Georgia Carolina Stucco, Inc.

Plain-English summary

Georgia Carolina Stucco used another contractor's scaffolds while applying stucco to an assisted-living facility in Evans, Georgia. Three employees, including the company's foreman and competent person, worked as high as 20 feet 9 inches on platforms that were not fully planked and had no guardrails or attached ladder. Employees climbed scaffold frames or passed through building windows to reach the work levels, and no alternative fall protection was used. The judge held that scaffold ownership did not excuse the company from protecting its own employees and rejected the employee-misconduct defense because the owner had directed the foreman to use the scaffolds. Prior final citations involved the same three standards and substantially similar conditions, so every item was affirmed as repeat. Penalties totaled $18,480.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.451(b)(1); 29 C.F.R. § 1926.451(e)(1); 29 C.F.R. § 1926.451(g)(1)
• Outcome: Three repeat scaffold items affirmed; $18,480 total penalty assessed.
• Key point: An employer remains responsible for scaffold hazards exposing its employees even when another contractor owns or erected the scaffold.

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. 14-1024

Georgia Carolina Stucco, Inc.,
Respondent.

Appearances:
Melanie Paul, Esq., Office of the Solicitor, U. S. Department of Labor, Atlanta, Georgia
For the Complainant

             Mark A. Davison, Owner, Georgia Carolina Stucco, Inc., Augusta, Georgia
                     For the Respondent

Before: Administrative Law Judge Sharon D. Calhoun

                                    DECISION AND ORDER

      Georgia Carolina Stucco, Inc., (Georgia-Carolina) engages in stucco work

activities. It was performing stucco work activities on a construction jobsite located at
950 Ronald Reagan Drive and 680 Industrial Park Drive, Evans, Georgia, where an
assisted living facility was being constructed. An inspection of that jobsite was initiated
on May 8, 2014, by OSHA Safety and Health Compliance Officer Linston Maurice
Starks (Starks or CSHO). As a result of the inspection, a Citation and Notification of
Penalty (Citation) was issued to Georgia-Carolina alleging violations of 29 C.F.R. §§
1926.451(b)(1), 1926.451(e)(1) and 1926.451(g)(1), and proposing penalties in the total
amount of $18,480.00. Georgia-Carolina timely contested the Citation. A hearing was
held on January 12, 2015. Georgia-Carolina was represented pro se by Mark Davison.
Both parties filed post-hearing briefs.
For the reasons that follow, Items 1, 2 and 3 of the Citation are affirmed and a
penalty in the total amount of $18,480.00 is assessed.
 Jurisdiction
At the hearing, the parties stipulated that jurisdiction of this action is conferred
upon the Commission pursuant to Section 10(c) of the Act (Tr. 9). Georgia-Carolina also
admits that at all times relevant to this action, it was an employer engaged in a business
affecting interstate commerce within the meaning of section 3(5) of the Act, 29 U.S.C. §
652(5) (Tr. 8-9). Based upon the parties’ stipulations and the record, the Court finds
Georgia-Carolina is a covered business and the Commission has jurisdiction under the
Act.
Background
Georgia-Carolina is a company which engages in stucco work activities and uses
scaffolds to perform its work at various jobsites. As a part of the work it performs,
Georgia-Carolina maintains scaffold equipment for its employees to use on its projects
(Tr. 82). However, on May 7 and 8, 2014, it did not have its scaffold equipment onsite at
950 Ronald Reagan Drive and 680 Industrial Park Drive, Evans, Georgia, for the stucco
work it was installing on the assisted living facility under construction (Tr. 26-27).
Georgia-Carolina instead had an agreement with a subcontractor onsite to use the
masonry contractor’s scaffolds which were onsite (Tr. 40, 41-42, 46, 75, 80). When
Georgia-Carolina’s employees were ready to use the borrowed scaffolds, the foreman
discovered they were not compliant. He testified the owner of Georgia-Carolina told him
to use the brick masons’ scaffolds (Tr. 104). He also testified the superintendent of the
general contractor instructed him to use the scaffolds onsite (Tr. 104).
Pursuant to OSHA’s construction targeted inspection procedures, CSHO Stark
arrived at the assisted living facility jobsite on May 8, 2014, to conduct an inspection of
the jobsite (Tr. 26).1 The jobsite was a multi-employer worksite where stucco, framing,
electrical, and heating and air conditioning work activities were being performed (Tr. 27).
Cameron General Construction2 was the general contractor on the jobsite (Tr. 56). In
addition to Georgia-Carolina, other contractors on the jobsite included Metro Masonry
1
A construction targeted inspection consists of a list of construction sites at various locations with different
programs ongoing. The list is provided to CSHO to conduct inspections of employers on the list with a
focus on struck by and fall hazards since they result in a high number of fatalities (Tr. 26).
2
This company also was referred to as Cameron Construction during the hearing. For clarity and
consistency, the Court will refer to Cameron General Construction when referring to the general contractor.
2
and Quality Masonry (Tr. 57). Georgia-Carolina was engaged in stucco work on the site
at the time of the inspection (Tr. 34; Exhs. C-1, C-2, C-6). The day of the OSHA
inspection was the second day Georgia-Carolina employees were applying stucco on the
assisted living facility under construction (Tr. 26-27, 93).
When CSHO Stark drove up to the jobsite, he observed employees working from
a scaffold, and saw an employee climbing on the scaffold’s frame (Tr. 27). Once onsite,
Stark met with Randy Lilen, superintendent for Cameron General Construction (Tr. 27).
Stark presented his credentials, explained the purpose of his visit, and informed Lilen
employees were working from an improper scaffold (Tr. 28). He and Lilen walked to the
area where the scaffold system consisting of two separate scaffolds was located (Tr. 28,
91-92). Neither scaffold was fully planked; there were no guardrails on the third levels
where employees were working; and no ladder was attached to either scaffold (Tr. 31-34,
91-93; Exhs. C-1, C-2). There were no other means of fall protection in use at the time of
the inspection (Tr. 54; Exhs. C-1, 2, 5, 6, 7, 8). CSHO Stark measured the scaffold and
determined it was 20 feet, 9 inches in height (Tr. 29, 48; Exhs. C-1, C-2, C-6). He also
discovered employees accessed the upper levels of the scaffolds by either climbing the
scaffold frame or by going through the windows of the building adjacent to the scaffold
(Tr. 37).
CSHO Stark determined two employers had employees working from the scaffold
system. The employees working from the scaffolds were employees of Georgia-Carolina
and Justo Mena d/b/a Quality Masonry (Tr. 28-29). Although both companies were cited,
this matter only addresses the Citation issued to Georgia-Carolina, which had three
employees working from the scaffolds at the time of the inspection (Tr. 29, 57).
Francisco Lara was identified as the foreman for Georgia-Carolina (Tr. 29, 35, 87,
88; Exhs. C-4, C-5). When he first drove up to the jobsite, CSHO Stark had observed
Lara climbing up the frame of one of the scaffolds (Tr. 29, 35, 87; Exhs. C-4, C-5). In
addition to being the foreman, Lara told CSHO Stark he was the competent person onsite
and he had received scaffold training (Tr. 39, 40).
Foreman Lara informed CSHO Stark the scaffolds onsite did not belong to
Georgia-Carolina (Tr. 40, 41-42, 46). According to Lara, the scaffolds belonged to Metro
Masonry and were erected by Quality Masonry who employed the brick masons (Tr. 40,
41-42, 46, 75, 80). Georgia-Carolina had an arrangement with Metro Masonry for
3
Georgia-Carolina employees to use the Metro Masonry scaffolds which were onsite (Tr.
41-42, 46, 63).
At the time of the inspection, the Georgia-Carolina employees were finishing the
stucco work on the building, and had performed stucco work on the building the day
before (Tr. 37-38, Exhs. C-6, C-7, C-8). The employees had been working
approximately 45 minutes at the time CSHO Stark arrived at the jobsite for his inspection
(Tr. 37; Exh. C-7). Foreman Lara testified they were in the process of dismantling the
scaffolds on the day of the inspection (Tr.105). However, the evidence fails to
substantiate dismantling was occurring at 8:45 a.m. when the OSHA inspection began.
(Exhs. C-2, C-5, C-6, C-7, C-8, C-9).
As a result of his inspection findings, CSHO Stark recommended the issuance of
the three-item Citation at issue alleging scaffold violations for insufficient planking, lack
of guardrails, and the absence of a ladder.
The Citation
The Secretary issued the three-item Citation to Georgia-Carolina on June 8, 2014,
alleging Georgia-Carolina violated OSHA’s standards found in Subpart L-Scaffolds. In
Item 1, the Secretary alleges “On or about 5/8/14 at the front and side of the building;
Employees engaged in stucco work on a scaffold system at up to 20 feet 9 inches from
the ground level without being fully planked or decked.”
The cited standard, § 1926.451(b)(1), provides in pertinent part:
Each platform on all working levels of scaffolds shall be fully planked or
decked between the front, uprights and the guardrail supports[.]3
For Item 2, the Secretary alleges “On or about 5/8/14 at the front side of the
building; Employees engaged in stucco work on a scaffold system at up to 20 feet 9
inches from the ground level were exposed to a fall hazard. The employer failed to
install a ladder for the employees to access the scaffolding.”
The cited standard, § 1926.451(e)(1), provides in pertinent part:
When scaffold platforms are more than 2 feet (0.6m) above or below a
point of access, portable ladders, hook-on ladders, attachable ladders, stair

3
The standard found at § 1926.451(b)(1) provides an exception to providing full planking or decking when
platforms are used solely as walkways, or solely by employees performing scaffold erection or dismantling.
This exception is not applicable here, as the employees were not using the scaffolds as walkways. Further,
the credible evidence reveals they were not erecting or dismantling the scaffold either. Instead, the
scaffolds were used as working platforms to install stucco (Exhs. C-2, C-6, C-7, C-8, C-9).
4
 towers (scaffold stairways/towers), stairway-type ladders (such as ladder
stands), ramps, walkways, integral pre-fabricated 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.
The Secretary alleges in Item 3 that “On or about 5/8/14 at the front and side of
the building; Employees engaged in stucco work on a scaffold system at up to 20 feet 9
inches from the ground level without guardrails or personal fall arrest systems.”
The cited standard, § 1926.451(g)(1), provides in pertinent part:
Each employee on a scaffold more than 10 feet (3.1m) above a lower level
shall be protected from falling to that lower level[.]
Burden of Proof
To prove a violation of an OSHA standard, the Secretary must show by a
preponderance of the evidence that (1) the cited standard applies; (2) there was
noncompliance with its terms; (3) employees had access to the violative conditions; and
(4) the cited employer had actual or constructive knowledge of those conditions.
Southwestern Bell Telephone Co., 19 BNA OSHC 1097, 1098 (No. 98-1748, 2000).
Georgia-Carolina disputes only the knowledge element of the Secretary’s case. Although
not in dispute, for context, the Court will briefly discuss the remaining elements of the
Secretary’s case.
Applicability
Georgia-Carolina was engaged in work activities on a construction site where its
employees used scaffolds to perform stucco work on the assisted living facility under
construction (Tr. 26-29). Subpart-L applies to all scaffolds used by workplaces covered
by Part 1926 of the standards, except for crane or derrick suspended personal platforms.4
§ 1926.450(a). As the photographs admitted into evidence show, the scaffolds used by
Georgia-Carolina were not the types excluded from coverage (Exhs. C-1, C-2, C-5, C-6,
C-7). Applicability of the cited standards is established.
Noncompliance with Standards
Although Georgia-Carolina does not dispute that the cited scaffolds did not
comply with the requirements of the standards in that they were not fully planked, had no
guardrails and were missing ladders, it contends the noncompliant scaffolds did not
belong to it (Georgia-Carolina brief, p. 1). Evidence adduced at the hearing reveals

4
The criteria for aerial lifts are set out exclusively in § 1926.453.
5
Metro Masonry owned the scaffolds at issue. Ownership of the noncompliant condition
is not controlling in assessing whether the terms of the standard are in compliance. Here,
a preponderance of the testimonial and photographic evidence establish the scaffolds
were not in compliance with the requirements of the standards, and they were used by
employees to perform their work activities.
Access to Violative Condition
Employee access to the violative condition also is established. The photographs
admitted into the record show all three Georgia-Carolina employees working from the
scaffolds (Exhs. C-2, C-6, C-7, C-8, C-9). Forman Lara admits he worked from one of
the noncompliant scaffolds and was the employee observed climbing the frame of the
scaffold (Tr. 80-81; Exh. C-8). The other two employees depicted on the other
noncompliant scaffold were identified during the hearing as employees of Georgia-
Carolina, and the testimony reveals they were performing work activities while on the
scaffold which was not fully planked, and was missing guardrails and a ladder (Tr. 90-93;
Exhs. C-2, C-6, C-7, C-9).
Knowledge
The only element of the Secretary’s case left for determination is knowledge. In
order to establish a violation of an OSHA standard, the Secretary must show the cited
employer either knew or could have known with the exercise of reasonable diligence of
the violative condition. Dun Par Engineered Form Co.,12 BNA OSHC 1962, 1965-66
(No. 82-928, 1986).
Here, the Secretary contends Georgia-Carolina had actual knowledge of the cited
violative conditions through its supervisory employee, foreman Lara, who worked on one
of the scaffolds. He worked alongside the two subordinate employees who were on the
other scaffold. The Secretary contends Lara’s knowledge is imputed to Georgia-Carolina
(Secretary’s brief, p. 6). Georgia-Carolina asserts it was not aware of the violative
conditions and had no knowledge its employees worked from the “incomplete” scaffold,
until CSHO Stark informed Davison of the violations at the time of the OSHA inspection
(Respondent’s brief, p. 1, 2). The evidence adduced at the hearing belies this assertion.
A preponderance of the evidence shows Lara, a Georgia-Carolina supervisor, was on the
jobsite, performed work activities along with two subordinate employees, and had
knowledge of the cited conditions.
6
 Under Commission precedent a supervisor’s knowledge of violative conduct may
be imputed to the employer. Dover Elevator Co., 16 BNA OSHC 1281 (No. 91-862,
1993). An employee who has been delegated authority over another employee, even if
only temporarily, is considered to be a supervisor for purposes of imputing knowledge to
an employer. American Engineering & Development Corp., 23 BNA OSHC 2093, 2012
(No. 10-0359, 2012); Diamond Installations, Inc., 21 BNA OSHC 1688 (Nos. 02-2080 &
02-2081, 2006); Tampa Shipyards, Inc., 15 BNA OSHC 1533 (Nos. 86-360 and 86-469,
1992). It is the Secretary’s burden to adduce sufficient evidence to establish the
knowledge element of his case. As set forth below, the Court finds he has.
The Court of Appeals for the Eleventh Circuit addressed the knowledge element
in ComTran Group Inc., 722 F.3d 1304, 1307-1308 (11th Cir. 2013). In that decision, the
Eleventh Circuit specifically addressed the issue regarding imputing a supervisor’s
knowledge of his own misconduct, setting forth the requirements necessary to prove
knowledge in such circumstances. In ComTran, the court held for the first time in the
Eleventh Circuit that “if the Secretary seeks to establish that an employer had knowledge
of misconduct by a supervisor, [he] must do more than merely point to the conduct itself.
To meet [his] prima facie burden, [he] must put forth evidence independent of the
misconduct.” Id. at 1318.
Prior to ComTran, a supervisor’s actual or constructive knowledge of a violation
could be imputed to the employer. “[W]hen a supervisory employee has actual or
constructive knowledge of the violative conditions, that knowledge is imputed to the
employer, and the Secretary satisfies his burden of proof without having to demonstrate
any inadequacy or defect in the employer’s safety program.” Dover Elevator Co., 16
BNA OSHC 1281, 1286 (No. 91-862, 1993).
The ComTran case addressed imputing a supervisor’s knowledge of his own
misconduct when acting alone to the employer. ComTran did not alter the ordinary case
which involves imputing the supervisor’s knowledge of a subordinate employee’s

                                        7

misconduct.5 The Eleventh Circuit explained that it is reasonable to impute a
supervisor’s knowledge of a subordinate’s misconduct to the employer because:
[T]he supervisor acts as the “eyes and ears” of the absent employer. That
makes his knowledge the employer’s knowledge. However, a “different
situation is presented” when the misconduct is the supervisor’s own.
[Mountain States Telephone & Telegraph Co. v. OSHRC, 623 F.2d. 155,
158 (10th Cir. 1980)]. In that situation, the employer has no “eyes and
ears.” It is, figuratively speaking, blind and deaf. To impute knowledge
in this situation would be fundamentally unfair.
Id. (footnote omitted).
The facts here establish that this is an ordinary case. It is not the situation
presented in ComTran which involved imputing a supervisor’s knowledge of his own
misconduct when acting alone. The supervisor here was not acting alone. The evidence
adduced at the hearing reveals Lara was the Georgia-Carolina foreman on the jobsite, was
in charge of the employees who worked with him, and was responsible for their safety
(Tr. 29, 88). After observing the condition of the brick mason’s scaffolds to be used by
him and his crew, Lara called Davison and reported the scaffold was improper and was
instructed by Davison and, according to Lara, the superintendent to use them anyway (Tr.
104; Exh. C-10). Lara’s statement reveals that Davison instructed him to use the
scaffolds until they could get the proper equipment to them (Exh. C-10). Lara then
worked from the noncompliant scaffolds alongside the other two employees whom he
supervised as foreman (Tr. 88, 91-93; Exhs. C-2, C-6, C-7, C-8, C-9). Lara testified he
knew the scaffolds were not fully planked and were missing guardrails and he was aware
the two subordinates were working from one of the scaffolds in that condition (Tr. 92, 93,
100). He further testified that because there was no ladder, he climbed the scaffold frame
and his subordinates climbed through an adjacent window to access the work platform

     5
         In Footnote 2 of the decision, the court states:
     We say that a supervisor’s knowledge is “generally imputed to the employer” because
     that is the outcome in the ordinary case. The “ordinary case,” however, is where the
     supervisor knew or should have known that subordinate employees were engaged in
     misconduct, and not, as here, where the supervisor is the actual malfeasant who acts
     contrary to the law. W.G. Yates & Sons, Constr. Co., Inc. v. Occupational Safety and
     Health Review Comm’n, 459 F.3d 604, 609 n.7 (5th Cir. 2006) (noting same). As will be
     seen, that important factual distinction is ultimately what this case is all about.

Id. at 1308, n.2.

                                                     8

(Tr. 91, 92, 93; Exh. C-7, C-8). The Secretary has established knowledge of the violative
conditions for all three cited standards, and therefore has proven all four elements of his
prima facie case.
An employer may rebut the Secretary’s prima facie showing of knowledge with
evidence that it took reasonable measures to prevent the occurrence of the violation.
American Engineering & Development Corp., 23 BNA OSHC 2093, 2012 (No. 10-0359,
2012); Aquatek Systems, Inc., 21 BNA OSHC 1400, 1401-1402 (No. 03-1351, 2006).
Here, Georgia-Carolina alleges employee misconduct as a defense to the Secretary’s
prima facie case.
Employee Misconduct (Isolated Incident)
In order to establish the affirmative defense of unpreventable employee
misconduct, an employer is required to prove that it has: (1) established work rules
designed to prevent the violation; (2) adequately communicated these rules to its
employees; (3) taken steps to discover violations; and (4) effectively enforced the rules
when violations are discovered. American Sterilizer Co., 18 BNA OSHC 1082, 1087
(No. 91-2494, 1997); e.g., Danis Shook Joint Venture XXV, 19 BNA OSHC 1497, 1502
(No. 98-1192, 2001), aff’d 319 F3d 805 (6th Cir. 2003); Precast Services, Inc., 17 BNA
OSHC 1454, 1455 (No. 93-2971, 1995), aff’d without published opinion, 106 F.3d 401
(6th Cir. 1997). Oil Well Serv., 15 BNA OSHC 1809, 1816 (No 87-692, 1992). Also see
Nooter Construction Co. 16 BNA OSHC 1572, 1578 (No. 91-0237, 1994).
An employer may defend on the basis that the employee's misconduct was
unpreventable. In order to establish the defense, the employer must show the action of its
employee represented a departure from a work rule that the employer has uniformly and
effectively communicated and enforced. Frank Swidzinski Co., 9 BNA OSHC 1230,
(No. 76-4627, 1981); Merritt Electric Co., 9 BNA OSHC 2088 (No. 77-3772, 1981);
Wander Iron Work, 8 BNA OSHC 1354 (No. 76-3105, 1980), Mosser Construction Co.
15 BNA OSHC 1408, 1414 (No. 89-1027, 1991).
In support of its employee misconduct defense, Georgia-Carolina contends it
repeatedly informed its employees not to use incomplete scaffolding and to do so was a
violation of company policy. It further asserts the employees had been trained, the
company has a safety program, and it disciplines employees who violate the policies
(Georgia-Carolina brief, pp. 1-2).
9
 Despite these assertions, the only evidence adduced at the hearing in support was
the uncorroborated testimony of Lara that he had been trained and that the company
disciplined him for violations (Tr. 81, 86). Lara’s discipline only consisted of him being
talked to about the violations because the company did not want OSHA violations on its
record (Tr. 94). He was not suspended or terminated (Tr. 94). Lara’s testimony reveals
the company posted pictures on the wall to demonstrate unsafe conditions (Tr. 86, 96).
Even considering this testimony in the light most favorable to Georgia-Carolina, the fact
that three employees, including a supervisory employee, worked from an improper
scaffold at the direction of the owner of the company shows Georgia-Carolina placed
expediency over employee safety in this instance, and suggests the company condoned
safety violations. Such misplaced emphasis undermines Georgia-Carolina’s defense that
this was an isolated instance of employee misconduct. Further, “[w]here all employees
participating in a particular activity violate an employer’s work rule, the unanimity of
such noncomplying conduct suggests ineffective enforcement of the work rule.” Gem
Industrial Inc., 17 BNA OSHC 1861, 1865 (No. 93-1122, 1996) aff’d 149 F.3d 1183 (6th
Cir. 1998).
The Court finds the evidence fails to support the alleged employee misconduct
defense. Georgia-Carolina has failed to rebut the Secretary’s prima facie case as to the
three items alleged in the Citation.
Darden Doctrine
Georgia-Carolina also argues as a defense that Lilen, superintendent for Cameron
General Construction, instructed Lara to use the scaffolds cited in this matter. Georgia-
Carolina appears to be arguing that by doing so, Lara was under the direction and control
of Cameron General Construction and not Georgia-Carolina (Georgia-Carolina brief, p.
1). To the extent Georgia-Carolina is arguing it was not the employer of the employees
engaged in the violative conduct at the time of the conduct, the Court finds the evidence
fails to support this argument.
“[T]he Secretary has the burden of proving that a cited respondent is the
employer of the affected workers at the site.” Allstate Painting & Contracting Co., 21
BNA OSHC 1033, 1035 (No. 97-1631, 2005). In determining whether the Secretary has
satisfied this burden, the Commission applies the Darden doctrine set forth in Nationwide
Mutual Insurance Company v. Darden, 503 U.S. 316 (1992):
10
 To decide whether the party in question was an employer under common
law, the Darden Court looked primarily to the hiring party’s right to
“control the manner and means by which the product [was]
accomplished.” Factors pertinent to that issue include “the skill required
for the job, the source of the instrumentalities and tools, the location of the
work, the duration of the relationship between the parties, whether the
hiring party has the right to assign additional projects to the hired party,
the extent of the hired party’s discretion over when and how long to work,
the method of payment, the hired party’s role in hiring and paying
assistants, whether the work is part of the regular business of the hiring
party, whether the hiring party is in business, the provision of employee
benefits and the tax treatment of the hired party.” Darden, 503 U.S. at 322,
citing Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989).
While no single factor under Darden is determinative, the primary focus is
whether the putative employer controls the workers. See Don Davis, [19
BNA OSHC 1477 (No. 96-1378, 2001)].
Allstate, 21 BNA at 1035.
Focusing here on “whether the putative employer controls the workers” results in
a determination that Cameron General Construction did not control Lara. Although a
general contractor has general oversight and control of a jobsite, there is no evidence in
the record to show Cameron General Construction had the authority to direct employees
of Georgia-Carolina in their daily work activities.
Lara’s testimony regarding who told him to use the masonry contractor’s
scaffolds is confusing at best. By the time of the hearing, Lara’s testimony appeared to
mirror exactly the arguments made by Georgia-Carolina’s owner. Yet, his written
statement at the time of the inspection was less confusing and more candid (Exh. C-10).
During his testimony, Lara attempted to discredit the accuracy of his statement by
indicating he did not understand what he had signed, suggesting his lack of understanding
of English. The Court observed Lara during his testimony and noted Lara had no
difficulty understanding or speaking English. To the extent Lara claims he could not read
the statement very well, this too is undermined by CSHO Starks’ testimony he read
portions of the statement to Lara before he signed it (Tr. 110). The Court credits Lara’s
statement over his testimony at trial as being more reliable.
It is undisputed in the record the three employees worked for Georgia-Carolina
and it had control over them. The evidence reveals Lara received training and discipline
from Georgia-Carolina, a company he testified he has been employed with for
approximately 18 years, leading crews on various projects (Tr. 88, 89). The undersigned
11
determines Georgia-Carolina was the sole employer of Lara and its other two employees
working on the scaffolds.
Repeat Classification
The Review Commission has long considered a violation as a repeated violation
under § 17 of the Act, if at the time of the alleged repeated violation, there was a
Commission final order against the same employer for a substantially similar violation.
Potlatch Corp., 7 BNA OSHRC No.1061, 1063 (No. 16183, 1979). Georgia-Carolina
does not dispute it was issued a serious Citation on September 16, 2011, for violations of
§§ 1926.451(b)(1), 1926.451(e)(1), and 1926.451(g)(1) at a worksite at 1128 Robert
Toombs Avenue, Washington, Georgia, where employees were working on the third
platform of a three-buck scaffold 20 feet above ground level (Tr. 50-52; Exh. C-11).
This prior citation was resolved by a Formal Settlement Agreement reflecting
only a change in the proposed penalty. It became a final order of the Review
Commission on October 26, 2012 (Tr. 50-52; Exh. C-11). As in the instant case, the
employees in the prior citation also were working from the third level of the scaffold,
with no ladder, missing guardrails, and not fully planked (Tr. 52-53; Exh. C-11). The
repeat classification of the Citation for violations of §§ 1926.451(b)(1), 1926.451(e)(1)
and 1926.451(g)(1) is established. Citation 1 is affirmed as a Repeat Citation.
Penalty Determination
Under § 17(j) of the Act, the Commission must give “due consideration to the
appropriateness of the penalty with respect to the size of the business of the employer
being charged, the gravity of the violation, the good faith of the employer, and the history
of previous violations.” The principal factor in a penalty determination is gravity, which
“is based on the number of employees exposed, duration of exposure, likelihood of
injuries, and precautions against injuries.” Siemens Energy and Automation, Inc., 20
BNA OSHC 2196, 2201 (No. 00-1052, 2005).
A gravity based penalty of $7,000.00 for each item was arrived at by a
determination that the violations were of high severity because broken bones or death
could result from a fall, and because it was determined that the probability of an accident
occurring was greater due to the fact that three employees were exposed while working
on the edge of the not fully planked scaffolds for two days (Tr. 49, 53, 54, 55). The
employees worked unprotected from scaffolds at a height of 20 feet 9 inches (Tr. 48-49).
12
The possibility of employees slipping and falling when climbing out of the window to the
scaffold platform or climbing the frame was also a basis for the greater probability
assessment (Tr. 53-54). The evidence further reveals the employees were exposed to the
conditions for approximately 45 minutes at the time of the inspection (Tr. 37). No safety
measures were in place to protect the employees from the hazardous conditions. The
gravity based penalty considerations and assessments are appropriate.
Approximately 40 employees work for Georgia-Carolina (Tr. 84, 100).6 Three
employees worked on the jobsite at the time of the inspection (Exhs. C-2, C-6, C-7, C-8,
C-9). CSHO Stark testified that a 60% reduction in the penalty was applied to the gravity
based penalty in consideration of the size of Georgia-Carolina (Tr. 54). In his brief, the
Secretary contends the penalty reduction for size was actually 20% and that the penalty
proposed was actually calculated at that percentage reduction and not the 60% testified to
by the CSHO (Secretary’s brief, pp. 11-12; Tr. 54).
No good faith reduction was permitted because of the high greater assessments of
the violations. A 10% increase to the penalty was calculated because the company had
been previously cited within the past five years (Tr. 54-56; Exh. C-11). The Court agrees
with the Secretary’s penalty considerations. Upon due consideration of the statutory
factors under § 17(j) of the Act, the Court assesses a penalty of $6,160.00 for each of the
three items in the Citation issued to Georgia-Carolina, for a total penalty of $18,480.00.
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:
1. Item 1 of Citation 1 is affirmed and a penalty in the amount of $6,160.00 is
assessed.
2. Item 2 of Citation 1 is affirmed and a penalty in the amount of $6,160.00 is
assessed.

6
CSHO Stark testified Georgia-Carolina employed 10 employees (Tr. 56). The Court credits the testimony
of Georgia-Carolina’s supervisor Lara, as to the number of employees, over the CSHO because he is in a
better position to know, due to his position with the company. Lara testified the company has 40 employees
(Tr. 84-100).
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 3. Item 3 of Citation 1 is affirmed and a penalty in the amount of $6,160.00 is
assessed.
SO ORDERED.

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

Date: July 7, 2015
Atlanta, Georgia

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