Stuck in the Mud

Plain-English summary

Thomas Slingluff, doing business as Stuck in the Mud, performed stucco work from an inadequately protected scaffold in Colorado. He admitted the scaffold conditions but argued that he was not an employer engaged in commerce and therefore was outside the OSH Act. The judge found that Slingluff hired and paid another worker, supplied the materials and scaffold, performed construction work, and used an out-of-state manufactured truck in the business. She also rejected procedural objections because the citation-date error and complaint timing caused no prejudice. The scaffold violations were affirmed with $2,100 in total penalties.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.451(g)(1)(vii), 1926.451(b)(1), 1926.451(f)(7), 1926.451(c)(2), and 1926.451(e)(1)
• Outcome: The scaffold fall-protection, planking, supervision, foundation, bracing, and access violations were affirmed with $2,100 in total penalties.
• Key point: A small construction contractor is covered by the OSH Act when it employs a worker and operates a business affecting interstate commerce.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Compla inant,

                           v.                               OSHRC DOCKET NO. 03-1371

THOMAS SLINGLUFF, a/k/a STUCK IN THE
MUD,
Resp ond ent.

APPEARANCES:

      For the Co mpla inant:
               Edward Falkowski, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, Colorado

      For the Re spondent:
               Thoma s Slingluff, Stuck in the Mud, pro se, La Jara, Colorado

Before: Administrative Law Judge: Sidney J. Goldstein

                                      DECISION AND ORDER

      This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C.

Section 651-678; hereafter called the “Act”).
Respondent, Thomas Slingluff, d/b/a Stuck in the Mud (Slingluff), at all times relevant to
this action maintained a place of business at 518 Main Street, Alamosa, Colorado (Tr. 6-8),
where he was engaged in stucco work (Tr. 9). On June 2, 2003 the Occupational Safety and
Health Administration (OSHA) conducted an inspection of Slingluff’s work site on Main street
(Tr. 108). As a result of that inspection, Slingluff was issued a citation alleging three violations
of the scaffolding regulations at 29 CFR §1926.451 of the Act.
Respondent does not contest the cited violations (Tr. 5), but denies he is an employer
engaged in a business affecting commerce and argues he is not subject to the requirements of the
Act. By filing a timely notice of contest Slingluff brought this proceeding before the
Occupational Safety and Health Review Commission (Commission).
On December 2, 2003 a hearing on the jurisdictional issue was held in Alamosa,
Colorado. The parties have submitted briefs on that issue and this matter is ready for disposition.

                                           Alleged Violations

Serious citation 1, item 1a alleges:
29 CFR 1926.451(g)(1)(vii): For all scaffolds not otherwise specified in paragraphs (g)(1)(i)
through (g)(1)(vi) of this section, each employee was not protected by the use of personal fall
arrest systems or guardrail systems meeting the requirements of paragraph (g)(4) of this section.

   (a) On or about June 3, 2003, and at time prior, employees were exposed to falls of 18
   feet 9 inches while working on a scaffold where the top rail was away from the scaffold
   planking and the mid-rail was missing.

   Serious citation 1, item 1b alleges:

29 CFR 1926.451(b)(1): Each platform on all working levels of the scaffold were not fully
planked or decked between uprights and guardrail supports:

   (a) On or about June 3, 2003, and at time prior, employees were exposed to falls in excess
   of 18 feet 9 inches while working on a scaffold that was not fully planked or decked
   between the uprights.

   Serious citation 1, item 1c alleges:

29 CFR 1926.451(f)(7): Scaffolds were not erected, moved, dismantled, or altered under the
direct supervision of a competent person.

   (a) On or about June 3, 2003, and at time prior, employees were exposed to falls of 18
   feet 9 inches while working on a scaffold that had not been erected under the direct
   supervision of a competent person.

   Serious citation 1, item 2a alleges:

29 CFR 1926.451(c)(s): Supported scaffold poles, legs, posts frames and uprights did not bear on
baseplates and mud sills or other adequate firm foundation:

   (a) On or about June 3, 2003, and at time prior, employees were exposed to falls in excess
   of 18 feet 9 inches while working from a scaffold that was missing all of its baseplates.

   Serious citation 1, item 2b alleges:

29 CFR 1926.451(c)(2): Frames and panels were not braced by cross, horizontal, or diagonal
braces, or combination thereof, which secure vertical members together lateral (sic):

   (a) On or about June 3, 2003, and at time prior, employees were exposed to falls of 18
   feet 9 inches while working on scaffolds, in that the scaffold was not adequately braced.

   Serious citation 1, item 3 alleges:

29 CFR 1926.451(e)(1): Scaffold platforms in excess of 2 feet (90.6m) above or below a point of
access were not provided with a portable ladders, hook-on ladders, stair rowers, 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.

    (a) On or about June 3, 2003, and at time prior, employees were exposed to falls of 18
    feet 9 inches while working on scaffolds where a safe means of access was not provided.

Facts
OSHA Compliance Officer (CO) Mike J. McWilliams testified that in June, 2003, he
noted Mr. Slingluff and another man, Ben Jaramillo, standing on a scaffold readying some foam
board for installation (Tr. 42, 48). McWilliams asked them to step down, and asked Slingluff to
fill out an employer questionnaire (Tr. 43). On the form, Slingluff stated that he had one
employee (Tr. 49, 59; Exh. C-5). At the hearing Slingluff denied that Jaramillo was his
employee, but admitted that he was referring to Ben Jaramillo when he filled out the OSHA
questionnaire (Tr. 37-39; Exh. C-5). McWilliams testified that Jaramillo told him that he had
been employed by Stuck in the Mud for approximately four months, and that he was being paid
$8.00 an hour for this job (Tr. 45-46, 59). Jaramillo filled out an employee interview form for
McWilliams, on which he provided the same information he gave the CO (Tr. 63; Exh. C-6). At
the hearing Jaramillo claimed not to have intended that his representation of employment be
taken as a statement of fact (Tr. 65). This judge notes, however, that Jaramillo was an attorney,
and practiced law in Denver, Colorado until 2001 (Tr. 70, 73).
At hearing, Mr. Slingluff testified that he was hired by the city of Alamosa to stucco the
outside wall of 518 Main street for $16,820.00 (Tr. 14-16; Exh. C-1). Jaramillo was color
coating the wall with Slingluff, in furtherance of Slingluff’s contract with the city of Alamosa
(Tr. 35, 40). Jaramillo testified at the hearing that although he does his own jobs, he has worked
for Slingluff on occasion over the past two years (Tr. 64-65). Jaramillo testified that he and
Slingluff had not settled on an hourly rate for this job; however, he thought they had probably
discussed the terms of his employment at some point (Tr. 69). Jaramillo stated that he might
have “deduced” the amount he would be paid based on the amount of time he had been working,
and the rate at which he had been paid in the past (Tr. 70-71).
Slingluff admitted that he used a 1984 Dodge truck to haul materials and to pull a trailer
loaded with scaffolding for use in the course of his work (Tr. 22-25, 49-50; Exh. 3). Slingluff
has a liability insurance policy for the truck issued by Allied Insurance Company (Tr. 32).
Discussion
Slingluff admits the existence of the conditions cited, but argues that OSHA is without
jurisdiction over its activities as, 1) OSHA’s enforcement of the Act is an improper exercise of
Congress’ power under the Commerce Clause; 2) the Secretary failed to establish that Slingluff
operates a business affecting interstate commerce; and 3) Slingluff is not an employer under the
Act.
Slingluff also objects to the citation on procedural grounds, noting that the inspection date
on the citation, June 3, 2003 was inaccurate. Slingluff questions the authority of the OSHA CO,
and notes that the Complaint was untimely filed.
Procedural matters. The enumerated procedural issues have been adequately addressed.
Complainant filed for and received an extension of time in which to file the Complaint. Slingluff
was not prejudiced by the late filing. Nor was Slingluff prejudiced by the incorrect dating of the
citation. Slingluff was aware of the correct inspection date, and had the record corrected at the
hearing. CO McWilliams testified to his employment by OSHA under oath at the hearing, and is
unquestionably a duly authorized agent of the agency. This judge cannot find that any of the
procedural inadequacies pointed out by Respondent justify the relief requested.
Jurisdictional matters. First, this judge notes that the Commission lacks authority to
rule on the constitutionality of the Act, per se; the Commission can do no more than apply
judicial precedent concerning constitutional issues on which the courts have already ruled.
Adams Steel Erection, Inc., 13 BNA OSHC 1073, 1079, 1986-87 CCH OSHD ¶27,815, p. 36,403
(No. 77-3804, 1987). It is well settled, however, that Congress intended to exercise the full
extent of the authority granted by the commerce clause of the Constitution in enacting the
Occupational Safety and Health Act, and that an employer will come under the aegis of the Act if
it is engaged in a business affecting interstate commerce. Id. (and cases cited therein); Austin
Road Company, 10 BNA OSHC 1944 (No. 78-2986 and 81-4050, 1982); Vak-Pak, Inc., 11 BNA
OSHC 2095 (No. 79-1569, 1984). In addition, the Commission has held that construction is in a
class of activity which as a whole affects interstate commerce. Clarence M. Jones d/b/a C. Jones
Company, 11 BNA OSHC 1529, 1983 CCH OSHD ¶26,516 (No. 77-3676, 1983). Slingluff, a
stucco contractor, is engaged in construction. Moreover, in this case, the Secretary showed that
Respondent uses a Dodge truck manufactured out of state in the course of its work. Complainant
has adequately established that Slingluff operates a business affecting interstate commerce.
Finally, this judge finds that Slingluff was an employer and so is subject to the Act. The
city of Alamosa’s stuccoing contract was with Mr. Slingluff, who was in the stucco business.
Slingluff hired Jaramillo for the duration of the project, or until such time as he no longer needed
Jaramillo’s services. Jaramillo and Slingluff both understood that Jaramillo worked for
Slingluff. Slingluff provided the materials with which Jaramillo worked, including the cited
scaffolding. Slingluff was to pay Jaramillo an hourly wage.
Because Respondent is a person engaged in a business affecting commerce who has
employees, he is an “employer” as defined by Section 3(5) of the Act, and is subject to its
provisions. As Respondent has admitted the citations, subject to a showing of jurisdiction, the
citations shall be affirmed in their entirety.
ORDER

1. Citation 1, items 1a, 1b, and 1c, alleging violations of 29 CFR 1926.451(g)(1)(vii), (b)(1)
   and (f)(7) are AFFIRMED, and a penalty of $1,500.00 is ASSESSED.

2. Citation 1, items 2a and 2b, alleging violations of 29 CFR 1926.451(c)(2) are
   AFFIRMED, and a penalty of $375.00 is ASSESSED.

3. Citation 1, item 3, alleging violation of 29 CFR 1926.452(c)(2) is AFFIRMED, and a
   penalty of $225.00 is ASSESSED.

                                                  /s/
                                                 Sidney J. Goldstein
                                                 Judge, OSHRC
   

Dated: January 26, 2004