North Dallas Acrylic & Stucco, Inc.

Plain-English summary

A judge had affirmed two scaffold citation items and assessed a $250 penalty for each. The Fifth Circuit vacated those items because the judge had not applied the proper legal standard when evaluating the evidence and emphasized that weighing the evidence was the judge's responsibility. The Commission remanded the case to the same judge for further proceedings consistent with the court's opinion.

Decision snapshot

• Cited standard(s): The remand order does not identify the two scaffold standards by number.
• Outcome: Both citation items were vacated by the court, and the case was remanded for further findings.
• Key point: An appellate court may require a remand when the judge who must weigh the evidence applied the wrong legal standard.

Full text (OSHRC public release)

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SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 01-0727

NORTH DALLAS ACRYLIC & STUCCO, INC.,

Respondent.  

REMAND ORDER

This
case is before the Commission on remand from the United States Court of Appeals
for the Fifth Circuit. North Dallas Acrylic & Stucco, Inc. v. OSHRC ,
51 Fed.Appx. 930 (5th Cir., No. 02-60255, Oct. 16, 2002) (table) (designated as
not for publication). The court granted Respondent’s petition for review of the
decision of Commission Administrative Law Judge James H. Barkley in North
Dallas Acrylic & Stucco, Inc . (OSHRC Docket No. 01-0727, 2002 ALJ),
which was not directed for review by the Commission. The judge affirmed two
citation items alleging violations of two scaffolding standards, and he
assessed penalties of $250 for each item.

The
Fifth Circuit stated that “it is the responsibility of the ALJ, not this court,
to weigh the evidence,” and it found that the judge did not “appl[y] the proper
legal standard when evaluating the evidence.” Slip op. at 4. After vacating the
citation items, the court ordered: “[T]he case is REMANDED to OSHRC for further
proceedings consistent with this opinion.” Id.

Accordingly, we remand this case to Judge Barkley for
further proceedings consistent with the court’s opinion.

It
is so ordered.

/s/

W.
Scott Railton

Chairman

/s/

James
M. Stephens 

Commissioner

/s/

Thomasina
V. Rogers

Commissioner

Dated:
June 23, 2004