M.C. Dean, Inc.

Plain-English summary

An M.C. Dean electrician went onto a warehouse roof to inspect exhaust fans and fell through an unguarded skylight nearly 26 feet to the floor. He died from his injuries two weeks later. The judge found constructive knowledge because the onsite field supervisor failed to inspect the unfamiliar roof, ask the building owner about skylights, update the pre-task hazard plan, or establish a protected route. Dean did not prove infeasibility or greater hazard because several temporary guarding, screening, control-zone, and monitoring options were available. The serious skylight-guarding violation was affirmed, with a $7,000 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.23(a)(4)
• Outcome: One serious skylight-guarding item was affirmed, with a $7,000 penalty.
• Key point: A supervisor must investigate and plan for skylight hazards before sending an employee onto an unfamiliar roof, even for a short inspection.

Full text (OSHRC public release)

                   United States of America
   OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                              1924 Building - Room 2R90, 100 Alabama Street, SW
                                          Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant
v. OSHRC Docket No. 10-0549
M.C. Dean, Inc.,

        Respondent.

Appearances:
Kristina T. Harrell, Esq., Office of the Solicitor, U.S. Department of Labor, Atlanta, Georgia
For Complainant

      J. Larry Stine, Esq., Mark A. Waschak, Esq., and Elizabeth K. Dorminey, Esq.,
                Wimberly, Lawson, Steckel, Schneider & Stine, P.C., Atlanta, Georgia
                For Respondent

Before: Administrative Law Judge Sharon D. Calhoun

                                        DECISION AND ORDER

      This proceeding is before the Occupational Safety and Health Review Commission

(Commission) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. §§ 651-678 (OSH Act or Act). M.C. Dean, Inc. (Dean) is an electrical contractor that, as part
of its business, services existing electrical installations. On August 27, 2009, three Dean employees
were performing such service at a Ryder Transportation Services (Ryder) warehouse in Doraville,
Georgia, when journeyman electrician Lewis Quinn fell through a skylight on the warehouse roof.
Quinn died two weeks later. As a result of this fatality, the Occupational Safety and Health
Administration (OSHA) inspected the site and issued Dean a single serious citation. The citation
alleges that Dean violated 29 C.F.R. § 1910.23(a)(4) for failing to guard the skylight through which
Quinn fell. The Secretary proposed a $7,000.00 penalty for this citation.
Dean timely contested the citation and a hearing was held on September 2-3, 2010, in
Atlanta, Georgia. The parties stipulated to jurisdiction and coverage (Tr1. 6). Both parties have
submitted post-hearing briefs.
 Dean contends the Secretary failed to prove it had knowledge of the fall hazard posed by the
skylight. Additionally, Dean asserts both the infeasibility and greater hazard affirmative defenses,
arguing the means of compliance proposed by the Secretary were “impractical, ineffective, would
expose employees to greater harm, or all three” (Dean’s Brief at 13).
For the following reasons, the citation is affirmed as serious and a penalty of $7,000.00 is
assessed.
Background
Although servicing existing electrical installations is not Dean’s primary business, it had a
20-year relationship with Ryder to provide such service at this warehouse, formalized in a “time
material” contract (Tr1. 20, 147, 222-23). Ryder’s warehouse, approximately 300 feet by 100 feet,
had a pitched roof containing approximately eight or ten skylights (Tr1. 198, 217). The skylights
were spaced approximately 25 feet apart and were a similar distance from the exhaust fans
(Tr1. 198). The height of the warehouse at the location of the skylight Quinn fell through was nearly
26 feet (Exh. C-6). The skylights were “obvious” from the floor inside the warehouse (Tr1. 197,
213). However, they were not nearly as visible from the roof, and instead of bulging up from the
roof, lay flush with it (Tr1. 57, 159, 204).
Dean requires prior to beginning work each day, its employees complete an “activity hazard
analysis”—referred to as a “pre-task planner”—a document that identifies and assesses the hazards
that could be confronted during that day’s work (Tr1. 49, 57, 150-52; Tr2. 48). If conditions change,
employees are supposed to address any new hazards on the pre-task planner (Tr1. 181-82).
On the day of the accident, Dean’s three-man team was installing and upgrading electrical
equipment inside the warehouse (Tr1. 20). The team consisted of Lewis Quinn and Boyd Young,
both journeyman electricians, and Samuel Dittmore, an apprentice (Tr1. 20-21). Dean’s service
group manager, Tommy McGregor, assigned Young to serve as the “field supervisor” at the
worksite, a position indicating that he was in charge of Dean’s onsite operations (Tr1. 98, 141-43,
193, 222). At the time of the accident, these employees had been on site between one to two weeks
(Tr1. 149).

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At the beginning of the day, the employees filled out a pre-task planner but did not include
skylight hazards because they did not think they would be working on the roof1 (Tr1. 152-54;
Exh. C-8). While working inside the warehouse running conduit and mounting junction boxes, the
employees used an articulating boom lift to reach the ceiling (Tr1. 155-56). As part of the job, they
modified the control configuration for the warehouse’s two exhaust fans whose flumes were in the
roof (Tr1. 173). However, after this rewiring, the exhaust fans did not turn on when the power
switch was flipped and the Dean employees determined that it was necessary to “verify the voltage
at the local disconnect” and access the exhaust fans via the roof (Tr1. 174).
None of these Dean employees had previously accessed the roof of the warehouse (Tr1. 155).
They received permission to access the roof from their contact with Ryder, Jeff Thompson, and
discussed fall protection for the lift (Tr1. 157-58, 175-76, 182). Although Young testified that the
skylight hazard should have been identified in the pre-task planner, they did not update it (Tr1. 182).
Young and Quinn moved the lift outside of the warehouse to raise Quinn to the roof
(Tr1. 169). While on the roof, Quinn was only expected to inspect, not work on, the exhaust fans
(Tr1. 205). He was on the roof for 15 to 20 minutes (Tr1. 176). Although he was tied off on the lift,
he had no additional fall protection while on the roof, nor was there any on the roof (Tr1. 64-65,
179). Young was in radio contact with Quinn while he was on the roof (Tr1. 167). Quinn checked
the voltage of each of the two exhaust fans. Afterwards, he fell through an approximately 8-foot by
3-foot skylight while walking on the roof (Tr1. 162, 167-68). He died from his injuries two weeks
later, triggering the OSHA inspection (Tr1. 18.)
Based upon this inspection, the Secretary issued the instant citation to Dean on February 22,
2010.
Discussion
Item 1: Alleged Violation of § 1910.23(a)(4)
To establish a violation of an OSHA standard, the Secretary has the burden of proving, by
a preponderance of the evidence:

1
The pre-task planner for that day includes two notations for “100% Fall Protection” (Exh. C-8). Young explained
that these notations signified a Dean rule requiring employees to tie off unless “you’re more than six feet away from
a fall hazard or opening” (Tr1. 199-200).

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(a) the applicability of the cited standard, (b) the employer’s noncompliance with the
standard’s terms, (c) employee access to the violative conditions, and (d) the
employer’s actual or constructive knowledge of the violation (i.e., the employer
either knew or, with the exercise of reasonable diligence could have known, of the
violative conditions).

Atlantic Battery Co., 19 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
The citation alleges:

   On or about 09/11/09 an employee of M.C. Dean, Inc. was exposed to falling
   approximately 25.8 feet through a skylight as the employer did not provide any
   guarding protection around all sides of the skylight. Section 1910.23(a)(4) provides:

   Every skylight floor opening and hole shall be guarded by a standard skylight screen
   or a fixed standard railing on all exposed sides.

   Dean contends only that the Secretary failed to prove knowledge. The skylight at issue fits

within the standard’s definition of “floor opening,” establishing applicability. 29 C.F.R.
§ 1910.21(a)(2) (defining “floor opening” as “an opening measuring 12 inches or more in its least
dimension, in any floor, platform, pavement, or yard through which persons may fall”); see
Lancaster Enters., Inc., 19 BNA OSHC 1033, 1036-37 (No. 97-0771, 2000) (finding similar
construction skylight standard applied to many different types of skylight openings). Young
testified that there was no guarding for the skylights on the warehouse roof, establishing
noncompliance (Tr1. 177). Quinn was working on the roof when he fell through the skylight,
establishing actual exposure. See Phoenix Roofing Inc., 17 BNA OSHC 1076, 1079 (No. 90-2148,
1995) (finding actual exposure to skylight guarding violation where employee fell through skylight
opening), aff’d without published opinion, 79 F.3d 1146 (5th Cir. 1996).
Knowledge
To establish knowledge, the Secretary must prove that “a cited employer either knew, or,
with the exercise of reasonable diligence, could have known of the presence of the violative
condition.” A.P. O’Horo, 14 BNA OSHC 2004, 2007 (No. 85-369, 1991). “[K]nowledge is
established by a showing of employer awareness of the physical conditions constituting the
violation.” Phoenix Roofing, 17 BNA OSHC at 1079. “The actual or constructive knowledge of
an employer’s foreman or supervisor can be imputed to the employer.” Revoli Constr. Co., 19 BNA
OSHC 1682, 1684 (No. 00-0315, 2001).

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Dean contends that Young—because he and Quinn “were equals, both journeymen
electricians, hourly employees” with the same internal company designation of “E Prep”—was not
a foreman or supervisor and therefore his knowledge of the conditions at the site is not imputable
to the company (Dean’s Brief at 9-10). Young, according to Dean, “lacked supervisory indicia such
as the authority to discipline, hire or fire,” which instead rested with McGregor (Dean’s Brief at 10).
Acknowledging that McGregor assigned Young to be the onsite field supervisor the day of the
accident, Dean notes that Quinn had been assigned that duty on other jobs (Dean’s Brief at 10).
Dean also argues that the Secretary “recognized that Young was not a supervisor” by denying
Dean’s counsel to be present at its interview with Young.
“Under Commission precedent, ‘[a]n employee who has been delegated authority over other
employees, even if only temporarily, is considered to be a supervisor for the purposes of imputing
knowledge to an employer.’ ” Diamond Installations Inc., 21 BNA OSHC 1688, 1690
(No. 02-2080, 2006) (consolidated) (quoting Dover Elevator Co., 16 BNA OSHC 1281, 1286
(No. 91-862, 1993)). Moreover, “ ‘[i]t is the substance of the delegation of authority that is
controlling, not the formal title of the employee having the authority; an employee who is
empowered to direct that corrective measures be taken is a supervisory employee.’ ” Id. (quoting
Dover Elevator, 16 BNA OSHC at 1690). “Supervisory status is not dependent on job titles, but
may be established by other indicia of authority that the company has empowered the employee to
exercise on its behalf.” Id.
The record evidence establishes that Young was a supervisor. McGregor, the Dean service
group manager, assigned Young as the onsite field supervisor or “lead” for the day of the accident
(Tr1. 140-41, 226-27, 256, 259-60; Exhs. C-11, C-12). McGregor acknowledged in his testimony
that Young controlled the “method and manner” in which he performed the assigned tasks and
maintained the ability to assign tasks to other employees, including other journeymen (Tr1. 259).
Thus, at least for the day in question, Dean had delegated Young with authority over other
employees. Diamond Installations, 21 BNA OSHC at 1690 (permitting imputation of knowledge
based on temporary delegation of authority). Although Young did not have the authority to hire or
fire, such power “is not the sine qua non of supervisory status.” Rawson Contractors, Inc., 20 BNA
OSHC 1078, 1080 (No. 99-0018, 2003).

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Young had other indicia of authority as well. For instance, McGregor relied on Young to
determine the tasks to be performed at the warehouse (Tr1. 260). Indeed, Young served as Dean’s
contact with Ryder and had the “latitude” to agree on changes or modifications to the project
(Tr1. 256). Young testified his duties as field supervisor included ensuring the team had all
necessary materials and that “the tasks were completed . . . ” (Tr1. 142). Dean’s vice president of
safety, John Bennett, testified McGregor had to rely on Young as his “lead person” to monitor safety
at the worksite. See Rawson Contractors, 20 BNA OSHC at 1080 (finding foreman supervisor for
purposes of knowledge imputation where he was assigned to supervise his crew’s work activities,
controlled all steps for completing the job, and ensured that work was done safely); Kerns Bros. Tree
Serv., 18 BNA OSHC 2064, 2068-69 (No. 96-1719, 2000) (considering crew leader a supervisor
because he “was responsible for seeing that the work was done safely and properly”); Tampa
Shipyards, Inc., 15 BNA OSHC 1533, 1538 (No. 86-360, 1992) (permitting imputation of leadermen
where they reported directly to supervisors, including with respect to safety concerns). This
evidence establishes that Young was a supervisor such that his constructive knowledge may be
imputed to Dean.
Dean argues that the record does not establish constructive knowledge because it had
“effective safety rules, effective enforcement through safety inspections, and effective
communication of the rules, and authorizes any employee to stop a job if he has safety concerns”
(Dean’s Brief at 8). The Secretary establishes constructive knowledge “by showing that the
employer could have discovered the existence of the violative condition with the exercise of
reasonable diligence.” Diamond Installations, 21 BNA OSHC at 1691. “In assessing reasonable
diligence, the Commission has considered ‘several factors, including the employer’s obligation to
have adequate work rules and training programs, to adequately supervise employees, to anticipate
hazards to which employees may be exposed, and to take measures to prevent the occurrence of
violations.’ ” Greenleaf Motor Express, Inc., 21 BNA OSHC 1872, 1875 (No. 03-1305, 2007)
(quoting Precision Concrete Constr., 19 BNA OSHC 1404, 1407 (No. 99-0707, 2001)). As part of
its reasonable diligence to anticipate hazards, “an employer has a general obligation to inspect its
workplace for hazards,” and that obligation “ ‘requires a careful and critical examination, and is not
satisfied by a mere opportunity to view’ ” the hazardous condition. Hamilton Fixture, 16 BNA

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OSHC 1073, 1087 (No. 88-1720, 1993) (quoting Austin Commercial v. OSHRC, 610 F.2d 200, 202
(5th Cir. 1979)).
Although the cited condition—the lack of guarding on the skylights—was not “readily
apparent” from the ground, the existence of the skylights was (Tr1. 59, 156, 213). The team had
been working at the warehouse for one to two weeks prior to the accident and this work involved
using the lift to service the exhaust fans and other equipment at the warehouse’s ceiling (Tr1. 149,
155, 173). When the Dean employees determined they needed to access the roof, however, they did
not consider the safety concerns concomitant with such access. Young never discussed with Ryder
management “if there was any guarding or any safety precautions” that needed to be taken while on
the roof (Tr1. 179). Although they discussed “how the roof had been accessed in the past,” they did
not discuss the location of the skylights in relation to the exhaust fans, whether there were
designated path lines on the roof, nor whether there were guardrails or covers for the skylights
(Tr1. 158-59). According to Young, fall protection was discussed only with respect to using the lift
(Tr1. 214). Young did not recall discussing with Quinn a path of travel on the roof that could have
avoided the skylights and did not determine that Quinn should use fall protection while on the roof
(Tr1. 177, 179, 182). Indeed, Young admitted that a skylight hazard should have been included on
the pre-task planner (Tr1. 181). McGregor concurred this should have been done (Tr1. 254).
Further, Young admitted and McGregor confirmed it was “uncommon” for service group
employees to work on roofs (Tr1. 181, 263). This lack of experience with roofs makes Young’s
failure to investigate the conditions on the roof and discuss safety issues related to the roof with
Ryder’s Thompson more questionable. See N&N Contractors, Inc. v. OSHRC, 255 F.3d 122, 127
(4th Cir. 2001) (“An employer has constructive knowledge of a violation if the employer fails to use
reasonable diligence to discern the presence of the violative condition.”); Acchione & Canuso, Inc.,
7 BNA OSHC 2128, 2130 (No. 16180, 1980) (finding constructive knowledge of crane operating
too close to energized power line where superintendent was on worksite, knew power lines were “all
over” site, and crane operator “lacked experience” working near power lines). The record evidence
thus establishes that Young failed to exercise reasonable diligence to anticipate the skylight hazard.
See Automatic Sprinkler, 8 BNA OSHC at 1387 (finding employer had constructive knowledge of
violation where company could have anticipated hazard if it had inspected area where its employees

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would be working). Because Young’s constructive knowledge may be imputed to Dean, the
Secretary established knowledge.2
Affirmative Defenses
Generally, a respondent must raise any affirmative defenses in its Answer or risk that later
assertion of those defenses will be barred. Commission Rule 34(b)(3)-(4), 29 C.F.R.
§ 2200.34(b)(3)-(4). Dean asserted in its Answer neither the infeasibility nor greater hazard
defenses. However, the Secretary has not objected to Dean raising these challenges and, indeed,
addressed the merits of these claims in her brief. Cf. Westvaco Corp., 16 BNA OSHC 1374, 1380
n.14 (No. 90-1341, 1993) (Commission permitting assertion of infeasibility affirmative defense
where not raised in Answer because Secretary did not object to its inclusion in direction for review
and issue was briefed by both parties). Moreover, Commission Rule 34 permits the presiding judge
to allay such a prohibition if the judge “finds that the party has asserted the defense as soon as
practicable.” Commission Rule 34(b)(4), 29 C.F.R. § 2200.34(b)(4). As Dean raised these defenses
in its pre-hearing statement, the undersigned finds it has raised these defenses as soon as practicable,
and thus does not bar the assertion of these defenses.
Infeasibility
Dean argues implementation of prescribed means of compliance such as installing guardrails,
portable screens, or mounts for tie-offs would have been “impossible” because “Dean was not the
building owner” (Dean’s Brief at 13). Dean also opines the expense for installing compliant fall
protection would have been “considerable” (Dean’s Brief at 13). Finally, Dean asserts it used an
“alternative method of fall protection”: Dean’s rule that its employees stay six or more feet from
fall hazards (Dean’s Brief at 13-14). To establish infeasibility, an employer must prove that
(1) the means of compliance prescribed by the applicable standard would have been
infeasible under the circumstances in that (a) its implementation would have been
technologically or economically infeasible, or (b) necessary work operations would
be technologically or economically infeasible after its implementation, and (2) either
(a) an alternative method of protection was used, or (b) there was no feasible
alternative means of protection.

2
Dean attempts to import the “recognized hazard” requirement of the Commission’s “general duty clause,”
section 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1), jurisprudence to show that the skylight hazard was not a
“recognized hazard.” However, Dean was cited under § 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2), which does not
require proof of a recognized hazard. J.M. Martinac Shipbuilding Corp., 6 BNA OSHC 1645, 1647 n.5 (No. 14767,
1978) (finding “recognized hazard” issue is not relevant in a § 5(a)(2) case).

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A.J. McNulty & Co., 19 BNA OSHC 1121, 1129 (No. 94-1758, 2000).
The fact Dean was not the warehouse owner does not prevent it from maintaining its duty
to take safety precautions. See A.C. Dellovade, 13 BNA OSHC 1017, 1018 (No. 83-1189, 1987)
(finding lifeline use not infeasible where subcontractor could have welded eyes to vertical members
of building’s A-frame to hold lifeline). Dean neither introduced nor cites to any evidence that
purchasing and installing the requisite fall protection for the skylights would “have had a ‘severe
adverse economic effect’ on the company.” Dayton Tire, 23 BNA OSHC 1247, 1256 (No. 94-1374,
2010) (quoting State Sheet Metal Co., 16 BNA OSHC 1155, 1161 (No. 90-2894, 1993)). The only
record evidence related to the effort needed to properly guard the skylights was Compliance Officer
(CO) Reinaldo White’s testimony that it would have taken between two to five hours to set up the
requisite protection on the roof (Tr1. 121-22). CO White testified there were many different ways
Dean could have protected Quinn on the roof, including installing temporary, inexpensive
guardrails, or skylight screens, establishing a control zone, or appointing a monitor (Tr1. 65-70).
Indeed, perhaps the easiest way for Dean to resolve this issue would have been to talk with Ryder
and to seek their assistance in providing protections. Young testified Ryder officials would have
spoken with him about safety precautions, but that conversation never happened (Tr1. 179-80, 186).
Dean has not shown why installing the fall protections listed in the standard or following the
alternatives described by the CO were infeasible. Such a showing is required to make out a defense
of infeasibility. See R.G. Friday Masonry, Inc., 17 BNA OSHC 1070, 1072 (No. 91-2027, 1995)
(rejecting employer’s infeasibility claim because it failed to prove that it could not have used safer
alternatives); State Sheet Metal, 16 BNA OSHC at 1161 (noting that employer has burden of proving
infeasibility of compliance). Accordingly, Dean failed to establish the infeasibility affirmative
defense.
Greater Hazard
Dean contends installing the skylight protections described in the standard would expose its
employees to the fall hazard for longer than the time Quinn was working on the roof (Dean’s Brief
at 13). The Commission considers such a claim separately from infeasibility, as an assertion “that
compliance with the standard would have exposed its employees to a greater hazard than
noncompliance.” Peterson Bros. Steel Erection Co. 16 BNA OSHC 1196, 1204 (No. 90-2304,
1993); State Sheet Metal, 16 BNA OSHC at 1159 (considering as greater hazard defense employer’s

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argument that it was infeasible to use safety nets because employees would have been more exposed
to a fall hazard while erecting the nets than performing their assigned task). To establish the greater
hazard affirmative defense
the employer must prove that the hazards caused by complying with the standard are
greater than those encountered by not complying, that alternative means of protecting
employees were either used or were not available, and that application for a variance
under section 6(d) of the Act would be inappropriate.
State Sheet Metal, 16 BNA OSHC at 1159. Moreover, “[b]efore an employer elects to ignore the
requirements of a standard because it believes that compliance creates a greater hazard, the employer
must explore all possible alternatives and is not limited to those methods of protection listed in the
standard.” Id.
Dean failed to elicit evidence to establish abating the hazard would be more hazardous than
allowing Quinn to walk on the roof unprotected. See Peterson Bros., 16 BNA OSHC at 1204-05
(rejecting greater hazard defense based on “unsubstantiated conclusions as proof”). Indeed, Young
testified he would have been comfortable installing a temporary guardrail around the skylight (Tr1.
186). Although Dean claims Quinn was using the company’s “six-foot rule” on the roof, Dean has
produced no evidence showing it considered any alternatives to using this rule. The CO testified,
without rebuttal, that Dean could have used temporary guardrails that are “mobile” and “very cost
effective” (Tr1. 69). According to the CO, Dean also could have established a control zone or used
a safety line to identify the hazard (Tr1. 119). See Peterson Bros., 16 BNA OSHC at 1204-05
(finding evidence that additional protections could be set up safely trumps conclusory opinions that
protections constitute a greater hazard). Additionally, Quinn used fall protection while on the lift
and wore a harness while on the roof (Tr1. 179). Moreover, Dean neither claimed nor established
that a variance was inappropriate. Accordingly, Dean did not establish the greater hazard defense.
Characterization
In the citation, the Secretary characterized this violation as serious. Dean does not challenge
this characterization. A violation is serious “if there is a substantial probability that death or serious
physical harm could result from the violation.” Capform, Inc., 16 BNA OSHC 2040, 2042 (No.
91-1613, 1994) (citing section 17(k) of the Act, 29 U.S.C. § 666(k)). The record evidence supports
a serious characterization as Dean’s failure to protect its employees from the skylight hazard could,

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and did, result in death. See Compass Envtl., Inc., 23 BNA OSHC 1132, 1136 (No. 06-1036, 2010)
(characterizing training violation as serious where untrained employee died).
Penalty Determination
The Commission is the final arbiter of penalties in all contested cases. “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 Mechanical Inc., 21 BNA OSHC 2136, 2142 (No. 04-0475, 2007). “Gravity is a
principal factor in a 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).
Although only one employee was exposed to the unprotected skylight hazard, the likelihood
of injury was high and there were no precautions taken to prevent an accident from occurring.
Accordingly, the gravity of this violation is high, especially in light of the fatality. Dean employs
approximately 3,000 employees nationwide (Tr1. 22). Dean had been cited for a separate violation
of an OSHA standard within three years prior to the instant citation (Tr1. 86). Additionally, Dean
does not assert a basis for a good faith credit. Accordingly, the undersigned finds the proposed
penalty appropriate and assesses a $7,000.00 penalty.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in accordance
with Rule 52(a) of the Federal Rules of Civil Procedure.
ORDER
Based upon the foregoing decision, it is ORDERED that:
Item 1 of Citation 1, alleging a serious violation of 29 C.F.R. § 1910.23(a)(4), is affirmed
and a penalty of $7,000.00 is assessed.

                                                                /s/ Sharon D. Calhoun
                                                          SHARON D. CALHOUN
                                                          Judge

Date: May 16, 2011
Atlanta, Georgia

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