Far From Broken Auto Sales, Inc. d/b/a/ Smart Choice Auto Sales, Inc.

Plain-English summary

Far From Broken Auto Sales bought, repaired, and sold used vehicles at a Florida property. Its employee replaced damaged plywood on a low-slope shed roof more than eight feet above the ground without fall protection and used an unsecured ladder placed in front of a doorway and open to vehicle traffic. The owner watched from the ground at times, but that did not qualify as a safety monitoring system because the monitor must be on the same walking-working surface as the employee. The company also failed to provide required fall-hazard and ladder-safety training. The judge found that the owner directly knew about the roof work, the lack of protection, and the unsecured ladder. All four serious items were affirmed, with grouped penalties of $3,410 for the roof and fall-training items and $2,273 for the ladder and ladder-training items.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.501(b)(10), 1926.503(a)(1), 1926.1053(b)(8), and 1926.1060(a)(1).
• Outcome: Four serious items affirmed; total grouped penalties of $5,683 assessed.
• Key point: Watching a roofer from the ground does not satisfy the same-surface requirement for a safety monitoring system, and employers must secure exposed ladders and provide hazard training.

Full text (OSHRC public release)


Far From Broken Auto Sales, Inc. d/b/a/ Smart Choice Auto Sales, Inc.

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No.
20-0415

Far from broken auto sales , INC.
d/b/a
smart choice auto sales ,
INC.,

Respondent.

CORRECTED
DECISION AND ORDER 1

Attorneys and Law firms

Jana J. Edmondson-Cooper ,
Nicholas C. Hall ,
Attorney s ,
Office of the Solicitor,
U.S. Department of Labor,
Atlanta, GA , for Complainant.

Jon Carlson,
Pro se,
Smart Choice Auto Sales ,
Fort Pierce, FL ,
for Respondent.

JUDGE: John B. Gatto, United States Administrative Law Judge.

I. INTRODUCTION

Far From Broken Auto Sales, d/b/a Smart Choice Auto Sales, Inc., (FFB) contests a Citation and Notification of Penalty issued by the Secretary of Labor on July 1, 2019 , for
alleged
violations of
four
construction
standards
under
the
Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. § 651 -78 . The Citation resulted from an inspection conducted by the
United States Department of Labor, through its Occupational Safety and Health Administration (“OSHA”),
on June 4, 2019, in Fort Pierce, Florida. 2
On that date,
Henry Shpiruk ,
a
Compliance
Safety and Health Officer 3
with

OSHA
had observed a man standing on
the roof of a one-story building owned by FFB
as he drove by.
The CSHO stopped and conducted an inspection
of FFB’s worksite
because he did not
see
the man using
any form of fall protection
as he stood
on the roof.

Item 1a of the Citation alleges a serious 4
violation
29 C.F.R. § 1926.501(b)(10)
for failing to
provide fall protection for
an
employee working on
a
low-sloped roof . Item 1b alleges a serious violation of 29 C.F.R. § 1926.50 3(a)(1)
for failing to
provide fall protection
training to
an
employee
who was exposed to a fal l hazard .
The Secretary proposes a grouped penalty of
$3 , 410 for Items 1a and 1b.
Item 2a of the Citation alleges a serious violation of 29 C.F.R. § 1926.1053 (b)(8) for failing to secure a ladder
that could be displaced by workplace activities.
Item 2b alleges a serious violation of 29 C.F.R. § 1926. 1060(a) for failing to provide ladder safety training to
an employee who used a ladder
at the worksite. The Secretary propose s
a grouped penalty of
$2 , 273 for Items 2a and 2b.   

FFB timely contested the
Citation
and t he Secretary filed a formal complaint 5
with the Commission
seeking an order affirming the
C itation and proposed penalt ies , to which FFB filed an answer.
The Court held a
bench trial
in this proceeding
via
video conference on
March 9, 2021. 6
The Secretary filed a post-trial brief . FFB did not.
The parties stipulate the Commission has jurisdiction over this action,
FFB
is a covered employer under the Act , and FFB’s
principal place of business
is in
Fort
Pierce, Florida
( Compl.
¶¶
I -I II ) ( see
Commission Rule 34(b)(2) (“ Any allegation
[in the complaint]
not denied shall be deemed
admitted ”).
Based on the stipulations and the record evidence, the Court concludes the Commission has jurisdiction over this proceeding under section 10(c) of the Act, and
FFB
is a covered employer under section 3(5) of the Act. 29 U.S.C. §§ 659(c), 652(5). 7

Pursuant to Commission Rule 90, after hearing and carefully considering all the evidence
and the arguments of counsel , the Court issues this Decision and Order ,
which constitutes
its
final disposition of the proceedings
under
section
1 2 ( j ) of the Act . 8
29
U.S.C. §
661 (j).
For the reasons indicated
infra , the
c ourt holds the Secretary has proven his prima facie case
with regard to
the cited i tems
and therefore, the c ourt
AFFIR MS
all items
and
ASSESSES
grouped
penalty of
$ 3 , 410
for Items 1a and
1 b, and
$ 2 , 273
for Items 2a and 2b
respectively .

II. BACKGROUND

On June 4, 2019,
Shpiruk
was driving
on U.S. Highway 1
in
Fort Pierce, Florida ,
when he noticed a
one-story building
( described
as a shed)
next to
a parking lot
to the right of the
highway. A man was standing
2
or
3
feet from the edge of the low-sloped roof
of the
shed .
Shpiruk
did not see
any form of fall protection in use
( Ex. C-9 , Ex. C - 11; T r.
9 ,
15–17 ) .
Deciding to inspect the
premises, h e
parked his vehicle, took photographs, and
approached the
shed .
Shpiruk
noticed an unsecured ladder leaning against the roof eave on one side of the
shed . The ladder was in front of a door to the
shed
(Ex. C-16).

Shpiruk
met with Jon Carlson and Chris Gosse
and
learned that Carlson was the
owner of
FFB, a business
that buys and repairs used vehicles , and then sells them
( Ex. C-24;
Tr. 27).
Shpiruk
held an opening conference with Carlson and took interview statements from Carlson and Gosse . Both men signed the statements
Shpiruk
transcribed during the
interviews
(Ex. C-23 , Ex.
C-24) .

Gosse told
Shpiruk
he had worked for FFB for one year.
He normally worked
daily
from 9:00 a.m. to 4:00 p.m.,
performing handy man work
“not needing a permit”
around
the establishment
( Ex.
C-23).
He had worked on the
shed
roof the day before the inspection (Monday, June
3) from 10:00 a.m. to 3:00 p.m.
On the day of the
OSHA inspection ( on
Tuesday, June 4 ), Gosse had been on the roof
for approximately one hour.
He stated he had not been wearing fall protection . He had not secured the ladder and
had used it
five to seven times that day.
He stated that Mr. Carlson
“has not provided me with training for the hazards associated with falls and ladders, and he never confirmed I had received any training .” (Ex .
C -23.)

Carlson
stated
the
asphalt shingles
had been
removed
from the roof of the shed
so that
t he damaged p lywood underneath
could be replaced.
He stated Gosse “was on the roof performing the work while not protected from falling. ” (Ex. C-24.) Gosse had worked on Sunday, June
2, for half a day;
from
10:00 a.m. to
3:00 p.m. on Monday , June 3 ; and
for
one hour the day of the inspection.
The ladder was un secured. Carlson
claimed
Gosse had worked for FFB
“less than one month ,”
and
stated,
“ I
provided
training to Chris to the
best of my ability
for hazards associated with falls and ladders .”
(Ex. C-24 . )
FFB
abated both violations by securing the ladder and
submitting evidence to the Secretary
that it
had
provided a harness for Gosse’s future use when on the roof. (Tr. 36 , 38 ).

III. ANALYSIS

The fundamental objective of the Act is to prevent occupational deaths and serious injuries.
Whirlpool Corp. v. Marshall , 445 U.S. 1, 11 (1980). The Act “establishes a comprehensive regulatory scheme designed ‘to assure so far as possible safe and healthful working conditions’ for ‘every working man and woman in the Nation. ’ ”
Martin v. Occupational Safety & Health Review Comm'n (CF & I Steel Corp.),
499 U.S. 144, 147 (1991) (quoting 29 U.S.C. § 651(b)). “The Act charges the Secretary with responsibility for setting and enforcing workplace health and safety standards.”
Id . “To implement its statutory purpose, Congress imposed dual obligations on employers. They must first comply with the ‘general duty’ to free the workplace of all recognized hazards.”
ComTran Grp., Inc. v. U.S. Dep't of Labor,
722 F.3d 1304, 1307 (11th Cir. 2013). “They also have a ‘special duty’ to comply with all mandatory health and safety standards.” ( Id . citing id. at § 654(a)(2)).

“With respect to the latter, Congress provided for the promulgation and enforcement of the mandatory standards through a regulatory scheme that divides responsibilities between two federal agencies.” ( Id .) “The Secretary establishes these standards through the exercise of rulemaking powers.”
CF & I Steel Corp ., 499 U.S. at 147. See 29 U.S.C. § 665. Pursuant to that authority, the standards at issue in this case were promulgated. Meanwhile, the Commission is assigned to
conduct
adjudicatory functions under the Act and serves “as a neutral arbiter and determine whether the Secretary's citations should be enforced over employee or union objections.”
Cuyahoga Valley Ry. Co. v. United Transp. Union , 474 U.S. 3, 7 (1985) (per curiam).

Under the law of the Eleventh Circuit where this case arose, 9
the Secretary will make out a prima facie case for the violation of an OSHA standard by showing (1) that the regulation applied; (2) that it was violated; (3) that an employee was exposed to the hazard that was created; and importantly, (4) that the employer “knowingly disregarded” the Act’s requirements.
ComTran,
722 F.3d at 1307;
Eller-Ito Stevedoring Co., LLC v. Sec'y of Labor , 567 F. App'x 801, 803 (11th Cir. 2014).

Item 1a: Alleged Serious Vi olation of § 1926.501 (b)(10)

Item 1a alleges
that
on
or about
June 4, 2019,
an FFB employee “was
exposed to a fall hazard of approximately 9 feet when performing roof work on a low slope
roof while not being protected
from falling to the lower level.”
The cited standard
provides:

Except as otherwise provided in paragraph (b) of this section, each employee engaged in roofing activities on low-slope roofs, with unprotected sides and edges 6 feet (1.8 m) or more above lower levels shall be protected from falling by guardrail systems, safety net systems, personal fall arrest systems, or a combination of warning line system and guardrail system, warning line system and safety net system, or warning line system and personal fall arrest system, or warning line system and safety monitoring system. Or, on roofs 50-feet (15.25 m) or less in width (see Appendix A to subpart M of this part), the use of a safety monitoring system alone [ i.e.,
without the warning line system] is permitted.

29
29 C.F.R. §
1926.501(b)(10).

The Cited Standard Applies

Subpart M of the construction standards is titled
Fall Protection.
Section 1926.501 of Subpart M is titled
Duty to have fall protection.
Section 1926.501(a)(1) provides
th e
section “sets forth requirements for employers to provide
fall protection systems. ”
The cited standard requires the use of fall protection
for any employee engaged in
roofing activit y
on
a
low-sloped roof
with unprotected sides and edges
6 feet or more above lower levels.

Shpiruk
testified the
shed
roof is low-sloped, and Carlson agreed ( Ex.
C-24;
Tr. 32-33, 51-52).
Shpiruk
estimated the distance from the ground to the eaves of the shed is 9 feet , based on the spacing of the ladder rungs
in the photograph admitted as Exhibit C-17
(Tr. 25).
Carlson testified
the
roof is 8 feet, 4 inches, “from the concrete to the fascia where the fascia meets the roof .” (Tr. 47.)
It is undisputed the shed roof
is more than 6 feet above the lower level .
Goss e , FFB’s employee,
stood
on the shed roo f, which is low-sloped and higher than 6 feet ,
as he performed work on the roof.
The Court
concludes
§ 1926.501(b)(10) applies to the cited condition.

FFB Violated the
Terms of the
Cited Standard

As
Shpiruk
approached the shed, he saw Gosse working with a saw 2 to 3 feet from the edge of the roof (Tr. 17, 21). Exhibit C-10 is a photograph of Gosse standing
near the edge of
the low-sloped shed roof looking down. No fall protection is visible in the photograph.
Shpiruk
testified there was no form of fall protection
being used
on the shed roof (Tr. 18-19).
Gosse
also admitted
he was not using fall protection
while working on the shed roof
in his signed witness statement (Ex. C-23).

At trial , FFB argued
it used a safety monitoring system, as permitted by
§ 1926.501(b)(10)
for roofs 50 feet or less in width.
The shed roof is approximately
23 feet wide (Ex. C-24).
Carlson
testified
Gosse “was working in the back while I was watching him from the ground .
. . .
I was 6 to 8 feet away looking up. He could’ve [fallen] on top of me. ” (Tr. 48 -49 . )

However, §
1926.500(b) defines a
safety monitoring system
as
“a safety system in which a competent person is responsible for recognizing and warning employees of fall hazards.”
Section
1926.502(h) sets out the requirements
the employer must meet to comply with the use of a safety monitoring system, including
§ 1926.502(h)(1)(iii), which
states,
“ The safety monitor shall be on the same walking/working surface and within visual sighting distance of the employee being monitored [ . ]”

Carlson stated he was standing on the ground as he looked up and watched Gosse work on the roof.
Section 1926.502(h)(1)(iii) requires the safety monitor to be on the
same
surface
as the employee being monitored.
The Commission applies a literal interpretation to this standard and
“ has
previously
held
that section 1926.502(h)(1)(iii)'s unambiguous requirement must be met even in a case where the cited employer argued that positioning the safety monitor six feet above the employee being monitored gave the monitor a better vantage point. ”
C apeway
Roofing Sys., Inc. ,
No. 00-1968, 2003 WL
22020485, at *9
(OSHRC Aug. 26, 2003)
(citation omitted) .
FFB
did not
comply with the requirements of § 1926.502(h)(1)(iii)
on June 4, 2019, because Carlson was not on the same walking/working surface (the roof)
as he watched Gosse. FFB
was not using a
safety monitoring system within the meaning of the standard.
The refore, the c ourt
concludes
the Secretary has established FFB failed to
provide fall protection for its employee working on
its shed roof. FFB
failed to comply with the requirements of
§ 1926.50 1(b)(10).

The FFB Employee Was Exposed to the
Cited Hazard

It is undisputed Gosse was working on the shed roof
without fall protection.
Therefore, the court concludes the Secretary has established
Gosse
was exposed to a fall hazard.

FFB Knew of the Violative Condition

“The Secretary may prove that an employer had knowledge of a violation in one of two ways —( 1) by imputing the actual or constructive knowledge of a supervisor or (2) by demonstrating constructive knowledge based on the employer’s failure to implement an adequate safety program.”
ComTran,
722 F.3d at 1311. An example of actual knowledge is where a supervisor directly sees a subordinate's misconduct.”
ComTran,
722 F.3d at 1307–08. “An example of constructive knowledge is where the supervisor may not have directly seen the subordinate's misconduct, but he was in close enough proximity that he should have.”
ComTran,
722 F.3d at 1308.

Carlson is the owner of FFB. He hired
Gosse and supervised his work.
He had actual knowledge that Gosse was not
using fall protection while working on the shed roof.
Therefore, the court concludes the Secretary has established
FFB had actual knowledge of the violative condition.
Thus, the court concludes the
Secretary has established
FFB
violated §
1926.501 ( b)(10).

Characterization of the Violation

The Secretary characterized the violations as “serious.” A “serious” violation is established when there is “a substantial probability that death or serious physical harm could result [from a violative condition] . . . unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.” 29 U.S.C. § 666(k). “That provision does not mean that the occurrence of an accident must be a substantially probable result of the violative condition but, rather, that a serious injury is the likely result should an accident occur.”
Miniature Nut & Screw Corp ., 17 BNA OSHC 1557, 1558 (No. 93- 2535, 1996) .
Here,
Shpiruk
testified
the employee
could have sustained serious injuries had he fallen from the roof
( Ex. C-5;
Tr. 35). The
court credits his testimony and concludes the
violation is properly characterized as serious.

Item s
1b
and 2b : Alleged Serious Violation of § 1926.50 3(a)(1)

Item 1b alleges
that on
or about
June 4, 2019, the FFB employee “was exposed to fall hazards
when performing roof work on a low slope roof prior to being provided with a training program
that would enable him to recognize the hazards associated with fall.”
Item 2 b alleges that on or about June 4, 2019, the FFB employee “was exposed to
fall hazards when using a portable ladder to gain access to and from a roof prior to being provided with a training program that would enable him
to recognize
the hazards associated with ladders.”
The cited standard
are :

Section 1926.503(a)( 1) , which
provides:

The employer shall provide a training program for each employee who might be exposed to fall hazards. The program shall enable each employee to recognize the hazards of falling and shall train each employee in the procedures to be followed
in order to
minimize these hazards.

And

Section 1926.1060(a)( 1) , which
provides:

The employer shall provide a training program for each employee using ladders and stairways, as necessary. The program shall enable each employee to recognize hazards related to ladders and
stairways and
shall train each employee in the procedures to be followed to minimize these hazards.

The Cited Standard s
Appl y

Section 1926.503(a)(1) applies
to any employe r who has an employee or employees who might be exposed to fall hazards
on the worksite . Section 1926.1030(a)(1) applies to any employer who has an employee or employees
who use
ladder s
on the worksite .
FFB’s employee used a ladder to access the roof of the shed.
The court concludes the Secretary has established both
cited standard s
appl y .

FFB Violated the Cited Standard s

Carlson
told
Shpiruk , “I provided training to Chris to the best of my
ability for hazards associated with falls and ladders.”
(Ex. C-24 . )
At trial, Carlson
did not
elaborate
on this statement ,
and he
conceded, “ I did not train the man how to use—how to climb a ladder . ” (Tr. 48.)
Gosse told
Shpiruk ,
“Jon Carlson has not provided me with training for the hazards
associated with falls and ladders, and he never confirmed I had received training.”
(Ex. C -24.)
The court concludes the Secretary has established
FFB violated the terms of the cited standards.

The FFB Employee Was Exposed to the Cited Hazard s

FFB’s employee used a ladder to access a low-sloped roof that is approximately 9 feet high.
His lack of knowledge
regarding proper procedures to ensure fall protection and ladder safety
exposed him to
potential serious physical harm.
The court concludes the Secretary has established
FFB’s employee was exposed to the cited hazards.

FFB Knew of the Violative Condition

Since
it is the employer’s duty to provide training to its employees, the employer
will almost invariably have actual knowledge regarding whether it trained
the employees as required. To establish noncompliance with a training standard, the Secretary must show
the cited employer “failed to provide the instructions that a reasonably prudent employer would have given in the same circumstances.”
N & N Contractors Inc.,
18 BNA OSHC
2121, 2125 (No. 96-0606, 2000).

Here,
the Secretary established FFB provided its employee with
no safety training regarding fall hazards and hazards associated with ladders, and it did not confirm
with the employee that he had previous training in those areas.
The court concludes the
Secretary has established FFB had actual knowledge of the violative condition.
Thus, the court concludes
the Secretary established that FFB violated
§§ 1926.503(a)(1) and
1060(a)(1).

Characterization of the Violations

The Secretary
characterized the violations of the cited standards as serious , wh ich, as noted,
means
the cited hazards present ed
“ substantial probability that death or serious physical harm ” could result
from the violative condition s .
FFB’s employee
had received no training in fall hazards or hazards associated with ladders.
He did not have the necessary information to evaluate and protect against these hazards , which include falling approximately 9 feet from the roof or ladder
to the ground .
Falls from that height could result in serious physical harm
(Ex. C-5) .
The
c ourt concludes
the Secretary properly characterized the violations as serious.

Item 2a: Alleged Serious Violation of § 1926. 1053(b)(8)

Item
2a
alleges that on
or about
June 4, 2019, the FFB employee “was exposed to
a
fall hazard
when using
[a]
ladder
[that was ]
set up in an
active car lot to gain access to and from a roof while the ladder
was not secured to prevent accidental displacement
and/or barricaded.”

Section 1926. 1053(b)(8 )
provides:

Ladders placed in any location where they can be displaced by workplace activities or traffic, such as in passageways, doorways, or driveways, shall be secured to
prevent accidental displacement, or a barricade shall be used to keep the activities or traffic away from the ladder.

The Cited Standard Applies

Subpart M
is titled
Stairways and
Ladders.
Section 1926 .1053 is titled
Ladders
and applies to “all ladders
as indicated, including job-made ladders.”
The court concludes the Secretary established t he cited standard applies to the
cited
conditions.

FFB Violated the Cited Standard

Exhibit C-17 is a photograph of Gosse descending the ladder at issue. The
ladder is directly in front of a door to the shed and surrounding area
is paved . Immediately to the right of the shed is a stairway and to its right is a garage
with open overhead doors .
The

ladder
is in a location
where
it can be displaced by
traffic—it is in front of doorway and in
a driveway
that is open to
public traffic .
The ladder is not secure d (Tr. 22).

In Exhibit C-17, no one is holding the ladder for Gosse as he climbs down.
FFB argues
Carlson was available to assist with the ladder when Gosse was working.
On cross-examination,
Carlson
asked
Shpiruk , “Is it okay for another individual
to hold the back of the ladder while an individual climbs up the ladder [ ? ]” and
Shpiruk
replied, “Yes, yes .”
(Tr.
40 .)
Carlson later testified he
personally
secured the ladder when Gosse climbed up or d own it. “I can put my bottom two feet at the bottom of the ladder like everybody else .
. . .
I held the ladder for Chris while he got
up there and then I walked around the back of the building and proceeded to watch him and to tell him what to do. ”
(Tr. 51.)
He stated he had been outside watching Gosse
the entire time he was working on the shed (Tr. 53).

Earlier in his testimony, however, Carlson stated he was not
outside the entire time Gosse was working.

Q.: Mr. Carlson, when
Mr. Shpiruk arrived, you weren’t outside, correct?

Mr. Carlson: Yes, sir. I
wasn’t
feeling good. Yes, I
can’t
move as quick as you can.

(Tr.
50.)

The
c ourt
does not credit Carlson’s testimony that he was
available to hold the ladder every time Gosse used it.
The ladder was not physically secured to prevent displacement and
Gosse was working alone at times on the roof when no one was available to hold the
ladder steady for him as he climbed up or down.
Exhibit C-17 shows Gosse descending the unsecured ladder with no one
holding it for him.
The court concludes the Secretary established
FFB violated the terms of the cited standard.

The FFB Employee Was Exposed to the Cited Hazard

The Secretary can establish employee exposure to a violative condition by showing either “‘actual exposure or that access to the hazard was reasonably predictable.”’  Nuprecon , LP , 23 BNA OSHC 1817, 1818 (No. 08-1307, 2012) (citing  Phoenix Roofing, Inc. , 17 BNA OSHC 1076, 1079 (No. 90-2148, 1995),  aff'd , 79 F.3d 1146 (5th Cir. 1996)). In determining employee access to the hazard, “the “inquiry is not simply into whether exposure is theoretically possible,' but whether it is reasonably predictable ‘either by operational necessity or otherwise (including inadvertence), that employees have been, are, or will be in the zone of danger.”’  Id.  at 1818-19. “The zone of danger is ‘that area surrounding the violative condition that presents the danger to employees which the standard is intended to prevent.”’  KS Energy Servs., Inc. , 22 BNA OSHC 1261, 1265 (No. 06-1416, 2008) (citing  RGM Constr. Co. , 17 BNA OSHC 1229, 1234 (No. 91-2107, 1995)) .

Gate Precast Co.,
No. 15-1347, 2020 WL 2141954, at *2 (OSHRC
Apr. 28, 2020) .

In
Gosse ’s
written statement
he admitted
he had used the ladder five to seven times that day (Tr. 23).
He was on the roof of the shed for
half a day
the previous
Sunday, for five hours Monday, and for one hour the day of the inspection (Ex. C-23 , Ex. C -24). He
was in the zone of danger and
had access to the unsecured ladder
the entire time he was at the worksite
over those three days.
The Court finds
the employee was exposed to the violative condition of the unsecured ladder.

FFB Knew of the Violative Condition

Carlson was onsite and
at times held the unsecured ladder for
Gosse.
The court concludes the Secretary established
FFB had actual knowledge of the violative condition.

Characterization of the Violations

The Secretary characterized the violation of the cited standard as serious. FFB’s employee had
used the unsecured ladder five to seven times the day of the inspection and had used it over several hours the previous two days.
Had he fallen from the ladder, he could have sustained serious physical harm
( Ex.
C-5) .
The court concludes the Secretary
properly characterized the violation as serious.

IV. PENALTY DETERMINATION

“In assessing penalties, section 17(j) of the OSH Act, 29 U.S.C. § 666(j), requires the Commission to give due consideration to the gravity of the violation and the employer's size, history of violation, and good faith.”
Burkes Mech., Inc ., 21 BNA OSHC 2136, 2142 (No. 04- 0475, 2007). “Gravity is a principal factor in the penalty determination and is based on the number of employees exposed, duration of exposure, likelihood of injury, and precautions taken against injury.”
Siemens Energy & Automation, Inc ., 20 BNA OSHC 2196, 2201 (No. 00- 1052, 2005) (citation omitted). “The other factors are concerned with the employer generally and are considered as modifying factors.”'
Natkin & Co. Mech. Contractors,
1 BNA OSHC 1204, 1205 n.3 (No. 401, 1973).

The
total
number of
FFB
employees
is not
found in the record, but t he Secretary
adjust ed
the penalty to the maximum extent
( seventy percent )
due to the company’s small size, resulting in a
total
penalty of $ 5 , 683
(Ex s . C-5 , Ex.
C-6 ;
Tr. 35 -36 ) .
The Secretary
adduced no evidence of FFB’s history with OSHA or evidence of bad faith.
The gravity of the violations is
moderate.
One employee was exposed
for approximately 10 hours
(from June 2 to June 4)
to the cited hazards .
FFB took no precautions
against the hazards, except for Mr. Carlson possibly holding the ladder
sometimes when Gosse climbed up or down it.

Shpiruk
testified that a fall from the roof without fall protection would result in severe injuries or death (Tr. 35).
He
determined that the severity of the hazard was high because of the expected injuries of a fall including fractures and lacerations, and a greater probability due to the length of time (more than 7 hours) that the employee was exposed to the hazard (Tr. 35). For the ladder violation,
Shpiruk
testified that he recommended a medium severity based on the risk of falling and sustaining injuries from climbing up in down the ladder or the ladder being removed.
H e provided a lower probability rating because it was unlikely that
the employee
would be using the ladder constantly while working on the roof (Tr. 37).
B ecause
the training violations were grouped , the Secretary
did not issue additional penalties. (Tr. 36–37).

Giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations, the
c ourt concludes
a grouped penalty of
$3,410 for Items 1a and 1b of the Citation
and a grouped penalty of $2,27 3 for Items 2a and 2b of the Citation
are appropriate .
Accordingly,

V. ORDER

IT IS HEREBY ORDERED THAT
all items in the citation are
AFFIRMED
with grouped penalty
ASSESSE MENT S
of
$3,410 for Items 1a and 1b, and $2,273 for Items 2a and
2b
respectively .

SO
ORDERED .

/s/   

First Judge John B. Gatto

Dated:

May 25, 2021

Atlanta, GA

"

1
Pursuant to Commission Rule 90(b)(4)(i), 29 C.F.R. § 2200.90(b)(4)(i),
an errata order was issued
to
replace “First Marine” with “FFB”
in the last sentence of page 2 .

2
The Secretary of Labor has assigned responsibility for enforcement of the Act to OSHA and has delegated his authority under the Act to the Assistant Secretary for Occupational Safety and Health, who heads OSHA.
See
Order No. 1–2012 , Delegation of Authority and Assignment of Responsibility to the Assistant Secretary for Occupational Safety and Health, 77 Fed. Reg. 3912 (Jan. 25, 2012). The Assistant Secretary has redelegated his authority to OSHA’s Area Directors to issue citations and proposed penalties.
See
29 C.F.R. §§ 1903.14(a) and 1903.15(a). The terms “Secretary” and “OSHA” are used interchangeably herein.

3
A “Compliance Safety and Health Officer” is “a person authorized by the Occupational Safety and Health Administration, U.S. Department of Labor, to conduct inspections.”
29 C.F.R.
§1903.22(d).

4
The Act contemplates various grades of violations of the statute and its attendant regulations —“ willful”; “repeated”; “serious”; and those “determined not to be of a serious nature” (the Commission refers to the latter as “other-than-serious”). 29 U.S.C. § 666.

5
Commission Rule 30(d) provides that “[s] tatements
in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.” 29 C.F.R §2200.30(d). Attached to the complaint
and also
adopted by reference was the citation, which was “a part thereof for all purposes.”

6
FFB owner Jon
Carlson participated in the
video trial
via telephone.

7
FFB
claimed
for the first time at trial that
the man
whom
Shpiruk
s aw
on the roof of FFB’s building on June 4, 2019, was not
its employee
(Tr. 44-45).
Carlson
stated the man was a friend of his
who
was doing
him a
favor
by
checking on the work of a
roofing
contractor (Tr.
9,
47).
This
claim is contradicted by the signed witness statements of both Carlson and
Chris Gosse
( the man on the roof )
taken by
Shpiruk
on June 4, 2019
(Ex. C -23 . Ex.
C-24).
Carlson also contradict ed
this claim
under oath
at the trial. When reminded that he had informed
Shpiruk
during the inspection that Gosse was his employee, Carlson
replied, “Well , I would consider anybody that I hire an employee. I’m paying them . . . .
When I hire a contractor, he is my employee.” (Tr. 52 . )
The
c ourt does not credit Carlson’s claim
that FFB
was not the employer of
Gosse.

8
All arguments not expressly addressed have nevertheless been considered and rejected. If any finding is in truth a conclusion of law, or if any stated conclusion is in truth a finding of fact, it shall be deemed so.

9
The employer or the Secretary may appeal a final decision and order to the federal court of appeals for the circuit in which the violation allegedly occurred or where the employer has its principal office, and the employer also may appeal to the D.C. Circuit.
See
29 U.S.C. §§ 660(a) and (b). Here, the violation occurred in Fort Pierce , Florida,
in the Eleventh Circuit,
which is
also
the location of
FFB’s
principal place of business .
See
29 U.S.C. § 660(b). The Commission has held that where it is highly probable that a case will be appealed to a particular circuit, it generally has applied the precedent of that circuit in deciding the case— even though it may differ from the Commission’s precedent.
Kerns Bros. Tree Serv ., 18 BNA OSHC 2064, 2067 (No. 96- 1719, 2000). The
c ourt therefore applies the precedent of the Eleventh Circuit in deciding the case where it is highly probable the case would be appealed.