Domino Window Cleaning, Inc.

Plain-English summary

A Domino employee cleaning a fourth-floor New York window without fall protection fell 40 feet to the sidewalk and died from his injuries. The evidence showed that he had been working from the exterior ledge and that Domino also instructed employees to clean from an interior sill beside a large open window. The judge found that Domino and the window-cleaning industry recognized both fall hazards. Feasible controls included cleaning from the floor with an extension device, using a boatswain's chair or personal fall restraint, and providing effective safety training. The owner had previously learned that the employee worked unsafely but rehired him without retraining, regular reminders, or safety spot checks. The general duty clause violation was affirmed as serious and a $4,200 penalty was assessed.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1)
• Outcome: Serious general duty clause violation affirmed with a $4,200 penalty.
• Key point: Window-cleaning employers must select methods that prevent exterior falls and must retrain and supervise workers whose prior conduct shows unsafe practices.

Full text (OSHRC public release)

                                   United States of America
           OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                              1120 20th Street, N.W., Ninth Floor
                                 Washington, DC 20036-3457

SECRETARY OF LABOR,

            Complainant,

 v.                                                                 OSHRC DOCKET NO. 11-0753

DOMINO WINDOW CLEANING, INC.,

             Respondent.

Appearances:

             Allison L. Bowles, Esquire, Jeffrey S. Rogoff, Esquire
             U.S. Department of Labor, Office of the Solicitor, New York, New York
             For the Complainant.

             Mouslim Fattakhov
             Domino Window Cleaning, Inc., New York, New York
             For the Respondent, pro se.

Before: Carol A. Baumerich
Administrative Law Judge

                                DECISION AND ORDER

      This proceeding is before the Occupational Safety and Health Review Commission (“the

Commission”) under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C.
§ 651 et seq. (“the Act”). On October 8, 2010, the Occupational Safety and Health
Administration (“OSHA”) inspected a worksite of Domino Window Cleaning, Inc. (“Domino”
or “Respondent”), located in New York, New York. The inspection came about after OSHA
learned of an accident in which an employee of Domino was washing windows on the fourth
floor of a building and fell 40 feet to the sidewalk below. As a result of the inspection, OSHA
issued a Citation and Notification of Penalty (“Citation”) to Domino that alleged a single

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violation of section 5(a)(1) of the Act. Domino contested the Citation, and the hearing in this
matter was held in New York, New York, on March 27 and 28, 2012.1 Both parties have filed
post-hearing briefs.
Background2
Mouslim Fattakhov has operated a window washing business in New York, New York
since 2001. Mr. Fattakhov incorporated his business in January 2010, and Domino’s office is
located at 860 West 181st Street, Apartment #23, New York, New York. On October 8, 2010,
Domino was hired to clean the inside and the outside of the windows of a building located at 484
Greenwich Street, New York, New York. The building, which has six stories, has both
residential and commercial space.3 At about 1:00 p.m. on October 8, 2010, Mr. Fattakhov and
two employees, Igor Vnuk and Ermeck Chayahmetov, began cleaning the windows of the
building.4 After cleaning the windows on the sixth and fifth floors, Mr. Fattakhov and the two
employees began cleaning on the fourth floor, which was part of the residential space. The
employees were working in two adjacent bedrooms divided by a wall, with Mr. Fattakhov and
Mr. Chayahmetov working in one bedroom and Mr. Vnuk working in the other bedroom. The
fourth-floor bedroom windows were “double-hung tilting windows,” which can be tilted to the
inside to facilitate their cleaning. At about 3:30 p.m., Mr. Vnuk fell while he was cleaning a
window. He was not wearing any fall protection. He fell 40 feet to the sidewalk below. An

1 This case was initially designated for the Commission’s simplified proceedings, but those proceedings were
discontinued as this matter involved a fatality. See Order of May 12, 2011. Further, while Domino had an attorney
representing it for about a month, Domino ended the representation on November 21, 2011, for financial reasons and
because the attorney was urging Domino to settle. (Tr.196-97, 255). See also Order of November 23, 2011.
Finally, interpreters were utilized at the hearing to ensure that Mr. Fattakhov fully understood the proceedings.
2 The background consists of (1) evidence adduced at the hearing, (2) admitted facts, as set out in the parties’ joint
pre-hearing statement, and (3) admissions of Domino; Dennis L. Phillips, the Administrative Law Judge previously
assigned to this matter, deemed the admissions admitted in orders dated November 22, 2011 and December 13,
2011, after the Secretary filed a motion to compel due to Domino’s failure to file a timely response to the
Secretary’s request for admissions. My order of February 22, 2012, stated that Judge Phillips’ prior orders remain in
effect. (Tr. 23-24, 163-64). The admissions are in Exhibit CX-1, pages 3-10, and the admitted facts are in Exhibit
CX-17, pages 6-8.
3 While the building owner has an office in the building, the rest of the building is a one-family residence. (Tr. 39,
312; CX-17, No.16).
4 At the hearing, Mr. Fattakhov stated that Mr. Chayahmetov’s name was spelled Yermek. (Tr. 76; see also CX-1).
Previously, at his deposition, Mr. Fattakhov stated that Mr. Chayahmetov’s name was spelled Ermeck, with an E.
(CX-9, p. 81:13-15). As Ermeck Chayahmetov was the spelling used by both parties in their pre-hearing statement
of admitted facts (CX-17), that is the spelling used in this decision.

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individual who had seen Mr. Vnuk working from across the street called “911” to summon help.
(Tr. 39, 44, 106, 111, 127; CX-1, pp. 3-5; CX-9, pp. 56, 80, 84-85, 137; CX-17, pp. 6-8; RX-14).
Shortly after the accident, New York City Police Department (“NYPD”) officers arrived.
Based on their report of the accident, Mr. Vnuk was washing windows on the fourth floor,
possibly leaning out of the window, when he fell.5 OSHA Compliance Officer (“CO”) Idalia
Rosa and Assistant Area Director (“AAD”) Bob Stewart arrived at the site sometime after 4:15
p.m. Mr. Vnuk had already been taken to the hospital by ambulance, but an NYPD officer was
still there. The OSHA officials met with the officer, who gave them the basic facts of the
accident. They next met with the building owner, who took them to the fourth floor, where Mr.
Fattakhov and Mr. Chayahmetov were. The OSHA officials presented their credentials,
explained why they were there, and began their inspection. They viewed the fourth-floor
bedrooms and noted that each had three windows, all of which were double-hung tilting
windows that were 6 feet long and 3 feet wide. Mr. Fattakhov showed the OSHA officials how
he had instructed his employees to clean this type of window; he climbed up on the windowsill,
raised the bottom pane, lowered the top pane, and tilted the bottom pane towards him about 30
degrees so that its top part was inside the room.6 He then showed them how he would clean the
outside of the bottom pane; he angled his body and leaned his arm and shoulder out through the
opening, while holding onto a squeegee with a 3 to 4-inch handle, and he held onto the top edge
of the bottom pane with his other hand. The AAD told Mr. Fattakhov that what he was doing
was unsafe; he was standing in front of a very large window opening without fall protection, and
he could fall out the bottom of the window.7 Mr. Fattakhov stated that this was the way he had
instructed his employees and that it was safe. He also stated that he suspected Mr. Vnuk had
been sitting on the outside window ledge, with his back to the street and holding onto the bottom
part of the window, when he fell; he believed this was so as Mr. Vnuk had worked in this manner
before. On October 9, 2010, OSHA learned that Mr. Vnuk died from his injuries. (Tr. 37-63,

5 Mr. Fattakhov was the “reporter” for the NYPD report. See CX-13.
6 The window Mr. Vnuk fell from was the third from the left, if one is facing the front of the building. As the
NYPD had shut that window and cordoned off the room, Mr. Fattakhov’s demonstration of how the windows were
cleaned took place in the other bedroom. (Tr. 67-69; CX-11(9)).
7 The OSHA officials asked Mr. Fattakhov to show them how the cleaning was done, but they did not ask him to get
up on the windowsill; as soon as he did so, the AAD told Mr. Fattakhov that was unsafe. (Tr. 50-51, 61-62, 82).

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69-70, 77-84, 98-99, 139, 193; CX-1, p. 4; CX-3, CX-7-8, CX-10, CX-11(9), CX-12, CX-13,
CX-17, p. 8; RX-1(i). See generally RX-16).8
Jurisdiction
As the Secretary points out, because Domino did not contest jurisdiction in its answer,
jurisdiction is “deemed admitted.” See Commission Rule 34(b)(2), 29 C.F.R. 2200.34(b)(2).
Further, Domino admits that it is an employer with employees and that it is a corporation with an
office and place of business at 860 West 181st Street, Apartment #23, New York, New York.
(CX-17, Nos. 1-5, 7-11; RX-14). Domino also admits that it is insured and licensed to do
business in New York City, the District of Long Island, Connecticut, and New Jersey. (Tr. 153-
54; CX-2, CX-9, p. 188). Finally, Domino admits that it buys some supplies and equipment
from a company in New Jersey and has also purchased supplies on the internet. (Tr. CX-9, pp.
24-25, CX-17, No. 39). I find, therefore, that Domino is an employer under sections 3(3) and
3(5) of the Act and that the Commission has jurisdiction of the parties and subject matter of this
proceeding.
The Alleged Violation
The Citation alleges a violation of section 5(a)(1) of the Act, also called the general duty
clause. Section 5(a)(1) requires each employer to “furnish to each of his employees employment
and a place of employment which are free from recognized hazards that are causing or are likely
to cause death or serious physical harm to his employees.” See 29 U.S.C. § 654(a)(1). The
Citation alleges a violation as follows:9
Location: 484 Greenwich Street, New York, N.Y., 4th floor windows. On or
about 10/8/10 window cleaners were cleaning double hung tilting windows from
the window sill and/or the window ledge without fall protection and were exposed
to falling through the 4th story window frame openings, which measured
approximately 6 ft. high by 3 ft. wide, and/or falling off the window ledge.

8 The exhibits received in evidence at the hearing were reviewed with the parties, at the close of the hearing. (Tr.
321-28). Domino’s Exhibit 16 is a ten-page collection of photos from the OSHA investigative file. (RX-16; Tr.
326). Hand-numbered pages 1-8 of RX-16 were incorrectly designated by the court reporter as RX-4. These photos
are received as part of RX-16. As noted in the transcript, RX-4 was not received in evidence. (RX-4; Tr. 325).
Further, the court reporter inaccurately designated RX-8 as received. It was not. (RX-8; Tr. 325).
9 As issued, the Citation alleged as follows: “On or about 10/8/10 a window cleaner was cleaning a double hung
tilting window from the window sill without fall protection and was exposed to falling through the 4 th story window
frame opening which measured 6 ft. high by 3 ft. wide.” By order of September 29, 2011, Judge Phillips granted the
Secretary’s motion to amend her complaint to read as set out above. (Tr. 23-24).

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The Secretary’s Burden of Proof
To prove a violation of the general duty clause, the Secretary must establish that: (1) a
condition or activity in the workplace presented a hazard, (2) the employer or its industry
recognized the hazard, (3) the hazard was likely to cause death or serious physical harm, and (4)
a feasible and effective means existed to eliminate or materially reduce the hazard. See, e.g.,
Arcadian Corp., 20 BNA OSHC 2001, 2007 (No. 93-0628, 2004) (citation omitted). The
Secretary must also establish that the employer knew, or with the exercise of reasonable
diligence could have known, of the hazardous condition. Burford’s Tree, Inc., 22 BNA OSHC
1948, 1949 (No. 07-1899, 2010) (citations omitted).
Whether a Condition or Activity in the Workplace Presented a Hazard
The Secretary contends that two conditions presented a hazard at the site. First, Domino
did not prevent an employee from working on a fourth-floor window ledge outside the building
without fall protection. S. Brief, p. 14. Second, Domino instructed its employees to work on
fourth-floor windowsills, next to wide-open, unguarded windows, without fall protection. S.
Brief. 34.
Daniel Ramirez is a doorman who works at 497 Greenwich Street, which is across the
street from the subject building. He testified he was at work the afternoon of the accident,
standing outside of his building, when he saw a man cleaning a window on the fourth floor of the
subject building; the man was sitting and cleaning from the outside of the building, with his back
to Mr. Ramirez’s building, and he had no fall protection.10 Mr. Ramirez also testified he saw
the man cleaning for ten to fifteen minutes and then saw him fall. Mr. Ramirez was the person
who called 911. (Tr. 100-12, 124-26).
Mr. Fattakhov attempted to rebut Mr. Ramirez’s testimony during cross-examination. I
found this attempt unpersuasive. (Tr. 113-35). Mr. Fattakhov also offered into evidence an
excerpt from CO Rosa’s inspection notes, in her handwriting. (RX-15). CO Rosa spoke to Mr.
Ramirez after the accident and asked him “if he saw what might have happened.” (Tr. 158-62).
According to CO Rosa’s inspection notes, Mr. Ramirez told the CO that he did not see “how he

10 Mr. Ramirez identified CX-6(a) as a photograph of the subject building and his building; he indicated the subject
building with a “star,” and wrote “497” on his building. (Tr. 104-07, 136-37).

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fell,” he just saw something fall on the sidewalk, realized it was a person, and called 911. (RX-
15). CO Rosa testified that her conversation with Mr. Ramirez that day was brief and not
actually an interview. (Tr. 158). Mr. Fattakhov stated at the hearing that Mr. Ramirez “didn’t
see anything,” and he urges in his brief that Mr. Ramirez was not a reliable witness. (Tr. 116; R.
Brief, pp. 4-5). I disagree. I find Mr. Ramirez to be a candid, credible witness.
During cross-examination, Mr. Ramirez candidly admitted that he no longer recalled
some of the unimportant details from the day of the accident, more than a year before his
testimony, such as the clothes people wore, the types of cars parked in the street, or exactly
which window the person was cleaning. (Tr. 107-11, 113-30, 237-38). That said, Mr. Ramirez
impressed me as having a vivid recollection of the significant events that took place on the day
of the accident. Shortly before the accident that day, he clearly recalled seeing a window cleaner
at the subject building leaning outside the building, cleaning the outside of the top window, with
his back toward Mr. Ramirez. He clearly recalled that the window cleaner was cleaning one of
the top building windows. He clearly recalled that this window cleaner was not wearing a
harness or using safety equipment. Mr. Ramirez also recalled seeing something fall, that he
immediately realized was a man, and called 911. (RX-15). His testimony at the hearing that he
saw the person fall does not contradict his statement to CO Rosa. (Tr. 106-30). On the day of
the accident, Mr. Ramirez told CO Rosa that he did not see “how he fell.” (RX-15). This is not
inconsistent with his hearing testimony. Mr. Ramirez did not testify as to “how” Mr. Vnuk fell
or what exactly triggered his fall.
Significantly, nothing in the record refutes Mr. Ramirez’s testimony that he saw a man
cleaning a fourth-floor window from the outside of the building. I observed Mr. Ramirez’s
demeanor on the witness stand, including his facial expressions and body language, and I found
him to be sincere and credible. Mr. Ramirez also has no personal interest in the outcome of this
matter, and he did not particularly want to be at the hearing. (Tr.101-02). For all of these
reasons, I find that Mr. Vnuk was cleaning the fourth-floor window from the ledge outside of the
building without fall protection.11 This condition was an obvious hazard, as demonstrated by
the accident.

11 This finding is supported by the fact that Mr. Fattakhov himself told the OSHA officials that he suspected Mr.

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The second condition the Secretary contends was a hazard was Domino’s instruction to
its employees to work on fourth-floor windowsills, next to wide-open, unguarded windows,
without fall protection.12 S. Brief, p. 34. CO Rosa testified that Mr. Fattakhov demonstrated
how he had instructed employees to clean windows like those at the worksite. He got up on the

Vnuk had been working in this manner at the time of the accident and that Mr. Vnuk had done so before. (Tr.70).
Likewise, on the day of the accident, Mr. Fattakhov reported to the NYPD that, when he fell, Mr. Vnuk was
“possibly leaning out the window.” (CX-13; see also footnote 5 above).
Further, in view of his statements to OSHA and the NYPD on the day of the accident, Mr. Fattakhov’s
assertion that Mr. Vnuk’s fall from the window was a possible suicide is categorically rejected. Mr. Fattakhov made
this assertion in his notice of contest, and he has repeated it in his answer, in his letter of April 13, 2012, discussed
below, and in his post-hearing brief. (Tr. 273-75). There is no support in the record for Mr. Fattakhov’s assertion,
and it is noted that he first made this unsubstantiated claim months after the day of the accident. In addition, the
NYPD report of the accident contains nothing to indicate a possibility of suicide. See CX-13.
12 On April 12, 2012, after the hearing, the Secretary’s counsel (“Counsel”) filed a letter with my office
alleging that, unknown to Counsel, Domino changed Stipulation No. 26 contained in the parties’ joint pre-hearing
statement of admitted facts (“statement”), received in evidence at the hearing as CX-17. Counsel explains that
before preparing the statement, she sent Mr. Fattakhov a draft list of facts she believed the parties could agree upon.
As drafted, Stipulation No. 26 read: “The fourth-floor windows at 484 Greenwich Street can be cleaned safely from
inside the apartment with the cleaner’s feet on the floor.”
Counsel notes that the parties exchanged multiple drafts of the statement before submitting it into evidence
at the hearing. She notes that the drafts were sent to Mr. Fattakhov as Word documents so that he could add his list
of witnesses, exhibits, and objections to the documents. Twice, Mr. Fattakhov returned the draft list of admitted
facts to Counsel indicating agreement with Stipulation No. 26, as originally drafted. Counsel asserts that at some
point during these exchanges, Mr. Fattakhov changed Stipulation No. 26, without advising her, by adding to the end
of Stipulation No. 26 the phrase “and an interior window sill/ledge.”
Exhibit CX-17 contains the revised Stipulation No. 26, including the phrase “and an interior
window sill/ledge.” Counsel offered CX-17 into evidence and provided the necessary copies. (Tr. 17-19,
27-29). By letter of February 27, 2012, Counsel submitted to my office the parties’ pre-hearing statement,
together with the Secretary’s addendum to the statement, noting corrections to alleged unilateral changes
Domino made to the statement before returning it to Counsel for submission to my office. No mention is
made of Stipulation No. 26 in the addendum.
Counsel requests, in light of the above, that Stipulation No. 26 be stricken from the record, or, alternatively,
that Domino be sanctioned by receiving into evidence the original version. Counsel contends that Domino will not
be prejudiced by admitting the original version because Domino twice agreed to this version before the hearing.
On April 13, 2012, Domino filed a response to the Secretary’s letter. In this response, it is unclear whether
Mr. Fattakhov is agreeing that he made the change to Stipulation No. 26, as the Secretary asserts, or if he is simply
stating that he agrees with Stipulation No. 26, both as originally written and as revised.
Regarding the proper remedy, it appears that Counsel could have discovered the alteration in Stipulation
No. 26 before the hearing, had greater diligence been exercised. (Tr. 18-19, 27-29). That said, it appears that
Domino did not specifically alert Counsel to its revision of Stipulation No. 26. Importantly, review of the record as
a whole, including the parties’ briefs, reveals that both parties understood that an issue remained in this case
regarding whether it was safe for window cleaners to clean the fourth-four windows when standing on an “interior
window sill/ledge.” This question remained a point of disagreement between the parties. In other words, the record
shows that the revised Stipulation No. 26 does not reflect facts upon which the parties agree.
I conclude that the appropriate remedy is to strike Stipulation No. 26 from the record. Accordingly,
Stipulation No. 26 is stricken from the record. Having done so, I note that in view of Domino’s admissions in this
case, striking the stipulation has virtually no effect on the outcome of this matter. See CX-1, Nos. 8-11.

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windowsill, raised the bottom pane, lowered the top pane, and tilted the top of the bottom pane
towards him about 30 degrees; to clean the outside of the bottom pane, he angled his body and
leaned his arm and shoulder out through the opening, while holding onto a squeegee with a 3 to
4-inch handle, and he held onto the top edge of the bottom pane with his other hand. (Tr. 50, 56-
61). CO Rosa also testified that the window was 6 feet long and 3 feet wide and that the
windowsill was 33.5 inches long, 11 inches deep, and about 2 feet off the floor.13 (Tr. 48-51).
She said Mr. Fattakhov stood sideways on the sill, and, in raising and tilting the bottom pane, he
created an opening at the bottom of the window of about 2.5 feet. (Tr. 51-52, 60). She also said
the opening was large enough to fall through and that the window, which was unstable, could
have tilted even further. She noted the employees were using soapy water to clean, which made
slipping and falling through the opening even more likely. (Tr. 60-63, 83, 259). When the AAD
told Mr. Fattakhov that what he was doing was unsafe, Mr. Fattakhov responded that this was
how he had instructed his employees and that it was safe. (Tr. 61-62). At the hearing, CO Rosa
identified various photographs she took at the site that showed the hazardous condition. (Tr. 55-
59; CX-1, Nos. 8-11, CX-3, CX-11(9), CX-12).
CO Rosa testified that the foregoing method was the only one that Mr. Fattakhov
demonstrated at the worksite. (Tr. 61, 82). Mr. Fattakhov testified as to his belief that he had
demonstrated two methods, one in which he showed how the windows could be cleaned while
standing on the floor and the other as CO Rosa described.14 (RX-1(i), RX-16). He admitted,
however, that he could not refute CO Rosa’s testimony about his demonstration as he could not
recall what he had said or done at the time because he was so upset after the accident. (Tr. 213-
17, 226-27). Also, Mr. Fattakhov’s testimony was unclear, confusing, and contradictory as to
what he showed OSHA and how the fourth-floor windows could have been cleaned.15

13 CO Rosa testified that she and the AAD measured the window and the windowsill. (Tr. 49-51).
14 Respondent offered into evidence photos, to illustrate his testimony. (Tr. 203-204; RX-1(c), 1(d)). As these
photos were not taken at the subject building, on the day of the accident, and do not show double hung tilting
windows, they are not helpful in resolving the issues presented and are accorded no weight.
15 Mr. Fattakhov indicated there were two techniques for cleaning the subject windows, i.e., one from the floor and
one from the windowsill. (Tr. 213-15, 226-27). He first indicated the windows could be cleaned from the floor.
(Tr. 215). He then indicated both techniques had to be used, due to the type of windows at the site and/or the fact
the building was older and the windows were more difficult to open. (Tr. 214-17, 226-27, 231). In its brief,
Domino states that the windows could be cleaned by means of these two techniques. R. Brief, p. 1. As the
Secretary notes, however, Domino stated in its notice of contest and in its answer that the fourth-floor windows

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Regardless, because Mr. Fattakhov admitted that he could not refute the CO’s testimony, her
testimony will be accepted as fact. (Tr. 213-14). I find, therefore, that Mr. Fattakhov’s
demonstration of how he had instructed his employees to clean the subject windows was as CO
Rosa described.16 I further find that this method of cleaning was unsafe, based on the CO’s
observing it and explaining specifically why it was unsafe. (Tr. 60-63, 142). In this regard, I
note her testimony that AAD Stewart told Mr. Fattakhov that what he was doing was unsafe.
(Tr. 61-62). I also note that Domino’s admissions in this case establish the employees at the site
cleaned the windows in the manner the CO described, which exposed them to a 40-foot fall
hazard. See CX-1, Nos. 8-11, 17.
Based on the foregoing, the Secretary has met her burden of proving that the two
conditions discussed above presented a hazard at the worksite.
Whether Domino or its Industry Recognized the Hazard
The record shows that Domino recognized the above-noted conditions as hazards. As to
washing a window from the outside ledge, Mr. Fattakhov testified at his deposition that cleaning
from the outside requires fall protection and that he would never sit on an outside ledge without a
belt because he is “not a pigeon.” (CX-9, pp. 48, 136). In addition, as the Secretary notes, the
ANSI-IWCA standard 1-14.1, 2001, entitled “Window Cleaning Safety,” states that:
Fall protection … shall be provided for all work areas (with the exception of
working from a ladder supported at grade or using a window cleaner’s belt and
window cleaner’s belt anchors) that expose a worker to a fall hazard when
approaching within 6 feet (1800 mm) of an unguarded edge or unguarded
skylight….

could be cleaned while standing on the floor. S. Brief, pp. 22-23. (Tr. 274-75). Further, CO Rosa, who saw how
the windows worked, testified the outside of the windows could have been cleaned from the floor by using a “long
pole extension device.” (Tr. 66). For the reasons set out in the next footnote, the CO’s testimony is credited over
that of Mr. Fattakhov.
16 I observed CO Rosa’s demeanor on the stand and found her a credible and convincing witness. Her testimony
revealed her firm recollection of the events on the accident day, during her investigation. CO Rosa’s testimony will
be credited over that of Mr. Fattakhov where their testimony differs. Mr. Fattakhov admitted having a poor
recollection of the events on the day of the accident. (Tr. 213-17, 226-27). Further, some of Mr. Fattakhov’s
contentions were unreliable, apparently created after the fact in an effort to avoid responsibility for the alleged
violation. For example, Mr. Fattakhov asserted, as noted above, that Mr. Vnuk’s death was a possible suicide. This
assertion has no support in the record. Mr. Fattakhov also asserted that washing the windows as he demonstrated to
OSHA on the day of the accident complied with a New York State Code Rule (“Rule”) and that he had trained his
employees in the Rule. (Tr. 259-60; R. Brief, pp. 1-2). His later testimony, however, revealed that he did not learn
of the Rule until more than a year after the accident. (Tr. 262-82). These unsupported contentions color, as
unreliable, the rest of Mr. Fattakhov’s testimony.

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CX-4, p. 13, § 3.8. As the Secretary also notes, ANSI standards are admissible and probative
evidence of industry recognition of hazards, and the above ANSI-IWCA standard shows industry
recognition that cleaning from an outside window ledge without fall protection is hazardous.17
See S. Brief, p. 18. See generally, The Boeing Co., 5 BNA OSHC 2014 (No. 12879, 1977). I
agree and find that the Secretary has established that both Domino and its industry recognized
the above condition as a hazard.
As to washing the subject windows in the manner Mr. Fattakhov demonstrated to the
OSHA officials, CO Rosa’s testimony about his demonstration is set out in detail above. The CO
testified that the opening at the bottom of the window was large enough to fall through, that the
window was unstable and could have tilted even further, and that employees were using soapy
water to clean, which made slipping and falling through the opening even more likely. She also
said that it was “very, very obvious” that what Mr. Fattakhov was doing was unsafe. (Tr. 60-63).
Further, one of Domino’s admissions shows that Domino recognized that cleaning the windows
as Mr. Fattakhov demonstrated exposed employees to a fall hazard. (CX-1, No. 11). As the
Secretary points out, the above ANSI-IWCA standard also shows industry recognition of this
particular hazard. Section 5.10 of the standard, entitled “Cleaning The Exterior Surfaces of
Operable Windows From Inside the Building,” states as follows:
5.10.1 Exterior surfaces of operable windows may be cleaned from inside the
building when:
a) they can be safely accessed;
b) all the glass surfaces can be cleaned with only one arm (the part of the body
below the worker’s shoulder) of the window cleaner extended beyond the
outermost glass plane when his or her feet are firmly on the floor or safe working
surface without the use of a ladder or other access device;
c) the height of the sill prevents the worker from falling through the opening;
d) the window and all its appurtenances are sound and in proper working order;
e) the worker is protected from falling through the opening, in a manner that
complies with Section 3.8 of this Standard.

17 ANSI is the American National Standards Institute, and IWCA is the International Window Cleaning
Association. See CX-4, pp. 1-2.

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CX-4, p. 25, § 5.10.1. Domino also relies on section 5.10 of this ANSI-IWCA standard. (Tr.
229-31). It is clear that Mr. Fattakhov’s demonstration did not meet the provisions above.18 In
particular, Mr. Fattakhov leaned his arm and shoulder out through the opening; soapy water was
used to clean, making slipping on the sill and falling through the opening more likely; the height
of the sill would have facilitated, not prevented, an employee from falling through the opening;
and no fall protection was used. (Tr. 60-63). S. Brief, pp. 38-39.
Domino has asserted that its employees were cleaning the windows at the worksite in
compliance with New York State Code Rule 21 (“Rule 21”) and that Mr. Fattakhov had trained
his employees in Rule 21.19 (Tr. 259-60; R. Brief, pp. 1-2). The Secretary notes that Domino’s
argument that it complied with Rule 21 is without merit, as compliance with an applicable state
law does not create an exemption from the general duty clause. Coleco Indus., Inc., 14 BNA
OSHC 1961, 1967-68 (No. 84-546, 1991), citing to Puffer’s Hardware v. Donovan, 742 F.2d 12,
16 (1st Cir. 1984). S. Brief, pp. 46-47. She also notes that Domino did not in fact comply with
Rule 21. The Secretary is correct. Rule 21.5 concerns “working from safe surfaces or cleaning
from the inside.” Rule 21.5(c) states that “[w]hen cleaning from the inside the cleaner shall not
place or extend more of his body than one arm beyond the window sash.” As found above, in his
demonstration, Mr. Fattakhov leaned his arm and shoulder out through the top opening. (Tr. 60).
S. Brief, pp. 48-49. Rule 21.5(e) states that a cleaner “shall not work from a surface on which
there is snow, ice or other slippery substance.” As the CO testified, Domino’s employees used
soapy water to clean, making slipping on the sill and falling through the bottom opening more
likely. (Tr. 61). Finally, Domino’s assertion that it had trained its employees in Rule 21 is not
supported by the record. It was clear from Mr. Fattakhov’s testimony that he did not even know
about Rule 21 until more than a year after the accident. (Tr. 262-82; see also footnote 16).
Domino’s assertions in regard to Rule 21 are rejected.
For all of the above reasons, I find that the Secretary has established that Domino and its
industry recognized the hazard of cleaning windows in the manner Mr. Fattakhov demonstrated.

18 As discussed above, CO Rosa’s testimony is credited, over Mr. Fattakhov’s testimony, regarding the events
during the OSHA investigation on the day of the accident.
19 Mr. Fattakhov offered part of Rule 21 into evidence at the hearing. The Secretary objected, as only part of the
rule was being offered. The objection was sustained, but Mr. Fattakhov was advised that judicial notice would be
taken of Rule 21. (Tr. 217-24 ). Rule 21 is codified at N.Y.Comp. Codes R. & Reg. tit. 12 § 21.

                                                     11

Whether the Hazard Was Likely to Cause Death or Serious Physical Harm
The record in this case clearly shows that the cited hazards were likely to cause death or
serious physical harm. Cleaning the window as Mr. Vnuk did, from the outside ledge, resulted in
his falling 40 feet and sustaining fatal injuries. And cleaning from the inside windowsills, as Mr.
Fattakhov and Mr. Chayahmetov apparently did, could have resulted in their falling 40 feet to the
sidewalk or street below and being seriously or fatally injured. The Secretary has met her burden
of proving this element of the general duty clause.
Whether Feasible and Effective Means Existed to Eliminate or Materially Reduce the Hazard
The Citation sets out three means of abatement: (1) clean the windows’ exterior when
the employee’s feet are firmly on the floor and when the sill’s height prevents a fall through the
opening, and, if an extension cleaning pole is used, train the employee in the safe use of the pole;
(2) if working from the floor is not practical, protect employees from falling through the opening
by use of a personal fall restraint system; and (3) train and instruct all employees in all safe
working procedures and proper use of safety equipment.20
I found above that the windows could have been cleaned from the floor, based on the
statements of Domino in its notice of contest and answer and on the testimony of CO Rosa that
the exterior of the windows could have been cleaned from the floor by using a “long pole
extension device.” (Tr. 66; see also footnote 15). Mr. Fattakhov testified that an extension pole
does not achieve a quality cleaning and is unsafe, since the squeegee can fall out and hit a
passerby below. (Tr. 232). In light of my credibility findings above, Mr. Fattakhov’s testimony
is not credited. In addition, section 5.1.2 of the ANSI-IWCA standard, discussed above,
specifically provides for the use of extension devices. The Secretary has shown the first
abatement means to be feasible.
As to the second means, CO Rosa testified that a boatswain’s chair, which is like a one-
person scaffold, could have been used to clean the outside of the windows. She said the person
wears a harness while sitting in the chair, which is attached to a secure anchorage above. CO
Rosa went up to the roof during the inspection and saw an anchorage point that could have been

20 The Citation sets out the relevant provisions of ANSI-IWCA standard 1-14.1, 2001, as to each of the three means
of abatement; CX-4, as noted above, is the ANSI-IWCA standard. The CO researched the ANSI standards after the
inspection and found the means of abating the cited hazards in the provisions of 1-14.1. (Tr. 63-65).

                                                   12

used for this purpose. The CO further testified that employees could have used safety harnesses
and lifelines and worked on the windowsill by tying off to a secure anchorage point inside the
building. She identified the end-posts of the steel stairs on the fourth floor as such an anchorage
point. During the OSHA inspection, CO Rosa took a photograph that shows the fourth-floor
stairs. (CX-19). She noted that it was a direct path with no obstructions from the stairs to the
window. (Tr. 66-67, 143-44, 301-04, 307-09; CX-19). Mr. Fattakhov agreed that he had used a
boatswain’s chair to clean the outside of one or two windows at the site. (Tr. 252-53). He
disagreed, however, that employees could have tied off inside the building. He said that while
his employees have safety belts that are IWCA-approved, and while some buildings have anchor
points that can be used for tying off, there were no anchor points on the subject building and
there was nowhere to tie off inside. He asserted that it was “illegal” to tie off on handrails or
stairs, as the CO had testified, and he indicated that tying off in that manner, which was
horizontal instead of vertical, would not have protected the employees. (Tr. 232-34, 237, 303-
05). See also R. Brief, pp. 3-4.
I find that the Secretary has shown the feasibility of the second abatement means. Mr.
Fattakhov admitted that he had used a boatswain’s chair to clean the outside of one or two
windows at the site. (Tr. 252-53). Mr. Fattakhov’s other testimony, that the employees could
not tie off inside, as the CO indicated, was simply not persuasive. The CO’s testimony on this
point was convincing, and, based on my credibility findings, her testimony will be credited over
that of Mr. Fattakhov. Also, as the Secretary notes, Domino has admitted that it “could have
used fall protection when cleaning the fourth floor apartment windows” and that there were
“several secure anchorage points at the building from which Domino could have tied off personal
fall restraint systems.” See CX-1, Nos. 15-16. S. Brief, p. 24. The Secretary has met her burden
of establishing that the second means of abatement was feasible.
In regard to the third abatement means, it is clear that Mr. Fattakhov could have trained
and instructed his employees in safe working procedures and proper use of safety equipment.
That he failed to do so is illustrated in the discussion that follows, as to Domino’s knowledge of
the cited conditions. The Secretary has shown the feasibility of the third abatement means.
Whether Domino Knew or Could Have Known of the Cited Conditions

                                             13

As the Secretary notes, an employer will be charged with knowledge of a hazard if it
knew, or with the exercise of reasonable diligence could have known, of the presence of the
violative condition. Revoli Constr. Co., 19 BNA OSHC 1682, 1684-85 (No. 00-0315, 2001)
(citations omitted). Whether an employer was reasonably diligent “involves consideration of
several factors, including the employer’s obligation to have adequate work rules and training
programs, to adequately supervise employees, to anticipate hazards, and to take measures to
prevent the occurrence of violations.” Burford’s Tree, Inc., 22 BNA OSHC 1948, 1949 (No. 07-
1899, 2010) (citation omitted). S. Brief, p. 25. I agree with the Secretary that Domino could
have known that its employees were working unsafely at the site on October 8, 2010.
Based on Mr. Ramirez’s testimony, Mr. Vnuk was sitting on the outside ledge and
cleaning for ten to fifteen minutes before he fell. (Tr. 110). Mr. Fattakhov did not see Mr. Vnuk
cleaning, as he and Mr. Vnuk were working in adjacent rooms that were separated by a wall.
(Tr. 44; CX-9, pp. 84-86, 137-38, CX-17, Nos. 30, 33). Mr. Fattakhov, however, could have
known of Mr. Vnuk’s proclivity to work unsafely had he exercised reasonable diligence. As
Domino’s owner and manager, Mr. Fattakhov was in charge of the employees at the site. (CX-
17, No. 7). While he gave the employees general instructions, such as what to do next, he gave
them no safety instructions on that day because he had trained them when they first began
working for him. He said they were “specialists” who knew “how to work and what to do when
they are on the worksite.”21 (Tr. 212-13; CX-9, pp. 38, 79). He also said that Mr. Vnuk had
been a window cleaner for four years and knew what to do. (CX-9, p. 79). As to supervision,
Mr. Fattakhov goes to worksites with his employees and works alongside them when the job
requires it, but his supervision consists of monitoring the quality of their work.22 (CX-9, pp. 35-
37). As to supervising their safety, Mr. Fattakhov stated that the employees are not “in
kindergarten” and that they already know how to work safely. He noted he tells his employees to
be “careful,” and to not go outside without a belt, but he does not tell them these things every
day as “they are not children, and they don’t have to be told it every time.” (CX-9, pp. 37-39).

21 Mr. Fattakhov did tell the employees to be “careful,” to “try not to damage anything….It’s a very wealthy
household, so make sure that you don’t break anything….” (CX-9, p. 190).
22 Mr. Fattakhov said that Mr. Vnuk was one of his first employees and that he usually had two employees working
for him; however, at the time of the inspection, he had four employees. (Tr. 74, 189; CX-9, pp. 33-34).

                                                  14

Mr. Fattakhov believed supervision was not necessary and regularly sent employees to work sites
on their own. (Tr. 190; CX-9, pp. 35-40, 100).
In regard to training, Mr. Fattakhov provided ten days of training when a new employee
began working for him.23 He showed the new hire the different types of windows, and how to
open, close, and clean windows. He also went over the equipment to use, including the safety
belt to be used for working outside.24 He instructed new employees in other matters, i.e., to not
use cell phones or speak Russian on the worksite, to not use client phones without permission,
and to not engage in inappropriate behavior like theft or drinking on the job; further, employees
were not to be tardy and were to be careful with equipment. Mr. Fattakhov said that his training
was verbal, that there were no written safety rules, and that prior to 2010 he did not have
employees sign anything. Mr. Fattakhov explained that in September 2009, he fired Mr. Vnuk
after learning he had walked on a skylight and had also sat on a window ledge to work without
fall protection. He rehired Mr. Vnuk in March 2010, but he required him and his other
employees to sign a statement indicating they had been trained in Domino’s safety rules and that
they would follow those rules and use the necessary safety equipment.25 Mr. Fattakhov did not
retrain Mr. Vnuk when he rehired him; rather, he asked Mr. Vnuk if he “remember[ed]
everything,” after which Mr. Vnuk said he did and signed the statement. (Tr. 70, 75, 190-94,
282-85, 292-94; CX-9, pp. 37-40, 150-52, 165-66; CX-10; CX-17, No. 36).
I do not agree with the Secretary that Mr. Fattakhov should have been aware of what Mr.
Vnuk was doing on the day of the accident; this is due to the short period of time Mr. Vnuk was
working outside without fall protection and the fact that Mr. Fattakhov was working in an
adjacent room and could not see what Mr. Vnuk was doing. See S. Brief, pp. 25-28. In my
view, the more significant point is that Mr. Fattakhov learned of Mr. Vnuk’s unsafe work habits

23 At the hearing, Mr. Fattakhov indicated that he trained new hires for one month, followed by another month of
on-the-job training, before they could work on their own. He admitted, however, that at his deposition he stated that
he provided new employees with ten days of training, after which they could begin cleaning “easy” windows. (Tr.
190, 212, 253-57; CX-9, p. 37).
24 Mr. Fattakhov indicated it was up to the employee to decide if a particular job required a belt, but he testified that
wearing a belt was required for cleaning outside, in order to prevent falls. (CX-9, pp. 45-48, 135).
25 The statement, which is in English, is attached to Domino’s answer. The record indicates Mr. Vnuk could not
speak or read English when he first began working for Domino; but, by 2010, he could speak English. The record
also indicates Mr. Fattakhov explained the statement to Mr. Vnuk in Russian. (Tr. 193, 286-95; CX-9, pp. 165-66).
See also RX-9.

                                                       15

in 2009 and fired him, but then rehired him in 2010 without taking the necessary steps to ensure
that Mr. Vnuk’s future work for Domino was done safely. (Tr. 192-93). As set out above, all
Mr. Fattakhov did when he rehired Mr. Vnuk was ask if he “remembered everything,” after
which he had Mr. Vnuk sign a statement indicating that he had been trained and that he would
follow Domino’s safety rules. Mr. Fattakhov explained the statement to Mr. Vnuk in Russian
because, in all likelihood, Mr. Vnuk otherwise would not have understood the statement. Mr.
Fattakhov should have retrained Mr. Vnuk in the requirement to use fall protection when
working outside and he should also have told Mr. Vnuk that his rehire and continued
employment were contingent upon his meeting this requirement. Further, Mr. Fattakhov should
have reminded Mr. Vnuk of the fall protection requirement on a regular basis, and he also should
have conducted unannounced “spot checks” of Mr. Vnuk’s work to ensure he was working
safely. There is no record evidence that Mr. Fattakhov did any of these things, and, for this
reason, I find that Mr. Fattakhov could have been aware of Mr. Vnuk’s continued unsafe work
practices had he exercised reasonable diligence.26
I further find that Mr. Fattakhov’s actions with respect to employee safety generally were
deficient. While he trained his employees when they were first hired, he had no written safety
rules and evidently never held any safety meetings to remind employees of the rules. In fact, it is
not clear what the safety rules were, other than the rule to use a belt when working outside. That
he occasionally told employees to “be careful” and to use fall protection when working outside
was insufficient. He did not supervise his employees, other than to monitor the quality of their
work. He did not make unannounced visits to sites to ensure they were working safely. When
Mr. Vnuk was rehired, Mr. Fattakhov could have taken that opportunity to retrain all of his
employees in relevant safety rules, with particular attention to the fall protection requirement.
Mr. Fattakhov did not do so. Instead, he simply had Mr. Vnuk and his other employees sign the
statement discussed above.

26 While it is unclear why Mr. Vnuk chose to work as he did on the day of the accident, an excerpt from a hearing
before the Workers’ Compensation Board of New York State, held on March 21, 2011, in regard to Mr. Vnuk’s
death, provides a possible explanation. (CX-10). Mr. Fattakhov attended the hearing. See CX-17, No. 37. When
the judge at that hearing asked Mr. Fattakhov why Mr. Vnuk would have sat on an outside ledge without fall
protection, Mr. Fattakhov replied: “To clean better and faster.”

                                                    16

Domino’s lack of specific safety instructions and its decision to leave the worksite safety
evaluation to the individual employees is contrary to the intent and purpose of the Act.
Responsibility for compliance with the Act’s requirements remains an affirmative duty of the
employer and cannot be shifted onto the individual employees. See Ace Services, 7 BNA OSHC
2225, 2227-28 (No. 78-0625, 1979).
Finally, I find that Mr. Fattakhov could have known that how he instructed his employees
to work at the subject site, i.e., by standing on the windowsills to clean, was unsafe. Mr.
Fattakhov was evidently unaware of the ANSI-IWCA standard and Rule 21, discussed above,
until well after the accident. As set out above, both the ANSI-IWCA standard and Rule 21
prohibited cleaning windows in the manner in which the Domino employees were performing
this work at the subject site. Mr. Fattakhov was engaged in the window washing business, and
he could have known of the requirements of both the ANSI-IWCA standard and Rule 21 with the
exercise of reasonable diligence. Further, as the Secretary notes, Domino admitted that it
recognized that cleaning the fourth-floor windows in the manner Mr. Fattakhov demonstrated to
the OSHA officials exposed the employees at the site to a fall hazard. See CX-1, Nos. 8-11.
For all of the foregoing reasons, Domino could have known of the cited conditions with
the exercise of reasonable diligence. The Secretary has met her burden of proof with respect to
demonstrating all of the elements of a violation of the general duty clause. Accordingly, the
violation is affirmed as a serious violation, because it is clear that a fall of 40 feet from a window
to the street below could result in serious injury or death.
Other Arguments of Domino
Most of the arguments in Domino’s brief have been addressed above. One that has not is
Domino’s assertion that because Mr. Vnuk’s earlier safety infractions occurred when Mr. Vnuk
worked for Mr. Fattakhov, at Domino Window Cleaning, before Domino was incorporated, these
safety infractions should not be considered in this matter. R. Brief, p. 2. A 2001 Business
Certificate states that Mr. Fattakhov was conducting or transacting business under the name
Domino Window Cleaning. Mr. Fattakhov testified that his business was incorporated in 2010.
(Tr. 188-89, 191-192; see also RX-14). Commission precedent has held that a change in an
employer’s legal identity does not preclude attributing the violation history of the predecessor

                                              17

company to the successor company. Sharon & Walter Constr., Inc., 23 BNA OSHC 1286, 1295-
97 (No. 00-1401, 2010). While the circumstances in Sharon & Walter were different from those
here, the principle espoused in Sharon & Walter applies equally in this case. Domino’s assertion
is rejected. Further, as discussed above, Mr. Fattakhov’s prior work experience with Mr. Vnuk
alerted Mr. Fattakhov to Mr. Vnuk’s unsafe work habits.
Domino also suggests that a diagram it has included with its brief indicates that Mr. Vnuk
intentionally jumped from the window and did not fall as Mr. Ramirez testified. R. Brief, pp. 4-

5. I have already rejected Domino’s assertion that Mr. Vnuk’s death was a possible suicide, and
   I found that Mr. Ramirez was a believable witness, whose testimony I credit. I also advised Mr.
   Fattakhov at the end of the hearing that any exhibits that had not been received in evidence at the
   hearing could not be utilized in his arguments in his brief. (Tr. 319, 321). Therefore, the diagram
   attached to Domino’s brief is rejected.27
   Penalty Determination
   The Secretary has proposed a penalty of $4,200.00 for the violation in this case. In
   determining an appropriate penalty, the Commission is required to give due consideration to the
   gravity of the violation, and to the size, history, and good faith of the employer. See section 17(j)
   of the Act. CO Rosa testified that the severity of the violation was high, in that employees were
   exposed to falls of 40 feet; a fall of that distance would result in serious injury or death. She also
   testified that because there were three employees working unsafely at the site, the probability
   was greater. The CO said that Domino had a total of four employees, not including Mr.
   Fattakhov, and that Domino was given a reduction in penalty for the company’s small size.
   Domino had no previous history of OSHA violations, so its history had no effect on the penalty.
   No reduction in penalty was given for good faith because Domino had no written safety plan and
   the employer had instructed its employees to work in a manner that exposed them to falls of 40
   feet. (Tr. 71-75). I find the proposed penalty appropriate. A penalty of $4,200.00 is assessed.
   Findings of Fact and Conclusions of Law

27 Domino also attached several other documents to its post hearing brief. These documents were not received in
evidence at the hearing, and they are rejected. Further, exhibits referenced in Domino’s post hearing brief that were
not received into evidence at the hearing, are not part of the record in this case, and have not been considered.

                                                     18

The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Federal Rule of Civil Procedure 52(a).
ORDER
Citation 1, Item 1, alleging a violation of section 5(a)(1) of the Act, is AFFIRMED, and a
penalty of $4,200.00 is assessed.

                                                     /s/
                                                           Carol A. Baumerich
                                                            Judge, OSHRC

Dated:August 16, 2012
Washington, D.C.

                                           19