United States of America

*OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION*

1244 North Speer Boulevard, Room 250

Denver, Colorado 80204-3582

SECRETARY OF LABOR, 	
Complainant,

	
v.

	OSHRC DOCKET NO. 01-0727
NORTH DALLAS ACRYLIC & STUCCO, INC., and its successors,	
Respondent.

	



APPEARANCES:



For the Complainant:

Tina D. Campos, Esq., Office of the Solicitor, U.S. Department of Labor,
Dallas, Texas



For the Respondent:

Robert E. Rader, Jr., Esq., Rader & Campbell, Dallas, Texas



Before: Administrative Law Judge: James H. Barkley



*DECISION AND ORDER*



This proceeding arises under the Occupational Safety and Health Act of
1970 (29 U.S.C. Section 651 /et seq./; hereafter called the "Act").

Respondent, North Dallas Acrylic & Stucco, Inc., and its successors
(North Dallas), at all times relevant to this action maintained a place
of business at a WalMart in Keller, Texas, where it was engaged in
stucco application. Respondent admits it is an employer engaged in a
business affecting commerce and is subject to the requirements of the Act.

On February 1, 2001 the Occupational Safety and Health Administration
(OSHA) conducted an inspection of North Dallas' WalMart work site. As a
result of that inspection, North Dallas was issued citations alleging
violations of the Act together with proposed penalties. By filing a
timely notice of contest North Dallas brought this proceeding before the
Occupational Safety and Health Review Commission (Commission).

On November 7, 2001, a hearing was held in Dallas, Texas. At the
hearing, Complainant withdrew citation 1, item 3 (Tr. 4). The parties
have submitted briefs on the items remaining at issue and this matter is
ready for disposition.

*Facts*//

//

OSHA Compliance Officer (CO) Larry Moore conducted the February 1, 2001
inspection of the construction site at the Keller WalMart (Tr. 8-9). CO
Moore testified that when he arrived on the site he observed three of
Respondent's employees applying stucco from a three tiered fabricated
frame scaffold for 10 to 15 minutes (Tr. 10-11, 14, 27). Two men worked
from a planked platform, which CO Moore measured, and found to be
approximately 12 feet above the ground. A third man worked from a second
platform approximately 18 feet above the ground (Tr. 15, 17; Exh. R-6).

Moore testified that the legs of the scaffold were set on cut wood
planks instead of on adjustable base plates or mud sills (Tr. 15-16;
Exh. C-1, C-2). Moore believed the wood blocks were insufficient to
level the scaffold on the ungraded dirt, and that the scaffold seemed to
tilt slightly to the left (Tr. 16, 46, 50-51). Noel Juarez, North
Dallas' lead man, testified that each of the scaffold legs did have a
base plate, each of which rested on a block of wood (Tr. 33, 138,
142-43, 146). CO Moore admitted that the scaffold did not seem unstable
as he watched the three men working on it (Tr. 39, 54).

Moore testified that he asked Noel Juarez to have the employees dismount
the scaffold (Tr. 22-23). Moore testified that the two employees on the
12 foot platform climbed down the ends of the scaffold in lieu of using
a ladder (Tr. 22-23, 59; Exh. C-1). A walkway from the top level of
scaffolding led to a separate tier of scaffolding where a ladder
provided a means of access for the employee on the 18 foot level (Tr.
43, 138). Juarez admitted that he did not provide a ladder for accessing
the 12 foot platform, though he knew one was required. Juarez stated
that the stucco job to be performed from the 12 foot platform was small
and could be completed within 15 or 20 minutes. He did not install a
ladder because the workers would only be going up and down one time, and
he didn't think anyone would notice the deficiency (Tr. 137-139)

Finally, Moore testified, the ends of the scaffold were unguarded, and
no alternative methods of fall protection were in use (Tr. 27, 72-73).
Noel Juarez testified that only the 12 foot platform was unguarded (Tr.
138). Complainant's exhibit C-6 confirms Juarez's assertion that there
were guardrails on the top level of the scaffolding (Tr. 36, 138; Exh.
C-6).^(1) <#N_1_>Juarez admitted that there were no guardrails on the
end of the 12 foot scaffold because he thought the job would quickly be
over and believed that it would take longer to install the guardrails
than it would take to finish the job (Tr. 146). Juarez admitted that he
knew he was supposed to put up the guardrails (Tr. 147).

Moore testified that he looked, but did not see any additional base
plates, ladders or other scaffold parts on the work site (Tr. 21, 26,
31, 46).

*Alleged Violations of §1926.451 et seq.*

**

*Serious citation 1, item 1 *alleges:

29 CFR 1926.451(c)(2):

a) South exterior wall area: The supported scaffold legs of the three
tiered scaffold that employees work on, did not have base plates and mud
sills.



The cited standard provides:



Supported scaffold poles, legs posts, frames, and uprights shall bear on
base plates and mud sills or other adequate firm foundation.. . .



/Discussion/

This judge credits the testimony of Noel Juarez, who maintained that the
scaffold legs all had base plates, which rested on an adequate
foundation of wooden blocks. While the terms base plate and mud sill are
not defined in the standard, North Dallas argues persuasively that the
term "base plate" refers to the flat metal plates which appear to be
welded to the bottom of each scaffold upright in Complainant's Exh. C-1,
C-2, and C-76.^(2) <#N_2_> North Dallas' explanation of "mud sills" as a
means of preventing the metal uprights from sinking into the dirt or
mud, is also persuasive. Both such supports were present on the cited
scaffold. There is no evidence that the base plates and wooden blocks
did not provide an adequate firm foundation for the scaffold.

Complainant failed to prove that the cited standard was violated;
citation 1, item 1 is vacated.

*Serious citation 1, item 2 *alleges:

29 CFR 1926.451(e)(1):

a) South exterior wall area: Employees worked on a three tiered scaffold
platform approximately 18 feet above a point of access. Employees did
not use ladders as a means of access. Employees climbed the cross braces
and frames to access the scaffold.



The cited standard provides:



When scaffold platforms are more than 2 feet (0.6 m) above or below a
point of access, portable ladders, hook-on ladders, attachable ladders,
stair towers (scaffold stairways/towers), stairway-type ladders (such as
ladder stands) ramps walkways, integral prefabricated scaffold access or
direct access from another scaffold, structure, personnel hoist, or
similar surface shall be used. Crossbraces shall not be used as a means
of access.



*Serious citation 1, item 4* alleges:

29 CFR 1926.451(g)(1):

South exterior wall area: Employees worked on the three tiered scaffold
platform approximately 18 feet above a lower level and were not
protected from falling to that lower level while working at the platform
ends.



The cited standard provides:



Each employee on a scaffold more than 10 feet (3.1 m) above a lower
level shall be protected from falling to that lower level.. . .



/Discussion/

North Dallas admits that no guardrails were installed at the 12 foot
level, nor was a ladder provided for employees working on the lower
platform of the cited scaffold. North Dallas maintains that the
violations were the result of unpreventable employee misconduct.

*Employee Misconduct*

/Facts/

Gary Mayfield, president of North Dallas Acrylic and Stucco (Tr. 86),
testified that newly hired employees are provided with a safety
handbook, in both English and Spanish (Tr. 88; Exh. R-1). Mayfield
testified that the handbook is explained to the employees, and that
employees also view scaffolding videos, as well as videos dealing with
hazardous chemicals (Tr. 88). In addition, Mayfield maintained,
employees attend weekly job site safety meetings, which are presented by
the leadman at the jobsite (Tr. 88). Mayfield maintained that some of
the weekly safety meetings cover scaffolding and correct erection of
scaffolding (Tr. 91). Respondent introduced a single sign in sheet,
dated May 4, 2001 indicating that Juarez held a toolbox meeting on that
date (Exh. R-2, p. 5). In addition, Respondent submitted a form dated
August 28, 1998, indicating that Noel Juarez received training in
scaffold building techniques, and the OSHA requirements for scaffolding
(Tr. 92; Exh. R-3).

Mayfield testified that Jose Vasquez, its superintendent is responsible
for inspecting individual job sites to ensure that scaffolds are erected
properly (Tr. 94). Vasquez inspects his sites approximately twice a week
(Tr. 94). According to Mayfield, it was Vasquez' job to correct
problems, and to discipline lead men who do not comply with company
safety rules (Tr. 95-96). Mayfield maintained that, while its safety
program does not provide for any intermediate disciplinary action, if
problems were repeatedly discovered on job sites under the same lead
man, that lead man would be fired (Tr. 96). Mayfield admitted, however,
that North Dallas had no system for keeping track of verbal reprimands
(Tr. 100), though he personally recalled verbally reprimanding Alberto
Gonzales, Jaime Palacio and Jose Avilos for hard hat violations, and for
failing to erect end rails (Tr. 99-100). Mayfield testified that he has
inspected job sites run by Noel Juarez in the past; Mayfield believed
that Juarez ran a safe job (Tr. 97, 99). Mayfield stated that Juarez was
reprimanded as a result of the OSHA citation (Tr. 97).

Jose Vasquez, superintendent for North Dallas (Tr. 102), testified that
Respondent's lead men report to him, and that he spends most of his time
inspecting job sites (Tr. 102). Vasquez' testimony regarding North
Dallas' disciplinary program and Noel Vasquez' competence was identical
to that of Mr. Mayfield (Tr. 102-112). Vasquez identified company safety
rules specifically requiring the installation of a safe means of access
and fall protection (Tr. 125-26, 128; Exh. R-1). He also read the
company rule concerning safety infractions into the record: "The rule
states that employees who demonstrate a repeated pattern of violating
established company safety rules and regulations are subject to both
disciplinary action and dismissal from the company" (Tr. 111; Exh. R-1,
p. 24). Vasquez testified that the company had no specific rule on the
number of infractions necessary to establish a "repeated pattern" (Tr.
112). He further testified that, though the told Gary Mayfield about
verbal reprimands he did not know how, or if, a record of such
reprimands was maintained (Tr. 112). Vasquez could remember two
employees who were dismissed by North Dallas partially because of safety
violations. Vasquez believed that insubordination was also involved in
the firings (Tr. 112).

Noel Juarez denied being reprimanded, and testified that management only
called the OSHA citations to his attention so that it would not happen
again (Tr. 137).

/Discussion/

In order to establish an unpreventable employee misconduct defense, the
employer must establish that it had: established work rules designed to
prevent the violation; adequately communicated those work rules to its
employees (including supervisors); taken reasonable steps to discover
violations of those work rules; and effectively enforced those work
rules when they were violated. /New York State Electric & Gas
Corporation/, 17 BNA OSHC 1129, 1995 CCH OSHD ¶30,745 (91-2897, 1995).

The evidence establishes that North Dallas had established work rules
which, if followed, would have brought the cited scaffold into
compliance with OSHA regulations. The evidence further establishes that
the foreman on the Keller WalMart construction site was trained in 1998
in proper scaffold erection. On this record, however, this judge cannot
find that North Dallas had a program for discovering and enforcing its
rules concerning scaffold construction. It is well settled that
misconduct by supervisor constitutes strong evidence that safety program
is lax. /Consolidated Freightways Corp./ 15 BNA OSHC 1317, 1991-93 CCH
OSHD ¶29,500 (No. 86-351, 1991). Though an employer may rebut that
evidence by showing that it had a progressive disciplinary plan with
increasingly harsh punishment for infractions of work rules, the
Commission has found that programs consisting only of pre-inspection
verbal warnings are insufficient to establish the defense. /Precast
Services, Inc. /17 BNA OSHC 1454, 1995 CCH OSHD ¶30,910 (93-2971, 1995).
North Dallas admitted that it had no means of documenting the number of
infractions committed by its lead men, no system for recording the
number of reprimands a lead man received. North Dallas' disciplinary
system makes no provision for any punishment short of termination.
Superintendent Vasquez recalled only two instances where lead men were
terminated, and in both those cases, safety violations were only a part
of the reason the employees were let go. Vasquez' testimony that lead
men were terminated, in part for safety violations, was not supported by
any documentation. Given North Dallas' lax system of enforcement, it is
not surprising that lead man Juarez did not take his "discipline"
seriously, denying that he had been reprimanded at all, and stating
management merely "brought to his attention" the OSHA citations which
resulted from his violations of the scaffolding rules.

North Dallas failed to establish the affirmative defense of affirmative
employee misconduct. Citation 1, items 2 and 4 are affirmed.

/Penalty/

A penalty of $1,050.00 was proposed for each of the cited items. Two
employees were exposed to the cited hazards for 10 to 15 minutes. CO
Moore testified that employees might fall from the unguarded ends, or
get tangled up while climbing the scaffold and fall, resulting in
serious injuries, from broken bones, up to and including death (Tr.
24-27, 30). Moore believed that there was also a danger that employees
falling from the scaffold would land on and/or impale themselves on
construction litter, including plastic buckets and/or boards that were
lying on the ground below the scaffold (Tr. 24-26, 30, 61). Moore
computed a gravity based penalty of $3,500.00. Because, North Dallas is
a small company, with approximately 50 employees (Tr. 86), the penalty
was reduced by 60% (Tr. 21). Moore testified that North Dallas had a
good history with OSHA, entitling them to an additional 10% reduction in
the size of the penalty (Tr. 21).

This judge believes that the gravity of the cited standard was
overstated, in that only two employees were exposed to the hazard on a
short term basis; the probability that an employee would fall from the
scaffold was remote, and there was no real possibility of an employee
being impaled. Taking into account the reduced gravity of the violation,
Respondent's size and history, and, in addition, providing Respondent
credit for instituting an, albeit imperfect, safety program, this judge
believes that a penalty of $250.00 is appropriate for each of the cited
violations.

*ORDER*

  * Citation 1, item 1, alleging violation of §1926.451(c)(2) is VACATED.


  * Citation 1, item 1, alleging violation of §1926.451(e)(1) is
    AFFIRMED, and a penalty of $250.00 is ASSESSED.


  * Citation 1, item 1, alleging violation of §1926.451(g)(1) is
    AFFIRMED, and a penalty of $250.00 is ASSESSED.






/s/

James H. Barkley

Judge, OSHRC



Dated: January 28, 2002

1. This judge has considered, but discounts CO Moore's testimony that
the toprail and midrail visible on the upper, 18 foot, scaffold level
were "shadows or some other phenomena" (Tr. 64, 73).

2. Nothing in the standard requires that base plates be adjustable, as
Complainant maintains. In it's brief, North Dallas argues that "screw
jack" is the term for an adjustable base plate, which may be required
where the ground is uneven (/See; /Respondent's post hearing brief, p.
4; Vasquez' testimony, Tr. 123). However, based on the photographic
evidence, a screw jack does not appear to have been necessary to level
the scaffold in this case.