C & W Facility Services, Inc.

Read the official release (oshrc.gov)

Plain-English summary

C & W Facility Services managed janitorial work at the Tampa Convention Center, including workers carried on subcontractor Awnclean's weekly payroll. A worker pressure washing an unguarded dock without a personal flotation device walked backward into Tampa Bay and drowned. The judge found that C & W was the worker's employer because it controlled the workers' assignments, schedules, supervision, equipment, and discipline despite Awnclean processing their payroll. C & W supervisors knew that the worker was pressure washing the dock without a flotation device, and the judge found that this protective equipment was necessary for the drowning hazard. The serious violation of 29 C.F.R. § 1910.132(a) was affirmed, and the proposed $12,675 penalty was assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.132(a)
• Outcome: The serious personal-protective-equipment citation was affirmed, with a $12,675 penalty.
• Key point: Control over daily work established the employment relationship, and supervisors' awareness of dock work without a flotation device established actual knowledge.

Full text (OSHRC public release)


C & W FACILITY SERVICES, INC., OSHRC Docket No. 17-2056

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, D . C .
20036-3457

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 1 7 - 2056

C
& W F ACILITY
S ERVICES , I NC .,

Respondent.

Appearances:    Kate S. O’Scannlain ,
Solicitor of Labor

Stanley E. Keen ,
Regional Solicitor

Karen E. Mock ,
Counsel

Melanie L. Paul, Trial Attorney

Melanie A. Stratton ,
Trial
Attorney

Richard A. Latterell, Esq., Trial Attorney

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

For the Secretary
of Labor

Thomas M. L. Metzger, Esq.

Bryan M. Gramlich, Esq.

Littler Mendelson, P.C.

21 East State Street, 16 th
Floor

Columbus, OH 43215

For the Respondent

Before:       The Honorable
Dennis L. Phillips

U.S. OSHRC Judge

DECISION AND ORDER

I. BACKGROUND

This case arises from a fatal drowning that occurred on May 15, 2017 at 333 Franklin Street, Tampa, FL 33602 (Worksite).

( Tr. 365-66;
Joint Prehearing Statement ( Jt.
Pre -Hr’g
St mt. ) ;
Stipulation of Fact (SF) Nos. 1, 13) .

The victim, Johnnie Norton, was operating a
pressure washer on
a dock at the Tampa Convention Center (TCC).

Mr. Norton was not wearing a personal flotation device (PFD) when he walked backward off the dock and drowned.

( SF 11-12 ).

OSHA opened Inspection No. 1237383
of C&W
Facilities
Services , Inc. (Respondent or C&W)
as a result. 1 (Ex. 1).

On November 13, 2017, OSHA issued a one-item serious citation item to Respondent. OSHA cited Respondent for a violation of 29 C.F.R.
§
1910.132(a) for the failure to provide and require the use of personal protective equipment (PPE) in the form of
PFDs
to an employee pressure washing
a boat dock .

(Ex. l).

The total penalty issued to the company was $12,675. (Ex. 1) .
Respondent timely contested the Citation and Notification of Penalty.

( S F
4) .

The Court held an evidentiary hearing in the matter in Tampa, Florida on September 5-6, 2018 and
February
20, 2019.

(Tr .
1 , 226, 576). Both parties filed post hearing briefs and post hearing reply briefs.

II. STIPULATIONS
OF FACTS

In the Joint Prehearing Statement
at 14-15,
the Parties stipulated to the following facts:

1. On and before May 15, 2017, Respondent had a contract with the City of Tampa to provide certain services addressed in the contract at the Tampa Convention Center located at 333 Franklin Street,
   Tampa, FL 33602 .

2.

Johnnie Norton was a worker at the Tampa Convention Center Worksite on Awnclean's payroll.

3. Johnnie Norton had worked at the Tampa Convention Center for about one year prior to May 15, 2017.

4. Respondent's predecessor DTZ, Inc. and Awnclean USA, Inc. had entered into a contract for Awnclean to provide certain services at the Tampa Convention Center as specified in the contract.

5. DTZ, Inc. changed its name to C&W Facility Services, Inc., on November 20, 2015.

6.

On May 15, 2017, Johnnie Norton was pressure washing the docks at the Tampa Convention Center as part of his normal job duties.

7. Mr. Norton was wearing rubber boots while pressure washing.

8. The City of Tampa owned the pressure washer used by Respondent and Awnclean personnel to clean the docks.

9. The dock was approximately 289' 7" long and 10'
   2" wide.

10.

The bay was approximately 19 feet deep at the end of the dock where Mr. Norton was working on May 15, 2017.

11. W hile pressure washing the dock, Mr. Norton walked backward off the end of the dock and fell into Tampa Bay.

12. Mr. Norton was not wearing a personal flotation device at the time he fell into the bay.

13. Mr. Norton drowned .

(Tr. 47).

III. STIPULATIONS OF LAW

In the Joint Prehearing Statement at 1 3 -1 4 , the Parties stipulated to the following
S tatement of Applicable Principles of Law on which there is agreement :

1.

Respondent, at the time of the OSHA inspection, was an employer engaged in a business affecting commerce within the meaning of
s ection 3(5) of the Occupational Safety and Health Act of 1970 ( “ the Act" or "OSH Act"), 29 U.S.C. 651,
et seq .

2. The Occupational Safety and Health Review Commission has jurisdiction of this action pursuant to
   s ection
   10 (c) of the Act.

3. The principal place of business of Respondent is at 275 Grove Street, Suite 3-200, Auburndale, MA 02466 ,
   but Respondent operates an office in the state of Florida at 5200 Lagoon Drive, Suite 760, Miami, FL 33126.

4. Respondent timely contested the Citation and the proposed
Penalty, pursuant to the provision of Section 10(c) of the Act.

(Tr. 47-48).

IV . JURISDICTION

The Court finds that, as of the date of the alleged violation, Respondent was an employer engaged in business affecting commerce within the meaning of section 3(5) of the
OSH Act.
( Stipulation of Law (SL) No s . 1-2 ; Resp’t Answer, ¶¶ 1-3). Based upon the record, the Court finds that at all relevant times Respondent was engaged in a business affecting commerce and was an employer within the meaning of sections 3(3) and 3(5) of the OSH Act. The Court concludes that the Commission has jurisdiction over the parties and subject matter in this case, and Respondent is covered under the OSH Act. 2

V. CITATION

Complainant’s Citation alleges a violation of one standard—29 C.F.R.
§   1910.132(a). The Citation alleges the following:

Citation 1, Item 1
Type of Violation:
Serious

29 C.F.R.
§
1910.132(a): Protective equipment was not used when necessary whenever hazards capable of causing injury and impairment were encountered:

a. At the Tampa Convention Center, an employee engaged in pressure washing a boat dock was not provided and wearing a personal flotation device (PFD), on or about May 15,
2017.

(Ex. 1).

V I . FACT S

On October 12, 2012, the City of Tampa issued a Request for Proposals (RFP) for Operational Staffing
Services
at the T CC
located at 333 South Franklin Street, Tampa, Florida 33602
calling for proposals to be received by November 16, 2017. 3
(Ex. 37, at 3 , 6 ; SF 1 ). The RFP stated that the
successful proposer shall be responsible for
annually
providing: 1) Cleaning/Setup Personnel: about 110,000 hours, 2) Working Supervisors: about 12,800, 4
3) On-Site Manager:

about 2,080 hours (salaried), 5
4) Event Maintenance Personnel: about 12,000 hours, and Event Technical Personnel:

ab o ut 4,160 hours. The R F P also stated that the successful proposer shall be responsible for providing
on an as needed basis , among other types of equipment, “Pressure Washer.”
(Ex. 37, at 6). The RFP stated
that
it awarded rating points for proposals that utilized Small Local Business Enterprise (SLBE
or SBE ) subcontractors with
evaluation
criteria that included “Diversity of SLBE subcontractors” and “ Percentage
of proposal/scope committed to SLBE subcontracting.” 6 (Ex. 37, at
24 , 52 ).

On April 1, 2013, the City of Tampa entered into a contr a ct with UGL Services ’
U NICCO
( also referred to as
DTZ)
for operational staffing services , including janitorial, grounds maintenance, and maintenance,
at the TCC. Th is
contract
expired on
March 31, 2014, subject to renewal for additional one-year period s
by agreement of the parties. The contract
was repeatedly renewed and
continued through
July 31, 2018. (Tr. 521-2 5 , 607 ; Ex s .
37, at 27,
Y).
DTZ identified three subcontractors, including Awnclean, U.S.A., Inc.
(Awnclean) , Chinchi Janitorial Services, Inc.
(Chinchi
or Chinchi’s ) , and P&L Cleaning Services
(P&L
or J&L ) , for small business enterprise participation. (Tr. 523; Ex. Y, at 6). The contract called for 25%
($493,339.50)
of its
total
value to be assigned to Awnclean
and 13% of its total value to be assigned to C h inchi’s
($256,536.54)
and P&L
($256,536.54) . 7

Chinchi and P&L
provided janitorial services under the contract. Awnclean provided
janitorial
services and some maintenance of the exterior grounds under the contract. (Tr. 523-2 6 ; Ex. Y at 8).

Ken Jermulka (or Germulka) was a DTZ salesman
who handled DTZ’s
account
with the

TCC. (Tr. 312). In 2013, Mr.
Jermulka
was working with
Paul Frederick
Diehl , then Awnclean’s Office Manager,
helping Awnclean become a subcontractor for DTZ because DTZ needed minority participation in DTZ’s contract with the TCC. 8 (Tr.
140,
312-1 5 ). Mr. Diehl testified that “the contract put out by the City was that there had to be a certain amount of minority owned business participation in the contract. And so they had to subcontract out some of their work to minority companies, and we were one of those.” (Tr. 329-30).

Amy Diehl is
Awnclean’s
owner and President. She is married to Mr. Diehl. (Tr. 133 , 140 ). Awnclean is a commercial cleaning business that specializes in the clean-up of construction sites. (Tr. 133, 136 , 252-53; Ex. D, at 5 ). It performs roof, building, pressure, awning, and window cleaning. It also does some construction cleanup
and interior rafter cleaning in gymnasiums . (Tr. 133 , 308-09 ). Awnclean employs approximately 26 employees. (Tr. 133). It has been in business since 1989 ,
when it was founded by
Mr.
Diehl. (Tr. 257, 309).

Mr.
Jermulka reached out to Ms. Diehl and asked her if Awnclean was interested in joining DTZ to bid for a contract with the City of Tampa to provide operational staffing services (also referred to as janitorial services) at the
TCC . (Tr. 134 , 285-86 , 539-40 ). He did so because Awnclean is a woman-owned business. (Tr. 134-35, 276,
300,
312; Ex. M). Ms. Diehl testified that, “It was made clear to us on this contract that we were doing – providing staffing. That this was a staffing position.” (Tr. 253).

She explained that Awnclean “wouldn’t have got the contract”
if it did not agree to the terms of the contract that said otherwise.

(Tr. 253-54). She said
“ the truth , is that” the workers on Awnclean’s payroll who were paid weekly and worked at the TCC “were all run and managed by C&W.”
(Tr. 253-54).

Mr. Diehl testified that the TCC awarded a contract to DTZ
for operational staffing
in May 2013. (Tr. 310). He said ,
during that same year, Awnclean entered into an agreement with DTZ. 9
He said DTZ transferred workers already working at the TCC to Awnclean’s payroll. He
further
said DTZ hired new workers to work at the TCC who were
also
placed on Awnclean’s payroll.

(Tr. 31 3-1 4). Mr. Diehl stated that
later on
DTZ sent workers to be hired to work at the TCC to Awnclean to fill out
applications . (Tr. 313-14 , 320 ).

By email dated May 20, 2013, DTZ’s
Interim Site Manager
Tommie Harris 10
asked Ms. Diehl to advise her when Ms. Dieh l ’s attorney approved the subcontractor agreement between DTZ and Awnclean. Ms. Harris also attached “the steps that we will use to get your company started as a subcontractor to DTZ @ the Tampa Convention Center.” ( Tr. 142-43;
Ex s . 13, at 1 , L, at 1 ). These “Step by Step instructions for a smooth transition” included an unspecified date for DTZ to meet with its current
DTZ
employees
to
end
their
DTZ
assignment and identified a list of eleven DTZ employees and one supervisor
(for a total of twelve
employees ) , and their “Work Hours” ,
who would be assigned
by DTZ
to Awnclean to work at the TCC. 11 The date the “Subcontractor starts employee assignment” was left blank. The email also stated that a weekly payroll, including the signature and time clocked by each worker, would be sent to Awnclean by DTZ weekly by 4:00 p.m., on Mondays. Both Amy and Paul
Diehl testified that until Awnclean received a payroll
time
sheet from DTZ Awnclean did not know who had worked, what hours they had worked, and what rate to pay them for work performed at the TCC. 12
Ms. Diehl testified that the May 20, 2013 email were DTZ’s instructions on how to put these twelve DTZ employees on Awnclean’s payroll. ( Tr. 143 , 147-48 , 153 , 161 , 315-16 , 322-23 ;
Ex. 13, at 2).
Both Paul and Amy
Diehl also testified that it was DTZ’s policy
for Awnclean
to pay the workers working at the TCC on a weekly basis. (Tr . 160-61 , 327 ).
Paul Diehl testified that “this is the only contract we had that was like that.” (Tr. 328).

She said that Awnclean was “working
within
their [DTZ] payment system ”
for only these workers on Awnclean’s payroll. Paul and Amy Diehl both testified that A wnclean paid
all
its employees, other than those workers on its payroll working at TCC, on a bi-weekly basis. (Tr. 160 -61 , 327 ).
Both Paul and Amy
Diehl testified that DTZ
supervisors
set the number of hours each worker was going to work at the TCC. (Tr. 161 , 356 ). Paul Diehl said that Respondent dictated the amount of hours supervisors on Awnclean’s payroll paid weekly worked at the TCC. (Tr.
356 ).
Both Amy and Paul Diehl testified that
if a worker working at TCC was sick that worker would notify DTZ, but not anyone at Awnclean. (Tr. 161-62 , 321-22 , 330 ).

Paul and Amy
Diehl
also stated that DTZ supervisors , specifically
Michael
Sheehan, 13
provided safety and health training for the workers on Awnclean’s
weekly
payroll who worked at the TCC. (Tr. 173 , 303-05 , 338 ; Ex. 19 ).

Ms. Diehl testified that she was not aware of any
Job Hazard Analysis
( JHA ) 14
that Awnclean prepared prior to May 15, 2017 for work at the TCC. (Tr. 239). She said
that DTZ made it “really clear” that it did not want Awnclean to write up a JHA for work done at the TCC by workers on Awnclean’s
weekly
payroll. (Tr. 199-200). Awnclean’s employees
also said that a DTZ supervisor performed the job safety analysis (JSA) for pressure washing at the TCC. She said Awnclean did not perform a JSA because Awnclean assumed DTZ did one. She said after Mr. Norton’s drowning, Mr. Sheehan told her that workers on Awnclean’s
weekly
payroll working at the TCC
had
sat in on safety meetings; but may not have signed off on paperwork. 15 (Tr. 174-75 , 199 ).

By email dated May 31, 2013, Ms. Harris indicated that her first meeting with A wnclean
would occur on June 4, 2013 where employee information would be transferred
from
D T Z to Awnclean and DTZ would provide the work schedule for Awnclean’s “new employees . ” Ms. Harris also stated that these employees would start working for Awnclean starting the week of June 17, 2013. Ms. Diehl testified that Ms. Harris was transferring
or switching
the employees
from DTZ
to Awnclean’s payroll.

(Tr. 148 , 153-54 , 287-88 , 607-08 ; Ex. 14, at 1).

Mr. Diehl testified that he was the only Awnclean representative to show up for the June 4, 2013 “kick off” meeting. He said he thought it would be “like a job’s fair.” (Tr. 313-14). Mr. Diehl said he went to the meeting “under the assumption that we would be managing our employees.” Instead, he said Mr. Sheehan told him
that “you don’t need to be here” and
that DTZ would manage the employees
on Awnclean’s
weekly
payroll
working at the TCC. (Tr. 31 4 -19). Mr. Diehl testified that he “was surprised by it. I did leave. I didn ’ t
stay for the meeting.” (Tr. 317-19). He said DTZ did not provide a work schedule to anyone there. (Tr. 317).

By email dated June 12, 2013, Ms. Harris sent Paul Diehl 16
a listing of
twelve
DTZ employees that omitted one employee whose name appeared on the May 20, 2013 listing
and added Jermain Alonzo Slaughter. Ms. Harris stated, “We
[DTZ]
just made J. Slaughter a new supervisor.” 17 The listing included the Job Type and Hourly rate for each employee. (Tr. 149 , 155-56 , 316 ; Ex, 14, at 3). Ms. Diehl testified that these were the employees who would be working on the TCC project. She said that DTZ assigned them to Awnclean’s payroll
to be paid weekly . (Tr. 155 , 287 , 316-17 ). Ms. Diehl testified that Respondent set the hourly rate of pay
for workers on Awnclean's
weekly
payroll. (Tr. 159).
Mr. Diehl testified that DTZ set up autopay for these workers. He said Awnclean put the autopay
information
into its system and got it over to Awnclean’s accountant, who did Awnclean’s weekly payroll. He said Awnclean had no role in soliciting, interviewing, or hiring these workers , or any workers later on . (Tr. 316 -17 , 326-27 ). He said he did not meet any of these
twelve
workers who were placed on Awnclean’s payroll. (Tr. 319; Ex. 14, at 3).

By email dated June 20, 2013, Paul Diehl informed Ms. Harris, and others, that
Awnclean would begin processing
weekly
payroll the next week. He also indicated that he would soon need to pick up “employee files”
from DTZ. (Ex. 13 ,
at 3).

By email dated June 21, 2013, Ms. Harris told Paul and Amy Diehl that she [Ms. Harris] had collected applications from potential employees. Ms. Diehl testified that DTZ “ran the employment adds” seeking the applications. (Tr. 143-44 , 155 ; Ex. 13, at 3).

In 2013, Awnclean and DTZ entered into a
sub contract for Awnclean to provide certain services at the T CC
as specified in the
sub contract. 18 (Tr. 205;
S F 4 ). Ms. Diehl testified that Awnclean had annual revenues of about $2,400,000. (Tr. 184). She said that Awnclean made an annual profit of about $18,000 under the
sub contract, although some years were “slimmer than others.” (Tr. 205-06). Both Amy and Paul Diehl testified
that
when
Awnclean entered into the
sub contract with Respondent, Awnclean did not have enough employees on its regular payroll to complete the work required by the
sub contract.

( T r. 138, 313).

By email, Subject: payroll W/E 6/30/13 total hours 354.50, dated July 1, 2013, Ms. Harris told Amy and Paul Diehl that “[t]his is our first week of payroll.” Ms. Harris
further stated: “We only had 10 employees this week. We did not send the termination papers in for
Marie Justinvil. We will get that done this week and she will be on next weeks payroll for your company.”
Ms. Diehl testified that Ms. Justinvil came onto Awnclean’s
weekly
payroll at DTZ’s request. (Tr. 152 , 158 ; Ex. 14 at 10).

By email dated October 17, 2013, DTZ’s Operations Manager, Michael Sheehan, told Awnclean’s Scheduler, Brooke Martz, and Paul Diehl that DTZ was “sending a new employee, she
[Jill Glass]
will be on you[r] (sic) staff starting Monday, 10/21/13. Her rate of pay is $8.00 an hour.” ( Tr. 156 ;
Ex. 14, at 7). Ms. Diehl testified that even though Awnclean did not solicit or interview Ms. Glass, Awnclean put her on the
weekly
payroll . (Tr. 157). She further testified that DTZ sent Awnclean “an email saying we’re adding five people to your payroll.” (Tr. 284).

Ms. Diehl testified that she had a statewide certification as a Woman Owned Business for quite a few years before 2014. (Tr. 273-74; Ex. L, at 7). She said
that since she was going after local
work,
she submitted an application to Hillsborough County. On February 17, 2014, Hillsborough County, Florida, Minority and Disadvantaged Business Manager, Sheila Hudson, acting on behalf of the Economic Development Department, approved Awnclean’s application for certification as a bona fide Disadvantaged Minority/Disadvantaged Woman Business Enterprise for two years effective February 14, 2014. 19 ( Tr. 276;
Ex. M).

I n April 2014,
Awnclean ’s
principal place of business was at 501 N. Newport Avenue, Tampa, FL 33606. On April 1, 2014, Awnclean
enter ed
into
a
follow-on
one year
“Services Agreement”
sub contract with
DTZ
because it was an opportunity for Awnclean to work with Respondent, a larger company, and learn how to provide janitorial services. 20

(Tr. 135 ,
253 ,
526; Ex. A ).

Ms. Diehl
stated she thought Respondent was “going to help us on how to do that
[provide janitorial services] ” since Awnclean’s experience was with construction cleaning which differed from janitorial cleaning. She said,
“ Yeah, we were kind of learning as we went along.” (Tr. 136).

Paragraph 6 ,
Change in Scope
of the
April 1, 2014
subcontract ,
stated, in
part: “DTZ has the right to increase or decrease the scope of Services upon thirty (30) days advanced written notice to Subcontractor.” 21

Paragraph 11, Contractor Relationship ,
stated:

In furnishing Services, hereinunder,
Subcontractor
shall be acting as an independent contractor in relation to DTZ. … Neither Subcontractor nor any personnel employed by or affiliated with Subcontractor for the benefit of DTZ shall be considered as having employee status at DTZ. 22

( Tr. 286;
Ex. 30, at 4).

Paragraph 13 ,
Subcontractor
Employees ,
stated :

DTZ agrees not to directly or indirectly hire or cause to hire, employ or
engage the services of Subcontractor’s employees during the term of this Agreement. Subject to controlling law, DTZ shall have the right, upon written notice to Subcontractor stating any cause, to require
Subcontractor
to remove any employee of
Subcontractor’s
from assignment to any locations services under this Agreement.
S uch right of
removal
shall not be construed as instruction to dismiss the employee(s).

(Ex s . 30 ,
at 5 , 35, at 14 ).

Paragraph
17 ,
Indemnification ,
stated, in part:

(a) Su b contractor shall defend, i n de m n i fy, and hold harmless DTZ, Prime Customer, and their respective employees, agents, directors, officers, shareholders, succe s sors, and assigns from any and all claims and liability for … death to persons providing that such arise out of (1) the presence of S u bcon t ractor’s
personnel and equipment at the Location serviced under this Agreement, (2) the acts or omissions
of Subcontractor or its agents, employees, under this Agreement, or (3) any failure by Subcontractor to conform to the terms of this Agreement and/or Federal, state, and l o cal laws, regu l ations and ordinances.
… In no event shall D T Z be liable for any special, indirect or consequential loss or damage unde r
this Agr e ement.

(Ex. 30, at 6).

The Scope of Services and Locations section at Exhibit A of the
subcontract
stated , in part:

CLEANING SET-UP PERSONNEL

The
responsibilities
of the
subcontractor’s
Cleaning /Event Set-Up personnel include, but
are
not limited to the following:

…

3.
Ability
to
operate all aspects of cleaning equipment. …

5. Knowledgeable concerning
   safety
   procedures , ….

(Ex. 30, at 9).

MAINTENANCE PERSONNEL REQUIREMENTS.

Responsibilities of the subcontractor’s Maintenance Personnel include, but are not limited to the following:

…

2. Must be skilled in one or more of the following:

…

f. Ability to use a pressure washer.   

(Ex. 30, at 9).

SUBCONTRACTOR’S PERSONNEL UNIFORM REQUIREMENTS

1. DTZ shall provide, …, complete
   uniforms
   and
   require
   all
   employees
   to wear
   distinctive
   uniform clothing and assure every employee is
   i n
   uniform
   on the date an employee first enters on duty ….

2. DTZ shall furnish and require each employee at the work site to wear name tag identification with the names of both the employee and the TCC logo. …

(Ex. 30, at 10).
…

CLEANING REQUIREMENTS

The performance of work to be completed by the subcontractor inc l udes, but is not limited to, the list of duties provided below: …

ENTRANCES/BISTRO/PARK/FRONT DRIVE/RIVERWAL K :

…

4. P ressure wash outside … docks, etc.

( Tr. 134 , 197-9 9 ;
Ex. 30, at 12).

OTHER DUTIES:

1. Subcontractor shall perform all related tasks as requested [sic]
   the Operations Manager or designee necessary to fulfill building requirements with the ability of their employee(s) to safely and successfully accomplish the work. 23

(Tr. 201-02; Ex. 30, at 14).

EXHIBIT B, CHARGES ,
stated :

DTZ
shall
pay Subcontractor in current funds for the performance of the Subcontract, (actual costs for payroll with the
associated
taxes, insurance and benefits). Listed below are the regular time
billable rates
that you will invoice DTZ for the
following positions ;

Cleaning/Event Setup personnel $ 10.75 per hour for hours worked only

Supervisor
personnel
$13.25 per hours for hours worked only. 24

( Tr. 160 , 207-08 ;
Ex. 30, at 15).

On
April
1, 2015, the
subcontract
was extended for 12 months through March 31, 2016. ( Tr. 136-37;
Ex. 30, at 17).
The
subcontract
was further extended through 2018
until there was a “ formal
separation” that occurred in December 2017 after Awnclean gave Respondent a 30-day
notice. (Tr. 137-38 , 297 , 527 ). Ms. Diehl testified that Awnclean
terminated
the
sub contract because it was not making money on it and it “didn’t seem like a good fit
anymore .” (Tr. 137-38 , 206 ). She said that when the
sub contract ended the employees working at the TCC “were transferred back on staff to C&W”
or to another company’s payroll.” (Tr. 140 , 297-98 ).

Ms. Diehl testified that she did not know that docks were being pressure washed
at the TCC . (Tr. 198 -99 , 205 ). She said Awnclean never identified the need for an employee working near water to wear a
PFD
“because we were not aware when we started this contract that we were going to be working on any docks. And yes, I see it there and I’m just telling you what happened.” (Tr. 205).

She further said Awnclean did not provide anybody doing work at the TCC with a PFD or life jacket “[b]ecause we did not know they were doing it, for one thing. We were not directing their bus – their work. That was totally done by DTZ supervisors.” (Tr. 256). Ms. Diehl testified that she did not know that some of the workers on Awnclean’s weekly payroll were pressure washing the docks. (Tr. 170).

She said that she went to the TCC about three or four times a year, primarily
to
quot e
additional work
through the
sub contract to be performed by Awnclean employees not put on Awnclean’s
weekly
payroll by D T Z ,
such as large pressure cleaning projects
performed away from water .

She said that Awnclean did not do a
written
formal
JHA
for these jobs
because they too were DTZ’s
“ employees in a lot of ways . ”

She acknowledged that she was responsible for the safety and identification of hazards for these employees
on Awnclean’s bi-weekly payroll . (Tr. 198 -20 4 , 237 ) .

Ms. Diehl said that while at the Worksite she was not welcome to check to see what workers on Awnclean’s
weekly
payroll were doing. Ms. Diehl testified that she never attended any scheduling or planning meetings between C&W and employees on Awnclean’s weekly
payroll regarding getting work done at the TCC. (Tr. 301). She said DTZ
“did not want us managing the day-to-day employees.” (Tr. 207).

Mr. Diehl
similarly
testified Awnclean never had
Awnclean managers managing the day to day activities of workers on Awnclean’s weekly
payroll
working at the TCC. (Tr. 321 , 359 ). He said supervisors on Awnclean’s weekly payroll working at the TCC did not report to Awnclean. (Tr. 321).

On
about
November 20, 2015 ,
DTZ changed its name
from DTZ
to C&W Facility Services Inc. (Tr. 524-25 ; Ex. V ;
S F 5 ).

Mr. Diehl testified that sometime in about 2016
Respondent got behind in their minority owned
business
participation rate in their contract with the TCC. As a result, he said, Mr. Sheehan told him:

[W]e’re going to put more – we’ve got to raise this quota and so we’re going to give more employees to you, mostly because we just did a good job. We made his life easier. And so we were given quite a few at that point. In round number s
I think our numbers went from, you know, the gross payroll of $3,800 to it was 5,800 to 6,000. So it substantially increased for that reason, so.

(Tr. 32 8-2 9).

Ms. Diehl testified that
C&W
sent Mr. Norton over to Awnclean to fill out Awnclean’s paperwork and start working
at the TCC . (Tr. 288). On about
June 3, 2016,
Mr.
Norton submitted a n Awnclean
Employment Application , where he indicated he had worked as a laborer at Staff Zone, at Tampa, Florida from March 2015 through about June 1, 2016. He also indicated that he had some experience performing the
s ervice of “Flat Work Pressure Cleaning”, including sidewalks, pavers, and hot water pressure washer. He also submitted a Form W-4 (Employee’s Withholding Allowance Certificate) and a Form I-9, both forms dated June 3, 2016. ( Tr. 211-1 6 ;
Ex. I). The parties have stipulated that Mr. Norton worked at the TCC for about one year before his death
on May 15, 2017 .

( Tr. 379-80;
SF 3 ). Ms. Diehl believes
C&W
referred Mr. Norton to Awnclean. (Tr. 212-13).

Mr. Diehl testified that “Mike [Sheehan] or someone at
DTZ or in this case C&W Services hired him and put him on, instructed us to put him on the
[Awnclean
weekly ]
payroll.” (Tr. 338-39 , 379-80 ). Ms. Diehl
said Awnclean did not assign Mr. Norton to pressure cleaning duties. She testified that either Mr. Sheehan or Ms. Alberti assigned Mr. Norton to perform pressure cleaning. (Tr. 215-16).

By email ,
S ubject: Sam Wilson new employee,
dated September 20, 2016, Awnclean’s
Office Manager,
Keith Richardson ,
told Paul Diehl that
“ C W Services/DTZ
is hiring another person.” (Tr. 151; Ex. 14, at 8 -9 ). Ms. Diehl testified that even though Awnclean did not solicit or interview Mr. Wilson, Awnclean put him on the
weekly
payroll
to work at the TCC . (Tr. 157-58).

Ms. Diehl testified that Respondent disciplined workers on Awnclean's weekly payroll by
Respondent’s m anagers
"writing up" those employees. (Tr. 170 , 336 ).
Ms. Diehl said Awnclean never did these write-ups. (Tr. 289). One worker, Ms. Glass, was written up twice by DTZ
supervisors .

(Tr.
170).

On March 10, 2014, Respondent’s Michael Sheehan issued a "Progressive Discipline Notice" to
Ms.
Glass ,
a worker on Awnclean's weekly payroll. (Tr. 171-72; Ex. 15,
at
8).
She said on March 13, 2014, Respondent ’s Area Manager South Region , Lillian Casiano,
and Mr. Sheehan
completed an " I ncident /Investigation
Re port" regarding
Ms.
Glass .

(Tr. 171 ;
Ex. 15,
at
4-12).
By email dated April 30, 2014,
Subject: Jill Glass,
to Awnclean’s scheduler, Sara McGue, with copies to Mr. Sheehan and Paul and Amy Diehl,
Ms. Casiano,
c onfirmed her meeting of April 29, 2014 with Amy and Paul Diehl and Mr. Sheehan where another situation with Ms. Glass
that
occurred during the weekend
was discussed. She

further stated Ms. Glass “was given an opportunity when that [previous] situation was enough for
immediate
termination.” ( Tr. 170-73 , 278-80 ;
Ex. 15). Thereafter,
Respondent
asked
Awnclean
“ to
talk to her and let her go. So she did come over to her office and we fired her . ” 25

(Tr. 170-71 , 280 ).

By email,
S ubject: “DTZ janitorial acct.”, dated September 20, 2016, Paul Diehl informed Amy Diehl that he was :

thinking about tell[ing] (sic) DTZ that we are going to drop the account come January, 1
[2017] . Why mostly as a negotiating tool. I had asked roughly .20 cents more starting in August due to the increase in Workers Comp premiums by an injury at their facility. 26
It does not really make sense to drop the account because the account does cover the cost of the [Workers Comp] premium increase, but most if not all profit is gone. Two thoughts, if there is another claim we could readily
be upside down. Our three
year
commitment with them ended in March[2016] .
…

(Tr. 151 , 277-78 ; Ex. 14, at 8).

Ms. Diehl testified that Mr. Sheehan had told Awnclean that it was “his favorite sub[contractor] because we always did the payroll correctly. They never had problems with us. ” (Tr. 289). Mr. Diehl testified that Respondent never notified Awnclean that it was not complying with any of the terms of the
sub contract. He said “Just the opposite. We were always told we were doing a great job.” (Tr. 338).

Mr. Diehl testified that Awnclean’s total gross pay for 2016 was $1,369,421.29. (Tr. 346; Exs. 36, at 1, H, at 1). He further stated that the hour ly
supervisor and hourly workers on Awnclean’s payroll
working at the TCC
for 2016 was about $170,000, or more than 10 percent of
all
Awnclean’s gross pay for 2016.
(Tr. 344-46; Exs. 36, at 1,
8 ,
H, at
1) .

Awnclean’s Payroll Summary for 2016 shows those weekly paid workers on Awnclean’s payroll who worked at the TCC included: 1) Rose A. Bonheur,
2)
Esther Chery, 3) Nam T .
Dam, 4 ) Jashon D. Davis,
5 )
Watson Ducatel,
6 ) Ralph A. Few,
7 ) James L. Flanning,
8 ) Cornelious Fiournoy-Walker,
9 ) Jimmy L. Gilchrist,
10 ) Kennethia L. Hall,
11 ) Erica Q. Howard,
12 ) Virginia N. Lee, 1 3)
Terrance G. Malloy III, 1 4 ) Rigoberto Monteaqudo, 1 5 )
Johnnie L. Norton, 1 6 ) Earnest E. Reid, 1 7 ) Jermain A. Slaughter and 1 8 ) Latasha G. Williams. (Ex s . 36, H). Only two workers, Messrs. Monteaqudo
and Slaughter, remained on the Awnclean payroll as of December 31, 2016 from those
twelve
workers identified in Ms. Harris’s June 12, 2013 email to Mr. Diehl. (Exs. 14, at 3, 36).

On February 8, 2017, Messrs. Sheehan and Taurus Gadsden taught a course entitled “2017
Hazard Communications (GHS)” at the TCC. The Class Attendance Sign-In sheets show that several C&W
employees on Awnclean’s
weekly
payroll, including Deanna Ballard, Rigoberto Montea q udo,
Anita Letourneau and Watson Ducatel, attended the course. (Tr. 304-05; Ex. 19).

O n
May 15, 2017
at 10:57 a.m., E.D.T. , Mr. Norton
fell into the water
at Tampa Bay
and
drowned while pressure washing the dock at the TCC. (Tr. 366 - 71 , 374 ;
Ex. 12;
SF 6 , 11-13 ).

OSHA’s Safety and Health Compliance Officer (CO) Winfred E. Marrero
explained how Mr. Norton died.

Q And what did you learn during your investigation about how Mr. Norton drowned?

A That he was doing some pressure washing with the use of a rotating scrubber, and that accidentally he fell on the – I think this is the Hillsborough River – into the Hillsborough River. And that there was nobody nearby and as much as he tried to surface or save his life, you know, he was not able to do so. 27

(Tr. 371 ; Ex. 12 ).

Ms. Diehl testified that she first learned of Mr. Norton’s drowning a couple of hours after it happened. She said she went to the TCC and Mr. Sheehan showed her where he drowned. They did not go out onto the dock, which she agreed was a solid concrete structure
that did not move or shake when stepping on it . She said that she had previously been on the dock for non-business occasions. Unless coming onto the dock from a boat, she did not wear any PFD. (Tr. 216-18). Ms. Diehl testified that Awnclean made a call to the police, its insurance company, and a report to OSHA regarding the fatality. 28 She also believed
C&W
made a report to OSHA. (Tr. 232).

On May 16, 2017, Ms. Diehl testified that she
also met with
C O
Marrero
at the TCC . 29
CO Marrero testified that Ms. Diehl told him that C&W “was in charge of the process or the activity inside the Convention Center which Johnnie Norton was involved.” (Tr. 369). Ms. Diehl testified that she
told
the CO
that Awnclean’s role was to administer the
weekly
payroll on the project as a subcontractor. She confirmed that Mr. Norton was on Awnclean’s
weekly
payroll. She said she was unaware of any distinction between subcontractor and independent contractor. (Tr. 233-34 , 362 -6 7 ;
S F 2 ). Ms. Diehl
said she
told CO Marrero that Awnclean’s
employees were “absolutely not” washing the docks. 30 (Tr. 235). She said she later found out that someone on Awnclean’s
weekly
payroll was washing the docks. (Tr. 235).

Upon arrival at the dock o n May 16, 2017,
CO Marrero spoke briefly with the TCC’s dock master ,
who told him that he gives permission for people to go onto the dock. (Tr. 411 -13 ).

During the course of his on-site investigation on May 16, 2017,
CO Marrero took photographs of the dock area where Ms. Diehl described that the incident occurred. (Tr. 370 -71 , 432-33 ; Exs.
2 - 6 , 9 ).

He said Mr. Norton fell o f f the far right of the dock shown in the photograph at Exhibit
9 . (Tr. 433 ,
451 ;
Ex.
9 ).

He said that the photograph at Exhibit
9
was a clos e- up
view
where Mr. Norton fell from at the end of the dock. (Tr. 451, Ex.
9 ). On a different day, he took measurements of the length and width of the dock. (Tr. 371-72 , 426 ). The C O
said there were no guardrails or barricades around the dock between the dock and the water. 31 He said the dock was surrounded by three sides of water. He said that the water was 19 feet deep at the location where Mr. Norton drowned. (Tr. 372-73; Exs.
2 -6; SF
9-11 ).

CO Marrero testified that the only
PPE
Mr. Norton was wearing
when he drowned was rubber boots. 32

(Tr. 373; SF 7). Mr. Norton was not
wearing
a
PFD
at the time he fell into
Tampa
Ba y. (SF
11- 12). CO Marrero testified that when personnel working at the TCC needed
PPE or equipment, they would contact a C&W supervisor, such as Mr. Sheehan, to obtain the equipment from a warehouse that the City of Tampa maintained. (Tr.
383-84).

At the trial, CO Marrero narrated
a TCC video that recorded Mr. Norton’s drowning. 33
Mr. Norton can be seen pushing the
rotary
scrubber forward and pulling it backwards cleaning the dock. CO Marrero stated and the video shows that Mr. Norton was using the rotary scrubber all the way at the very edge of the dock. The video shows Mr. Norton walking backwards with the
rotary
scrubber at his front and falling off the very end of the dock into the water
at about 10:57 AM.
He can be seen splashing around in the water for about 30 seconds
during which time he was unable to reach the dock
or remain on the surface of the water . The CO said , and the video shows,
the rotary scrubber 34
went into the water as well. At 10:59 AM, the video shows three unidentified men appearing at the end of the dock. One man is seen diving into the water
at 10:59 AM . The
two men atop the dock
are seen
pulling the cord of the
rotary
scrubber . At 10:59 AM, these three men are shown pulling and pushing the
rotary
scrubber back atop the dock.

The man in the water stretches to reach the level of the dock and returns to
the
top
of
the dock. At 11:00 AM,
the man dives into the water a second time. Two minutes later, a second unidentified man dives into the water. The divers are shown getting help to get back atop the dock. Other dives into the water by unidentified men are shown. At 11:21
AM,
a boat appears near where Mr. Norton fell into the water. At 11:27 AM, a diver, with the help of others atop the dock, is seen placing Mr. Norton back atop the dock where he is removed on a
gurney
from the scene of the incident. (Tr. 373-7 5 ; Ex. 12 ; SF 11 ).

CO Marrero testified that during his investigation he requested that Respondent provide to him all documentation pertaining to Respondent’s
H azard
C ommunication
(HazCom)
program ,
Respondent’s policy,
supervision of Awnclean employees ,
and training records. He said Respondent’s response to his document request w as
that “it was not related to the accident, therefore they did not provide me with that documentation.” 35

(Tr. 391-92, 443 -44 ). He said that the only thing Res p ondent provided to him was the JSA at Exhibit 21 ,
dated 12/8/2014, “Description of Job/Task: Pressure Washer.” (Tr. 391-9 2 ; Ex. 21). CO Marrero
testified that the JSA “fail[ed] to address an obvious hazard, which was drowning while doing the pressure washing on the dock area.” (Tr. 392-93 ; Ex s . O, at 2 , U, at 5 , 8 ). He said that the hazard was obvious “because the person is wo rk ing around water. If there’s going to be some slips, trips and fall, the person
basically
can fall in water. There was nothing to
prevent
an
individual to
fall into the water, regardless if the person knew how to swim or not.” 36 (Tr. 392-93).

Ms. D i ehl
said after Mr. Norton’s drowning Mr. Sheehan told her workers on Awnclean’s
weekly
payroll were not going to be performing work on the docks
anymore . (Tr. 244 , 248-49 ).

On May 24, 2017, CO Marrero discussed the incident with
Milagros Diaz 37
and Robert Mucinski , Respondent’s Southeast Regional Safety and Health person. (Tr. 375-76 , 485 ). He was seeking to obtain further information from them as to who supervised Mr. Norton and told him to pressure wash the dock. (Tr. 375-76). They told him that Marvin Walker was
Mr. Norton’s
immediate supervisor. They also
identified
Erika
Alberti as the “top person to speak to in reference to the job that he was performing. And also Mike Sheehan was kind of like a top person involved with the services that they were being provided to the Convention Center.” 38
(Tr. 376). CO Marrero requested C&W provide him with documentation concerning safety and health programs and training records relating to Mr. Norton. (Tr. 377).

CO Marrero testified that he interviewed several C&W employees and workers on Awnclean’s weekly payroll
randomly selected by Ms. Alberti . 39 (Tr. 393 -94 ). The interviews occurred
in a meeting room on the fourth floor of
the TCC . (Tr. 393 -94 ). O n
May 24, 2017, CO Marrero
interviewed
Marvin Dwayne Walker ,
Respondent’s
Supervisor of Grounds,
who said he had worked for C&W for one year, six months. 40

Written notes of the interview s how
that Mr. Walker told CO Marrero that when he
[Mr. Walker]
pressure washed the north dock he
[Mr. Walker]
“was not given and they didn’t have a PFD to wear. Now after the accident, they are available (5) But
prior
to the accident there were none. Now they require that you wear it when
doing
pre ssure
washing in the docks or checking the trash in the
docks .” His interv iew
notes
further
state
he
told the CO
he had:

neve r
seen a job hazard
analysis
and training for the docks pressure washing process.

They just hire someone and
p ut them to do pressure
washing
without any training “ (sic)
because they say they know how’ and they just put them
to perform
the work. It’s always rush, rush, rush. Johnny didn’t had
(sic)
a radio. He
had
done some pressure washing that morning but he went back because he was
told
to clean a rust st a in on the floor of the dock area.

Mr. Walker’s interview notes state
that
“They
nev e r did asked (sic) me if I knew how to

swim.” 41
(Tr. 390-91 , 395 ; Ex s . 22 , U, at 9 ) .

On May 24, 2017, Ms. Diehl sent an email to Mr. Sheehan and Ms. Alberti seeking, at OSHA’s request, a copy of their most recent signed
sub contract, information relating to DTZ’s Safety Training Program, and JHAs. Later that evening, Respond e nt’s
Ms.
Diaz responded by stating:

As a subcontractor to C&W Services and as Mr. Norton’s employer, Awnclean should be maintaining the documents requested by OSHA . C&W Services, as the prime contractor, will provide any information requested by OSHA directly to OSHA. C&W Services is not responsible for maintaining compliance records for subcontractors or their employees.

I also do not think that you should be communicating with C&W Services’ client, Tampa Convent i on Center, reg a rding OSHA’s request for information.

(Tr.
175-76,
281-82 ; Ex.
16, at 3).

Ms. Diehl
said,
“ that
was the first time we’d ever had any kind of conversation like that, ever.” (Tr. 282). S he never received the three items
she
requested from C&W Services. (Tr.
176 ). She also said that
Respondent
never asked Awnclean to provide it with any safety documentation or safety training documents for the workers on Awnclean’s
weekly
payroll. (Tr. 289).

On June 5, 2017,
CO Marrero also interviewed Ms. Alberti
in the presence of an attorney representing C&W. Ms. Alberti
had worked at the TCC for three years as Respondent’s Account Manager. I n
that position she received
i nstru c t i ons from the City of Tampa as to what needed to be done at the TCC; such as setting up for activities, doing maintenance work and housekeeping. She also routinely wa l ked around to insure employees were doing their work. CO Marrero
described her as “top top management” and
testified his impression was that she was
at the TCC
“ every single day.” (Tr. 377- 80 , 600 ; Ex s . 24 , 35, at 31 ). The CO testified that M s . Alberti told him that “C&W was in
charge
of providing the supervision to all the employees working at the
Convention
Center.” She said that supervisors worked under two operational managers. I f
one of the
operational
managers is not available, the supervisors can go directly to her.

She said supervisors make sure jobs are completed and direct orders to subcontractor
employees.

She said C hinchi
employees
provide
supervision
to their employees. She said “Awnclean use to provide with
supervision
but not … right now, probably couple of months ago. There was no supervisor from Awnclean when the accident took place.” He said she told him that Mr. Norton
had been working for about a year under her direction and
was being supervised by C&W employee, Marvin Walker .

She further said
th a t Mr. Walker “had to follow the supervision of Mike Sheehan.” (Tr. 378- 82; Ex s . 24 , Y ,
at 6 ).

Ms. Alberti told the CO that Charlie Estonier, and two other men, did the pressure washing before Mr. Norton. She said that Mr. Estonier
did not know how to swim and always
use to wear a
PFD
if he was doing work close to water . (Tr. 382-83 , 386 ; Ex. 24).

She did not know how he got his PFD because he was working at the TCC before she arrived. She said the City of Tampa warehouse will provide PPE upon request. She said that Mr. Norton did not tell her that he could not swim. (Tr. 383-84; Ex. 24).

Ms. Alberti said she saw Mr. Norton perform his
work
the day of the accident. She saw him pressure washing the dock area many times. She said he
performed
pressure
washing
“most of the time.” CO Marrero testified that Ms. Alberti told him that she saw Mr. Norton on May 15, 2017 pressure washing or scrubbing the dock without wearing a PFD. ( Tr. 450;
Ex s . 24 , U, at 8 ).

Ms. Alberti told CO Marrero that there was a JHA for pressure washing
that did not specify the use of a RFD when pressure washing the dock area. She said that “Nobody that works on the docks wears a PFD. Including City employees, basically all employees working at the Tampa Convention Center.” She told the CO that she “will not wear a PFD because
she
knows how to swim.”
She
said,
“nobody has ever asked to wear a PFD while working in the dock area”, including Mr. Norton.
CO Marrero also testified that Ms. Alberti cr e ated the
schedules assigning tasks to different employees of different companies working
a t the TCC. (Tr. 387 , 439; Ex. 24 ).

On June 16, 2017, CO Marrero interviewed James Flanning, who worked in Housekeeping at the TCC on Awnclean’s weekly payroll for about two years. (Tr. 401; Ex. 28). He said about a year before he cleaned and picked up trash in the dock ar e a. He said he knew how to swim; but no one asked him at work if he did. He said he saw only one worker, Charlie
[Court finds that Charlie’s last name is Estonier] , wear a PFD while working close to the water. He also said he had received training from C&W and the City of Tampa; but not from Awnclean. (Tr. 401-03; Ex. 28).

On June 16, 2017, CO Marrero interviewed
Virginian
Lee, who worked in Housekeeping at the TCC on Awnclean’s weekly payroll for about two and one-half years. (Tr. 404; Ex. 29). She said that she “never worked close to water that will require me to wear a personal floatation device. Have never worked close to the edge of the river or dock area.” She also said she had received training from C&W, an unidentified Awnclean representative, and the unidentified “distributor.” She said some supervisors at the TCC were from C&W, and others were Awnclean supervisors. 42

(Tr. 404-05; Ex. 29).

On June 16, 2017, CO Marrero interviewed Mr. Sheehan who told him that he had been working at C&W since
April
2013, and before that with DTZ , for a total of nine years at the TCC . (Tr. 385; Ex. 23). Mr. Sheehan was the Operations Manager in control of the supervision and employee work at the TCC. (Tr. 386; Ex. 23). CO Marrero testified that Mr. Sheehan told him that he was aware of a worker
that
had a fear of water using something similar to a PFD while pressure
washing
the docks. The written, signed statement of Mr. Sheehan’s interview
states that he told the CO that Mr. Norton had told him a couple of months after Mr. Norton began working at the TCC that he knew how to swim. He stated, “[Norton] told me that he knew how to swim. This conversation happened when he was told to do pressure washing. He was asked because the person that used to clean the area had a
fear of water and used to put a jacket [on].” Mr. Sheehan’s statement also states that he had “never seen anybody wearing a personal floatation device working in the dock area.” 43 His statement says if Mr. Norton had asked for a PFD, he [Mr. Sheehan] would have been able to get him one
from the City of Tampa . (Tr. 385-88 , 439 ; Ex. 23).

On
a bout June 16, 2017, CO Marrero also interviewed Mario Arana who had worked “the grounds as maintenance” for C&W for two-and-a-half years. (Tr. 399; Exs. 25-26). He told the CO that he last pressure washed the dock when Mr. Norton was sick. He said he went to the warehouse and got a lif e
jacket (PFD) and put the PFD on to wash the dock. Mr. Arana said no one told him to get the PFD. Even though he knows how to swim, he said he wanted to make sure that he was protected. He said that he did not “remember having seen anyone else using the life jacket during the pressure washing process in the dock area.” (Tr. 399-400; Exs. 25-26).

On June 16, 2017, CO Marrero also interviewed Ms. Ballard who had worked
for DTZ and
C&W
for about 7 years. (Tr. 76 , 401; Ex. 27 ). A t the
trial , Ms. Ballard
testified that she
worked in housekeeping and maintenance at the TCC. At that time, she was employed by Owens Realty, the company that take over from Respondent in about
July
2018 after
Respondent
lost the contract. (Tr. 75 -76 ).

She
said she
had performed pressure washing at TCC, but never on the docks near the water. (Tr. 76). Ms. Ballard testified that
in 2017
Messrs. Marvin Walker,
Norton, Ralph [Few], Mario [last name not given ; believed by the Court to be Arana ], and others
pressure washed the docks at TCC. 44 (Tr. 77-78 ; Exs. 25-26 , 35, at 59 ). Derrick [last name not given], and
Supervisor
Torres [no
last
name given] , who did both inside and outside work,
also performed pressure wash ing
at TCC when she worked for Respondent.

(Tr. 78 -79 ).

Ms. Ballard
said Michael Sheehan was the top supervisor at TCC and Mr. Walker , who was
responsible for outside work,
was a supervisor subordinate to Mr. Shee han .

(Tr. 79).

She said workers
paid by Chinchi and Awnclean also worked at the TCC
performing the same types of activities as those performed by Respondent’s employees . 45 (Tr. 79 ) .

Ms. Ballard testified that supervisors working for Respondent provided
all
the
workers
at the Worksite, including those
from C&W, Chinchi ,
Awnclean , and J&L Services ,
with safety equipment. (Tr. 81 , 110-11 ).
She said she was working at the Worksite on May 15, 2017 when Mr. Norton drowned. She said Mr. Norton was not wearing a PFD when he was pressure washing the docks. (Tr. 81-82 ; SF 12 ). She testified that
starting on May 16, 2017
all C&W workers had to wear a PFD
when pressure washing the
docks or
pulling the “garbage” off the dock. 46 (Tr. 82).

Ms. Ballard attended , along with many other C&W employees,
Haz Com
training taught by Mr. Sheehan at Taurus Gadson at the TCC on February 8, 2017. (Tr. 84 , 116 ; Ex. 19 , at 1 ). She later said everyone had to attend safety meetings, including Chinchi employees. (Tr. 116). CO Marrero testified that he concluded during his
investigation
that employees from Awnclean attended training presented by Respondent. (Tr. 386-87).

On June 16, 2017, the CO Marrero interviewed Ms. Ballard at the TCC. She read, initialed and signed the written account of her interview. (Tr. 395, 400-01; Ex. 27). At the trial,
Ms. Ballard
acknowledged that she told
C O
Marrero
on June 16, 2017
that Respondent “has never asked me if I knew how to swim.” She further said that Respondent did not require her to wear a PFD when she worked near the water collecting tr a sh from around the dock area. She also acknowledged that she told the CO that she recalled
that
a C&W employee named
“Charlie” wore a life jacket
when he was
collecting trash along the river or pressure washing . He stored the life jacket in his locker. She said Charlie “wore it [ a
life jacket ] a lot”, and Respondent’s management knew that. 47 (Tr. 89-92 , 102 , 110 -11 ; Ex. 27).

During cross examination, Ms. Ballard
testified that
she
was a C&W hourly employee who
operated a sweeper machine, backpack blower, pressure washer and other extractor machines as part of her job at the TCC. She also cleaned restrooms, swept mostly outside, and pulled “garbage around the south pavilion where the docks are and pulling garbage down the river walk.” (Tr. 103-04). She said that she did not wear a PFD when she swept or cleaned the trash by the water in 2011. (Tr. 105). She testified that C&W provided her with the PPE that she needed. She said that some PPE was stored in a warehouse controlled by the TCC. (Tr. 108). Ms. Ballard said she never requested a PFD, and was never told by Respondent that she could not ha ve
a PFD .

S he
did not feel that she needed a PFD because she knew how to swim.
(Tr. 109-110; Ex. 27). She said that Respondent never said she needed to wear a PFD during training she attended. (Tr. 110). She explained
that
the statement in her interview with CO Marrero
that Charlie “stood out wearing the jacket” meant that Charlie “left it on for such a long period, like half the day.” She further explained that Charlie “kind of stood out, running outside
with a hot life jacket on.” (Tr. 112-13; Ex. 27). She said she never saw anyone, other than Charlie, wear a PFD while working at the TCC. (Tr. 113). She also said she never saw a sign or notice from the City
[ of Tampa ] saying if you’re going out on the dock you have to wear a PFD. (Tr. 113; Ex. 27, at 2).

Ms. Ballard also said C&W
managed other contractors at the Tampa Convention Center, including Chinchi and J&L Services.

(Tr.
110 - 11).
Ms. Ballard said she saw Mr. Norton actually pressure washing on May 15, 2017. She did not observe him going
into
the water. She said nobody was on the dock with Mr. Norton. (Tr. 115 ; Ex. I, at 8 ).

During redirect examination, Ms. Ballard stated C&W directed
all
the
employees at the TCC, including those on Awnclean’s and Chinchi’s payrolls,
and told them
where to work and what tasks to perform. (Tr. 118). Sh e
said, “[w]e would go in and they [C&W] would tell you in the morning at the table which break you have, what you’re supposed to be doing.” She further said C&W had a
written weekly
schedule that told her and others at the Worksite , including workers from
C&W, Awnclean, Chinchi, and
P&L ,
what tasks were going to be performed each day. (Tr. 120-21 , 12 5-2 6 ; Ex s . 20 , Y ,
at 6 ).
She said
C&W
Supervisor Erika Alberti prepared the work schedule for the period May 15 through May 21, 2017. 48 (Tr. 126-27; Ex. 20).

At trial,
CO Marrero testified that he determined that
it was
appropriate
for him
to cite Respondent with the general industry standard for PPE at 29 C.F.R. §
1910.132(a) because
it is a performance standard and addressed PPE whenever an employee is exposed to a hazard that could cause severe injury or death. (Tr. 406 , 438 ; Ex. 1). He said he concluded that C&W, and not Awnclean, was providing
the
supervision
of workers on Awnclean’s weekly payroll
at the TCC , including Mr. Norton. He further stated that C&W had control over the environment , which was an unguarded dock 300 feet in length and only 10 feet in width, 49
and was capable of correcting the condition. 50 (Tr. 406-07).

CO Marrero testified that C&W obtained PPE from the City of Tampa and gave the PPE to workers on Awnclean’s weekly payroll at the TCC. (Tr. 81,
404, 447 ; Ex. 35, at 115). He said Messrs. Arana and Estonier were able to detect that there was a hazard and find a way to protect themselves through the use of PFD. (Tr. 408).

He said Awnclean was “just providing employee service to” C&W. (Tr. 406-07).

The C O
said the citation was classified as
Serious since
the case involved a fatality. He said that the proposed penalty of $12,675 was derived from the OIS “system” where the severity was high because a fatality
occurred,
and the probability was greater because the activity was being done almost on a daily basis. He said no reductions were allowed to the original proposed penalty of $12,675 due to the fatality. 51 (Tr. 409-10 ; Ex. U, at 7-8 ).

During cross examination, CO Marrero that he said during his
July 19, 2018
deposition that Awnclean’s owner had confirmed that Mr. Norton was an Awnclean employee and that he had been p ressure
washing the docks for about one year. (Tr. 410-11 , 414 ; SF 3 ).

He acknowledged at trial that he understood that the City of Tampa
and the TCC were “owners of the dock” who controlled and operated the dock. (Tr. 411).

He also acknowledge d
that he said at his deposition that the City of Tampa was providing PPE for individuals working at the TCC, including workers on Awnclean’s
weekly
payroll. 52
(Tr. 414-15). He also acknowledged that at his deposition he said that C&W did not provide any safety rules to
workers
on Awnclean’s payroll. 53 (Tr. 418-19). He also said that he did not find any information related to any industry standard for somebody to wear a PFD while working on the dock. (Tr. 422-23). H e
further
acknowledged that
a t the start of his investigation
he spoke with Mr. Mucinski about any requirement
to wear a PFD on the dock. CO Marrero testified that Mr. Mucinski told him that a lot of people working adjacent to water were not wearing PFDs. 54 The CO told him that
whenever a company is doing work close to water there is a more direct requirement under the “construction industry standard” to use a PFD.

CO Marrero stated that he continued his investigation “to determine if indeed there was a need to have a personal
floatation
device while conducting this type of task.” (Tr. 423 -24 , 448-49 ).
CO Marrero testified that he did not
identify any incidents before May 1 5 , 2017 where
Mr. Norton, or any other employee, including C&W or Awnclean employees, had fallen into the water. (Tr. 424-25).

Ms. Diehl testified that OSHA did not issue a citation to Awnclean for events related to Mr. Norton’s drowning. She said it was her understanding that OSHA’s investigation determined that Mr. Norton was an employee on Awnclean’s
weekly
payroll
working
under the direction of
Respondent’s
management. (Tr. 237). By letter dated November 13, 2017, OSHA’s Tampa Area Office Area Director (AD), Leslie L. Grove III, sent
to Awnclean
copies of the citations OSHA issued to Respondent for violations of the OSH Act. AD Grove asked Ms. Diehl to review the citations “and ensure that appropriate steps are taken to protect your employees at that job site.” He also stated:

While the extent of responsibility under the law for staffing agencies and host employers is dependent on the specific facts of each case, staffing agencies and host employers are jointly responsible for maintaining a safe work environment for temporary workers. Temporary staffing agencies and host employers share control over the worker, and OSHA may hold both the host employer and the staffing agency responsible for violative condition(s) in the appropriate case. (Tr.238; Ex. R, at 2).

At the trial,
Ms. Diehl testified that Respondent provided Awnclean with the employees needed to fulfill the contract at TCC. (Tr. 138). Awnclean did not advertise or solicit employees to work on the contract at the T CC .

(Tr. 138).
Respondent ran employment advertisements for the contract at the Tampa Convention Center.

(Tr. 155).

Mr.
Diehl attempted to attend a job fair to recruit workers for the
sub contract on or about June 4, 2013.

Upon arriving at the job fair,
Mr.
Sheehan told Mr. Diehl that he did
n o t need to be [at the job fair] because Mr. Sheehan would be "managing everyone."

(Tr.
140,
313 - 1 5 ).
Awnclean never interviewed applicants or candidates to work on the
subc ontract with Respondent at the T CC .

(Tr. 138).
Awnclean received completed employment applications
for jobs at Awnclean
from
Respondent.

( Tr. 143;
Ex.
13 ,
at
3 ).
Ms. Diehl testified that
Awnclean did not independently hire or fire any of the weekly payroll workers working at the Tampa Convention Center.

(Tr. 138-39, 289).
R espondent conducted criminal background checks for employees hired
to work
under the
sub contract and placed
them
on Awnclean's weekly payroll.

Respondent also handled the drug screening of these workers. 55

(Tr. 287 ,
315,
320 ; Ex. 30, at 11 ).

Ms. Diehl testified that Awnclean provided supervision and project managers to, and conducted monthly safety meetings and
JHAs
with, the Awnclean employees who worked on special projects at the TCC. (Tr. 290-91). Ms. Diehl said that the Awnclean employees who worked on "special projects" at the TCC did not interact with, or work on, the same projects as the Awnclean workers at the TCC being paid weekly. (Tr. 292). She said Awnclean staffed those
special
projects with different workers than the Awnclean workers working under the
sub contract at the TCC. The Awnclean special project employees were paid on a biweekly basis. (Tr. 300).

Except when performing large
special
projects, such as multi-story building window cleaning regularly done by Awnclean employees
paid bi-weekly and not assigned to
Respondent ,
Amy and Paul Diehl said
Awnclean did not have any management
employees supervising supervisors who were
working
on Awnclean’s payroll
at the TCC. (Tr. 166 -68 , 331 ).

Ms. Diehl testified that
Respondent
did not want Awnclean to have any of its actual employees on site daily at the TCC to manage the
sub contract on Awnclean’s end. (Tr. 167-68).

Ms. Diehl said
C&W
management decided that there would not be any workers
paid
at
the
supervisory
level
working at the TCC
on
Awnclean’s
payroll
in 2017 . (Tr. 168-69).

I f an
Awnclean worker did
n o t report to work, C&W would "pull from their
[ C&W ]
resources" to cover the work.

( Tr.
35 , at
44).

Ms. Diehl
testified
C&W
set vacation and sick time policies for the workers
working at TCC
on Awnclean's
weekly
payroll.

(Tr. 16 2-6 3 , 282 ; Ex. 17 ).
Mr. Diehl testified that
Respondent
“didn’t have any vacation pay for them. … They didn’t have PTO hours for them, they didn’t have 401(k)’s for them. They didn’t have anything. You got basically a paycheck, which did create a conflict for us, because it created two tiers of employees.” 56 (Tr. 330).

Ms. Diehl
said Awnclean withheld taxes from ,
gave W-2 forms to ,
and went through the I-9 [Employment Eligibility Verification] process for
workers , including supervisors,
on Awnclean’s
weekly
payroll who worked at the TCC. (Tr .
195-9 7 , 209 ).

Mr. Diehl testified that Awnclean handled the deductions for Mr. Norton while he was on Awnclean’s
weekly
payroll, including Federal tax,
Medicare
and social security withholdings. (Tr. 350; Exs. 36, at 32, H ).

Ms. Diehl testified
that Awnclean only gave copies of Awnclean’s Employee Handbook to Awnclean’s employees who were on its biweekly payroll. (Tr. 249-50 , 295 , 320-21 ; Ex. D). She said Awnclean’s Employee Handbook was
kept at Awnclean’s office and was
not disseminated to workers on its
weekly
payroll who were working at the TCC
since it was not part of the TCC project. Both Paul and Amy Diehl
said the workers on Awnclean’s weekly payroll working at the TCC followed
C&W
policies. (Tr.
170,
249-50 , 295 , 321 ; Ex. D).

Ms. Diehl also stated that
Awnclean’s “Crew Handbook” only applied to Awnclean’s employees who were
paid
bi-weekly . She said there was nothing in the Personal Protection section of the
Crew Handbook that defined the use of PFDs or life jackets. She explained that Awnclean had “not actually done work on any docks or anything that would have required anything like that.” (Tr. 257-58 , 295-96 ; Ex. E, at 3, ¶ C).

Both Amy and Paul Diehl testified that
Awnclean did not provide tools to the
Awnclean
workers on its weekly payroll working at the T CC .

(Tr. 177 ,
334 ) .
Amy and Paul Diehl and Ms.
Diaz
all
said
Respondent provided uniforms to the workers on Awnclean's
weekly
payroll.

( Tr.
177 -78 ,
330 , 549 ; Ex. 30, at 10 ). Mr. Diehl stated that t he uniforms were printed with the words " T he Convention Center."

(T r. 330 -31 ).
Ms. Diehl said Respondent provided
cleaning supplies to the workers on Awnclean's
weekly
payroll
who worked at the TCC . (Tr. 177-78).

Mr. Diehl testified that Awnclean’s total gross pay for 201 7
was $1, 47 9, 285 . 59 . (Tr. 346; Exs. 36, at 1, H, at
3 ). He further stated that the hour ly
supervisor and hourly workers on Awnclean’s
weekly
payroll
working at the TCC
were paid
about $1 28 ,000
during 2017 , or
a
little less
than 10 percent of
all
Awnclean’s gross pay for 201 7 . (Tr. 347-48; Exs. 36 ,
at
1 , H,
at
1 ) .

Respondent
called Marc Lee Hale Wendall
(also referred to in exhibits as Wendell)
as a witness during its case-in-chief. 57 He started working for UNICCO in 2003
as the manager of the Plant Services Group through 2005, and later as the director overseeing the business as a whole. In 2015, he was promoted to Vice President of
Health, Safety, Security and Environment
(HSSE)
reporting to the chief executive. 58
He is one of about 15 who serve as the executive leadership team for C&W ’s
15,000 employees. He is Respondent’s head of safety. He testified that C&W is in the
“ ge ne ral industry , it’s 1910, and the PPE portion is … in that realm, 1910, 132 and --.” He said it’s
called
either “facilities management or facilities services. ”
(Tr. 470-7 4 ,
4 77 ; Ex. 18, at 1 , 18, 20-22 ).

Mr. Wendall testified that it was his understanding that the TCC provided
in
its
warehouse
PPE for employees
working at the TCC. (Tr. 477-79). He said that he knew “that Awnclean was responsible for doing certain pieces of the work” at the TCC , but later admitted on cross examination that he “didn’t know the specifics of what each contractor was doing” before May 15, 2017. (Tr. 480 , 491 -92 ). H e
said
Respondent often invites its subcontractors to voluntarily participate in
Respondent’s
training. Doing so, he said, “doesn’t negate their [subcontractors’] requirement to do their training.” He said
Respondent
does not
track the training of subcontractor personnel. (Tr. 481-82).

Mr. Wendall testified that C&W developed multiple JSAs for the TCC,
including a JSA for pressure w ashing. He said Jaime Gonzalez, a Florida based safety professional reporting to Mr. Mucinski, prepared the JSA for the Pressure Washer task at the TCC that was prepared in 2014 and revised on January 10, 2017. He said that he did not know whether Mr. Gonzalez considered the
300-foot
dock when he created the JSA. (Tr. 484-85 , 502-03 ; Ex s . 21 ,
31, at 8,
35, at 57-58 ). He said that Messrs. Jason Wilson, Marvin Walker and Mario [no last name identified ; believed by the Court to be Arana ] signed off on the JSA for pressure washing. (Tr. 483-8 7 ; Ex. X) . He said
Respondent
does not give
its JSAs
to
subcontractor personnel. He also said Respondent does not
train subcontractor personnel on its JSAs. (Tr. 486).

Mr. Wendall testified that Respondent looks at the hierarchy of controls when preparing a JSA, including the use of PPE, which he described as the “last and least significant important or the least effective” control. (Tr. 486-86). He said that Res p on d e n t ’ s Pressure Washer JSA for
the TCC does not identify a PFD. 59 (Tr. 487 -89 ). Mr. Wendall said that JSAs are site specific and any need f o r PPE
is situational. (Tr. 494-95 ; Ex. 35, at 54-55 ). He said a pressure
washer
is powerful and the one used by Mr. Norton
had
4,200 pounds per square inch of pressure. He said
that
rubber boots
provided
protection from cuts, for
traction , and help keep bodies dry when water is sprayed. 60 (Tr. 496-97 ; Ex. 35, at 59-61 , 68 ). He said rubber boots do not prevent tripping. He agreed that every inch of the dock had to be cleaned, initially saying “Absolutely”, then adding “I’m presuming, yeah”, and knew that Ms. Alberti directed Mr. Norton to go back a second time to clean the dock to remove some rust stains. 61 He agreed that “people can have a slip, trip or fall anywhere, including
the dock.” (Tr. 498-99 , 601 ). He said it was possible, but “very improbable”, that a person on an unguarded 300 feet long dock could trip, slip, or fall and end up in the water , with an injury . 62

He said when preparing a JSA you look
at the various
possibilities
“within the realm of
significant
possibility an d
that present a significant risk ” , where an employee can get injured when
performing
a particular task. (Tr. 502 ; Ex. 35, at 71-72 ) .

Mr. Wendall also testified that HSSE’s Haz Com
Program, last reviewed
on June 1,
2016, was in effect at
all
C&W
work sites. He said the Haz Com
Program required C&W to provide subcontractor
employees
working under C&W’s direction
“precautions to be taken to protect subcontractor employees”. 63
He said C&W invited subcontractor personnel, including
Awnclean, to attend C&W’s
HazCom
training.

But, he said, these subcontractor employees were “not temp agency employees, they’re independent contractors.” He said it was not C&W’s “job to train them.”
He acknowledged that C&W did not verify whether Awnclean or Chinchi had provided HazCom , PPE,
and/or
safety and health training to their employees on their
weekly
payroll. He said C&W had not
alleged Awnclean had breached its contract with C&W. (Tr. 50 5 -1 6 ; Ex. 18 , at 17 ).

Mr. Wendall
said that C&W was not aware of any alleged requirement for an employee to wear a PFD on a dock prior to May 15, 2017. (Tr. 487- 91 ). After reviewing photographs, including exhibit 2, Mr. Wendall testified that the dock was solid concrete, with a uniform , flat
surface, that was low to non-turbulent water
and not slippery. He said that the 10-foot width of the dock was not a significant concern to him. (Tr. 488-90; Ex. 2). Both Ms.
Diaz
and
Mr. Wendall said
t he y
k new that people on Awnclean’s and Chinchi’s
weekly
payroll were
pe r forming
the same job
classifications
as C&W employees ; i.e. custodial, janitorial, groundkeepers, and maintenance . (Tr. 493 , 540 ; Ex. 35 ,
at 2 ) . He said prior to May 15, 2017, C&W had not identified any circumstance where an employee of any contractor had fallen off the dock
at the TCC . (Tr. 516-17).

At his pre-trial Rule 30(b)(6) deposition, Mr. Wendall agreed that anyone tasked with using a pressure washer to clean the dock would have to get the
entire
dock including the very edge of the dock
that
abuts the water. He agreed that workers can sometimes be distracted in their jobs and do things that are unsafe. He also stated he was not sure what Mr. Norton did on May 15, 2017 that was improper. Specifically, he said:

Q And you are saying that – what are you saying was improper about what Mr. Norton did on that day?

A My perspective?

Q From C&W’s
perspective . You are answering for C&W.

A I’m not sure. I’m not sure. I’m not sure what he did wrong. Certainly walking backwards off a dock is something that you shouldn’t do.

(Tr. 499-501; Ex. 35, at 63-67).

Mr. Wendall said:

Q Falling into water; let’s
say
water that’s 19 feet deep, is that a drowning hazard”

A
The Witness: Falling into a swimming pool that’s a foot deep or 5 feet deep could be a hazard. It’s a hazard. There’s hazards, you know, everywhere. That’s a hazard, but it wasn’t
identified
in t h is case. We don’t see the
hazard
here.

(Ex. 35, at 69).

When asked during his Rule 30(b)(6) deposition if the JSA
anticipated
that a person
performing
th e
task of pressure washing
on the dock
co u ld
t rip or slip or fall , Mr. Wendall stated, “It’s possible, yeah, because that is a general hazard that you see.” He further
said
that
“it’s possible” that a person can
slip
or fall in the water when on an unguarded edge that’s
abutting
water. ( Ex. 35, at 72-73). He also said that he did not know if
any subcontractor employees sat in on any HazCom training provided by C&W. (Ex. 35, at 74).

Milagros Diaz testified that since
July
2011 she
has worked as C&W’s Director of Operations responsible for , and oversees,
all
18-19
accounts in Florida. Before that ,
she served as C&W’s general manager at the Miami
International Airport. (Tr. 519-2 1 , 591 ).
She said C&W hired Awnclean as a subcontractor under
its
contract
with the City of Tampa
based on its expertise, experience, and strength with regards to pressure washing, among other things.

(Tr. 527-29). Ms.
Diaz
said that Awnclean employees pressure washed the docks “multiple days during the week” including after May 15, 2017 through the end of the
subcontract
in December 2017. (Tr. 530). She said C&W did not consider Awnclean’s employees to be employed by C&W. She said Awnclean was an independent contractor. She said that a provision for the small business enterprise in the contract between the City of Tampa and C&W required
Awnclean to perform a “useful function” which required Awnclean to manage, supervise, pay , process, and “cover all of their operational needs of the facility.” She
said,
“useful function” “means that the companies have to be engaged in the operation, have to have a useful function in managing their contracts.”
(Tr. 530 -32 ).

She said, “employee discipline, employee
communications , schedulings, supervision, direction of the work, checking of the quality of the work are requirements in order for the subcontractors to comply and maintain their S L BE certification with the City or the County .” (Tr. 592-93).

Ms.
Diaz
said Awnclean’s employees were not on C&W’s payroll and C&W did not pay them for vacation. She said
workers on
Awnclean ’s weekly payroll
had to notify C&W if they were going to be absent from working at the TCC. 64 (Tr. 590-91 ; Ex. 35, at 18-19 ). She said C&W never employed Mr. Norton. Ms.
Diaz
said C&W did not maintain
a personnel or training file for Mr. Norton. (Tr. 532-33). She said
work schedules were prepared after production meetings between C&W and the TCC’s project manager. Thereafter, she said “an allocation of hours had to be made according to the
subcontractors
and the percentage of allocation that needed to go to each of them.”

She said o ther assignments
could either be emailed to Awnclean or assigned to Awnclean supervisors. At her Rule 30(b)(6) deposition, Ms.
Diaz
said that C&W dispatched work to Awnclean. She said C&W assigned tasks ,
such as cleaning a space ,
to particular individuals, including workers on Awnclean’s
weekly payroll . She said C&W did “not necessarily” go through
“ the Awnclean executive team. We could go directly to a supervisor at the site, to Awnclean, or to the employee that’s been performing the task. ” Ms.
Diaz
agreed that C&W Managers ,
Ms. Alberti and Mr. Sheehan ,
told Awnclean employees directly what tasks they needed to perform. (Ex. 35, at 3- 9 ).

She stated that C&W checked work performed by Awnclean workers for quality purposes when Awnclean did not have any supervisors at the TCC. She admitted that C&W had the ability to “ask” Awnclean workers to redo work that it decided was deficient when done the first time. (Ex. 35, at 10-11 , 21-22 ).

She also said Ms. Alberti and Mr. Sheehan could stop any Awnclean worker from working in an unsafe manner. (Ex. 35, at 12-13).

She said C&W did not tell Awnclean how to do the work. She said Awnclean had supervisors at the TCC
“ on a regular basis , depending on the number of allocated hours given to us by the City of Tampa and the events that were going to be taking place.” She said Awnclea n
had responsibility for supervision of
its
employees on site “because it’s part of the useful function of the subcontractor. Each of the subcontractors had responsibility for the supervision, the management, and the operation of their portion of the contract.”

Ms.
Diaz
testified that the City of Tampa requested the dock be
pressure washed
on May 15, 2017
because
of a scheduled large military event where the dock would be used. She said C&W did not tell or show Mr. Norton how to clean the dock. She said Mr. Norton never told C&W that he had a concern about working on the dock or that he could not swim. 65

She said that C&W ’s
work schedule for the week starting May 15, 2017
showing “Awnclean” to the right of Mr. Norton’s name indicates that Mr. Norton was an employee of Awnclean.

(Tr. 533-37 ; Ex. 20 , at 3 ).

During cross examination, Ms.
Diaz
testified that she did not “remember if it was required or optional” under the 2013 contract between the City of Tampa and DTZ to use subcontractors as part of the small business/minority business component. She acknowledged
that the City of Tampa
would look m o r e
favorably upon a company bidding for the contract if it were utilizing minority owned, small businesses.

She agreed that C&W transferred C&W employees to Awnclean at the beginning of the contract in order to fulfill the minority small business requirement with the City of Tampa. (Tr. 555).

Ms.
Diaz
said the agreement between C&W and Awnclean called for C&W to provide uniforms to employees on Awnclean’s weekly payroll who worked at the TCC.

(Tr. 549-50; Ex. 37, at
9 , §
10).
She said C&W required
workers on
Awnclean ’s payroll who worked at the TCC to be paid by Awnclean on a weekly basis.

(Tr. 54 9-50) . Ms.
Diaz
agreed that Ms. Alberti created the weekly schedules that provided the scheduling of
all
people on Awnclean’s
weekly
payroll
for work to be performed at the TCC .
C&W designated the “break times” for the workers shown on the weekly schedules. 66
She said the draft schedules did not assign specific work to a specific
subcontractor’s
employee. She agreed that the weekly schedules identified “C&W Services” in several places, including the top caption. (Tr. 551 , 558 -59 , 585-86 , 606 ; Ex s . 20 , 35, at 16-17 , 32 ).
She said, “as a prime contractor we had to create drafts and make allocations because the point of contact between the Tampa
Convention
Center and the contract and the operations was C&W Services.” (Tr. 586). Ms.
Diaz
testified that C&W communicated the number of draft hours that were allocated by the City of Tampa for operations at the TCC
for a particular week
to “each of the subcontractors [including Awnclean] in order to
be able to schedule the staff to come in and for the staff to know when to show up to work assignments and projects that
were
to be conducted.” (Tr. 581-82). She said that she was not involved in the day-to-day activities at the TCC. (Tr. 552).

Ms.
Diaz
testified that C&W did not set the
hourly rate of pay for workers on Awnclean’s weekly payroll who worked at the TCC. (Tr. 553-54). She
said Awnclean would submit an invoice to C&W after Awnclean received payroll information from C&W that included the names and hours worked by workers on Awnclean’s weekly payroll who had worked at the TCC. Ms.
Diaz
initially denied having any knowledge that C&W
continued to
hir e
employees
to be put on Awnclean’s payroll
after the initial transfer of C&W employees to Awnclean’s payroll. Based upon C&W emails shown to her at trial, she agreed that C&W continued to hire employees and send them to Awnclean to be placed on Awnclean’s payroll as late as
September
2016. (Tr. 556-58 , 583-84 ; Ex. 14).

Ms.
Diaz
testified that as prime contractor ,
C&W’s Ms. Alberti and Mr. Sheehan had the responsibility to do joint checks with the City of Tampa on the quality of work performed by
individuals
on Awnclean’s weekly payroll at the TCC. Ms.
Diaz
said that Ms. Alberti and Mr. Sheehan “did not have authority to direct staff that belongs or are employees of another company. I n
this
case
the
subcontractors . They had to communicate to each of the vendors, whether it
was
the company owner, the supervisor on si t e or the point of contacts for each of the
subcontractors .” 67 (Tr. 587). She agreed that Awnclean did not always have supervisors on site at the TCC
on a day-to-day basis. She agreed that Awnclean did not have any supervisors at the TCC for a period of several months pr i or to May 15, 2017. 68 (Tr. 587-88 , 594-95 ; Ex. 35, at 3 ).
She said as an independent contractor, Awnclean had to “supervise and manage their staff, comply with the contract and the supervisors don’t necessarily work with the employees every hour of a shift or every single day.” She said the main reason Awnclean did not have supervisors on site was because the City of Tampa started reducing the number of hours and
projects
being
scheduled in
exterior grounds, window
cleaning , and pressure
washing . (Tr. 610-11). She said that C&W did not direct, assign or tell subcontractor employees how to perform their tasks.

She said that Ms. Alberti or Mr. Sheehan could stop the work of a worker on Awnclean’s weekly payroll’s if they saw something occurring at the TCC that was unsafe. She also
testified
that

C&W
had the contractual right to
ask
that a worker on Awnclean’s weekly payroll be
dismiss ed
from
working at
the TCC . (Tr. 590).

At the trial,
Ms.
Diaz
testified that Marvin Walker was not a C&W supervisor. 69 She said he was a “lead worker.” 70 She was unaware that Mr.
W alker told OSHA during his interview that he was “Supervisor of Grounds.” She said Mr. Walker did not tell Mr. Norton to pressure was h
the dock on May 15, 2017. 71 (Tr. 596-97). She also said C&W did not know that Charlie Estonier wore a life jacket while pressure washing the docks. 72 (Tr. 598).

At her Rule 30(b)(6) deposition, Ms.
Diaz
testified that she did not know what C&W believed that it did to protect against the Citation’s alleged violation. (Ex. 35, at 38). She also did not identify any specific measures C&W took to prevent any drowning hazards at the TCC. (Ex.
35, at
39).

She further stated that there is no state or federal regulation that requires employees p ressure
washing docks to wear a PFD. She also said that p ressure
washing a dock does not require an employee to work on the dock’s edge. Specifically, she said: “It’s not to work on the edge. You work off the center side to side, or front to back, always keeping your eyes looking at the machine in front of you. So, you know, it’s not a function that you do in any other manner.” (Ex s .
32, at 9,
35, at 40-4 2 ). Ms .
Diaz
also said the City of Tampa’s training and recommendations from the pressure washer manufacturer do not recognize the need for a worker to wear a PFD when working on a dock. 73 (Ex. 35, at 43).

VI I .
ARGUMENT

A. Respondent was in an Employer-Employee Relationship with
Workers on
Awnclean ’s Weekly Payroll , including Mr. Norton,
who worked at the TCC
for at least Several Months
on
and
before May 15, 2017 .

This case raises the issue of whether C&W, the prime contractor, was in an employer-employee relationship with
workers who were on
Awnclean ’s weekly payroll who worked at the TCC on
and
before May 15, 2017 , including the
worker exposed to the violative condition , Johnnie Norton .

In cases in which the cited employer asserts that
it
was
not the statutory employer of
Mr. Norton as of May 15, 2017 , resolution of the issue turns on the application of the common law test for agency, based on the Supreme Court's decision in
Nation w ide Mut .
Ins.
Co.
v. Darden
( Darden ) ,
503 U.S. 318
(1992) (holding, in
an
ERISA context, that
the
common law test for master/servant relationships applies).

The Commission has harmonized its test with
Darden .

See e .g.,
All Star Realty Co., Inc.,
24 BNA OSHC 1356 , 1358
(No. 12-1597, 2014);
Don Davis , d/b/a Davis Ditching and Davis Ditching Inc. , 19
BNA OSHC 1477 ,
1480
(No. 96-1378, 2001);
Timothy Victory ,
18 BNA OSHC 1023 , 1026
(No. 93-3359, 1997);
Vergona Crane
C o ., 15 BNA OSHC 1782 , 1784
(No. 88-1745,
1992).

In determining whether a hired party is an employee under the general common law of agency, the
C ourt considers the hiring party's right to control the manner and means by which the product is accomplished.

Other factors relevant to this inquiry are:

(1) the skill required; (2) the source of the instrumentalities and tools; (3) the location of the work; (4) the duration of the relationship between the parties; (5) whether the hiring party has the right to assign additional projects to the hired party; (6) the extent of the hired party's discretion over when and how long to work; (7) the method of payment; (8) the hired party's role in hiring and paying assistants; (9) whether the work is part of the regular business of the hiring party; (10) whether the hiring party is in business; ( 11 ) the provision of employee benefits; and (12) the tax treatment of the hired party.

Darden ,
503 U.S. at
323- 24 ;
Richard Hargrove d/b/a R.H. Constr.,
25 BNA OSHC 1702 (O.S.H.R.C.A.L.J. Sept. 8, 2015).

The single most important question is whether the putative employer controls the means and manner of the employee's work.

See
Darden ,
at 323;
Timothy Victory , 18 BNA OSHC at 1026-27 ;
Barbosa Grp.,

I nc .,
d/b/a Executive Security ,
21 BNA OSHC 1865 , 1867
( No. 02-0865, 2007)(stating “ [ r]egardless of whether the INS had any sort of employment relationship with the security personnel supplied by Barbosa,
the degree of control Barbosa retained over its contract security personnel compels the conclusion that Barbosa remained their employer in these circumstances and was properly cited as such under the OSH Act.”)(emphasis added). ( Id. ).

The
record
shows that Complainant has
establishe d
that Respondent controlled the means and manner of the
workers who were on Awnclean’s weekly payroll who worked at the TCC
for at least several months
on
and
before May 15, 2017, including Mr. Norton .

See Timothy
Victory , 18 BNA OSHC at 1026-27.

Respondent exercised daily control over the weekly Awnclean workers at the T CC
by assigning work directly to the weekly Awnclean workers , including Mr. Norton .

The City of Tampa sent daily work orders directly to Respondent .

( Tr. 377-80, Exs.
20,
24, 3 5, at 24, 31 ).

A fter receiving
a
work order, Respondent dispatch ed
the work order to its own staff and to the
workers on
Awnclean ’s
weekly
payroll who worked at the TCC .

( Ex s .
20,
35,
at
3-9,
21-24).

Both Amy and Paul Diehl credibly testified that Awnclean did not conduct daily supervision or management of the workers
on Awnclean’s weekly payroll who worked at the TCC . 74

Respondent exercised
virtually
complete control over these workers , especially during the
several months
preceding May 15, 2017 . ( Tr.
167- 68, 331).

During that time frame ,
Awnclean did not have a ny
supervisor at the Worksite.

( Tr. 166-69, 331, 378-82, 587-88, 594-95;
Ex.
24,
35,
at
20 , Y, at 6 ) .

I t is undisputed that on the day Mr. Norton drowned, Awnclean did not have a supervisor at the Worksite.

Ms.
Alberti
testified that
"[t]here was no supervisor for Awnclean when the accident took place. ” Mr. Norton worked for about a year under Ms. Alberti’s direction. On May 15, 2017, he was being supervised by
Ms. Alberti and
C&W employee, Marvin Walker, who followed the directions of C&W’s Mike Sheehan. (Tr. 378-82; Exs. 24, 35, at 20, Y at 6).

In addition to assigning work, Respondent also exercised control over the workers
on Awnclean’s weekly payroll
by inspecting the ir
work
at the TCC
and ordering
them
to redo work if the ir
initial work was deficient.

( Ex.
35,
at
29-30 ). Here,
Mr.
Norton
drowned after
C&W
Supervisor Alberti directed
him
to
again
pressure wash the dock
in
order to
remove some rust stains. 75

( Tr.
390-91, 395,
498-99, 601;
Ex s . 22, 35 ,
at
54 , 65 , 78 , U, at 9 ) .

1. The Secretary has
   establishe d
   an employer-employee relationship under the
   Darden
   factors.

The record
demonstrates Respondent's control over the
workers on
Awnclean ’s weekly payroll at the TCC on
and
before May 15, 2017 a nd su bstantiates
a finding of an employer relationship under the
Darden
factors. 76

Here, Respondent was motivated to enter into a
subcontract
with Awnclean that included
some provisions
that were generally not enforced ; e.g. paragraphs 11 and 13,
in order
to : a)
better posture itself to secure the contract with the City of Tampa
through the engagement of a SLBE and b)
directly
control the day-to-day activities of the workers on Awnclean’s weekly payroll at the TCC. In doing
the latter , C&W
created and maintained an actual employer-employee relationship between itself and the workers on Awnclean’s weekly payroll who worked at the TCC. (Tr. 118-27, 207, 253-54, 314-21, 328-29, 359, 387, 439; Exs. 20, 24,
30, at 4 -5 ,
Y, at 6).

First, with regard to the skill required for pressure washing
and scrubbing
the dock , the work itself is essentially manual labor and does not require specialized skill. This favors the existence of an employer-employee relationship.

Second, the
Darden
factor regarding the provisions of instrumentalities and tools favors an employer-employee relationship.

Respondent
obtained
and gave
workers at the TCC on
Awnclean ’s weekly payroll
all
the
tools and
equipment
needed to perform assigned tasks .

C&W employee Deanna Ballard
testified that C&W provided
equipment, including
safety equipment ,
to the se workers .

(Tr. 81 , 110-11 ).

Respondent ’s
argu ment
that it did not own the equipment
does not overcome the fact that it provided
the equipment
to the s e workers . 77

Respondent determined what equipment was needed
and
obtained
equipment
from the City of Tampa . Respondent
then gave
the equipment
directly to
the workers on
Awnclean ’s weekly payroll .

( Ex.
35,
at
115).

C&W
obtained
the pressure washer
and rotary scrubber
Mr. Norton was using
atop the dock
when he drowned.

(Tr. 211).

Respondent's attempt to argue that it did not own the pressure washer obfuscates the fact that Respondent, not Awnclean, obtained and provided the pressure washer
and rotary scrubber
to Mr. Norton . Respondent
could
also
have provided workers
pressure washing the dock
with a
PFD and
required its use — but chose not to. Mr. Sheehan told the CO that he could have obtained a PFD from the City of Tampa’s warehouse for Mr. Norton
to use when pressure washing the dock . (Ex. 23).
O f
the
eight
workers who reportedly pressure washed the dock
before May 15, 2017 , only Messrs. Estonier and Arana wore PFDs. (Tr. 77-82, 113, 598; Exs. 25-26, 35, at 59).

In addition to tools, Respondent also provided
the workers on
Awnclean ’s weekly payroll
with uniforms.

(Tr. 177 - 78 ,
330 ,
549).

Respondent provided
all
Chinchi, J&L Services
and Awnclean workers on its weekly payroll
with identical uniforms that
said,
" The
Convention Center."

(Tr. 330).

These
workers were indistinguishable from every other worker
working under C&W’s contract with the City of Tampa , including C&W's own employees.

Third, the
Darden
factor regarding work location also favors an
employer - employee
relationship.

Respondent managed the personnel of multiple subcontractors at the
TCC , including those of Awnclean, Chinchi, and J&L Services.

(Tr. 110-1l).

Workers on
Awnclean ’s weekly payroll
worked
side by -side with C&W, Chinchi's, and J&L Services workers ;
performing the same tasks.

( Tr.
79; Ex.
35,
at
17).

Fourth, the duration of the relationship between the parties favors an employer-employee relationship.

The
workers on
Awnclean ’s weekly payroll
were not simply hired for one job or one project;
some
worked continuously
at the TCC
for a period of years. 78 Mr. Norton worked there for about one year. (SF 3).

Fifth, the
Darden
factor regarding whether the hiring party has the right to assign additional projects to the hired party is indicative
of
an employee-employer relationship. Respondent could and did assign tasks to the workers at the TCC on Awnclean’s weekly payroll at will. (Tr. 118-27, 207, 253-54, 314-21, 328-29, 359, 387, 439; Exs. 20, 24,
35, at 3-9, 10-13, 21-22,
Y, at 6).

Sixth, the
Darden
factor regarding discretion over when and how long to work favors an employer-employee relationship. C&W assigned work and set the weekly schedules for the workers on Awnclean’s weekly payroll working at the TCC. (Tr. 118-27, 207, 253-54, 314-21, 328-29, 359, 387, 439; Exs. 20, 24, Y, at 6). Respondent exercised near total control over the schedules for
all
the workers at the TCC on Awnclean’s weekly payroll. Ms. Ballard testified that C&W had a written weekly schedule that told her and others at the Worksite, including workers from C&W, Awnclean, Chinchi, and P&L, what tasks were going to be performed
each day. 79 (Tr. 120-21, 125-26; Exs. 20, 35, at 36-37, 87, Y at 6). 80 Respondent then gave Awnclean the weekly schedules so Awnclean could process the weekly payroll. (Tr. 154, 322; Ex. 14, at 1) . Awnclean had no idea how many hours the workers were working until after Respondent provided the records. (Tr. 322). Awnclean did not have discretion over when workers on its weekly payroll could start and finish jobs at the TCC.

Seventh,
the
Darden
factor regarding the method of payment also favors an employer-employee relationship.

Awnclean managed the payroll of the
workers paid on a weekly basis while
working
at the TCC
under the
subcontract
between C&W and Awnclean .

However, Respondent wielded total control over Awnclean's payroll practices for the se paid
weekly workers.

Respondent required Awnclean to bifurcate its pay practices ;
demanding that Awnclean pay workers working under the
sub contract
at the TCC
on a weekly basis . ( Tr. 160 ,
327 ,
549) .

Awnclean
paid
all
its remaining
workers on a bi-weekly basis ; its usual practice .

(Tr.
160-61,
168,
327 - 28 ,
181).

Respondent
also
told Awnclean which workers to place on its
weekly
payroll.

( Tr. 143, 155, 316;
Ex s . 13,
at
2 , 14, at 3 ) . For example, Respondent sent Awnclean an email with a list of workers to add to its
weekly
payroll.

So me of the workers that Respondent told Awnclean to place on its
weekly
payroll were previously on Respondent's payroll .
Awnclean never interviewed, solicited, or made any hiring decisions for any of the
twelve
workers
identified in Ms. Harris’ email to Mr. Diehl in June 2013.

(Tr. 316- 17 ; Ex. 14 ). Awnclean was merely a conduit for Respondent's own payroll practices.

Th is practice
continued even
after Awnclean ended its contractual relationship with Respondent
in December 2017 ,
when
Respondent just transferred the workers on Awnclean's
weekly
payroll to another
subcontractor’s
payroll.

( Tr . 297 - 98).
Respondent
also
set the hourly rate of pay for workers on
Awnclean's
weekly
payroll.

(Tr. 159).

Respondent decided which
workers on Awnclean’s weekly payroll
to promote and how much their
pay
raises should be.

(Tr. 156; Ex.
1 4,
at
3).

Eighth, the
Darden
factor regarding whether the hired party’s role in hiring and paying assistants favors an employer-employee relationship. Respondent exercised hiring and firing power over the
workers who worked at the TCC who were on Awnclean’s weekly payroll .

Awnclean never
solicited or
interviewed applicants or candidates to work
at the TCC on Awnclean’s weekly payroll .

(Tr. 138 ,
143-44, 155,
316-17, 326-27 ; Ex. 13, at 3 ).

In 2013, Mr.
Diehl attempted
to
participate in
a n employee
recruiting event and Respondent ’s Michael Sheehan
told him that he did not need to be there.

(Tr. 313 - 1 5 ).
Respondent recruited and interviewed applicants
to work at the TCC under Awnclean’s
sub contract with C&W .

Respondent sen t
Awnclean completed employment applications
for these jobs .

( Tr. 143;
Ex.
1 3,
at
3).

Ms. Diehl testified that
C&W
sent Mr. Norton over to Awnclean to fill out Awnclean’s paperwork and start working
at the TCC . (Tr. 288). Respondent
also
conducted the criminal background checks
for these workers .

(Tr. 287 ,
320).

Respondent also controlled disciplinary and firing decisions. Respondent disciplined workers on Awnclean's weekly payroll by "writing up" those employees. (Tr. 170). In at least one instance, Respondent completed an "incident report" and a "Progressive Discipline Notice" for Jill Glass ,
a worker
at the TCC
on Awnclean's weekly payroll.

(Tr. 171 ;
Ex.
1 5,
at
4-12).

Respondent ultimately directed Awnclean to fire
Ms.
Glass. ( Tr. 170 - 71).

While Respondent may argue that Awnclean fired
Ms.
Glass,
the Court agrees with the Secretary that it was
Respondent
who
“ wielded the ax. ” 81 (Sec’y Post Hr’g. Br., at 25).

Ninth , the
Darden
factor regarding whether the work is part of the regular business of the hiring party favors an employer-employee relationship.

C&W was the prime contractor on a contract to provide janitorial services to the T CC .

Respondent's own employees worked on the contract as managers, custodial and maintenance workers, and groundskeepers. (Ex. 35,
at 16-17) .
Respondent did not hire Awnclean so that Awnclean's
actual
employees
would provide janitorial services at the T CC .

Respondent's own workers were already doing that.

Awnclean was merely a conduit for
R espondent to obtain the contract in the first place.

The Court agrees with the Secretary that
Respondent courted Awnclean in order to
help obtain the award of the contract with the City of Tampa
for the work at the TCC
because Awnclean is a woman-owned
small
business. 82

(Tr.
134-35,
276 ,
300,
312 -13, 329-30 , 555 ; Ex s .
37, at 24, 52,
M ; Sec’y Post Hr’g. Br., at 23 ) .

During contract performance, Respondent
needed to
ensure
that it was spending more on Awnclean to meet
the
S L BE co mponent in its contract with the City of Tampa. (Tr.
328-29,
616-17).

Tenth , the
Darden
factor regarding whether the
hiring party is in business favors an employer-employee relationship.

It is undisputed that Respondent is in business.

Respondent was one of the largest janitorial contractors “in the world. ”
As noted above, Respondent provided janitorial services to the T CC
and its own employees worked on the contract as managers, custodial and maintenance workers, and groundskeepers.

( Tr. 236 ;
Ex. 35,
at
16 - 17).

Eleventh , the
Darden
factor regarding the provision of employee benefits favors an employer-employee relationship.

Respondent set vacation and sick time policies for the workers
at the TCC
on Awnclean's
weekly
payroll.

(Tr. 163; Ex. 17).

Awnclean
employees paid on a
biweekly
basis r eceived vacation time, whereas Awnclean workers
working at the TCC w ho
w ere paid on a weekly basis
did not , with very limited exception . 83

W hen a worker
at the TCC
on Awnclean's weekly payroll was sick and needed to request time off, the worker call ed
Respondent , and n ot
Awnclean.

(Tr. 161 - 62 , 321-22, 330 ; Ex. 35, at 43).

Here, the tax treatment of the hired party favors a non-Employer-employee relationship. Awnclean withheld taxes from, gave W-2 forms to, submitted W-4 forms
for , and went through the I-9 [Employment Eligibility Verification] process for workers, including supervisors, on Awnclean’s
weekly
payroll who worked at the TCC. (Tr. 195-97, 209). Awnclean also handled the deductions for Mr. Norton while he was on Awnclean’s payroll, including Federal tax, Medicare and social security withholdings. (Tr. 350; Exs. 36, at 32,
H, at
9 , Supplement to Ex. H, at 32 ;
Resp’t Post Hr’g .
Reply Br., at 10-11 ).

With limited exception, the Court’s
analysis
o f
the
Darden
factors demo nstrate s
that Respondent was in an employer-employee relationship with the
workers at the TCC who were on Awnclean’s weekly payroll
on ,
and
for at least several months
before ,
May 15, 2017 , including
Mr. No rt on.
(Sec’y Post
Hr ’ g .
Br., at 19-26).

B.

Respondent Controlled the
Workers on
Awnclean ’s Weekly Payroll at the TCC, including Mr. Norton, on , and for at least
S everal
M onths
before ,
May 15, 2017.

Pursuant to OSHA Directive CPL 2-0.124 (Multi- Employer
Citation Policy (MEP)),
OSHA may cite
an employer if it creates a hazard, exposes employees to a hazard, has the ability to correct a hazardous condition, or is a controlling employer.

A controlling employer has "general supervisory authority over the
w orksite, including the power to correct safety and health violations itself or require others to
correct
them."

Summit Contractors Inc.,
22 BNA OSHC 1777, 1780-81 (No. 03-1622, 2009) (agreeing with and quoting the MEP's definition of a controlling employer).

Although c ontrol can be established by explicit contractual authority ,
it is not required where an employer exercises control in practice.

Where a right to control safety is not clearly defined or where the contract says that the employer does not have such a right, an employer may still be deemed "controlling" based on a totality of circumstances, including analysis of other contractual rights that may grant an employer broad responsibility over almost all aspects of the job that necessarily involve safety, i.e. resolving disputes between subcontractors, setting schedules, making purchase decisions, and determining project sequencing.

Even in the complete absence of explicit contractual provisions, the exercise of control in practice is equally enough to deem an employer "controlling."

(CPL 2-0.124,
¶
E-5(b)). Here, the provision in the
sub contract stat ing
Awnclean was an “independent contractor” w as
more form than substance. (Tr. 286; Ex. 30, at 4 , ¶ 11 ). In practice, the
sub contract provisions
at
paragraphs 11 and 13
were
ignored
with regard to workers on Awnclean’s weekly payroll .

(Tr.
118-27,
161 -63 ,
168- 70,
201-02,
235 -36 ,
245,
28 1-8 2,
286,
316- 1 7,
336,
356,
378-82 , 594 ; Exs. 17,
20,
30, at 4-5, Y, at 6 ) . Ms. Diaz agreed that what’s written in the contract on paper is not necessarily how things progress in realty. (Tr. 594).

Under Commission precedent, an employer who either creates or controls the cited hazard has a duty under
s ection 5(a)(2) of the Act to protect not only its own employees, but those of other employers
“ engaged in the common undertaking."

McDevitt S t.
Bovis, Inc ., 19 BNA OSHC 1108 ,
1109
(N o. 97-1918, 2000) (citing
Anning-J o hnson , 4 BNA OSHC 1193, 1199, (No. 3694, 1976);
Grossman
S teel & Aluminum
C orp ., 4 BNA OSHC 1185, 1188 (No. 1275, 1976).
Specifically, the Commission has concluded that an employer may be held responsible for the violations of other employers "where it could reasonably be expected to prevent or detect and abate the violations due to its supervisory authority and control over the worksite."

Centex-Rooney Constr.
Co .,
16 BNA OSHC 2127, 2130 (No. 92-0851, 1994).

Here, Respondent was the prime contractor of a facilities services contract . T he MEP applies.
S ee Harvey Workover, Inc.,
7 BNA OSHC 1687 (No. 76-1408,
1979) (holding
"We no longer find the distinction between construction sites and other worksites valid.

The safety of all employees can best be achieved if each employer at multiemployer worksites has the duties to :

(1) abate hazardous conditions under its control and (2) prevent its employees from creating
hazards.

In addition to its own employees, Respondent managed three
sub contractors at the Worksite,
including
Awnclean, Chinchi and
P &L.

(Tr. 110- 11 ).

T hese workers
generally
performed
similar
tasks, wore identical uniforms, and were supervised by
Respondent.

(Ex. 35, at 17). Workers on
Awnclean ’s weekly payroll
and C&W employees alike were "engaged in the common undertaking" of cleaning and maintaining the Worksite.

Respondent had a duty to protect the
workers on
Awnclean ’s weekly payroll working at the TCC , including Mr. N o r ton.
S ee McDevitt St .
Bovis, Inc ., 19 BNA OSHC
at
1109.

Respondent argue s
that Awnclean's
su b contract with Respondent
does not establish C&W’ s
control within the meaning of OSHA’s MEP. It further argues that the
sub contract s pecifically disclaims an employment relationship (or any "engagement") with
workers on
Awnclean's
weekly payroll working at the TCC .

(Tr. 190 ;
Ex. 30;
Resp’t Post
Hr’g .
Br., at
28- 29).

A n employer cannot
shift to another
its responsibilities under the Act.

See Pride Oil Well Serv ., 15 BNA OSHC 1809 , 1815-17
(No. 87-692, 1992) . In
Summit Contractors ,
Inc.
23 BNA OSHC 1196,
1207
(No. 05-0839, 2010) , citing to
Cent.
o f Ga. R.R. Co. v. OSHRC , 576 F.2d
620,
624-25 (5 th
Cir. 1978),
the Commission stated that " Commission precedent establishes that ‘an employer may not contract out of its duties under’ the OSH Act.” Summitt Contractors Inc ., 23 BNA OSHC at 1207.

T he exercise of control in practice is enough to deem an employer "controlling."

(CPL 2-0.124,
¶
E-5(b)).

Respondent could "reasonably be expected to prevent or detect and abate the violations due to its supervisory authority and control over the worksite" because on the day Mr. Norton drowned
and the
months
leading up to May 15, 2017 , Awnclean did not have a supervisor at the Worksite.

( Tr. 166-69, 331, 378-82, 587-88, 594-95;
Ex.
24,
35, at 20 , Y, at 6 ). S ee also Centex-Rooney Constr.
C o ., 16 BNA OSHC
at
2130 ;
Double "A" Indus., Inc ., 19 BNA OSHC 1833 ,
1836
( No.
01-0534,
2002) (finding
controlling employer status where the prime contractor's project manager
was overseeing the work,
could stop work ,
make corrections to
the
work ,
and the subcontractor 's foreman was not
at
the
w orksite).

Respondent exercised control and supervision over its own workers and the
workers on
Awnclean ’s weekly payroll at the TCC .

I t made safety decisions, set schedules, and exercised hiring and firing power
for workers at the TCC on Awnclean’s weekly payroll.
C&W supervisors had the authority to stop Awnclean personnel from working if they observed the employee doing something unsafe.

( Ex. 35, at 31-32). Respondent could , and did,
require a subcontractor to remove its employee from the Worksite .

( Ex.
35,
at
33).
Respondent could also obtain safety equipment for
all
its
sub contracted workers.

C&W Supervisor Mi chael
Sheehan stated that "[i]f Johnnie
[Norton]
would have asked for a PFD I would have been able to get him one . " 84

(Ex.
2 3) .

Respondent set the work schedules for
all
the personnel
who worked under Respondent’s contract with the City of Tampa
at the Worksite.

C
&W Supervisor Alberti
created and
implemented a
weekly
schedule that directly
affected
workers on
Awnclean ’s weekly payroll .

The weekly schedule designated assignments ,
set the allocation of the
hours
and
assigned specific workers to specific tasks. 85

(Tr. 118-27, 207, 253-54, 314-21, 328-29, 359, 387, 439; Exs. 19-20, 24, Y, at 6).

Ms. Alberti's schedule included assignments for both C&W and
workers on
Awnclean ’s weekly payroll
who worked at the TCC .

( Tr. 387, 439;
Ex s .
20,
24,
3 5 ,
at
36 - 37 ,
87).

Respondent, not Awnclean, told Mr. Norton to p ressure
wash the dock.

(Tr. 498, 601; Ex. 35, at 23, 78 ).

C&W exercised hiring and firing power over Awnclean workers.

Awnclean never interviewed applicants or candidates to work
at the TCC under its
sub contract with Respondent . ( Tr.
138).

Respondent explicitly told Awnclean wh o
to place on its
weekly
payroll.

Awnclean ’s President
never met many of the se
workers, including
Mr.
Norton.

I n addition to having hiring authority over the Awnclean workers, Respondent also disciplined and fired
workers on
Awnclean ’s weekly payroll who worked at the TCC .

Respondent completed an "incident report" and a "Progressive
Discipline Notice" for
Ms.
Glass ,
a
worker
on Awnclean's weekly payroll.

Respondent ultimately directed Awnclean to fire
Ms.
Glass.

(Tr. 170 -71 , 280-81, 336-37 ; Ex. 15, at 4-12).

All
these facts establish Respondent's "general supervisory authority over the
w orksite, including the power to correct safety and health violations itself or require others to correct them." 86

Su mm it Contractors Inc. , 22 BNA OSHC
at
1780-81.

The Court finds that OSHA
proper ly cited
Respondent as the controlling employer pursuant to
OSHA’s MEP .
(Sec’y Post
Hr ’g.
Br., at 26-31).

1. Respondent Failed to Exercise Reasonable Care to Prevent and Detect Violations at its Worksite.

A controlling employer must "exercise reasonable care to prevent and detect violations on the site."

CPL 2-0.124,
¶
E-2.

In
Grossman Steel & Aluminum
C orp ., 4 BNA
at
1188 ,
the
C ommission articulated the position that:

The general contractor is well situated to obtain abatement of hazards, either through its own resources or through its supervisory role with respect to other contractors . It is therefore reasonable to expect the general contractor to assure compliance with the standards insofar as all employees on the site are affected. Thus, we will hold the general contractors responsible for violations it could reasonably have been expected to prevent or abate by reason of its supervisory capacity.

( Id .
at 1188 ) .

T he Commission has not required a general contractor to conduct continuous inspections of the subcontractor's work.

A
general contractor does have responsibility to seek to have worksite hazards corrected, if it was aware of the hazards or could reasonably be expected to have detected them.

Many facts may bear on the issue of reasonableness.

These may include the manner, frequency or extensiveness of an employer's efforts to monitor the worksite; the difficulty an employer might have had in discovering the alleged hazards; or the length of time the hazards existed.

(CPL 2-0 .
124,
¶¶
E-3 - 4).

W here work is not routine or where unusual hazards are present, it is not "reasonable to completely rely on [an employee's] experience and provide no supervision or oversight … ."

Wayne J. Griffin Elec . , Inc ., 26 BNA OSHC 1786 , 1805
( No.
15-0858,
2017)
(ALJ) .

Here,
Respondent was well suited to ensure that
workers on
Awnclean ’s weekly payroll whom it tasked to pres sure
wash
and rotary scrub
the dock
at the TCC
wore PFDs because it exercised supervisory control over them an d
was aware that workers
had
pressure washed the dock without wearing PFDs.

The
Court agrees with the Secretary that
Respondent could have
prevented or abated the hazardous
drowning
condition
involving the use of
a
pressure washer and
rotary scrubber
on a dock adjacent to deep water
without
wearing
a PFD .

First, Respondent monitored the Worksite.

This is not the situation where the contractor was unaware of what was happening at the Worksite or where Respondent relied on the experience of a supervisor when assessing the frequency of inspections. 87

Here, Respondent was well aware of what was happening at the Worksite because it exercised
near
complete control over the
workers on
Awnclean ’s weekly payroll at the TCC , including Mr. Norton.

Respondent
did not
rely on Awncle an
supervisors
to inspect the Worksite and detect hazards because on the day of ,
and
months
leading up to, the accident
Awnclean did not have a ny
supervisor y personnel
a t
the Worksite.

Respondent kn e w that Mr. Norton was going to pressure wash the dock
and work clo s e to
surrounding
w ater
because
Respondent’s supervisors
ordered Mr. Norton to do so.

Further, C&W supervisors Walker and Albe r ti knew Mr. N or ton was not wearing a PFD while he was
pressure
washing and rotary scrubbing the dock on May 15, 2017. (Tr. 390-91, 395,
450;
Exs. 22,
24,
U, at
8- 9 ). Respondent
was
monitor ing
the Worksite
with
its
supervisory personnel who
knew exactly what Mr.
Norton was doing, and was, therefore, aware of the hazard.

Next, p ressure
washing a dock
using a rotary scrubber to clean
every inch of the dock
up to
and including
the very edges of a ten foot wide, 289 feet long
unguarded , raised above the water,
dock while wearing rubber boots and not wearing
a PFD while surrounded
on three sides
by open , 19 feet deep
water i n Tampa Bay, Florida, is
an open and obvious
drowning
hazard.

Respondent had no difficulty in assessing how
o bviously hazardous this was.

Respondent
knew
that
pressure washing
the
dock without a PFD presented
a
hazard
after
at least t wo
of Respondent's
own
employees
u sed a PFD
to do so .

Respondent recognized the hazard because C&W Supervisor Sheehan specifically asked Mr. Norton if he could swim.

This conversation happened when
Mr. Norton
was told to pressure wash
the dock .

Mr. Sheehan’s inquiry was made
because
one of the employees
that used to clean the
dock “ area had a fear of water and used to put a jacket [on]."

If Respondent was unaware of the drowning hazard,
Mr. Sheehan
would not have asked Mr. Norton if he could swim.

It was foreseeable
to Respondent and its Worksite supervisors that an employee looking forward and down at
a
rotating scrubber
dragging a cord
could fall into the bay while cleaning the edges of the
TCC’s boat
dock
on May 15, 2017 . (Tr. 371-73, 392-93, 426, 49 8 -501 , 601 ; Ex s .
1,
23,
35, at 63- 73 ; SF 2-6, 9-11 ).

Finally, this is not the case were Respondent was caught unaware because the hazard existed for a short period.

T his hazard played out repeatedly, as Respondent routinely ordered
many
workers , including Messrs. Walker,
Estonier,
Norton, Arana,
Wilson,
and Few
to pressure wash the dock
on and before May 15, 2017 .

Respondent could have reasonably been expected to prevent or abate the hazard. (Sec’y Post
Hr ’ g .
Br., at 31-35).

C. J udicial
N otice is
N ot
S uitable for the
F actual
A ssertion
S ought
by the Secretary.

In Complainant’s Reply to Respondent’s Post
H earing Brief “[t]he Secretary asks the Court to take judicial notice of the dangers of swimming or falling into open water pursuant to Rule 201 of the Federal Rules of Evidence.” (Sec’y Reply to Resp’t Post Hr’g. Br., at 9-10). The Secretary assert ed
that “[o]pen water presents additional dangers due to limited visibility, depth, distance, and drop-offs, currents and tides, water temperature, and weather and seasonal differences [fn omitted].”

(Id .) .
The Secretary asserts that “t he dangers of swimming or falling into open water are generally known.”

He argues that these facts can be
accurately and readily determined from a handout produced by Safe Kids Worldwide,
available at
https://www.safekids.org/blog/five-hidden-hazards-open-water ,
and another document produced by the Red Cross and available on the Bureau of Resource
M anagement’s webpage at
https://www.usbr.gov/watersafety/docs/RedCrossWater Safety.pdf.

Federal Rule of Evidence
201(c) states the court “must take judicial notice if a party requests it and the court is supplied with the necessary information.” Subsection e of the same Rule continues, noting , “[o]n timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed.”
On January 13, 2020, the Court ordered the
p arties to state their respective positions concerning Complainant’s request that the Court take Judicial Notice of the dangers of swimming or falling into open water pursuant to Rule 201, F.R.E.
See
29 C.F.R.
§  2200.67(l). On January 17, 2020, both parties filed their respective positions. 88

Fed eral
R ule of
Evid ence
201 allows judicial notice of “a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”

See
Fed. R. Evid. 201(b)(1)(2).

Judicial notice is an adjudicative device that alleviates the parties’ evidentiary duties at trial, serving as “a substitute for the conventional method of taking evidence to establish facts.”

Grand Opera Co. v. Twentieth Century–Fox Film Corp.,
235 F.2d 303, 307 (7th Cir.
1956) .

It replaces the evidentiary procedure that would otherwise be necessary to establish “adjudicative fact[s]” that are generally known or “capable of accurate and ready determination” by resort to reliable sources.

York v.
Am .
Tel. & Tel. Co.,
95 F.3d 948, 958 (10 th
Cir. 1996). C aution must be used in determining that a fact is beyond controversy under Rule 201(b).

See ,
Fed. R. Evid. 201(b) Advisory Committee Notes;
Int ’l
Star Class Yacht
Racing
Ass’n v. Tommy Hilfiger USA, Inc. , 146 F.3d 66, 70 (2d Cir. 1998) (noting that “[c]are must be taken that the requisite notoriety exists [and] [e]very reasonable doubt upon the subject should be resolved promptly in the negative”).

Here, the Secretary’s request for judicial notice
falls short of
qualif ying
under Rule 201(b) .

The Secretary cites to several
federal and state court
premises liability case s
in support of
his
argument that
the Court
should
take judicial notice of th e
fact
that open water may be deemed an obvious danger as a matter of law. 89

(Sec’y Position Stmt., at 2-3). None of these cases are in the context of the
OSH
Act
and “judicial notice” was not taken by any of these courts in these cited cases .

The Secretary
also
cites to
Knife River, Contestant
v. Sec ’y
of Labor, Mine Safety and Health Admin .
(MSHA) ,
No. WEST 2009-1147-RM,
2011 ,
2011 WL 3794326
(F.M.S.H.R.C.A.L.J., June 16, 2011)
(consolidated) ,
a Federal Mine Safety and Health Review Commission
(FMSHRC)
case
where the Secretary asserts that a FMSHRC judge
observ ed
that a dock that lacked handrails and toe boa rds
exposed “miners to the risk of fatal drowning in the event of a slip or fall into water reported to be … approximately 20 feet deep” and presented a clear and present danger .
( Id . at 1460).

Again, no “judicial notice” was taken in that case.

Respondent argues that taking judicial notice of “the dangers of swimming or falling into open water” is inconsistent with F ederal
R ule of
E vidence
201
and
should be denied.

C&W asserts that
Secretary’s general request is subject to reasonable dispute, and the assertion is not
capable of ready determination with accurate sources whose accuracy cannot reasonably be questioned.

Citing to
Shahar v. Bowers , 120 F.3d 211, 214 (11th Cir. 1997), Respondent asserts that
judicial notice would apply to an indisputable fact such as the number of days in a week, or that the sun rises in the east , e.g.
“the kinds of things about which courts ordinarily take judicial notice are (1) scientific facts:

for instance, when does the sun rise or set; (2) matters of geography: for instance, what are the boundaries of a state; or (3) matters of political history:

for instance, who was president in 1958.”

( Id. at
214 ) . Respondent
states that a
high degree of
indisputability
is an essential prerequisite for judicial notice.

See
Fed. R. Evid. 201(b) Advisory Committee’s Notes
to subdivision (b)
(“With respect to judicial notice of adjudicative facts, the tradition has been
one caution in requiring that the matter be beyond reasonable controversy”).

Here, the Secretary’s request to take judicial notice o f swimming or falling into open water” is general and
not
indisputable.

The
Secretary’s
assertion does not
define
“open water” or conditions of the
open
water. 90

It does not identify particular “dangers.” 91

A s
noted by Respondent, c ourts
have
decline d
to take judicial notice of general assertions that do not meet the test of indisputability.

See Shahar v. Bowers , 120 F.3d at 214 (declining to take judicial notice of newspaper accounts or press releases of a public official’s conduct);
Howard v. Hyundai Motor Mfg. Ala . , 754 F. App’x 798, 807 (11 th
Cir. 2018) (declining to take judicial notice of the general “fact that, in most employment situations, an applicant is required to submit the name of his or her last employer to the new employer”)
(unpublished)
cert. denied ,
140 S.Ct. 126
(2019) ;
Kerruish v. Essex Holdings, Inc. ,
777 F. App’x 285, 293 (11th Cir. 2019) (declining to take
judicial notice of an affidavit never made part of the district court record)
(unpublished)
;
United States v. Jones , 29 F.3d 1549, 1553 (11th Cir. 1994) (stating that judicial notice is appropriate if the fact is “one that only an unreasonable person would insist on disputing” and declining to take judicial notice that a defendant “refused to come to work”);
Davis v. Valsamis, Inc. , 752 F.App’x 688, 697 (11th Cir. 2018)
(unpublished)
,
cert. denied,
139 S. Ct. 1283 (2019) (declining to take judicial notice that defendant received knowledge of the plaintiffs’ injuries through the news).

(Resp’t Opp. To Sec’y Request for Judicial Notice, at 4-5).

Judicial notice is also improper if a legitimate question exists as to the underlying source (s)
of the information upon which the proponent relies.

Accurate records or other sources of a judicially noticed fact must be known to the court to enable
it to
consider whether the fact is amenable to judicial notice.

Here, the Secretary did not provide the
Court
with sources whose accuracy cannot reasonably be questioned.

As support for
his
request for judicial notice, the Secretary
refers
to
two general online
handouts or
pamphlets that it never identified during the
trial , and that
he
never introduced as
trial
exhibits.

No one testified
at trial
regarding either of these two documents
and their authors are unknown .

The Safe Kids Worldwide handout
describes potential risks of open water for children and teens.

The
Red Cross
document provides general guidelines on what to look out for near a natural water environment.

Both publications
describe potential variables of open water ;
not facts about a particular body of water.

Neither publication is specific to the body of water around the dock at issue in this case. Neither document indicates the source of
its
information.

See
C arley v. Wheeled Coach , 991 F.2d 1117, 1126 (3rd Cir. 1993) (refusing to take notice of government test on vehicle rollovers because results are not “readily provable through a source whose accuracy cannot be reasonably questioned”);
Cofield v. Ala .
Pub. Serv. Comm’n,
936 F.2d 512, 517 (11th Cir. 1991) (holding
that a statement of fact that appears in a daily newspaper does not of itself establish that the stated fact is “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned”) (citing Fed. R. Evid. 201(b)(2)).

Here,
the accuracy of the sources referenced by the Secretary in
his
request for judicial notice can reasonably be
questioned.

D .

The Secretary Has Met His Burden of Proving That Respondent Violated 29 C.F.R.
§
1910.132 (a) .

In order to establish that an employer violated an OSHA standard, the Secretary must show:

(1) the standard applies to this employer at this workplace;
(2) the employer failed to comply with the standard; (3) employees were exposed to the hazard; and (4) the employer knew or could have known of the conditions with the exercise of reasonable diligence.

See Astra Pharm. Prods., Inc ., 9 BNA OSHC 2126 (1981),
aff ’ d
in relevant part , 681 F.2d 69 (1 st
Cir. 1982);
Pressure Concrete Constr .
C o. , 15 BNA OSHC 2011, 2015 (No. 90-2668, 1992).

1.    The Standard Applies to this Worksite

The Secretary cited Respondent for violating 29 C.F.R.
§
1910.132(a).

That standard provides:   

Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be
provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or
mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

G eneral industry standards under 29 C.F.R.
§
1910 apply at this Worksite.

Respondent was engaged in providing janitorial services at the Worksite, and it is undisputed that their employees were custodians, groundskeepers, and maintenance workers.

( Ex.
35,
at
16 - 17).

PFDs
are considered
PPE
within the meaning of 29 C.F.R.
§
1910.132 (a) .

United Geophysical
C orp ., 9 BNA OSHC 2117 , 21 21-22
(No. 78-6265, 1981) (holding
section
1910.132(a) "may properly be read to encompass flotation devices to protect against the hazard of drowning.").
( Id . at 2122). In
United Geophysical Corp .,
the Commission concluded “that the hazard of drowning in the gravel pit is part of the surroundings in which United’s employees worked.” ( Id. ) .

Resp onde nt was in an employment relationship with
workers on Awnclean’s weekly payroll, including
Mr. Norton , for a period of
several months
on
and
before May 15, 2017.

T he evidence establishes that the cited standard applies to Respondent at this Worksite. 92

1. Respondent Failed to Comply with the Standard.

On May 15, 2017, Mr. Norton was pressure washing
and rotary scrubbing
the docks at the T CC
as part of his normal job duties.

( SF 6 ).

The dock was unguarded on three side s
and was approximately 289'7" long and 10' 2" wide.

( SF 9 ).

The bay at the end of the dock where Mr. Norton was working was approximately 19 feet deep.

( SF 10 ).

Mr . Norton was not
wearing a PFD when he drowned. (SF 12-13). Res pondent failed to ensure that Mr. Norton
was issued and
wore a PFD while he was pressure washing the dock .

Respondent violated the standard.

3. Johnnie Norton was Exposed to the Hazard

Mr. Norton was not wearing a
PFD on May 15, 2017
when he drowned. (SF 12-13). See
Id.
at
2123
(“By inquiring whether any employee could swim across the pit at a time when no protective equipment was available at the site, [the head linesman] demonstrated that he was willing to expose an employee to the hazard of drowning in order to accomplish the assigned work.” ).
( Id. ) .
Mr. Norton
was exposed to the hazard. (SF 12).

4. Respondent Had
   Actual
   Knowledge of the Hazard

“ To meet
[ his ]
burden of establishing employer knowledge, the Secretary must show that the cited employer either knew or, with the exercise of reasonable diligence, could have known of the presence of the violative condition."

Pride Oil
W ell
S erv.,
15 BNA OSHC
at
1814 .

An employer is required to make a reasonable effort to anticipate the particular hazards to which its employees may be exposed during the course of their scheduled work.

Automatic Sprinkler
Corp. of
Am . , 8 BNA OSHC 1384, 1387 (No. 76-5089, 1980).
The
actual or constructive knowledge of a foreman or supervisor can be imputed to the employer.

Tampa Shipyards,
15 BNA OSHC 1533, 1537 (No. 86-368,
1992)
( c onsolidated)
(citing
A .P. O'Horo
C o ., 14 BNA OSHC 2004, 2007 (No. 85-369, 1991) ;
N&N
Contractors, Inc .,
18 BNA OSHC 2121, 2123
(No. 96-0606, 2000);
Cent .
soya de P .
R . , Inc ., 653 F.2d 38, 39 (1st Cir. 1981).

Because the site of the alleged violation was in Florida, this case can be appealed to the United States Court of Appeals for the Eleventh Circuit.

The Eleventh Circuit has held that to prove a violation of a generally-worded PPE standard such as
section
1910.132(a), unless he has proven actual knowledge, the Secretary must show that the protective equipment sought by the Secretary is what the employer's industry would deem appropriate under the circumstances. 93

Farrens Tree Surgeons Inc ., 15 BNA OSHC 1793 (No. 76-4083, 1992) citing
Fl .
Mach .
& Foundry, Inc ., 693 F.2d 119, 120 (1 1 th Cir.
1982).

Here, Respondent had actual knowledge
on May 15, 2017
that
Mr. Norton was
p ressure
washing a dock
at the Worksite using a rotary scrubber to clean every inch of the dock up to and
including the very edges of a ten foot wide, 289 feet long unguarded, raised above the water, dock while wearing rubber boots and not wearing
a PFD while surrounded
on three sides
by open , 19 feet deep
water i n Tampa Bay, Florida .

( (Tr. 371-73, 392-93, 426, 498-501, 601; Exs. 23, 35, at 63-73; SF 2-6, 9-11;
Sec’y Reply to Resp’t Post Hr’g .
Br., at 7-8). Respondent’s management tasked Mr. Norton to scrub and pressure wash the dock. (Tr. 450-51; Exs. O, at 2, U, at 5). A t least two separate C&W supervisors , Mr. Walker and Ms. Alberti,
were fully aware that
Mr. Norton was p ressure
washing the dock without a PFD
that morning .

After Mr. Norton pressure washed the dock the first time,
Ms. Alberti told
him
to go back and clean some rust stains off the dock. ( Tr. 378-82,
450 -51 ,
498-99, 601;
Ex s .
24,
35, at
23, 35,
54, 65 , 78,
O, at 2,
U, at 5, 8,
Y, at 6 ).

Actual knowledge may be imputed to the employer
where a supervisor continues to work in the area of the violative condition through the time of the accident .

Am. Wrecking
C orp ., 19 BNA OSHC 1703, 1710 (No. 96-1330, 2001) (consolidated),
affd in relevant part , 351 F.3d 1254 (D.C. Cir. 2003).

The violative condition,
Mr. Norton not
provided and
wearing a PFD while he was
p ressure
washing a
boat
dock
at the
TCC on May 15, 2017 ,
did not change between the time Ms. Alberti observed him working and when Ms. Albe r ti sent Mr. Norton back to the dock to clean the rust stains.

Mr. Wendall acknowledged that falling into
water that was nineteen
feet deep was
a
drowning hazard.

(Ex. 35, at 69). He further acknowledged that there was a “general hazard” where a worker pressure washing a dock with an unguarded edge could trip, slip or fall into water the abutted the dock’s edge. These acknowledgements were made
on behalf of Respondent
at Mr. Wendall’s Rule 30(b)(6) deposition .

(Ex. 35, at 72-73).

T he Secretary need not show that an employer understood or
a cknowledged that the physical conditions were actually hazardous.

H e must show only that the employer was aware of the physical conditions that constitute a violation.

Jake 's Fireworks Inc ., 893 F.3d 1248, 1260 (10 th
Cir. 2018).

C&W
Supervisors Alberti and Walker were fully aware of the physical conditions that constituted a violation , i.e. that Johnnie Norton was
pressure washing a boat dock at the TCC without wearing a PFD on May 15, 2017.
(Ex. 1). Respondent
also
misstates the Secretary’s burden where it argues that the “Secretary failed to establish in the record that Respondent had actual knowledge that a personal flotation device was necessary for the work performed at the Tampa Convention Center.”

( Resp’t Post Hrg. Br., at 42 ).

The Secretary need not show that a PFD was “necessary for the work performed.” S&H Riggers & Erectors, Inc. v. Occupational Safety & Health Review Comm’n,
659 F.2d 1273, 1284 (5 th
Cir. 1981) ,
provides that the Secretary must show “ clear actual knowledge
that personal protective equipment was necessary under the circumstances.”

( Id .).

In the thirty seconds after Mr. Norton fell into the Tampa Bay, video evidence shows Mr. Norton splashing and struggling in the water (Ex. 12).

He was unable to remain above water, get or stay afloat, reach the dock or its deck, or swim to the sea wall. (Exs. 5, 9, 12). Under
these c ircumstances ,
where
Mr. Norton suddenly
f e ll into Tampa Bay, a PFD would have prevented Mr.
Norton from
quickly
sinking
down
into the Tampa Bay
and drowning . (Sec’y Reply to Resp’t Post Hr’g .
Br., at
14-15).

These facts demonstrate that Respondent had “clear actual knowledge that
PPE w as necessary
under the circumstances.”

The circumstances (that the dock was unguarded and surrounded on
three
sides by the Tampa Bay, and that there
were
no ladders extending off the dock) are facts that existed
before
Mr. Norton drowned.

When Mr. Sheehan asked Mr.
Norton if he could swim, he was aware of these “circumstances.”

The Court finds that the Secretary has carried his burden in this regard.

Respondent's attempts to argue that it did not have knowledge of the hazard because it did not "see a hazard"
are rejected. Mr. Wendell testified that he did not "see a risk there . . . a risk that warrants a PFD
….”

(Tr. 502).

Respondent's JHA
did not identify a drowning hazard associated with p ressure
washing
and Mr. Wendell did not know if the JHA was site specific to the dock.

( Tr. 503;
Ex. 21).

The JHA provides little support to Respondent’s argument .
W he ther
or not
Respondent understood or acknowledged that the physical conditions were actually hazardous is not
dispositive . Jake 's Fireworks Inc ., 893 F.3d
at
1260 .

( Sec’y Post Hr’g. Br., at 40) .

Respondent's position that it just did not see a "risk there" is unpersuasive because its own employees recognized the hazard.

O perating a
pressure washer
and rotary scrubber
on an unguarded dock
close to
water is an open and obvious hazard
as discussed above .
As Mr. Wendall stated at his Rule 30(b)(6) deposition, anyone tasked with using a pressure washer to clean the dock would have to get the entire dock, including the very edge of the dock that abuts the water. (Tr. 499-501; Ex. 35, at 63-67). C&W's employees , not on Awnclean’s weekly
p ayroll,
recognized that working near water while pressure washing presented a drowning hazard.

Mr. Estonier routinely wore a life jacket/ PFD
when he pressure washed the dock.

(Tr. 382 ,
386 ; Ex. 24, at 7 ). Ms.
Ballard testified that she observed C&W management watching Mr. Estonier pressure washing the dock while wearing a life jacket.

(Tr. 92 ,
110; Ex. 27,
at
2).

In another instance, Mario Arana
wore a life jacket when he p ressure washed the dock once when Mr. Norton was sick.

(Ex. 26).

Mr. Arana knew how to swim but wore the life jacket anyway because he "wanted to be sure that [he] was protected."

(Ex.
2 6).

C&W supervisor Sheehan
also
recognized the hazard because he specifically asked Mr. Norton if he could swim.

This conversation happened when
Mr. Norton
was told to do pressure washing
on the dock .

He was asked because the person that used to clean the area had a fear of water and used to put a jacket on. ( Tr. 386, 442;
Ex. 23).
The fact at least t wo
C&W
employees recognized the hazard belies Respondent's argument that it "didn't see a hazard there." (Sec’y Post
Hr’g .
Br., at 37-42).

Respondent points to
Cotter & Co. v. Occupational Safety & Health Review Comm'n , 598 F.2d 911 (5th Cir. 1979) in support of its position that the citation should be vacated. (Resp’t Post
Hr’g .
Br., at 40). In
Cotter , the Fifth Circuit Court of Appeals reversed the Commission’s decision which had found actual knowledge, by finding no evidence of “confirmed knowledge” 94
on the employer’s part regarding a hazard warranting
PPE . Cotter ,
598 F.2d
at
915 .

In support of its holding, the
Cotter
Circuit
court found that an employer’s voluntary provision of
steel-toed shoes to employees did not establish actual knowledge of the hazard.

( Id.
at 914 ) .

The
Circuit
court reasoned that the safety-shoe program was “established merely to accommodate the preferences of the employees.”

( Id. ).

The
Circuit
court further explained its rationale stating that it recognized “the folly of discouraging an employer, by expanding the scope of his liability beyond what it would otherwise be, from exhorting employees to take every possible safety precaution in the development of a superior industrial safety program.”

( Id. ).

That is not the case here . Cotter’s holding is distinguishable from the case at hand.

Respondent did not exhort employees “to take every possible safety precaution.”

Respondent did not provide Mr.
Norton with a host of safety precautions , including a PFD,
Mr. Norton
could have taken.

Instead, Respondent did not give Mr. Norton any PPE even
after Mr. Sheehan
made a specific inquiry
of Mr. Norton
regarding a hazard (drowning) warranting a PFD.

( Id.
at 915 ) .

Mr. Norton did not express a “preference” for a PFD
and
Respondent
did not
“take every possible safety precaution in the development of a superior industrial safety program.”

( Id. ).

Instead, Mr. Sheehan recognized a specific hazard (drowning) and then did nothing.

Respondent
did not require
the use of a PFD once it recognized the drowning hazard. (Sec’y Reply to Resp’t Post Hr’g. Br., at 8-9).

The aforementioned
facts
establish that C&W supervisors had actual knowledge that Mr. Norton was pressure washing
an
unguarded boat
dock
at the TCC on May 15, 2017 without being provided with, or wearing, a PFD.

VI II .

THE VIOLATION WAS PROPERLY CLAS S IFIED AS SERIOUS AND THE
PROPOSED
PENALTY IS REASONABLE

Under
s ection 17(a) of the Act, a "serious" violation exists if there is a "substantial probability that death or serious physical harm could result" from the condition and the employer knew, or with reasonable diligence could have known, of the presence of the violation.

See E .
Tex .
Motor Freight, Inc ., 671
F.2d 845, 849 (5th Cir. 1982);
Ca l.
Stevedor & Ballast
C o ., 517 F.2d 986, 988 (9th Cir. 1975);
G a.
Elec.
C o.,
595 F.2d 309, 318 (5th Cir. 1979).

Respondent's knowledge of the conditions has been established.

In determining whether the violation here was serious, the only consideration is whether there would be a substantial probability of death or bodily harm in the event of an accident.

The Secretary need not prove substantial probability that an accident will occur, only the probability of death or bodily harm if an accident occurs.

The evidence in this case establishes that there is a high probability of death or serious bodily harm if an accident occurs given that Mr. Norton actually drowned.

This evidence is
sufficient to support a serious citation.

Accordingly, the violation was properly classified as "Serious."

The evidence also reflects that the penalty of $12,675 was properly calculated and should be affirmed.

Section 17 (j ) of the Act, 29 U.S.C. 666(j) ,
requires the
Secretary
to consider four factors in proposing penalties:

the gravity of the violation and the employer's good faith, history, and size. The Act does not prescribe how or what weight to apply to the factors.

Atlas Roofing Co.
v. OSHRC , 518 F.2d 990, 1001 (5th Cir. 1975),
aff ’ d , 430 U.S. 442
(1977) (OSHA
penalties are meant to "infl i ct pocket - book deterrence").

Usually, the gravity of the violation is the factor of greater significance. Caterpillar, Inc ., 15 BNA OSHC 2153, 2178 (No. 97-922, 1993).

Penalty assessment requires
application of administrative discretion.
D.S. Grading Co., Inc ., 899 F. 2 d 1145, 1148 (1 1 th Cir. 1990).

CO
Marrero testified that there was a "greater" probability of an accident in light of the fact that
C&W employees, including workers on Awnclean’s weekly payroll,
were
routinely
pressure washing the dock
w ithout
wearing
a
PFD
device, and, in this case a fatality occurred.

(Tr. 409).

Accordingly, the gravity of the violation is properly classified as "high/greater."

(Tr. 413).

The Secretary’s
analysis resulted in the assessment of a $12,675 penalty.

(Tr. 408 ; Sec’y Post Hr’g .
Br., at 44-46 ).

The Court finds that the Secretary
properly considered
Respondent's size, history of violations, and good faith and determined that no adjustments to the gravity-based penalty were warranted .

(Tr. 409).

After considering these same factors, the Court agrees with the Secretary’s proposed penalty and
assesse s
the
penalty of $12,675.

IX .

RESPONDENT'S DEFENSES FAIL

In its Answer, Responde nt
pleaded numerous defenses :
inapplicability of the standard, that it was not an employer of Mr. Norton, it was not a controlling employer at the Worksite, that Mr. Norton's drowning was an isolated incident, that it took adequate alternative measures, that it lacked knowledge that PFDs were required in these circumstances, that the violation was not serious, that it followed normal and customary procedures in its industry, that its safety precautions were adequate, and estoppel. 95

Each and every one of these defenses fail s . (Sec’y Post
Hrg .
Br., at 46-51).

T he Secretary has proven his prima facie case.

He
has shown that the standard applies, Respondent was in an employee-employer relationship with Mr. Norton
on and before May 15, 2017
for at least several months , or, at the very least, was a controlling employer, and that Respondent had actual knowledge that its employees were pressure washing the
boat
dock
at the TCC
without
being issued or wearing
PFDs.

Respondent's argument that Mr. Norton's drowning is an isolated incident is unsupported.

The affirmative defense of "isolated incident"
is
sustained
when
an employer prov es
that the assertedly isolated incident result s
from an employee's departure from a uniformly enforced work rule .

B-G Maint .
M gmt. , Inc ., 4 BNA OSHC 1282 (No. 4713, 1976);
Robert T. Winzinger, Inc ., 4 BNA OSHC 1475 (No. 6790, 1976).

Respondent's
has not
identif ied
any work rule that Mr. Norton
allegedly
violated.

As such, Respondent has not carried its burden and this affirmative defense fails.

Respondent's adequate alternative measures defense
also
falls short.

In

Novak & Co ., Inc., 11 BNA OSHC 1763 , 1765-66
(No. 80-7335, 1984) ,
the Commission held that where a "a hazard remains unabated, the employer who does not create or control the hazard will be relieved of any responsibility for violating the standard if it can establish that it used reasonable alternative means to protect its employees or had no actual or constructive knowledge that the condition was hazardous . "

( Id .).

Here, Respondent controlled whether employees were exposed to the drowning hazard and had
actual
knowledge of it.

Respondent sent Mr. Norton to pressure wash
and rotary scrub
a n unguarded
boat
dock
close to water
without
issuing him a PFD and requiring i ts
use.

C&W Supervisor Albe rt i sent Mr. Norton back to the dock to remove a rust stain.

Respondent
ordered Mr. Norton to do the work and
controlled the Worksite . It
had actual knowledge as
i mputed to it through
its supe r visors
Ms.
Alberti
and Mr. Walker.

There is no persuasive evidence that Respondent took
any meaningful
alternative measures to protect Mr. Norton from drowning
while
pressure washing
the
boat
dock
at the TCC
on May 15, 2017 .

D uring
her
Rule
30(b)(6) deposition ,
C&W's designated representative, M s.
Diaz, could not articulate any facts about this defense.

Q: What does C&W believe that it did to protect against . . . the violation alleged in the citation?

A: I don't know.

(Ex. 35,
at
103).

Respondent's defense that it lacked knowledge that PFDs were required in these circumstances is unpersuasive and
also
fail s .

As noted above, Respondent argues that it lacked knowledge that PFDs were required.

For the reasons outlined above, Respondent had actual knowledge of the hazard.

Respondent ’s
argu ment
that the violation was not serious
is also without merit .

As set forth above, in determining whether a violation is serious, the only consideration is whether
there would be a substantial probability of death or bodily harm in the event of an accident.

The Secretary need not prove substantial probability that an accident will occur, only the probability of death or bodily harm if an accident occurs.

Here, an accident occurred, and Mr. Norton drowned.

T he violation was properly classified as "Serious".

Respondent's claim that its practices were consistent with normal and customary procedures in the facilities management industry is unpersuasive . Respon d ent has not sufficiently shown
what the industry norms are.

During
M s.
Diaz's
Rule
30(b)(6)
deposition, she
admitted that Respondent only looked to what
the
TCC did. She said:

Q: Are you saying that there are other companies within that industry that don't recognize the need for PFDs when working on a dock?

A: No, I am not saying that.

Q: Okay. You are saying that as far as the City of Tampa's training and the recommendations from the pressure washer manufacturer, that's what your answer is based on?

A: Correct.

(Ex.
3 5 ,
at 109 ).

The TCC
is in the "facilities management industry."

But
what it told ,
or did not tell ,
Respondent to do does not
by itself
establish normal and customary procedures within the facilities management industry.

The Secretary has carried
his
burden showing that Respondent had actual knowledge that Mr. Norton performed
pressure washing
work on the
boat
dock at the TCC without
being issued, or wearing,
a PFD on May 15, 2017. What the employer's industry would deem appropriate under the circumstances of this case is therefore immaterial. Moreover, neither Mr. Wendell nor Ms. Diaz were qualified as an expert witness pursuant to Fed. R. Civ. P. 702. They were only
competent
to speak about their own actual knowledge and were not qualified to opine about what the employer's industry would deem appropriate under these circumstances.

It is Respondent's duty to identify hazardous conditions .
R espondent conducted a
JHA for pressure washing
at the TCC . 96

(Ex. 21).

Its
JHA identifies three components for training
on :

how
to operate the pressure washer, required PPE, and
the
manufacturer's/operator's manual.

( Ex. 21,
at 2).

Respondent's reliance on the pressure washer manual to establish "normal and customary procedures in the facilities management industry" is deficient.

It is not the pressure washer manufacturer's duty to identify all hazardous conditions.

Respondent argues that its safety precautions were adequate.

Respondent
has
admitt ed
that it did nothing to protect workers from a drowning hazard
at the dock at the TCC .

D uring C&W's
Rule
30(b)(6) deposition ,
Ms. Diaz admitted that Respondent did not take any measures to prevent drowning hazards at all.

She said :

Q: What specific measures did C&W take to prevent drowning hazards at the TCC site?

A: Not for drowning hazards. We don't have anything documenting drowning hazards. I mean, our jobs and tasks really don't represent a drowning hazard.

(Ex. 35 ,
at
104 ).

It is disingenuous for
Respondent
to
allege that its safety precautions were adequate while simultaneously admitting that it did nothing to prevent drowning hazards at the
boat
dock at the
T CC .

X. FINDINGS OF FACT AND CONCLUSIONS OF LAW

All findings of fact and conclusions of law relevant and necessary to a determination of the contested issues have been made above. See
Fed. R. Civ. P. 52(a). All proposed findings of fact and conclusions of law inconsistent with this decision are denied.

XI. ORDER

Based on these findings of fact and conclusions of law, it is
ORDERED
that
Citation 1,
Item 1,
alleging a
serious
violation of
29 C.F.R. § 19 10.132 ( a )
is
A FFIRMED
and a penalty of $1 2 , 675
is
ASSESSED .

SO ORDERED.

/s/                  

The Honorable
Dennis L. Phillips

U.S. OSHRC Judge

Date:    February 14, 2020

Washington, D.C.

"

1
Any references herein to C&W Facility Services, Inc.’s or C&W Services’ (C&W) predecessors, UGL Services
University Cleaning Company Operations CO (UNICCO) or
DTZ, Inc. (DTZ), are references to Respondent or C&W, and treated herein as one and the same.

2
Respondent was a covered employer under the OSH Act. 29 U.S.C. § 652(5) (defining “employer” as a “person engaged in a business affecting commerce who has employees”).

3
The RFP stated: “The TCC is directly on the waterfront in the heart of downtown Tampa. The facility, which is an award winning 600,000 feet of meeting space and 2,000 feet of waterfront access .… The facility hosts over 300 events annually.” (Ex. 37, at 6).

4
The RFP stated that the responsibilities of the Working Supervisor included ensuring “proper training programs for Successful Proposer’s personnel and generate training schedules.” (Ex. 37, § 8.2.5, at 9). It also stated that working supervisors were to “verify that all tasks requested by TCC rep have been completed in proper fashion and in a timely manner. Response time to critical tasks shall be closely monitored.” (Ex. 37, § 8.2.14, at 9). The RFP also stated that the responsibilities of the Successful Proposer’s Cleaning/Event Set-Up personnel included being “Knowledgeable concerning safety procedures, .…” (Ex. 37, § 8.3, 5., at 10). The RFP further required maintenance personnel to be able “to use a pressure washer.” (Ex. 37, § 8.4.8, at 10). Section 12.5 4., Cleaning Requirements, Riverwalk, required the successful proposer to perform work including “Pressure wash outside … docks, etc.” (Ex. 37, at 13-14, § 12.5 4.).

5
The RFP stated that the On-Site Manager shall be responsible for ensuring that proper training programs for the Successful Proposer’s personnel are scheduled and completed to maintain “best practices” standards, including classes for the “Proper use of cleaning equipment”. (Ex. 37, at 8).

6
The evaluation criteria included the award of “5 Bonus Points” for SLBE participation. (Ex. 37, at 25).

7
Ms. Diaz testified that DTZ “proposed that we would have 51 percent minority spent for SBE component into the contract. … Therefore, if you have a contract that is valued at $1 million, you already know of $510,000 of that contract value, it’s going to go to that SBE component because you proposed 51 percent SBE.” (Tr. 604-05). She said once the City of Tampa awarded the contract to DTZ, DTZ had to comply with the 51 percent SLBE participation DTZ had proposed. (Tr. 616-17).

8
Mr. Diehl testified that: “We were told that – that we were participating and involved with them because we were going to be the minority business participation, which is what they needed for their contract and so we were one of the two or three or four vendors who provided that.” (Tr. 328).

9
This agreement is also referred to herein as the subcontract agreement or subcontract.

10
Mr. Diehl testified that Ms. Harris handled the administrative side of the contract between DTZ and Awnclean for DTZ. (312-13). Ms. Diaz testified that Ms. Harris was the first account manager on the contract who preceded Ms. Ericka Alberti. (Tr. 553-54).

11
Rigoberto Monteaqudo was atop the list. Ms. Diehl testified that, although he was on Awnclean’s payroll, she had never met him in person. (Tr. 141; Ex. 13, at 2). She also testified that she had not met or did not know Jermain Slaughter, Ducatel Watson, or Anita Letourneau, even though the latter two were also on Awnclean’s payroll. (Tr. 141-42).

12
Ms. Diehl testified that Ms. Harris or her replacement, Ms. Alberti, sent the time sheets directly to Awnclean’s office manager. (Tr. 161).

13
Mr. Diehl testified that Mr. Sheehan handled the management side of the contract between DTZ and Awnclean for DTZ. (Tr. 312-13). Ms. Diaz testified that Mr. Sheehan was an “Assistant Manager.” (Tr. 600; Ex. 35, at 34-35).

14
The trial transcript also refers to the JHA as a "JSA"; these terms and abbreviations are used interchangeably.

15
Ms. Diehl testified that “during the course of the contract. She had talked to Mike [Sheehan] and I knew they were doing safety sessions, because they were very proud of it.” (Tr. 176).

16
Mr. Diehl was also an Awnclean officer at that time. (Tr. 308-09).

17
Mr. Diehl testified that Awnclean had no role in making Mr. Slaughter a supervisor or giving him, or any other weekly paid workers, a pay raise. (Tr. 324, 326-27; Ex. 14, at 5). Ms. Diehl testified that she did not know what day-to-day activities of Mr. Slaughter’s new role as supervisor involved. (Tr. 156, 167).

18
The Court is unaware of the exact date in 2013 this subcontract was entered into by Awnclean and DTZ.

19
Ms. Diehl testified that Awnclean was a Woman Business Owner of the Year in 2014. (Tr. 273-74; Ex. L, at 7).

20
Ms. Diehl testified that Respondent was one of the largest janitorial contractors “in the world and we were following their lead.” She said regardless of what the contract said, DTZ “dictated what was going to be done … we did it the way they [DTZ] wanted to do it.” (Tr. 236, 245).

21
Ms. Diehl testified that the special, additional or extra projects she was referring to being done by Awnclean’s biweekly employees through DTZ at the TCC fell under this section of the subcontract. (Tr. 269-75, 285, 289-90, 299-300, 331-33; Exs. 30, at 3, ¶ 6, L). She said Awnclean’s bi-weekly employees who performed these large one-to-four-day projects were always supervised by Awnclean’s crew chiefs, and not C&W management. She further stated that none of these projects involved pressure washing the docks, or were near water. (Tr. 290-92).

22
Ms. Diehl testified that in practice, DTZ and Awnclean did not follow paragraph 11 of the contract. She said, “the people on our [Awnclean’s weekly] payroll were essentially DTZ employees. They did everything that their people told them to do. They [DTZ] set the schedules.” (Tr. 118-27, 286; Ex. 20). Ms. Diehl testified “that what was put on that contract [in this regard] was not what was put in practice per their [DTZ’s] request and their [DTZ’s] directions.” (Tr. 235).

23
Ms. Diehl testified that, when signing the subcontract, she was told “that DTZ was going to be managing these teams and that they [DTZ] did not want us there because there would be too much hassle trying to have all these different companies running around. And I – you’re correct that it does say this in the contract. What we were told was, we [DTZ] will take care of it.” (Tr. 201-02).

24
Ms. Diehl testified that workers at TCC were not actually paid these hourly wages; these were billable hourly rates paid to Awnclean by DTZ. (Tr. 166-67). For example, she said Supervisor Slaughter was actually paid $9.50 as of June 12, 2013. By email dated June 12, 2013, Ms. Harris told Paul Diehl to review Mr. Slaughter’s performance on August 1, 2013 “and give [him a] raise to 10.00 if doing acceptable job.” (Ex. 14, at 3).

25
Ms. Diehl testified that DTZ made the decision to terminate Ms. Glass’ employment. She said, “we were told to fire her and so we fired her.” (Tr. 280-81, 336-37). She acknowledged that this was the practice, even though the subcontract said DTZ cannot make the decision to fire anybody. (Tr. 281).

26
Ms. Diehl testified that the injury involved a slip and fall at the TCC by one of the workers there on Awnclean’s weekly payroll. She also said that in 2016 she was aware that an injury by such a worker could impact TCC’s Workers’ Compensation premiums. (Tr. 278; Ex. 14, at 8).

27
OSHA’s Fatality/Catastrophe Report’s “Preliminary Description (Hazard Description and Location” stated: “Johnny Norton, 53 was pressure washing the docks at the Tampa Bay Convention Center when his pressure washer fell on top of him and he fell off the dock being pinned by the pressure washer under the water.” (Ex. U, at 3). The Court finds this to be inaccurate as the video shows that only the rotary scrubber fell into the water and it was retrieved from the water and returned atop the dock two minutes after Mr. Norton fell into the water. (Ex. 12)

28
Ms. Diehl signed OSHA’s Form 301 “Injury and Illness Incident Report” for 2017 that indicated Mr. Norton was an Awnclean employee who drowned at 11:00 a.m., May 15, 2017 while “pressure cleaning the dock at the Convention Center.” It further stated Mr. Norton “stepped backward and fell in the water and never came up.” (Tr. 264-65; Ex. G, at 14; SF 6, 11, 13). OSHA’s Form 300 “Log of Work-Related Injuries and Illnesses” for 2015 reported injuries to three Awnclean employees, including Ralph Few, that occurred at the TCC. Ms. Diehl stated she never met the three injured workers. She said Respondent notified Awnclean of the injuries. (Tr. 263-64, 298-99; Ex. G, at 4). The OSHA Form 300A “Summary of Work-Related Injuries and Illnesses” for 2016 stated that the average number of employees for 2016 was “22” with total hours worked at 32,000 and for 2017 stated that the average number of employees for 2017 was “25” with total hours worked at 43,750. (Ex. G, at 10, 13). The OSHA Form 300A and Payroll Summary for 2016 shows that the Awnclean weekly paid workers at the TCC completed 24,384.03 hours (or 76%) of the 32,000 total hours performed by all workers on Awnclean’s payroll in 2016. (Exs. G-H, 36). The Court finds that at least one-half of the average number of 22 employees at Awnclean for 2016 worked at the TCC and were on Awnclean’s weekly payroll. (Exs. G-H, 36).

29
CO Marrero has a Bachelor of Science degree in Chemistry. He has been an OSHA CO with a specialty in industrial hygiene for 28 years. He is a senior industrial hygienist. He has been trained in and able to handle both health and safety-related issues. (Tr. 362-63, 396). CO Marrero said that the Tampa Police Department notified OSHA of Mr. Norton’s fatality. (Tr. 367).

30
Ms. Diehl testified that Mr. Sheehan had told her after Mr. Norton’s drowning that regularly pressure washing the docks had recently been added to the service list.

31
At her Rule 30(b)(6) deposition, Ms. Diaz admitted that there were no guardrails or barriers on the dock that separated the dock from the water. (Ex. 35, at 28).

32
CO Marrero testified that Mr. Norton was still wearing rubber boots when his body was recovered from the bottom of the Hillsborough River. (Tr. 375). The parties have stipulated that Mr. Norton fell into Tampa Bay. (SF 11).

33
The video at Exhibit 12 shows Mr. Norton using the rotary scrubber at the end of the dock where he fell into the water from 10:55 AM through 11:32 AM, May 15, 2017. (Ex. 12). With the consent of the parties, the video itself has been sealed by Order of the Court in the public record of this case pursuant to Fed. R. Civ. P. 5.2(d), (e) and 29 C.F.R. § 2200.67(c).

34
CO Marrero testified that the photograph at Exhibit 11 shows the pressure washer and rotary scrubber. He said that the rotary scrubber [at photograph’s right] was an attachment to the pressure washer [at photograph’s left]. (Tr. 450; Ex. 11).

35
Consequently, during cross examination,
CO Marrero
acknowledged
that he did not identify any records showing that C&W told Mr. Norton how to perform p ressure
washing on the dock. (Tr. 419).

36
At her Rule 30(b)(6) deposition, Ms. Diaz testified that she dd not know if working close to the water presented a potential drowning hazard. (Ex. 35, at 30).

37
Ms. Diaz is
C&W’s Director of Operations in Florida. (Tr. 519-21, 591).

38
CO Marrero testified that “top person” was referring to managers. (Tr. 376).

39
CO Marrero testified that although he had asked to interview a supervisor on Awnclean’s weekly payroll he was not given that opportunity. (Tr. 415).

40
CO Marrero testified that Mr. Walker supervised Mr. Norton on May 15, 2017 and that the task assigned to Mr. Norton that day to scrub and pressure wash the docks “probably came in from Mr. Mike Sheehan.” The CO said that C&W was preparing the dock area for the Special Operations Forces Industry Conference event that was going to occur on May 16, 2017. (Tr. 450-51; Exs. O, at 2, U, at 5).

41
Ms.
Diaz
testified that
Mr. Walker did not appear at his deposition that had been noticed by
the Secretary of Labor for July 25, 2018.

She said that he stopped working for C&W in “late July, beginning of August”, 2018. (Tr. 601-02).

42
Ms. Lee identified her job classification as “housekeeping” and she did not identify herself as a supervisor during her interview. (Ex. 29).

43
CO Marrero testified that Mr. Sheehan had also told him that he knew one worker, with a fear of water, had worn something similar to a PFD while pressure washing the docks. (Tr. 386, 442; Ex. 23).

44
At her Rule 30(b)(6) deposition, Ms. Diaz stated C&W employees Messrs. Walker, Mario [Arana], and Jason Wilson pressure washed the docks in 2017. (Exs. 35, at 24-25, X, at 3).

45
Ms. Ballard testified that these workers were “fill-ins” who worked with Respondent’s employees under the same supervisors Respondent’s employees worked for. (Tr. 80-81).

46
Ms. Ballard stated: “They just said nobody can go on the dock without a floatation device.” (Tr. 83-84).

47
Later, Ms. Ballard said Charlie left Respondent in about 2015. (Tr. 112). The Court finds that she was referring to Charlie Estonier.

48
The weekly schedule showed Mr. Norton assigned to the Exterior: “Water pressure and river walk” for Monday, May 15, 2017. (Ex. 20, at 1). Of the 39 workers identified on the schedule for the week of May 15 through May 21, 2017, seven workers (or 18%): Johnnie Norton, Ralph Few, James Flanning, Jimmy Gilchrist, Marie Justinvil, Virginia Lee, and Dam Nan, were identified as “Awnclean”. The Court finds that the Awnclean Payroll Summary for 2017 shows that, with the very limited exception of Ms. Lee, none of the other six workers served as a supervisor in 2017. Ms. Lee was paid the same hourly wage rate of $8.25 as her six other colleagues for 1,654.7 hours, and the supervisor wage rate of $10 for only 7.75 hours in 2017. The Court further finds that Ms. Lee was not working as a supervisor during the week starting May 15, 2017. Her tasks that week included cleaning the grounds, restrooms, and halls. 18 other workers on the May 15, 2017 weekly schedule were identified as “C&W”, 5 workers as “Chinchi”, 3 workers as P&L, and 6 workers were not identified with any company. (Tr. 125, 444-45, 514, 525, 559-60; Exs. 20, 35). Ms. Diaz testified at her Rule 30(b)(6) deposition that Awnclean not have any supervisor at the TCC on May 15, 2017. (Ex. 35, at 3).

49
CO Marrero testified that a dock width of only 10 feet provided an insufficient 5 feet of distance from the center point. (Tr. 407; Exs. 2-6, 9). He later testified that the dock was a solid, level cement structure. (Tr. 419-20).

50
The parties have stipulated that the dock was approximately 289' 7" long and 10'2" wide. (SF 9).

51
OSHA’s C&W Services Inspection Narrative for Inspection No. 1237383, dated 9/20/2017, stated that C&W Services had “no prior OSHA history”. (Ex. U, at 4). OSHA’s C&W Services Violation Worksheet for Inspection No. 1237383 indicated that “information obtained from the NOK [next of kin] indicated his [Mr. Norton’s] lack [of] knowledge on how to swim.” (Ex. U, at 8-9). It also indicated C&W Services as the “Exposing, Controlling” employer for C&W Services employee, Marvin Walker, and Awnclean’s Virginia Lee. (Ex. U, at 7-8). The Court need not decide whether or not Mr. Norton could swim. He should have been issued and required to wear a PFD to accomplish his assigned task to scrub the dock regardless.

52
At trial, CO Marrero clarified his deposition by saying he was “not a hundred percent” sure of that because his conclusion was based on his interviews with employees. (Tr. 414-15, 445-47).

53
During re-direct examination, CO Marrero explained that at the time of his deposition he was unaware of C&W’s HazCom Program, a document C&W had not provided to him during his investigation even though he had asked for it. (Tr. 391-92, 443).

54
At trial, he clarified this early belief of what Mr. Mucinski told him by saying “it was not something that I made a conclusion in my mind that that was a real statement or a statement to take as solid from C&W.” The Awnclean USA, Inc., Inspection No. 1234048, Inspection Narrative, dated 9/20/2017, prepared by CO Marrero states that “[i]t was C&W Services (sic) belief that there was no regulation and/or requirement for the use of PFD while working on a boat dock area; therefore, employees that conducted the task even prior to Mr. Norton were not offered and/or provided PFD’s as part of their ppe.” (Tr. 424, 452; Exs. N-O, at 2, U, at 5, HHH, at 58). OSHA’s Awnclean Inspection Report for Inspection No. 1234048 identifies C&W Services Inspection No. 1237383 as a Joint-Employer related Inspection type. (Ex. N).

55
Mr. Diehl testified that Awnclean’s subcontract with Respondent called for criminal background checks and drug

screening to be handled by Awnclean. (Tr. 287, 315, 320; Ex. 30, at 11).

56
During cross examination, Mr. Diehl admitted that Awnclean’s Payroll Summary for 2017 showed that James L. Flanning. a worker on Awnclean’s weekly payroll who worked at the TCC, was paid a vacation hourly rate of $10.00 for 34.5 hours. (Tr. 348-49; Exs. 36, at 27; Supplement to
H, at
27 ). He said that Mr. Flanning would have to clear any vacation with Respondent. (Tr. 359).

57
Mr. Wendall is a chemical engineer who graduated from the University of Illinois with the highest distinction. He also has a Master’s degree in organizational systems and communication. For four and one-half years, he later taught and pursued a Ph.D. at Cornell University reaching a level of “all but dissertation.” (Tr. 468-69). Thereafter, he worked for Environmental Resources Management as an auditor and compliance expert for about 8-10 years. He then spent another 8-10 years working at Foster Wheeler’s Environmental Remediation section before coming to UNICCO. (Tr. 468-70).

58
Mr. Wendall is also a certified safety professional, who has received PPE training on OSHA standards. (Tr. 473).

59
Mr. Wendall testified that he “didn’t see a risk that warrants a PFD”.

60
Respondent’s response to Interrogatory No. 13, Request for Admission No. 10, states “that the City of Tampa provided the rubber boots, safety glasses and ear plugs used by Awnclean USA, Inc. employees.” (Ex. 32, at 16).

61
Ms. Diaz testified at her Rule 30(b)(6) deposition that Ms. Alberti told Mr. Norton to go back and clean some rust stains. (Ex. 35, at 23). At his Rule 30(b)(6) deposition, Mr. Wendall said that he considered Ms. Alberti’s statement to Mr. Norton to be “a direction.” (Ex. 35, at 78). Nonetheless, Respondent asserts that “Mr. Norton was not supervised by C&W Services.” (Resp’t Post Hr’g. Br., at 18, ¶ 63). The Court rejects this assertion and finds that on May 15, 2017, C&W, and not Awnclean, was directly supervising Mr. Norton’s work at the TCC. (Tr.
166-69, 331,
378-82; Exs. 24, 35, Y at 6).

62
Mr. Wendall said that Mr. Norton “didn’t fall off the dock, he walked off the dock.” (Tr. 502). At his Rule 30(b)(6) deposition, Mr. Wendell said that walking “backwards off of a dock is very improbable. Extremely improbable.” (Ex. 35, at 72).

63
At his Rule 30(b)(6) deposition, Mr. Wendall said he did not know whether C&W complied with this provision. (Ex. 35, at 75-77).

64
Ms. Diaz said absence notifications “ideally needs to come from the subcontractors. That’s as per contract and as per policy.” (Tr. 590-91). But, she later agreed what’s written in the contract on paper is not necessarily how things progress in reality. (Tr. 594). At her Rule 30(b)(6) deposition, she said C&W “could pull from their resources” if an Awnclean worker called out sick or did not report to work when Awnclean did not have any supervisors at the TCC. (Ex. 35, at 18-19).

65
Ms. Diaz testified at her Rule 30(b)(6) deposition that C&W did not know whether Mr. Norton could swim. (Ex. 35, at 23).

66
Ms. Diaz testified that “assignments were given, not directions.” (Tr. 558-59; Ex. 20). She said Awnclean could schedule any worker on Awnclean’s weekly payroll to perform the work that needed to be completed. (Tr. 603-06).

67
Ms. Diaz later contradicted herself by testifying that if C&W, after checking on the quality of work performed, identified work that needed to be redone “you could either communicate it to a subcontractor or the employee.” (Tr. 589, 595). She also said at her Rule 30(b)(6) deposition that Mr. Sheehan could tell Awnclean workers what tasks they needed to perform on any given day. (Ex. 35, at 35).

68
The Payroll Summary for 2017 shows that the amount of hours supervisors were paid was only about 3.7% (558.75 hours) for the total hours of 15,515.85 worked by both supervisory and hourly Awnclean workers (14,957.10 hours). (Ex. H, at 3).

69
Respondent’s response to Request for Admission No. 4 states, “Respondent admits that Marvin Walker was a supervisor for C&W Services at the Tampa Convention Center and was employed by C&W on May 15, 2017.” (Ex. 31, at 4-5). Respondent also identified Mr. Walker as “Supervisor of Grounds” in its Answer to Interrogatory No. 12 verified by Ms. Diaz on June 20, 2018. (Tr. 599; Ex. 32, at 12, 20). Ms. Alberti also told the CO on June 5, 2017 that Mr. Norton worked under her supervision for about a year. She further said Mr. Norton was supervised by Mr. Walker, who reported to Mr. Sheehan. (Tr. 378-82; Exs. 24, Y, at 6). Nonetheless, Respondent asserts in its post hearing brief that “Mr. Marvin Walker was not a supervisor for C&W Services.” (Resp’t Post Hr’g. Br., at 16, ¶ 54). The Court finds Ms. Diaz’s trial testimony that Mr. Walker was not a supervisor to not be credible. (Tr. 596-97). The Court further rejects Respondent’s position and finds that Mr. Walker was a C&W supervisor who supervised Mr. Norton on and before May 15, 2017. (Tr. 378-82, 599, Exs. 24, 31-32, Y, at 6).

70
At her July 25, 2018 Rule 30(b)(6) deposition, Ms. Diaz described Mr. Walker on May 15, 2017 as a “working lead so he was one more individual working in the area.” (Tr. 615-16; Ex. 34, at 13). She also said his role with C&W was as a “Working supervisor.” (Ex. 35, at 33).

71
Ms. Diaz agreed that at her July 25, 2018 Rule 30(b)(6) deposition she answered, “They worked as a team, yes.” when asked if “So Marvin Walker would tell Johnny Norton to go pressure wash the dock on May 15, 2017.” (Tr. 597-98; Ex. 35, at 20-21). Ms. Diaz also stated Mr. Walker could have conveyed the task to clean the dock to Mr. Norton on May 15, 2017. (Ex. 35, at 26). She said she did not know whether Ms. Alberti or Mr. Sheehan told Mr. Norton to pressure wash the dock on May 15, 2017. (Ex. 35, at 26, 35).

72
Ms. Diaz testified that she never reviewed statements made to OSHA by Ms. Alberti, Mr. Sheehan or Mr. Walker. (Tr. 598-99; Ex. 35, at 44, 46-48).

73
Ms. Diaz also said at her Rule 30(b)(6) deposition that she was not saying that there are other companies within the facilities management industry that do not recognize the need for PFDs when working on a dock. (Ex. 35, at 43).

74
Ms. Diehl testified that its subcontract with Respondent called for Awnclean to provide “staffing” to Respondent and the workers on Awnclean’s weekly payroll who worked at the TCC “were all run and managed by C&W.” (Tr. 253-54). She said, “They were essentially DTZ employees.” (Tr. 286). Respondent’s Alberti admitted “C&W was in charge of providing the supervision to all the employees working at the Convention Center.” (Tr. 378-82, 406-07; Exs. 24, Y, at 6). Ms. Diaz agreed that Awnclean did not have any supervisors at the TCC for a period of several months prior to and on May 15, 2017. (Tr. 587-88, 594-95; Ex. 35, at 3).

75
Mr. Wendell testified that he knew that Ms. Alberti directed Mr. Norton to go back a second time to clean the dock to remove some rust stains. (Tr. 498-99, 601; Ex. 35, at 78).

76
The Secretary’s position is that Mr. Norton and other workers similarly situated to him on Awnclean’s weekly payroll, were “ both
Awnclean
and
C&W employees.” (emphasis in original) (Sec’y Reply to Resp’t Post Hr’g. Br., at 2).

77
Ms. Diehl testified that she did not know whether the pressure washer was owned by the TCC or Respondent. (Tr. 211). The parties have stipulated that the City of Tampa owned the pressure washer used by Respondent and Awnclean personnel to clean the docks.

(Tr. 414; SF 8; Ex. 35, at 45). The CO testified that the City of Tampa and the TCC owned both the pressure washer and the rotary scrubber used by Mr. Norton on the dock on May 15, 2017. (Tr. 414).

78
Workers on Awnclean’s weekly payroll began working at the TCC in 2013 and continued working there through December 2017. (Tr. 137-38, 297, 314,527;
Ex s .
13, at 3,
30).

79
The Court finds the testimony of Ms. Diaz that C&W’s weekly schedules did not assign specific work to Awnclean workers to not be credible. (Tr. 551, 558-59, 585-86, 606; Exs. 20, 35, at 16-17, 32).

80
Ms. Ballard said C&W Supervisor Erika Alberti prepared the work schedule for the period May 15 through May 21, 2017. (Tr. 126-27; Ex. 20).

81
Ms. Diehl acknowledged that she could “[t]heorectically” terminate a supervisor who worked at TCC who was on Awnclean’s payroll. (Tr. 209).

82
Awnclean did not have sufficient actual employees on its regular payroll at that time to complete the work required under its subcontract with C&W. (Tr. 138, 313-14, 320).

83
See
n. 56, above.

84 After Mr. Norton drowned, C&W provided PFDs to all the workers who worked under its contract with the City of Tampa at the TCC, including workers on Awnclean’s weekly payroll. (Tr. 389; Ex. 22).

85
To the extent that Ms. Diaz testified to the contrary, she was either mis-informed or not credible. (Tr. 551, 558-59, 585-86, 606; Exs. 20, 35, at 16-17, 32).

86
The facts of this case as enumerated herein refute Respondent’s discredited argument that it “did not supervise Awnclean’s employees, did not provide them with the tools to complete their work, did not control the quality of the Awnclean’s employees’ work, [and] did not have the authority to remove or terminate any Awnclean employee,.…” (Resp’t Post Hr’g. Br., at 34, Resp’t Post Hr’g. Reply Br., at 4).

87
Cf.
E.P.
Guidi, Inc. and Haines & Kibblehouse, Inc.,
No. 04-1055, 2005 WL 3338020 ((O.S.H.R.C.A.L.J., Sept. 16, 2005)
(consolidated)
(noting prime contractor not liable for subcontractor’s violation because it neither controlled safety measures at the work site nor had authority to direct the means or methods of the subcontractor’s work,
and the Secretary failed to show prime contractor should have known of the violative conditions.).

88
Neither party took advantage of the Court’s offer to allow the parties the opportunity to present oral argument on the Secretary’s request that judicial notice be taken.

89
The Secretary cites to one OSHA-related case concerning 11th
Circuit law on what the Secretary is required to show to make out a prima facie case for a violation of an OSHA standard. (Sec’y Position Stmt., at 2-3).

90
Here, the parties have stipulated that the waters of Tampa Bay were approximately nineteen (19) feet deep at the end of the dock, where Mr. Norton was working before he fell
and drowned.

91
Complainant asserts that “[o]pen water presents additional dangers due to limited visibility, depth, distance, and drop-offs, currents and tides, water temperature, and weather and seasonal differences. [fn. omitted]”. (Sec’y Reply Br., at 10).

92
The Court notes that it is unaware of any indication that the drafters of the standard intended to exclude PFDs from the scope of the standard. See United Geophysical Corp ., 9 BNA OSHC
at 2122.

93
The parties agree that the Secretary did not put forth evidence of industry custom at
trial. The Secretary asserts that he need not address “industry custom” because here Respondent had actual knowledge of the hazard. (Sec’y Reply to Resp’t Post Hr’g.
Br., at 8, Resp’t Post Hr’g. Br., at 18).

94
The Court finds that Respondent had specific confirmed knowledge that PFDs were warranted because C&W Supervisor Sheehan specifically asked Mr. Norton if he could swim. Mr. Sheehan’s query as to whether Mr. Norton could swim is evidence of actual knowledge that pressure washing the boat dock at the TCC without a PFD being issued and worn presented a drowning hazard. (Sec’y Rely to Resp’t Post Hr’g. Br., at 11-12).

95
Respondent has abandoned its estoppel defense. (Ex. 32, at 10, answer
to Interrogatory No. 9 ).

96
Respondent made it “really clear” that it did not want Awnclean to write up a JHA for work done at the TCC by workers on Awnclean’s
weekly
payroll. (Tr. 199-200).