone beyond the abatement measures suggested by Complainant
and now, for example, only allows blank-firing guns does not in any way detract from the
effectiveness of having a single point of distribution and inspection for both ammunition and
company-owned firearms. In fact, Commission case law suggests it is acceptable to allow
Respondent some measure of discretion in how it chooses to implement the specified abatement
measures because the employer will be in a better position to evaluate workplace-specific
conditions. See, e.g., Gen. Dynamics Land Syst. Div., Inc., 15 BNA OSHC 1275, 1287 (No. 83-
1293, 1991). For example, in Tampa Shipyards, Inc., the Commission found that it was
acceptable to leave it to the company to develop the specifics of a written crane safety policy. 15
BNA OSHC 1533 (Nos. 86-360 & 86-469, 1992). In this case, Complainant stipulated that
Respondent’s current safety procedures have effectively abated the cited hazard.
- The foregoing evidence indicates that the Court did not need the testimony of any expert witnesses on the issue
of feasibility as there was sufficient evidence submitted on this topic through the testimony of lay witnesses.22Respondent failed to produce any evidence to suggest that the methods proposed by
Complainant and enacted by Respondent were either technologically or economically infeasible.
Additionally, it would be very difficult for Respondent to prevail in any such argument based on
its adoption of the proposed abatement measures. (Tr. 401–403, 656–57). Many of the problems
identified by Respondent with Complainant’s proposed abatement methods are either highly
speculative or are already dealt with through existing rules and procedures. 13 Further,
Respondent appears to have misunderstood the recommended abatement. Nowhere did
Complainant suggest that Respondent should be required to only use blank-firing weapons, nor
did it suggest that someone should load the weapons for each of the actors. Rather, Complainant
has proposed that weapons be inspected prior to use and that ammunition and company-owned
firearms be distributed from a single source.
The foregoing illustrates Complainant has established that Respondent failed to properly
address the hazards present at Wild West City. Although Respondent had some rules in place,
those rules were insufficient in light of Respondent’s policy, which allowed the use of personally
owned, operable firearms. Complainant has also established a feasible and, in the opinion of one
of Respondent’s own witnesses, effective means to materially reduce the hazards associated with
the use of operable firearms.
v. Respondent Knew or Could Have Known of the Violative Condition
Complainant also has the burden to establish that Respondent, with the exercise of
reasonable diligence, knew or could have known of the conditions constituting the violation. See
Contour Erection & Siding Syst., Inc., 22 BNA OSHC 1072, 1073 (No. 06-0792, 2007). “In
assessing reasonable diligence, the Commission has considered ‘several factors, including the
employer’s obligation to have adequate work rules and training programs, to adequately
- For example, though Respondent contends that the use of blank-firing only firearms present their own hazards,
Respondent already had a training regime and policy in place to address those hazards.23supervise employees, to anticipate hazards to which employees may be exposed, and to take
measure to prevent the occurrence of violations.’” Gen. Motors Corp., 22 BNA OSHC 1019,
1030 (No. 91-2834E, 2007) (consolidated) (citation omitted). The obligation to inspect the
workplace for hazards “requires a careful and critical examination, and is not satisfied by a mere
opportunity to view equipment.” Hamilton Fixture, 16 BNA OSHC 1079, 1087 (No. 88-1720,
1993); see also N & N Contractors, Inc. v. OSHRC, 255 F.3d 122, 127 (4th Cir. 2001) (employer
has constructive knowledge of violation if employer fails to use reasonable diligence to discern
the presence of a violative condition). But see Kaspar Wire Works, Inc., 18 BNA OSHC 2178,
2196–97 (No. 90-2775, 2000) (“[I]n the absence of any evidence indicating how long the
violative conditions had been in existence, we are unable to evaluate whether [the employer]
could have known of them even it if had been reasonably diligent in inspecting its equipment.”);
Ragnar Benson, Inc., 18 BNA OSHC 1937, 1940 (No. 97-1676, 1999) (same).
While it is clear that Respondent was aware of the general hazard associated with the use
of operable firearms during its reenactment performances, the Court also finds that Respondent
knew or could have known of the specific hazard presented when [redacted] brought live
ammunition to the worksite. According to [redacted], he had brought live ammunition to Wild
West City every day that he worked during the 2006 summer season up to the incident on July 7,
- 14 (Ex. C-1 at 67–68). During that time, [redacted] testified that he had left the
ammunition in his gun case, which was stored in the open on top of the dresser that he used in
the Opera House. Thus, in terms of Respondent’s opportunity to inspect, it is clear that the
violative condition existed for a sufficient period of time for Respondent to have known of it
through reasonable diligence.
- Although there was some dispute as to the number of days that [redacted] actually worked, particularly as it
pertains to the month of May, the Court finds that [redacted] was present at Wild West City for a sufficient amount
of time to give Respondent the opportunity to discover the violation.24Given the length of time that the condition existed, Respondent had a number of
opportunities to observe the presence of live ammunition. First, though Stabile testified that the
individuals characterized as “senior cowboys” did not have the authority to hire and fire, he
nonetheless characterized all of his employees as “safety officers.” Therefore, it would appear as
if any one of Respondent’s employees had the authority and obligation to correct unsafe work
practices, such as bringing live ammunition to work. See Revoli Constr. Co., 19 BNA OSHC
1682 (No. 00-0315, 2001) (reiterating the well-settled rule that an employee who has been
delegated authority, even temporarily, is considered to be a supervisor for the purposes of
imputing knowledge); Access Equip. Syst., Inc., 18 BNA OSHC 1718, 1726 (holding that
employee “in charge of” or “the lead person for” one or two employees can be considered a
supervisor). In [redacted] case, he testified that he told other employees that he brought live
ammunition to work and yet none of the individuals he told took any action to correct the
violation. Second, Stabile himself used the Opera House dressing room at least one time per day
to prepare for his own reenactment. Stabile’s dressing area was right next to [redacted] dressing
area and, thus, he had a clear opportunity to observe [redacted] gun case and perform an
inspection to ensure compliance with the rules. Further, the evidence indicates that [redacted]
gun case was unlike those owned by Respondent in that Stabile testified that it was too large to
fit in the safe with the other guns owned by Respondent. (Tr. 893). This fact should have placed
Stabile on notice that an inspection should have been performed. This was his right and
obligation as the employer in order to ensure a safe workplace for all of his employees. 15
Finally, to the extent that [redacted] was given the title “senior cowboy” and was charged with
supervisor-like responsibilities, the Court finds that Respondent, through its supervisory staff,
had direct knowledge of the presence of live ammunition. Revoli Const. Co., 19 OSHC 1682
- This was a right that Stabile eventually exercised after [redacted] had been shot—he conducted a search of
[redacted] gun case almost immediately after the incident.25(No. 00-0315, 2001) (the actions and knowledge of supervisory personnel are generally imputed
to their employers).
B. Unpreventable Employee Misconduct
In order to prove the affirmative defense of employee misconduct, it is the employer’s
burden to prove that: (1) it has established work rules designed to prevent the violation; (2) it
has adequately communicated those rules to its employees; (3) it has taken steps to discover
violations; and (4) it has effectively enforced the rules when violations have been discovered.
GEM Industrial, Inc., 17 BNA OSHC 1861 (No. 93-1122, 1996). “[W]here a supervisory
employee is involved in the violation the proof of unpreventable employee misconduct is more
rigorous and the defense is more difficult to establish since it is the supervisor’s duty to protect
the safety of employees under his supervision.” Daniel Constr. Co., 10 BNA OSHC 1549 (No.
16265, 1982). “A supervisor’s involvement in the misconduct is strong evidence that the
employer’s safety program was lax.” Archer-Western Contractors, Ltd., 15 BNA OSHC 1013
(No. 87-1067, 1991).
i. Respondent Had Established Work Rules Designed to Prevent the
Violation and Communicated Those Rules to its Employees
Although the Court questions the efficacy of Respondent’s work rules, especially with
regard to the method of distribution of firearms and ammunition, there is no question that
Respondent had a very specific rule that disallowed the presence of live ammunition on Wild
West City Grounds. (Ex. C-13). Further, the Court finds that those rules were communicated to
Respondent’s employees through its training program, which consisted of an initial review of the
policy, a probationary period, and a final review of the rules and restrictions regarding the use of
firearms at Wild West City. Respondent has met its burden with respect to this element.
ii. Respondent Did Not Take Adequate Steps to Discover Violations
26
The key to establishing this defense is that the misconduct is unpreventable. One of the
main problems for Respondent, however, is its failure to conduct appropriate inspections to
ensure that the policy contained within the Gun Safety Review was followed. As noted multiple
times above, Respondent allowed its employees to not only bring their own operable firearms to
Wild West City, it also allowed its employees to bring their own personally purchased
ammunition. In light of that fact, Respondent had a heightened responsibility to audit those
individuals to ensure compliance with the rules—the duty to inspect should be commensurate
with the hazard presented by the conditions, which, in this case, was quite severe. Merely
checking the firearm the first time it is brought to the workplace, without subsequent inspection,
is not sufficient to meet this obligation. Nor, for that matter, is allowing employees to use their
own ammunition without first verifying that it complies with the policy. This was further
underscored by Stabile when he explained the reason for not conducting further inspections:
“No, no one checked the firearm. There was an initial approval and my presumption was - - is
that they would bring that firearm and use those blanks.” (Tr. 925). A hazard of this nature is
far too dangerous to protect against with presumptions.
As is the case with establishing employer knowledge, the key to this defense is a showing
that Respondent exercised reasonable diligence in detecting workplace hazards. See N & N
Contractors, Inc., 18 BNA OSHC 2121 (defense rejected where employer took few steps to
discover violations). In contrast to the employer in N & N, it does not appear that Respondent
took any steps to discover violations of its policy beyond the initial inspection. Rather,
Respondent shifted that responsibility to its own employees, who did not have the authority to
properly address such violations and, in some cases, perhaps felt powerless to do so when the
violator was one of Respondent’s senior employees.
27
Respondent’s failure to conduct inspections in the face of allowing employees to carry
their own operable firearms and bring their own ammunition is clear evidence that it did not take
adequate steps to prevent violations of its safety policy. Accordingly, Respondent has failed to
prove the defense of unpreventable employee misconduct.
iii. Respondent Failed to Effectively Enforce Those Rules When Violations
Were Discovered
In addition to its failure to exercise reasonable diligence to discover violations,
Respondent also failed to effectively enforce the rules it had. First, Respondent did not have a
disciplinary policy to communicate or enforce in the event that a violation of the rules was
discovered. Additionally, there was scant evidence in the record that, prior to July 7, 2006,
disciplinary actions were ever taken against employees that violated the rules. This could be due
to the fact that it does not appear as if there was anyone, other than Stabile, that was authorized
to take such action. Second, the Court is not convinced that the actions taken against [redacted]
constitute effective enforcement. Indeed, Respondent eventually terminated [redacted] for
bringing live ammunition to the worksite; however, Respondent did not terminate [redacted]
until three weeks after it discovered the live ammunition in his gun case. The Commission has
held that a single instance of delayed discipline is not sufficient, in and of itself, to establish that
an employer failed to effectively enforce its rules, especially when the employer presents
evidence of a progressive disciplinary policy and an established record of employee discipline.
Amer. Eng. & Dev. Corp., 23 BNA OSHC 2093 (No. 10-0359, 2012). However, in this instance,
Respondent did not present evidence of either, which is indicative, though not dispositive, of a
deficient enforcement policy. Based on the foregoing, the Court finds that Respondent failed to
prove the defense of unpreventable employee misconduct.
The Court finds that Respondent failed to provide employment and a place of
employment that was free from the recognized hazards associated with the use of operable
28
handguns and the presence of live ammunition. Accordingly, Citation 1, Item 1, alleging a
violation of Section 5(a)(1) shall be AFFIRMED.
V. PENALTY
In calculating appropriate penalties for affirmed violations, Section 17(j) of the Act
requires the Commission give due consideration to four criteria: (1) the size of the employer’s
business, (2) the gravity of the violation, (3) the good faith of the employer, 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 Construction Co., 15 BNA OSHC 2201
(No. 87-2059, 1993). It is well established that 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 (No. 93-0239, 1995);
Allied Structural Steel, 2 BNA OSHC 1457 (No. 1681, 1975).
Based on the Court’s review of the record, the Court adopts the original penalty
recommendations of Complainant. According to the Field Inspection Reference Manual, which
was in effect in July 2006, Complainant initially recommended a gravity-based penalty of
$2,500.00, which reflected a characterization of High Severity and Low Probability. (Tr. 411–
420). The Court agrees with this characterization in light of the serious injuries suffered by
[redacted] and taking into consideration the likelihood of such an event occurring. The original
penalty was reduced by 40% due to Respondent’s size and an additional 10% due to
Respondent’s lack of violation history. Respondent was not given credit for good faith in light
of its failure to ensure compliance with its firearms policy, and the Court agrees with this
assessment. This results in a total proposed penalty of $1,250.00. Contrary to the suggestion of
29
Complainant, the Court does not find that an increase in the proposed penalty will serve the twin
purposes of deterrence and the promotion of compliance. Accordingly, the Court shall assess a
penalty of $1,250.00.
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 shall be AFFIRMED and a penalty of $1,250 shall be ASSESSED.
/s/
Date: December 27, 2013 Patrick B. Augustine
Denver, Colorado Judge, OSHRC
30
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