Pepper Contracting Services, Inc.

Plain-English summary

Pepper Contracting supervised a highway milling operation where an employee was assigned to uncover a utility box in the path of moving dump trucks. A subcontractor's truck struck the employee, who later died from his injuries. The judge found that Pepper knew workers and vehicles could conflict inside the work zone but lacked a site-specific internal traffic control plan and did not include subcontractors in its safety coordination. Preventing the milling convoy from restarting until workers cleared its path was a feasible way to eliminate the hazard. The serious general duty clause violation was affirmed with a $5,670 penalty.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1)
• Outcome: Serious struck-by hazard citation affirmed; $5,670 penalty assessed.
• Key point: A controlling contractor must coordinate workers and vehicles inside a work zone, including subcontractor drivers, through an effective site-specific traffic plan.

Full text (OSHRC public release)

                    UNITED STATES OF AMERICA
       OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

THOMAS E. PEREZ, Secretary of Labor,
United States Department of Labor,
Complainant,

                       v.                                OSHRC DOCKET No. 14-0714

PEPPER CONTRACTING SERVICES, INC.,
Respondent.

                                   DECISION AND ORDER

COUNSEL: M. Patricia Smith, Solicitor of Labor, Stanley Keen, Regional Solicitor, Rolesia
Dancy, Acting Counsel, Brooke Werner McEckron, Senior Trial Attorney, for Complainant.
John M Hament, III, Esquire, and Anne Willis Chapman, Esquire, Kunkel, Miller & Hament, for
Respondent.
JUDGE: John B. Gatto.
I. INTRODUCTION

    Pepper Contracting Services, Inc. (Pepper) was the general contractor on a highway

construction project in Tampa, Florida, when an employee was struck by a dump truck and died
eighteen days later. The fatality was reported to the Department of Labor’s Occupational Safety
and Health Administration (OSHA), and after an investigation was conducted, OSHA issued1
Pepper a citation for violating the Occupational Safety and Health Act of 1970 (the Act), 29
U.S.C. §§ 651–678. The citation alleged a “serious” violation2 of section 5(a)(1) of the Act, 29
U.S.C. § 654(a)(1), commonly known as the “general duty clause,” and proposed a penalty of
$5,670.00.
After Pepper timely contested the citation, the Secretary filed a formal complaint with the
Commission charging Pepper with violating the Act and seeking an order affirming the citation

1
The Secretary of Labor has assigned responsibility for enforcement of the Act to OSHA and has delegated his
authority under the Act to the Assistant Secretary for Occupational Safety and Health, who heads OSAH. See 65
Fed.Reg. 50018 (2000). The Assistant Secretary has redelegated his authority to OSHA’s Area Directors to issue
citations and proposed penalties. See 29 C.F.R. §§ 1903.14(a) and 1903.15(a). Here, the citation and proposed
penalty were issued by the Tampa, Florida OSHA Area Director.
2
See Part III, Subpart H for the definition of a “serious” violation classification.
and proposed penalty. The parties stipulated the Commission has jurisdiction of this action
under section 10(c) of the Act, 29 U.S.C. § 659(c). (Compl. ¶ I; Answer ¶ I.) A two-day bench
trial was held in Clearwater, Florida. Pursuant to Rule 52(a) of the Federal Rules of Civil
Procedure, after hearing and carefully considering all the evidence and the arguments of counsel,
the Court issues this Decision and Order as its findings of fact and conclusions of law.3 For the
reasons indicated infra, the Court concludes all the elements necessary to prove a serious
violation of the general duty clause have been satisfactorily established. Accordingly, the
citation is AFFIRMED and Pepper is assessed a civil penalty of $5,670.00.

                                           II. BACKGROUND
     Pepper is a general construction contractor located in Tampa with 230 employees, and on

October 29, 2013, the day of the accident, Pepper was supervising a highway construction
“milling” operation on Dale Mabry Highway. (Sec’y Post-Trial Br. p. 2; Pepper Post-Trial Br., p.
3.) In a highway milling operation, a milling machine is used to remove the existing asphalt
layer to whatever depth is needed, referred to as “milling,” before new road base and asphalt
layers are added. (Tr. 277-278, 279, 298-99, 445.) As the milling machine moves forward
removing the existing asphalt layer, a chute extending forward from the front of the machine
deposits the milling debris via a conveyor into a dump truck in front of the machine. After the
dump truck is filled, it leaves to dump the milled material and another dump truck backs into
place in front of the milling machine. The dump trucks continuously cycle through filling and
then dumping their loads, allowing the milling operation to proceed uninterrupted. (Tr. 55, 190,
193, 251, 332-33.)
The milling operation consisted of Pepper’s crew, and two subcontractors hired by
Pepper: Turtle Southeast Milling (Turtle), which performed the milling work, and Jason’s
Hauling, which provided dump trucks for the debris removal. (Tr. 41, 280-81.) Terry Infinger,
Pepper’s foreman on the project, had a crew consisting of the decedent, a laborer, and Robert
Bacon, Jr., the finish load operator. (Tr. 280-81, 283.) Turtle operated the milling machine with
a two-person crew, David Hollister, the foreman or crew chief, and Robert Karre, the milling
machine operator. (Tr. 338, 343-44.) Jason’s Hauling sent four dump truck drivers to the

3
If any finding is in truth a conclusion of law, or if any stated conclusion is in truth a finding of fact, it shall be
deemed so.
2
worksite, including Yonnesly Carmenate who is employed by Omar Mendoza, an independent
contractor, and Alejandro Perez, an independent contractor driving the truck that struck the
decedent. (Tr. 188-190, 191, 208-09, 213.) 4
Since Infinger assessed the project sites they were planning to mill, he knew there were
two separate worksites, one on each side of Tampa Bay Boulevard, and knew after they crossed
Tampa Bay Boulevard, there would be a Verizon vertical pole marker in the direct path of the
milling operation. (Tr. 288-89.) On the day of the accident, the project began working on the
east side of Dale Mabry (on the south side Tampa Bay Boulevard). (Tr. 277-278, 279, 298-99,
444, 445.) The milling operation began around 7:30 a.m. and continued throughout the morning,
milling “very slow, ten feet per minute.” (Tr. 192, 375.) Later that morning, the milling convoy
crossed Tampa Bay Boulevard to continue the operation. (Tr. 298, 320-21, 345.)
During the project sometime the week before the accident, the milling machine clipped a
telecommunications box overgrown with grass. (Tr. 289, 360.) Although the box had a vertical
pole marker, the marker indicated the cable was buried. (Tr. 289.) Therefore, immediately after
crossing Tampa Bay Boulevard, Infinger and the decedent walked to the Verizon pole marker “to
make sure there wasn’t a box there” but found another partially covered telecommunications
box. (Tr. 291, 360.) In order to better expose the box, Infinger used a shovel and began
uncovering the front edge and then instructed the decedent to finish the job. (Tr. 288-90; R-11.)
Bacon testified “the milling hadn't [restarted] -- we had just crossed over Tampa Bay Boulevard
with the machines and everything.” (Tr. 321.) “[Infinger] went up to the milling operator to
show him exactly where to start, where the line would be. And while they were setting up,
[Infinger] took [the decedent] up to locate a box. I walked in behind [Infinger] to show [the
decedent] what to do. When I seen that -- what they were looking for right there, I turned around
and went back to where my position is.” (Tr. 321.)
Since Infinger anticipated the task would take no longer than a few minutes, he left the
decedent at the box and walked back to the milling machine. (Id.) After Hollister finished setting
up the milling machine, the milling operation began again, and a few minutes later the accident
occurred. (Tr. 321, 326, 346.) Due to the injuries that he suffered when he was hit by Perez’s

4
Infinger has been in the road construction business for forty years. (Tr. 277.) Perez has been driving dump
trucks for eighteen years and Carmenate has been driving dump trucks for three years. (Tr. 189, 209.) The decedent
had eleven years of experience in road crew construction. (Tr. 448.)
3
dump truck, the decedent died at the hospital on November 16, 2013. There were no witnesses
to the accident. However, there is no dispute the decedent was assigned to work near the
Verizon pole that served as a marker for the telecommunications box, that he was wearing both a
hard hat and a high-visibility vest, and that he was in this location at the time he was struck by
Perez’s dump truck. (Tr. 108, 289, 215-17, 301-02, 312; see also J-3). Immediately after the
accident and again at the hospital before he passed away, the decedent stated Perez was
speeding. (Tr. 145, Ex. J-l. p. 4.)
At that time of the accident, Carmenate’s truck was directly in front of the milling
machine receiving the milling debris deposit and Perez’s truck was waiting its turn directly in
front of Carmenate. (Tr. 126-27, 128; see also Ex. J-9; J-1l.) Since the milling operation had
restarted and was slowly moving forward, at some point Carmenate’s truck and Perez’s truck
were so close Carmenate honked his horn to move Perez forward. (Tr. 195, 353.) Hollister
testified if Perez “was paying attention, then he would know that [Carmenate’s] truck is right up
on [his] backside and he should be moving forward. We shouldn't have to stop the milling
machine, signal our driver to have him honk his air horn to make this truck move up.” (Tr. 358-
59.) “And these guys get in a rush, when they start honking their horns, they're like, oh, it's time
to move, so we shoot up 20, 30 feet.” (Tr. 359.)
Perez asserts after crossing Tampa Bay Boulevard he did not see the Verizon post where
the decedent was working. “I see the post when it’s still over there and I’m coming through
Tampa Bay [Boulevard]. I see the post, it's far away and there's no person near it. Once I stop,
the milling machine stops, the first truck stops, I stop, then at that point I am too close to the post
to be able to see it.” (Tr. 238.) Nonetheless, Perez also admitted “When you’re doing your job,
you’re not looking at the Verizon post, you’re not paying attention to that. There’s many other
things to look at. I have to watch the machine.” (Tr. 239.)
The “at that point” reference by Perez is the point where the milling operation stopped to
setup again after crossing Tampa Bay Boulevard. However, none of the other witnesses
corroborate Perez’s assertion that “at that point” he was too close to the post to be able to see the
Verizon post (and the decedent). Significantly, Fred Sumner, Pepper’s Safety Manager, arrived
at the worksite a few minutes after the accident and personally measured the distance from the
point the milling operation had stopped after crossing Tampa Bay Boulevard to the

                                               4

telecommunications box, a distance of 210 feet.5 (Tr. 418-19; see also R-1.) Hollister testified
while he was setting up the milling machine again, he could see the decedent “down the road
there unshoveling stuff.” (Tr. 321, 360, 361, 363.) Bacon also testified “it was a ways to walk up
there to where [Infinger] had showed [the decedent] where the box was” and there “was no truck
close to [Infinger and the decedent] whatsoever.” (Tr. 324, 331.) Likewise, Infinger testified
when he and the decedent walked up to the telecommunications box, “I didn't see anyone that
close to me.” (Tr. 314.)
Hollister testified after they restarted the milling operation, they went “maybe ten, fifteen
feet. So a couple minutes. We had just set in, so I mean we didn’t go very far before we had to
stop and idle down.” (Tr. 346; see also Ex. J-11.) Bacon also testified “They probably couldn't
have gone no more than ten or fifteen feet. I mean it was almost immediate.” (Tr. 321.)
Likewise, Karre also testified they went “about ten feet” before the accident occurred. (Tr. 373.)
Therefore, Perez’s assertion “at that point,” the point where the milling operation stopped to
setup again after crossing Tampa Bay Boulevard, he was “too close to the post to be able to see
it,” or the decedent, is not supported by the credible evidence in this case.
Perez also maintains after the milling operation started up again, Carmenate’s truck
“started to get filled up…they honked the horn for me to move. And as soon as I had moved
maybe two or three feet I [felt] a weird movement. And that’s when the accident happens.” (Tr.
215.) Again, none of the other witnesses corroborate Perez’s assertion he drove only two or
three feet before striking the decedent. Infinger, who has been in the road construction business
for forty years, testified he would never have placed himself or the decedent a few feet from the
bumper of a running dump truck. (Tr. 277, 280, 290.) Likewise, Bacon testified “My boss
wouldn't have never put anybody in front of anything like that. It wouldn't have happened,
period. Wouldn't have happened.” (Tr. 336.) When Bacon was asked if he walked in front of a
truck that was close by when he followed Infinger and the decedent to the box, Bacon
emphatically responded, “No. That would be insane. No . . . . you could either get hit – you’d
get fired, too. Or you’d get reprimanded. You just don't do things like that. It’s insane to do
stuff like that.” (Tr. 325.)

5
Sumner has sixteen years of experience in safety management positions. (Tr. 382.)
5
 The milling machine was thirty-two feet long and each dump truck was thirty feet long.
There was approximately ten feet separating the receiving dump truck and the milling machine
and approximately ten feet separating the two dump trucks. (Tr. 150, 151.) Therefore, the
milling caravan was approximately 112 feet long. After the milling operation restarted it went
only ten to fifteen feet before the accident occurred. The Court finds the preponderance of
evidence therefore shows Perez drove between 83 and 88 feet before he struck the decedent (the
210 feet distance from the point where the milling operation stopped after crossing Tampa Bay
Boulevard to where the telecommunications box was located, minus the caravan length of
approximately 112 feet and the ten to fifteen feet the milling operation had milled after it
restarted before the accident occurred). Thus, the Court finds Perez’s assertion he moved only
two or three feet is not supported by the credible evidence in this case.
The fatality was reported to OSHA on its hotline on November 16, 2013, and a fatality
investigation was initiated on November 18, 2013, by Gerardo Ortiz, an OSHA Compliance
Safety and Health Officer, which he completed on November 22, 2013. (Tr. 40; see also J-1.)
By that time, twenty days had passed since the accident occurred and the scene had changed.
Nonetheless, Ortiz visited the accident scene on November 19, 2013. (Tr. 39.) Ortiz interviewed
Infinger, Bacon, Carmenate, Perez, Hollister, and Karre. (Tr. 55-57; see also J-9, J-10, J-11, J-
12.) Ortiz also obtained a copy of the police report. (Tr. 57-58.) After completing the
investigation, Ortiz determined that Pepper failed to keep employees who worked in the internal
work zone free from the hazard of being struck by vehicles and equipment because it did not
have sufficient internal traffic control procedures in place. (Tr. 68; see also J-1, J-2.) Therefore,
Ortiz recommended the issuance of the citation. (Id.)
Ortiz admitted prior to the accident he had no experience investigating this type of
milling operation. (Tr. 95.) Although Ortiz admitted the distance from where the milling
operation restarted to the telecommunications box was important to help verify Perez’s version
of events, he admitted he did not know that distance. (Tr. 122, 123.) Nonetheless, relying at least
in part on Perez’s statement that he drove only two or three feet before striking the decedent,
Ortiz concluded the decedent was in Perez’s blind spot6 when the accident occurred and that

6
Although the citation refers to the “blind area,” both parties also referred to it as the “blind spot” at trial and in
post-trial briefs. For ease of reference, the Court refers to it as the “blind spot.”
6
Perez was not speeding. (Tr. 147.) However, as indicated supra, Perez’s assertion he drove only
two or three feet before striking the decedent is not supported by the credible evidence and any
reliance by Ortiz on Perez’s statement was misplaced.
Further, in concluding the decedent was in Perez’s blind spot, Ortiz also relied in part on
a Tampa Police Department report, which stated the decedent was 5’2”, even though Ortiz
admitted the investigation of the Tampa Police Department “was essentially flawed,” and even
though the medical examiner’s report concluded the decedent was 5’10”. (Tr. 58, 117, 119.)
Likewise, Ortiz admitted the truck used in his blind spot analysis was not the same model truck
driven by Perez and admitted if he used the actual measurements from Perez’s truck, he did not
know if it would have made a significant difference in his calculations. (Tr. 183; see also Ex. J-
5.) Ortiz also admitted his blind spot calculations were erroneously made in feet since the chart
he relied on was a metric chart. (Tr. 174, 185.) Thus, Ortiz admitted he could have been
mistaken in his reliance on this erroneous information in concluding the decedent was in Perez’s
blind spot and admitted his analysis was not accurate. (Tr. 119, 186.) Ortiz also admitted it was
possible that Perez was not looking when he struck the decedent. (Tr. 165.)
The Court finds Ortiz’s conclusions that the decedent was in Perez’s blind spot and that
Perez was not speeding are not supported by the credible evidence in this case. Rather, the
preponderance of evidence shows since the decedent was wearing a high-visibility vest, was 83
and 88 feet from Perez, was in plain sight, and was not in Perez’s blind spot. The preponderance
of evidence also shows Perez was not paying attention, as evidenced by Carmenate’s need to
honk his horn to move him forward, and that Perez sped forward striking and fatally injuring the
decedent.
Credibility
The Court closely observed the demeanor of each witness and assessed their credibility,
considering their motivation, and whether the testimony was plausible, consistent and
corroborated. The Court found Bacon, Carmenate, Hollister, Infinger, Karre, and Sumner to be
candid and responsive to the questions posed to them and found them to be credible,
straightforward and trustworthy witnesses. Their testimony was plausible, consistent with each
other, and corroborated with the evidence in the record. Nothing in their demeanor suggested
any bias or lack of veracity on their part. The Court credits their testimony and gives their

                                            7

testimony considerable weight.
In contrast, the Court found Perez’s demeanor to be cavalier, evasive and defensive and
his testimony that he drove only two or three feet self-serving. Rather than having been
motivated by a desire to be truthful, Perez’s testimony appeared to be a deliberate and calculated
attempt to shift the blame for his careless driving by alleging the decedent was in his blind spot.
Perez’s testimony that he drove only two or three feet and that the decedent was in his blind spot
was not plausible and was not corroborated by any credible evidence. The Court does not credit
Perez’s testimony and accords it no weight, except the one admission he made, “When you’re
doing your job, you’re not looking at the Verizon post, you’re not paying attention to that.
There’s many other things to look at. I have to watch the machine.” This statement, which was
consistent with the corroborated evidence in the record, is given considerable weight.
The Court also found Ortiz’s testimony related to the purported blind spot was not
plausible or consistent or corroborated by the credible evidence in the record. Therefore, the
Court does not credit Ortiz’s testimony that the decedent was in Perez’s blind spot or that Perez
was not speeding and accords that portion of his testimony no weight. However, as to Ortiz’s
testimony, infra, regarding the existence of a struck-by hazard and the inadequacy of Pepper’s
internal traffic control plan, his testimony was plausible, consistent, and corroborated with the
credible evidence in the record. Therefore, the Court credits that portion of Ortiz’s testimony
and gives it considerable weight.

                                           III. ANALYSIS

    Congress declared the Act was intended “to assure so far as possible every working man

and woman in the Nation safe and healthful working conditions and to preserve our human
resources.” 29 U.S.C. § 654(b). To implement its statutory purpose, “Congress imposed dual
obligations on employers. They must first comply with the ‘general duty’ to free the workplace
of all recognized hazards. 29 U.S.C. § 654(a)(1). They also have a ‘special duty’ to comply with
all mandatory health and safety standards. Id. at § 654(a)(2).” ComTran Grp., Inc. v. U.S. Dep't
of Labor, 722 F.3d 1304, 1307 (11th Cir. 2013).7

7
The alleged violation occurred in Tampa, Florida, which is where Pepper also has its principal office. (Compl.
¶III 3; Answer ¶3.) Therefore, both parties may appeal the final order in this case to the Eleventh Circuit Court of
Appeals, and in addition, Pepper may also appeal to the District of Columbia Circuit. See 29 U.S.C. § 660(a) & (b).
8
 However, courts have consistently held that mandatory health and safety standards
promulgated by the Secretary under the special duty clause are the preferred enforcement
mechanism and the general duty clause serves only as an enforcement tool of last resort, as a
“catchall provision” to cover dangerous conditions of employment not specifically covered by
existing health and safety standards. See e.g., Roberts Sand Co., LLLP v. Sec’y of Labor, 568 F.
App'x 758, 759 (11th Cir. 2014) (unpublished)8 (the Secretary “can only issue general duty
clause citations where [he] has not promulgated a regulation covering a particular situation at an
employer's worksite”). In the present case, there is no applicable special duty clause standard
governing the cited struck-by hazard. Therefore, the Secretary properly charged Pepper under
the general duty clause.
Under the general duty clause, each employer must “furnish to each of his employees
employment and a place of employment free from recognized hazards that are causing or likely
to cause death or serious injury to the employees.” 29 U.S.C. § 654(a)(1). In Whirlpool Corp. v.
Marshall, 445 U.S. 1 (1980), the Supreme Court held, “[a]s the legislative history of this
provision reflects,9 it was intended itself to deter the occurrence of occupational deaths and
serious injuries by placing on employers a mandatory obligation independent of the specific
health and safety standards to be promulgated by the Secretary.” Whirlpool, 445 U.S. at 13.
“To establish a violation of the general duty clause, the Secretary must prove that (1) the
employer failed to render its work place free of a hazard; (2) the hazard was “recognized”; and
(3) the hazard caused or was likely to cause death or serious physical harm. [Citation omitted.]
Moreover, (4) the hazard must be preventable.” Georgia Elec. Co. v. Marshall, 595 F.2d 309,
320-21 (5th Cir. 1979).10 Accord Roberts Sand, 568 F. App'x 758 at 759 (citing Waldon

The Eleventh Circuit has held that the Commission and its judges “are bound to follow the law of the circuit to
which the case would most likely be appealed.” ComTran, 722 F.3d at 1307. See also Quinlan Enterprises, 24 BNA
OSHC 1154, 1155 (No. 12-1698, 2013) (citing Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719,
2000)) (stating that Commission generally applies precedent of circuit to which case will likely be appealed “even
though it may differ from the Commission's precedent”). Therefore, in deciding this case, since it is likely to be
appealed to the Eleventh Circuit, the Court applies the precedent of the Eleventh Circuit.
8
See Eleventh Circuit Rule 36-2 (“Unpublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.”).
9
See S.Rep. 9–10, Leg.Hist. 149–150; H.R.Rep. 21–22, Leg.Hist. 851–852.
10
The Eleventh Circuit was created when the Fifth Circuit split on October 1, 1981. See Fifth Circuit Court of
Appeals Reorganization Act of 1980, P.L. 96-452, 94 Stat. 1995. The Eleventh Circuit has adopted the case law of
the former Fifth Circuit handed down as of September 30, 1981, as its governing body of precedent. Bonner v. City
9
Healthcare Ctr., 16 BNA OSHC 1052, 1060 (No. 89–2804, 1993); National Realty and
Construction Co. v. Occupational Safety & Health Review Comm'n, 489 F.2d 1257, 1265 (1973).
The Court concludes the Secretary has satisfactorily established all four elements.

                                        A. Existence of a Hazard
    The Secretary’s citation asserts Pepper committed a serious violation of the general duty

clause “in that employees were exposed to the hazard of being struck by vehicular traffic inside a
work zone.” (Compl. Ex. A.) The Secretary unfortunately heightens the factual dispute with his
choice of additional language in the citation’s alleged violation description, which goes further
and declares: “The box was in the blind area of the operator of a dump truck which proceeded to
move forward, striking the employee.” (Id.) Both parties spent much of their time at trial and in
their post-trial briefs offering differing theories attempting to establish or dispute the existence of
the blind spot. And Pepper argues in its post-trial brief the “recognized hazard” upon which the
citation is based is the placement of the decedent in the “blind spot” of Perez's truck. (Pepper
Post-Trial Br., p. 13.) The Court does not agree with Pepper.
The parties’ blind spot theories miss the point and “unnecessarily complicate an issue that
is readily resolved by the record.” Jacobs Field Servs. N. Am., 25 BNA OSHC 1216, 1218 (No.
10-2659, 2015). Because the Act “is designed to encourage abatement of hazardous conditions
themselves [ ] rather than to fix blame after the fact for a particular injury, a citation is supported
by evidence which shows the preventability of the Generic hazard, if not [the] particular
instance.” Champlin Petroleum Co. v. Occupational Safety & Health Review Comm'n, 593 F.2d
637, 642 (5th Cir. 1979); accord National Realty, 489 F.2d at 1266. Indeed, the purpose of the
Act is to prevent the first injury, Mineral Industries & Heavy Constr. Co. v. Occupational Safety
& Health Review Comm'n, 639 F.2d 1289, 1294 (5th Cir. 1981), and a finding of noncompliance
is not predicated on the accuracy of a post-hoc accident analysis. Concrete Constr. Corp., 4 BNA
OSHC 1133, 1135 (No. 2490, 1976).
It is also well settled “that administrative pleadings are to be liberally construed,” which
is “particularly true for citations issued under the Act, which are drafted by non-legal personnel

of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981). This body of precedent is binding unless and until overruled by
the Eleventh Circuit en banc. Id. Further, the decisions of the continuing Fifth Circuit's Administrative Unit B are
also binding on the Eleventh Circuit, while Unit A decisions are merely persuasive. Dresdner Bank AG v. M/V
Olympia Voyager, 446 F.3d 1377 (11th Cir. 2006).
10
who are required to act with dispatch. To inflexibly hold the Secretary to a narrow construction
of the language of a citation would unduly cripple enforcement of the Act.” General Dynamics
Land Systems Div. Inc., 15 BNA OSHC 1275, 1281 (No. 83-1293, 1991) (citing Donovan v.
Williams Enterprises, Inc., 744 F.2d 170 (D.C. Cir. 1984) (enforcement of the Act would be
crippled if the Secretary were inflexibly held to a narrow construction of citations issued by his
inspectors). The purpose of the Federal Rules of Civil Procedure, which apply to Commission
proceedings by virtue of section 12(g) of the Act, 29 U.S.C. § 661(f), “reject the approach that
pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and
accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.”
United States v. Hougham, 364 U.S. 310, 317 (1960) (quoting Conley v. Gibson, 355 U.S. 41, 48
(1957)).
Thus, the blind spot is a red herring. It does not matter whether a blind spot existed since
Pepper was charged with violating the general duty clause for “exposing employees to the hazard
of being struck by vehicular traffic inside a work zone.” Significantly, in the parties’ “Agreed
Prehearing Statement” outlining their respective positions, neither party identified a blind spot as
one of the stipulated “contested issues and facts” but rather, stipulated the dispute was whether
“there was an activity or condition at [Pepper’s] worksite that constituted a hazard to
employees.”11 The stipulated dispute was fully litigated at trial. Although Pepper repeatedly
attempted on cross-examination to extract an admission from Ortiz that there was no hazard if
the purported blind spot did not exist, Ortiz steadfastly and repeatedly disagreed.
For example, when Ortiz was asked on cross examination if it was correct that without
the blind spot, “there was no hazard and there wouldn’t have been a case today,” he replied, “The
hazard is still there.” (Tr. 131-32.) When Pepper asserted if the decedent was in plain view,
there was no hazard, Ortiz again replied, “I disagree. I still think there would be a hazard.” (Tr.
140.) “The hazard remains because [the decedent] was in the path of the machinery and the
machine operator had not been notified of the presence and the milling would have been, should

11
In the parties “Agreed Prehearing Statement,” the Secretary enumerated seven contested issues and facts in this
case, which included “Whether there was an activity or condition at Respondent’s worksite that constituted a hazard
to employees are as follows.” (Agreed Prehearing Statement, § B, p. 5, ¶ 1.) In addition to the issues of fact and law
identified by the Secretary, Pepper identified twelve additional issues and facts, none of which included a blind spot.
(Agreed Prehearing Statement, § B, pp. 5-6, ¶¶ 1-12.)
11
have been, told to stop.” (Tr. 141.) When Pepper asserted Ortiz had “no other evidence of any
other hazards being created,” other than “the blind spot scenario,” Ortiz again disagreed,
“There’s a struck by hazard.” (Tr. 169.)
In view of the unimportance of adhering to strict rules of pleading under the Federal
Rules generally and especially in administrative proceedings, and having in mind the particular
course of these proceedings, the Court finds that the citation described the alleged struck-by
hazard with an accuracy sufficient to enable Pepper to fully litigate the stipulated dispute. Thus,
the Court has no doubt that Pepper was put on notice as to the nature of the Secretary’s
complaint. As indicated supra, there is no dispute that the decedent was assigned to work near
the Verizon pole that served as a marker for the telecommunications box, which was in the path
of the milling operation. This in and of itself presented the potential for harm. Georgia Electric,
595 F.2d at 321. The struck-by hazard was a preventable consequence of a work operation over
which Pepper can reasonably be expected to exercise control. Therefore, the Secretary has
established the existence of a struck-by hazard.

                                   B. Recognized Hazard
   “[W]hether or not a hazard is ‘recognized’ is a matter of objective determination.” Ed

Taylor Const. Co. v. Occupational Safety & Health Review Comm'n, 938 F.2d 1265, 1272 (11th
Cir. 1991). A “recognized hazard” is a condition that is “known to be hazardous.” Georgia
Electric, 595 F.2d at 321 (citation omitted). “This element can be established by proving that the
employer had actual knowledge that a condition is hazardous.” Id. (citation omitted). A
“recognized hazard” may also “be shown by proving that the condition is generally known to be
hazardous in the industry.” Ed Taylor, 938 F.2d at 1272 (citation omitted).

                                  Employer Knowledge

   Pepper’s Health and Safety Policy clearly recognizes a struck-by hazard since it states

“[if] there are any questions as to visibility, or when working close to people on the ground, the
operator should get a signal from someone standing on the ground with good visibility before
proceeding to move.” (Ex. J-13, § 8.12, p. 93.) Pepper’s Safety Policy also mandates personnel
“should never approach a piece of construction equipment without the operators’
acknowledgment and until the operator stops work, and yields to the employee.” (Id.) Further,

                                               12

Pepper’s Safety Policy indicates personnel should maintain “visual contact with the operator
when in close proximity to the equipment.” (Id.) In addition, each morning Infinger conducts a
“Take 5” safety meeting with the Pepper crew where they “generally discuss who's working with
us and what's happening.” (Tr. 284.) “We deal with trucks on a daily basis pretty much and we
deal with traffic on a daily basis and equipment. So basically those are my three points of
focus.” (Id.) Thus, the Secretary has established Pepper’s recognition of a struck-by hazard.

                                    Industry Recognition
      The Commission has held industry standards and guidelines, such as those published by

the American National Standards Institute (ANSI), are evidence of industry recognition.
Kokosing Constr. Co., Inc., 17 BNA OSHC 1869, 1873 (No. 92-2596, 1996); Cargill, Inc., 10
BNA OSHC 1398, 1402 (No. 78–5707, 1982). The citation references the relevant national
consensus standard, ANSI A10.47 (2009), the standard on Work Zone Safety for Highway
Construction, which “covers workers engaged in construction, utility work, maintenance, or
repair activities on any area of a highway.” (Ex. J-4, § 1.1.) Under this industry standard, “if
workers are exposed to traffic or work vehicles/equipment, one or more methods to ensure that
they are protected or have adequate warning of approaching traffic or equipment shall be used.”
(Ex. J-4, § 6.1.1) Thus, the Secretary has also established industry recognition of a struck-by
hazard.
C. Causing or Likely to Cause Death or Serious Physical Harm
Although Pepper made much of the lack of struck-by injuries occurring from vehicles
moving forward rather than from backing up, and that according to Pepper, the ANSI standard is
“virtually 98% drafted in terms of backing up, not going forward (Tr. 164), that argument is
immaterial to the finding of a hazard. The Commission does not require there be a significant
risk of the hazard coming to fruition, “only that if the hazardous event occurs, it would create a
‘significant risk’ to employees.” Waldon, 16 BNA OSHC at 1060. Thus, the Commission has
made clear “the criteria for determining whether a hazard is ‘causing or likely to cause death or
serious physical harm’ is not the likelihood of an accident or injury, but whether, if an accident
occurs, the results are likely to cause death or serious harm.” Waldon, 16 BNA OSHC at 1063.
There is no dispute that being struck by a dump truck is likely to cause death or serious
bodily harm. Further, the death of the decedent constitutes at least prima facie evidence that the
13
struck-by hazard was likely to cause death or serious injury. See e.g., Usery v. Marquette Cement
Mfg. Co., 568 F.2d 902, 910 (2d Cir. 1977). Thus, the Secretary has met his burden of proving
the struck-by hazard was likely to cause death or serious injury.

                                             D. Knowledge
     In the Eleventh Circuit, “the Secretary can show knowledge based upon the employer's

failure to implement an adequate safety program[.]”ComTran, 722 F.3d at 1308.12 As indicated
supra, Pepper knew the telecommunications box was in the direct path of the milling operation
before it recommenced the milling operation but failed to implement a safety plan that prevented
the restart up of the milling operation while the decedent was in the path of that milling convoy.
Pepper had ample opportunity to ensure the operation did not restart until after the
telecommunication box was uncovered and the decedent was out of the direct path of the milling
convoy. Further, even though Pepper’s safety policy requires subcontractors to adhere to
Pepper’s safety policy and requires subcontractors to “coordinate their efforts with Pepper
project Management” (Ex. J-13, § 5.9, p. 67), there is no evidence Pepper provided the dump
truck drivers or the milling machine operator with a copy of its safety policy13 and Pepper did
not include them in its daily “Take 5” safety meetings. Therefore, the Secretary has established
knowledge based upon Pepper’s failure to implement an adequate safety program.14

                 E. Feasible Means to Eliminate or Materially Reduce the Hazard
     “It has been long-established that OSHA does not impose absolute (or strict) liability on

employers for harmful workplace conditions; instead, it focuses liability where harm can, in fact,
be prevented.” ComTran, 722 F.3d at 1306. While courts have emphasized the importance of
proper instruction and adequate supervision in safety-related matters, “they have consistently

12
The Secretary can also prove employer knowledge by showing “that a supervisor had either actual or
constructive knowledge of the violation,” which “is generally imputed to the employer.” ComTran, 722 F.3d at
1307-08. “An example of actual knowledge is where a supervisor directly sees a subordinate's misconduct.” Id. at
1308. “An example of constructive knowledge is where the supervisor may not have directly seen the subordinate's
misconduct, but he was in close enough proximity that he should have.” Id.
13
By way of example, Perez testified Pepper did not provide him with any documents when he arrived for work
and was not provided with instructions on maximizing the separation of workers on foot from his dump truck. (Tr.
214.)
14
While the Secretary asserts he also established actual and constructive knowledge, (Sec’y Post-Trial Br., p. 22),
since the Court concludes he established knowledge based upon Pepper’s failure to implement an adequate safety
program, the Court declines to address these alternative bases for establishing knowledge.
14
refused to require measures beyond those which are reasonable and feasible.” Id. See also Horne
Plumbing & Heating Co. v. Occupational Safety & Health Review Comm'n, 528 F.2d 564, 569
(5th Cir.1976) (discussing cases). Therefore, it is the Secretary’s burden to show that
“demonstrably feasible measures would materially reduce the likelihood that such injury as that
which resulted from the cited hazard would have occurred.” Champlin, 593 F.2d at 640 (citation
omitted).
In the citation, the Secretary suggests an abatement method to correct the cited struck-by
hazard was the development of “internal traffic control plans for inside the work zones to address
conflicts between workers and work vehicles/equipment and to maximize the separation of
vehicles and workers on foot.” Pepper argues the Secretary’s suggested abatement method was
not feasible. (Pepper Post-Trial Br., p. 21.) The Court does not agree. The Supreme Court has
defined “feasibility” as “‘capable of being done, executed, or effected.” ATMI, 452 U.S. 490,
508–09 (1981) (quoting Webster's Third New International Dictionary 831 (1976)). The
Eleventh Circuit has indicated this means “both technologically and economically.” Am. Fed'n of
Labor & Cong. of Indus. Organizations v. Occupational Safety & Health Admin., 965 F.2d 962,
980 (11th Cir. 1992). See also National Cottonseed Prods. Ass'n v. Brock, 825 F.2d 482, 487
(D.C.Cir.1987), cert. denied, 485 U.S. 1020 (1988).
Thus, under the general duty clause, the Commission has held “an employer is not
required to adopt measures that would threaten its economic viability.” Waldon, 16 BNA OSHC
at 1052; see also National Realty, 489 F.2d at 1266 n. 37 (if adoption of the precaution would
clearly threaten the economic viability of the employer, the Secretary should propose the
precaution by way of promulgated regulations, subject to advance industry comment, rather than
through adventurous enforcement of the general duty clause). Here, Pepper has not argued and
there is no evidence to suggest the Secretary’s first proposed abatement method was not
technologically and economically feasible. The Court concludes Pepper could have easily
adopted and absorbed the costs of the Secretary’s first proposed abatement measure with “no
threat to either its economic viability or the company’s long-term profitability and industry
competitiveness.” Waldon, 16 BNA OSHC at 1063.
Pepper argues the Secretary “never proved that [it] did not have a proper traffic control
plan, as required to support the citation.” (Id.) The Court does not agree with Pepper. Ortiz

                                           15

testified that during the course of his investigation he asked whether Pepper had an internal
traffic control plan, and was given several answers but Pepper never indicated it had an internal
traffic control plan. Instead, “they rely on this Take 5 meeting.” (Tr. 67-68.) Thus, Ortiz
testified an internal traffic control plan “was absent from the safety management process that
Pepper Contracting had.” (Tr. 78.) His testimony was corroborated by Sumner, who admitted
that in lieu of having a written internal traffic control program, “we manage -- pre-manage the
hazards in our work zones . . . traffic and others.” (Tr. 397.)
Further, the relevant national consensus standard referenced in the citation, ANSI
A10.47, requires employers to develop traffic control plans “for inside their work zones to
minimize backups and other conflicts between workers and work vehicles/equipment and to
maximize the separation of vehicles and workers on foot.” (Ex. J-4, § 6.3). Under this industry
standard, the traffic control plan is required to “be communicated to all workers on the site and
all vehicles entering the site.” (Id. § 6.3.1.) It also requires the onsite supervisor or safety person
to “modify the plan as the work proceeds and as changes in the work site operations or
environment dictate” and requires that all workers and drivers “be notified of changes to the plan
as they are implemented.” (Id. § 6.3.2.) Ortiz testified that the internal traffic control plan
“should have provisions to communicate the hazards to the contractors and involve them in their
safety discussions.” (Tr. 89.) Although Pepper asserts it has written traffic control plans relevant
to the entire project,15 it admits it did not have a separate internal traffic control program specific
to the worksite, even though Pepper’s own safety policy mandates that site-specific safety plans
are required for all field projects “to establish requirements for protecting the health and safety of
personnel while conducting activities at a site.” (Tr. 397, 411; Ex. J-13, § 8.30, p. 103.)
“To show that a proposed abatement measure will materially reduce a hazard, the
Secretary must submit evidence proving, as a threshold matter, that the methods undertaken by
the employer to address the alleged hazard were inadequate.” US Postal Service, 21 BNA OSHC
1767 (No. 04-0316, 2006). Despite Pepper’s own safety policy requirements, the Court finds the
Secretary has established the methods actually undertaken by Pepper to address the cited struck-
by hazard were inadequate. Even though Infinger assessed the sites they were planning to mill

15
Pepper’s purported written traffic control plans are also not in evidence since Pepper withdrew its proffer at
trial. (Tr. 410, 411, 413.)
16
and knew there was a Verizon vertical pole marker directly in the path of the milling operation,
Pepper failed to implement a safety plan to prevent the startup of the milling operation while
workers were in the path of the convoy. Likewise, even though Pepper’s safety policy requires
subcontractors to adhere to its safety policy and requires subcontractors to “coordinate their
efforts” with Pepper, there is no evidence Pepper provide subcontractors with a copy of its safety
policy. Further, it is clear Pepper excludes them from its daily “Take 5” safety meetings.
According to Ortiz, the exclusion of the dump truck drivers and the milling machine
operator from participating in the “Take 5” safety meeting is “a reflection of the absence of
understanding of basic hazard control inside of a work zone. If a hazard [ ] is created by these
vehicles in the work zone that Pepper controls, they should be an integral part of the discussion
about safety– before the beginning of the job– and included along with safety efforts of the
company … it’s evidence [of] the flaw [in] the policies and procedures and it's an organizational
weakness that this ANSI standard is trying to address and to incorporate into a safety program so
that that situation does not remain any further.” (Tr. 16-67.) The Court agrees with Ortiz.
The Court finds the decedent’s exposure to the struck-by hazard would not have occurred
if Pepper had simply implemented a safety plan that prevented the restart up of the milling
operation while the decedent was in the path of the convoy. Since Infinger assessed the sites
they were planning to mill, Pepper knew the telecommunications box was in the direct path of
the milling operation before it recommenced the milling operation and had ample opportunity to
ensure the operation did not restart until the decedent was out of the direct path of the milling
convoy. Thus, with the exercise of “reasonable diligence,” Pepper could have not only
materially reduced the risk of the struck-by hazard, but could have avoided it completely.
Therefore, the Court finds the Secretary’s proposed abatement method was a feasible and
acceptable abatement method to correct the struck-by hazard both technologically and
economically.16

16
The Secretary also proposed a second method of abatement, to “assign a spotter to communicate between
workers on foot and equipment operators to clear paths before equipment is moved.” However, since the Secretary
is only required to set forth one feasible means of abatement, and the Court finds supra, he did so with his first
proposed abatement method, it is not necessary for the Court to address the feasibility of the Secretary’s second
proposed abatement method.
17
 F. Employee Misconduct Defense
The “law provides a complete defense[,] commonly referred to as an affirmative
defense,” United States v. Mintmire, 507 F.3d 1273, 1293 (11th Cir. 2007), if the violation was a
result of unpreventable or unforeseeable employee misconduct. Thus, if “the Secretary makes
out [his] prima facie case with respect to all four elements, the employer may then come forward
and assert the affirmative defense of unpreventable or unforeseeable employee misconduct.”
ComTran, 722 F.3d at 1308. However, to reach safe harbor, an employer must demonstrate that
it “(1) created a work rule to prevent the violation at issue; (2) adequately communicated that
rule to its employees; (3) took all reasonable steps to discover noncompliance; and (4) enforced
the rule against employees when violations were discovered.” Id. Sustaining this burden requires
more than pious platitudes, “the employer must establish that it took all feasible steps to prevent
the [accident].” CBI Servs., Inc., 19 BNA OSHC 1591, 1602 (No. 95-0489, 2001) (citation
omitted).
Although Pepper raised this affirmative defense in its answer, it never asserted that any of
its employees violated an established work rule. Instead, Pepper asserts Perez, a subcontractor,
engaged in misconduct and it “was his failure to pay attention . . . that caused the accident.”
(Pepper Post-Trial, Br. P. 22.) Since neither parties briefed the applicability of this defense to a
subcontractor, assuming arguendo without deciding, that an employer may raise an affirmative
defense of unpreventable or unforeseeable employee involving a subcontractor rather than its
own employee, the Court nonetheless, concludes Pepper has not carried its burden of proof as to
the first two elements.
Pepper did not prove it created a work rule to prevent the violation since, as indicated
supra, it did not have a safety plan to prevent the startup of the milling operation while workers
were in the path of the convoy. Even assuming arguendo it had such a work rule, Pepper did not
prove it adequately communicated the work rule. Rather, the evidence shows Pepper did not
communicate its safety policy to the dump truck drivers and the milling machine operator and
did not include them in its “Take 5” safety meetings, even though they were required to follow
Pepper’s safety policy. Therefore, Pepper failed to establish the affirmative defense of
unpreventable or unforeseeable employee misconduct.

                                            18

G. Isolated Occurrence Defense
Although not expressly discussed by Pepper in its post-trial brief, Pepper identified as an
issue in the parties’ “Agreed Prehearing Statement” whether “the underlying incident giving rise
to the instant citation was unpreventable, unanticipated and isolated.” (Agreed Prehearing
Statement, p. 6, § B, ¶ 3) Therefore, the Court also briefly addresses the “isolated occurrence”
affirmative defense. In order to prevail in this defense, an employer must demonstrate that “all
feasible steps were taken to avoid the occurrence of the hazard[.]” H.B. Zachry Co. v.
Occupational Safety & Health Review Comm'n, 638 F.2d 812, 818. (5th Cir. Unit A Mar. 1981).
“This includes the training of employees as to the dangers and the supervision of the work site.”
Id. The employer must also show “the actions of the employee were a departure from a
uniformly and effectively communicated and enforced work rule of which departure the
employer had neither actual nor constructive knowledge.” Id.
As a condition precedent to establishing an isolated occurrence defense, Pepper must first
prove it had a “uniformly and effectively communicated and enforced work rule” to address the
cited struck-by hazard. As indicated supra, Pepper did not. Therefore, Pepper failed to
demonstrate that “all feasible steps were taken to avoid the occurrence of the struck-by hazard.
Further, Infinger also admitted he had “occasionally” observed unsafe driving habits with the
dump truck drivers working on his projects. (Tr. 285.) Therefore, Pepper also failed to establish
it did not have actual or constructive knowledge of the purported departure. Thus, Pepper has
not established an isolated occurrence defense.
H. Classification
Under section 17 of the Act, violations are characterized as “willful,” “repeated,”
“serious,” or “not to be of a serious nature” (referred to by the Commission as “other-than-
serious”). 29 U.S.C. §§ 666(a), (b), (c). Here, the Secretary classified the violation as “serious.”
A “serious” violation is defined in the statute; the other two degrees are not. A “serious”
violation is one that carries a substantial probability that death or serious physical harm could
result unless the employer did not, and could not with the exercise of “reasonable diligence,”
know of the presence of the violation. 29 U.S.C. § 666(k).
The Commission has concluded a hazard “is likely to cause serious physical harm if the
likely consequences of employee exposure would be serious physical harm.” Morrison-Knudson

                                              19

Co./Yonkers Contracting Co., 16 BNA OSHC 1105, 1124 (No. 88-572, 1993). Here, there is no
dispute death or serious physical harm would be the likely consequence of employee exposure to
a struck-by hazard from a dump truck. The evidence supporting the finding that the hazard was
likely to cause death or serious bodily harm also supports the similar requirement of the Act that
there be a “substantial probability” that death or serious physical harm could result from the
questioned condition. Georgia Electric, 595 F.2d at 322. Therefore, the Secretary has
established the struck-by hazard was likely to cause death or serious bodily harm and there was a
“substantial probability” that death or serious physical harm could result from the questioned
condition.
Nonetheless, Pepper “cannot be found guilty of a ‘serious' violation unless it did not, and
could not ‘with the exercise of reasonable diligence,’ know of the presence of the violation.”
Getty Oil Co. v. Occupational Safety & Health Review Comm'n, 530 F.2d 1143, 1145 (5th Cir.
1976). However, “an employer's inability to establish the adequacy of the safety instructions to
his employee shows a failure to exercise reasonable diligence.” H.B. Zachry, 638 F.2d at 819.
Here, since Pepper failed to establish the adequacy of its safety program, it shows a failure to
exercise reasonable diligence.” Therefore, the Court concludes the Secretary properly classified
the violation as serious.

                          IV. PENALTY DETERMINATION

   “Section 17(j) of the Act, 29 U.S.C. § 666(j), requires that in assessing penalties, the

Commission must give ‘due consideration’ to four criteria: the size of the employer's business,
the gravity of the violation, the employer's good faith, and its prior history of violations.” Revoli
Constr., 19 BNA OSHC at 1682. “These factors are not necessarily accorded equal weight;
generally speaking, the gravity of a violation is the primary element in the penalty assessment.”
J.A. Jones Constr., 15 BNA OSHC 2201, 2216 (No. 87-2059, 1993) (citations omitted).
Pepper is subject to a civil penalty of up to $7,000.00 for the serious violation. 29 U.S.C.
§666(b). The Secretary proposed a $5,670.00 penalty based upon the gravity of the violation and
after giving Pepper credit for its size, and lack of history of violations. The Court “consider[s]
the amount of the Secretary's penalty de novo.” ComTran, 722 F.3d at 1307. The Court agrees

                                             20

with the Secretary’s proposed reduction in the penalty amount for Pepper’s lack of history of
violations and for its size.
“The gravity of a particular violation can range from de minimis, where there is very low
potential for injury or occupational illness, to severe, where death or serious physical injury
would be likely.” Nacirema, 1 BNA OSHC at 1002. “In evaluating the gravity of the violation,
the Commission considers the number of employees exposed, the duration of exposure, the
precautions taken against injury, and the degree of probability that an injury would occur.”
Gunite Corp., 20 BNA OSHC 1983, 1990 (Nos. 98-1986, 98-1987, 2004). See also J.A. Jones,
15 BNA OSHC at 2214; Kus-Tum Builders, Inc., 10 BNA OSHC 1128, 1132 (No. 76-2644,
1981). Applying the gravity factors, given the fatality, the gravity of the violation was high.
There is no evidence the Secretary gave a credit for good faith. “[T]he Commission
focuses on a number of factors relating to the employer's actions, ‘including the employer's
safety and health program and its commitment to assuring safe and healthful working
conditions[,]’ in determining whether an employer's overall efforts to comply with the OSH Act
and minimize any harm from the violations merit a penalty reduction.” Monroe Drywall Constr.,
Inc., 24 BNA OSHC 1209 (No. 12-0379, 2013) (citing Capform, Inc., 19 BNA OSHC 1374,
1378 (No. 99-0322, 2001)). Accord Nacirema, 1 BNA OSHC at 1002; Elliot Constr. Corp., 23
BNA OSHC 2110, 2119 (No. 07-1578, 2012). Here, the Court concludes Pepper’s approach to
safety does not show good faith.
Pepper failed to implement a safety plan to prevent the startup of the milling operation
while workers were in the path of the milling operation, which led to the death of Pepper’s
employee. Pepper also did not communicate its safety plan to all workers onsite, including the
subcontracting dump truck drivers and milling machine operator. Pepper failed to include its
dump truck drivers and the milling machine operator, in its “Take 5” safety meetings, even
though the subcontractors were required to adhere Pepper’s safety policy. Moreover, Pepper
admitted that it did not provide safety instructions or training to the truck drivers and milling
machine operator at the worksite. See Capform, 19 BNA OSHC at 1378 (finding a reduction for
good faith inappropriate when instructions were insufficient). These failures demonstrate a lack
of good faith. Therefore, a penalty reduction for good faith is not warranted. See Elliot, 23 BNA

                                             21

OSHC at 2119 (concluding that “significant failings” with respect to employee safety negated a
penalty reduction for good faith).
As indicated supra, had Pepper not failed to exercise “reasonable diligence,” it could
have not only materially reduced the risk of the struck-by hazard, but could have avoided it
completely, simply by implementing a safety plan to prevent the startup of the milling operation
while workers were in the path of the milling convoy. Thus, the struck-by hazard was a
preventable consequence of a work operation over which Pepper can reasonably be expected to
exercise control. Therefore, having considered Pepper’s size, history of violations, good faith,
and the gravity of the violation, the Court finds the Secretary’s proposed penalty of $5,670.00 is
appropriate. Accordingly,

                                            V. ORDER

IT IS HEREBY ORDERED THAT the citation is AFFIRMED and Pepper is assessed and
directed to pay to the Secretary a civil penalty of $5,670.00.17

SO ORDERED THIS 2nd day of November, 2015.

                                                                  /s/
                                                                  JOHN B. GATTO, Judge

17
See section 17(l) of the Act, which mandates that civil penalties owed under this Act “shall be paid to the
Secretary for deposit into the Treasury of the United States[.]” 29 U.S.C. §666(l).
22