Palacios Marine & Industrial Coating, Inc.

Read the official release (oshrc.gov)

Plain-English summary

Palacios Marine employees were erecting a scaffold-based shelter at a Texas petrochemical plant when a wooden plank broke and a scaffold builder fell seven feet, suffering broken bones that required reconstructive surgery. OSHA cited the company for alleged failures involving employer-provided and employee-owned protective equipment, damaged scaffold components, scaffold inspection and erection supervision, and training. The judge found that the company provided protective equipment, used an inspection system for harnesses, and assigned a trained competent person to direct the scaffold work. The Secretary did not prove that the plank's internal defect was visible before it broke or that the workers' scaffold training was deficient. All six adjudicated items were vacated, two other items had been withdrawn, and none of the proposed $53,976 in penalties was assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.20(f)(1); 29 C.F.R. § 1926.95(b); 29 C.F.R. § 1926.451(f)(4); 29 C.F.R. § 1926.451(f)(3); 29 C.F.R. § 1926.451(f)(7); 29 C.F.R. § 1926.454(a)
• Outcome: Six citation items were vacated, two others were withdrawn, and no penalty was assessed.
• Key point: A component's failure after an accident does not by itself prove that a pre-use visual inspection should have revealed a latent defect.

Full text (OSHRC public release)


Document

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR ,

Complainant,

v.

PALACIOS MARINE & INDUSTRIAL COATING INC.,

Respondent.

OSHRC DOCKET NO. 20 - 0401

Christopher Lopez-Loftis,
Esq.
and Lindsay Woffard, Esq. ,
Office of the Solicitor, U.S. Department of Labor,
D allas ,
Texas

For Complainant

Joseph Garnett,
Esq.,
Sheehy, Ware & Pappas PC, Houston, Texas

For Respondent

Before: First Judge
Patrick B. Augustine
– U. S. Administrative Judge

DECISION AND ORDER

I. Procedural History

This proceeding is before the Occupational Safety
and Health Review Commission ( “ Commission ” )
under s ection 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §
651
et seq . ( “ the Act ” ). On
November 13, 2019,
in response to a report of a hospitalization arising out of an incident on a Point Comfort, Texas worksite operated by Palacios Marine & Industrial Coating Inc. (“Palacios Marine” or “Respondent”),
the
Occupational Safety and Health Administration (“OSHA”)
Corpus Christi
Area O ffice
dispatched
a
Compliance Safety and Health Officer ( “ CSHO ” ) to conduct an inspection of Respondent ’s
worksite . (Tr.
162, 168;
Ex. C- 3 .) As a result of
the inspection,
OSHA issued a
Citation and Notification of Penalty
(“Citation”)
to
Respondent
alleg ing
serious violation s
of the Act
and propos ing
a
total
penalty of
$ 53,976 . The
Citation was issued on
February 10, 2020 . Respondent timely contested the Citation , bringing this matter before the Commission 1 .

A
two-day
t rial
was held
on November 16 and 17, 2021, in San Antonio, Texas. Three
witnesses testified :
(1 )
Palacios Marine Scaffold Builder
SG 2 ;
(2)
OSHA CSHO Andrei Guzman ;
and
(3)
Palacios Marine Corporate Safety Director Jhon Arias. Both
parties filed
post-trial
briefs.

Pursuant to Commission Rule 90, after hearing and carefully considering all the evidence and arguments of counsel, the Court issues this Decision and Order as its Finding of Facts and Conclusions of Law.

Based on what follows, the Court
vacates
Citation 1,
Item s
1 (a) ,
1(b) , 2(b), 3(a), 3(b), and 4(a). 3

II. Stipulations

The parties
entered into
a
stipulation
agreement
(“Joint Stipulation
Statement ”)
prior to the beginning of trial. Th e Joint
S tipulation
Statement
w as
introduced into the record as Joint Exhibit No. 1 (hereinafter “Ex. J-1 . ”) (Tr.
11-12 . )
4
In lieu of reproducing th e
s tipulations
in their entirety, the Court shall make references to the
Joint S tipulation
Statement
as necessary .

III. Jurisdiction

The
parties stipulate , and the record supports,
Respondent is engaged in a business affecting interstate commerce and
is an employer within the meaning of the Act .

(Ex. J-1
¶  b.) The record establishes Respondent filed a timely notice of contest. (Ex. J-1 ¶  d.) Accordingly , t he Court has jurisdiction over this proceeding pursuant to § 10(c) of the Act .

29 U.S.C. §   659(c) .

Atlas Roofing Co. v. Occupational Safety & Health Review Comm’n, U.S. Dep ’ t of
Labor , 518 F.2d 990, 995 (5th Cir. 1975),
a f f ’ 'd sub nom. ,
Atlas Roofing Co. v. Occupational Safety & Health Review Comm’n , 430 U.S. 442
(1977) (describing “Enforcement Structure of OSHA”) ;
s ee also
Joel Yandell , 18 BNA OSHC 1623, 1628 n.8 (No. 94-3080, 1999) ;
29 U.S.C. §
659 (c).

IV. Factual Background

Respondent
is a general mechanical contractor and
supplies
an array of
services to
clients in
various industries, including the petrochemical and refinery industries. (Tr.
224-225;
Ex. C-8 .) One of
Respondent’s
services
it provides to its
clients
is scaffolding. (Ex. C-8.) In this case, Respondent was
building
a scaffold for
one of
its client s , Formosa Plastics
Corporation
( “ Formosa ”
or “FPC” ) , at
Formosa’s
expansive
petrochemical plant. (Tr. 169 , 410 .)

At the time,
Respondent supplied over 500 workers
at
Formosa’s plant , 120-140 of which
were s caffold
builders . (Tr.
311 -312 .)

Formosa’s plant spanned at least three-fourths mile in distance and had designated “live” and “non-live” areas where heavy machinery processed (or did not process) flammable chemicals. (Tr. 46-49, 109-111, 169.) Respondent’s
specific
worksite at issue
on the day of the incident at
Formosa’s
plant was in a
“ non-live ”
area
– no flammable material
was
being processed
at Respondent’s worksite . (Tr. 61.) The closest
“ live ”
area was
three-fourths
of a
mile away from the worksite at issue.
(Tr. 110-111.)

The Scaffold

On
November 11, 2019,
a team of
Respondent’s
scaffold builders
w as
tasked to build a “hooch . ”

T his “hooch,” once assembled, would
eventually
be a shelter from the elements for welders who would be working within it on the ground level. (Tr.
368, 444-445,
446-450.) At the time of the incident, however,
th e
hooch was under assembly – it was not yet complete. (Tr.
102 ; Ex. R-20 .) It
was
determined
at
trial
th is
structure ,
which
Respondent’s scaffold builders were
working on ,
was a type of scaffold. (Tr. 446-450.)

As shown in the picture below, the
scaffold
consisted of steel
vertical
“legs” and
horizontal
“runners”
connected
to form a “skeletal” frame-like structure. (Tr.
54 -56, 102, 233; Ex. R-20.) Wooden planks were placed
across
the runners on one level
at
seven
feet in height
so
the scaffold builders
could
stand on
them to
build up the hooch , which was estimated to ultimately reach 18 feet in height. (Tr. 104.) Once assembled, all of the wooden planks
that served as temporary working platforms
within the
structure
would be removed le a ving in place a tarp-covered shelter
(i.e.,
the
“hooch”)
for welders to work inside on the ground level. (Tr.
55-56,
76,
81 , 136 .)

(Ex. R-20
at PMIC-276 .)

The skeletal structure was about 24 feet long, and
four
rows of wooden planks were placed across the runners so that workers could walk on the wooden planks across/within the structure as they built it up. (Tr. 52-53, 211.) Each wooden plank was
nine
inches deep and
ten
feet long, and they were placed
near
where a runner intersects with a leg, which, according to SG, when locked “won’t move nowhere.” 5 (Tr. 54,
77,
452 ; Ex. R-20 .) In this way, the plank s
w ere
supported
temporarily such that a worker could traverse the planks while building up the hooch. (Tr. 52.) According to SG,
the planks were used by workers to access /build
a higher level
within
the hooch
such that the hooch would extend up to
what
was supposed to
be
eighteen ( 18 )
feet in height . (Tr. 81 , 104 .) Also,
according to SG, o nce
he and his
team members completed
a level
and began working on the next level up,
the
wooden
planks
at the first level
would be removed . (Tr. 81. )

The Incident

According to SG,
the relevant events
leading
up to the incident are as follows:
SG
arrived at the worksite , termed the LDPE 6
laydown yard,
around 7
a . m .
wearing his own
fire-retardant
clothing (“ FRC ”)
and bringing his own
fall protection harness . ( Tr.
63,
75,
82 , 150 .)
SG performed
his first job of the day, which was a modification of another scaffold,
and finished that job around 9:45
a . m . (Tr. 64 -65 .)
Around 9: 45 -10
a . m . , SG
began
preparing for
his second job of the day, building the hooch. (Tr.
65.)

Respondent’s
hooch
building team included SG, Argelio Abrego, Leo Lopez, and foreman Luis Hernandez. (Tr. 57-60, 82, 406-407, 409.) Mr.
Hernandez was also the designated competent person for this scaffold building team. (Tr. 128-129, 180.) Mr.
Hernandez completed the Job Safety Analysis (JSA) for this project. (Ex. R-5.) Mr.
Hernandez personally selected the group of workers for
this hooch project. (Tr. 62 -63 .) Superintendent Jose Gonzalez was present supervising the progress, but not actually participating in the scaffold building process. (Tr. 59.)

SG
attended a
hooch
crew meeting
in the laydown yard
with
Mr.
Abrego,
Mr.
Lopez, and
Mr. Hernandez , wherein
Mr. Hernandez
discussed the JSA for
building
the
hooch
and which included scaffolding hazards and fall protection hazards. (Tr.
62,
11 4- 118 ; Ex. R-5 .) Each member of the team signed the JSA . (Ex. R-5.) S G and his team members gathered scaffolding
materials
and tools
from the tool room
at the laydown yard
to build the hooch . (Tr.
62-6 6 ,
118, 415.) SG ha d
a hammer, a ratchet, a level, measuring tape , a tool pouch ,
tool belt
and his harness. (Tr. 71.) SG was also wearing his FRC at the time. (Tr.
75.) A forklift delivered
wooden planks to the worksite. (Tr.
51,
65,
127- 128 ; Ex. R-22 at
PMIC- 286.)

The record establishes that SG then took lunch.

After lunch,
SG and his team members began building the hooch around 12:30
p . m . (Tr. 66.)
The crew began assembling
the hooch
“from the bottom up”
– they
connected
the legs and runners together
on
the ground and
up to 7
feet
in height . (Tr. 51 , 55 .) At
that point,
Mr. Hernandez
placed the wooden planks across the runners at the 7
foot
spot. (Tr. 51 -53.) SG and his fellow team members climbed on top of the wooden plank s . ,
Mr. Hernandez
remained at the bottom
to pass
up materials to
the workers. (Tr. 59-60.) Mr. Gonzalez
was
also on the ground
watching
the crew work “in terms of having all your equipment and working safely.” (Tr. 59.)
SG tied of f
his
harness onto a runner at his feet in accordance with the JSA which noted Respondent’s 100% tie off policy. ( Tr. 105; Ex. R-5.) SG explained:
“I was about to put more legs up in order for me to hook onto something else. But since there was nothing there, that was my safest point for me to hook up to.” (Tr. 77.)

SG worked on the first level
–
on the wooden planks
–
for “at least 10 to 20 minutes.” (Tr. 67.) SG described what
happened next:

I got on one of them and I walked towards it was my north side. I had walked it already once and then it was time for us to come back and start building up. So that's when I came back. I stepped on the first board. Everything was good. On the second board, I was stepping on the board and on the runner, but when I stepped on the board, I mean I didn't feel anything wrong. But slowly I started going to the middle and they handed me another leg -- that's what you call them. And as soon as I put my feet together on the board, that's when everything happened so fast. It broke.

(Tr. 51-52.)
SG fell
seven
feet to
the
ground and sustained
broken bone injuries requiring reconstructive surgery to his
legs and feet . (Tr. 68- 70 .) SG’s harness did not break his fall because
it
was “too short distance ” for his lanyard to protect him when it was anchored at his feet. (Tr. 267.)

The record does not establish any worker ,
by the time of the incident ,
ever worked at a height greater than 7 feet at th e instant
worksite. (Tr. 106-107.) SG estimated about 35-45 minutes had passed
from the time the crew began working on the hooch to when he fell. (Tr. 67.)

At
trial , SG testified he looked at the top of the board when he stepped on
it,
and he did not notice whether it appeared rotten to him. (Tr.
131-132,
155.) He testified
that
if it did look rotten from the outside, it was “probably facing the other way because when I stepped on it it didn’t look that way. And if I seen it that way I mean, I wouldn’t take a chance
a[nd]
step on it. I wouldn’t try getting myself hurt.” (Tr. 145.) SG testified the plank looked “black” when shown a picture of it at
trial . (Tr. 154-155; Ex. R-32 at DOL-144, 145.)

(Ex. R-32 at DOL-145.)

SG was then shown a picture of the pile of wooden planks, that had been delivered by forklift, to be used when building the hooch. (Tr. 155-156; Ex. R-22 at PMIC-286.) SG testified the wooden planks in the pile all appeared “black” like the plank that broke beneath him and now he would “maybe not” step on one of them or he “would look it over again, like check if they’re sturdy for me to step on.” (Tr. 156.) He testified the color black may not indicate “exactly” that the plank was rotten, but “I will double check myself to see if it’s worth it to me to work on.” (Tr. 160.)

(Ex. R-22 at PMIC - 286.)

OSHA Investigation

Respondent reported SG’s
hospitalization
pursuant to OSHA’s reporting regulations, and OSHA assigned CSHO Andrei Guzun from the Corpus Christi OSHA Area Office to investigat e
this matter. 7 (Tr. 168.) CSHO Guzun arrived at the Formosa plant on November 13, 2019 ,
around 8:30
a m
and attended Formosa’s orientation, which was required by Formosa for
“every visitor, every contractors, any government officials,
[an d ]
anybody who show up at their premises . ” (Tr. 169-170.) He explained all petrochemical plants or
refineries ,
because
they are considered high ris k
industries , have such orientations to maintain rigorous safety and health policies and procedures . (Tr.
169.)
Shortly thereafter, CSHO Guzun conducted an opening conference with Respondent supervisor Jose Gonzalez, Respondent corporate safety director Jhon Arias,
Respondent
Formosa site manager Dave Adams, and
Respondent
Formosa site safety
representative
Cody Hoffman. (Tr. 168-169, 223 , 312 ; Ex C-5 at 2 , Ex. C-3 at DOL 097 .)

At Formosa’s orientation
upon arriving at Formosa’s plant,
and during the opening conference with Respondent’s representatives, CSHO Guzun asked what type of personal protective equipment
(“PPE”)
requirements
were required
for him to enter Formosa’s plant . CSHO Guzun explained:

Because we going in so much industry and from one industry to another different employers require different PPE. We want to make sure we are protecting ourself when we going in somebody else premises. So after that they told me what kind of PPE they require for their plant o r
for their facility.

(Tr. 171.) CSHO
Guzun
testified that “they” told him , during orientation and after orientation during the opening conference,
that
he must have a “hard hat, safety glasses, steel toed shoes, FRCs,” and a safety vest in order to come
into
Formosa’s plant. (Tr. 171-172.)

After the opening conference, CSHO Guzun performed a walkaround inspection
of the worksite where the incident occurred . He took pictures and interviewed employees. (Tr. 172.) CSHO Guzun obtained signed interview statements from an unidentified informant, foreman Hernandez, and a signed joint statement from supervisor Gonzalez 8
and safety director Arias. (Tr.
315-317;
Ex. C-7.) CSHO Guzun explained he asked the workers questions, they answered the questions, CSHO Guzun wrote down what the workers said , and then CSHO Guzun told the workers to review what he wrote and then sign the statement at the bottom. (Tr.
283-285;
Ex. C-7.)

Interview Statements

The interview statements are a source of discord between
the parties because
much of
The Secretary ’s
case
–
for example, whether Mr. Hernandez
is a competent person as defined by OSHA regulations –
depends on a few sentences within them. (Tr.
429-432 ; Ex. C-7 .) The statements were admitted into the record as
CSHO Guzun’s record s of his regularly conducted inspection activity. (Tr.
181-183 .);
s ee
Fed. R. Evid. 801(d)(2); 803(6)
(a s to r ecords of a
r egularly
c onducted
a ctivity);
see also Beta Constr. Co. , 16 BNA OSHC 1435, 1441-1442 (No. 91-102, 1993) (noting that out-of-court, contemporaneous statements made by the employee to the OSHA compliance officer during the OSHA investigation are admissible).

While admissible, the statements
must still be
evaluated for their reliability. Beta Constr. Co. , 16 BNA OSHC at 1442 (holding that while admissible, the out-of-court, contemporaneous
statements made by the employee to the OSHA compliance officer during the OSHA investigation “should be given weight only to the extent they are reliable.”).

Although admissions under  Rule 801(d)(2)(D)  are not inherently reliable, there are several factors that make them likely to be trustworthy, including: (1) the declarant does not have time to realize his own self-interest or feel pressure from the employer against whom the statement is made; (2) the statement involves a matter of the declarant's work about which it can be assumed the declarant is well-informed and not likely to speak carelessly; (3) the employer against whom the statement is made is expected to have access to evidence which explains or rebuts the matter asserted.

Regina Constr. Co. , 15 BNA OSHC 1044, 1047-1048 (No. 87-1309 , 1991) citing 4 D. Louisell & C. Mueller,  Federal Evidence  § 426 (1980 & Supp.1990).

Multiple issues surround the statements ,
the most problematic of
which is
the y
appear
illegible
to anyone except CSHO Guzun, who wrote them . At the Court’s request , because the Court was having difficulty reading the interview statements ,
CSHO Guzun read them all entirely into the record. (Tr. 209- 222.) 9
As counsel for Respondent noted in his
examination of CSHO Guzun, it is questionable whether
anyone could read
th e
document s
when CSHO Guzun instructed them to “review it and sign the statements.” (Tr. 284.) Based upon
an examination of the interview statements, and the Court having them read into the record so it could understand
the content ,
the Court infers
it is highly unlikely
a n y
worker could have re viewed them and underst oo d the ir
content before they signed them .
Okland Constr .
Co ., 3 BNA OSHC 2023, 2024 (No. 3395, 1976) (reasonable inferences can be drawn from circumstantial evidence). “[T]he Commission may draw reasonable inferences from the evidence [.]”
Fluor Daniel , 19 BNA OSHC 1529, 1531 (No. 96-1729, 2001)
(consolidated)
(citing
Atl .
Battery Co ., 16 BNA OSHC 2131, 2159 (No. 90-1747, 1994)) . For this reason
alone , t he Court gives
little
weight to the
in terview statements .

Other issues
surround these interview statements. One,
CSHO Guzun jointly interviewed supervisor Gonzalez and safety director Arias, and they both signed
the
one
joint interview
statement as having read it .
( Tr. 313-316;
Ex. C-7 . ) However, it is not clear from the ir joint interview s tatement who said what to CSHO Guzun, and only Mr. Arias testified at the
trial
( and
not Mr. Gonzalez) . (Tr. 316-317.)
Two,
Mr. Hernandez
did not testify
at the
trial ,
and
he was not deposed before the
t r ial . ( Tr.
3 69- 377 );
see also
Sec’y Notice of Intent to Withdraw Motion to Enforce Subpoenas
dated
Dec. 2, 2021 ; Order
dated
Dec. 2, 2021 (order issued on motion for enforcement of subpoenas).
Three, t he Court notes th at the
i nterview
s tatement s
w ere
recorded two days after the incident took place . The Court
has taken
all
these issues
relating
to the
i nterview
s tatement s
into account when considering the weight
given
the evidence
for an issue .

Training

Both
Formosa
and
Respondent
required
safety
training
for the hazards that were typical
at the petrochemical plant. Formosa required all workers, including Respondent’s workers, to
attend Formosa’s own training regimen. (Tr. 383.) Formosa audits Respondent every year for
training documentation
of Respondent’s workers . (Tr. 383-384.) Formosa’s training
covered topics such as
chemical exposures, lockout/tagout, hazardous energy control, fall protection, confined space, hot work, hole watch attendant,
excavation,
and PPE usage. (Tr. 383.) Formosa’s
training is computer- based,
an d Respondent required a passing grade from all of its workers before they could perform the re levant job duties. (Tr.
74,
384-385.) Respondent
also
provided
general safety
training via the provider PAYCOM. (Tr. 9 0 ,
384, 412-413 .) The training through PAYCOM was computer-based and included
topics such as PPE and fall protection in construction environments. (Tr. 90-92.)

Respondent also
required
safety
training
for specific crafts, including scaffolding .

(Tr. 388.) Respondent’s
scaffold builders , in addition to th e training
provided by Formosa,
were expected to
attend and pass
training provided by the
N ational
C enter for
C onstruction
E ducation (NCCER) , which, according to Respondent, goes “above and beyond” the training provided by Formosa.
(Tr. 388,
390 ; Ex. R-10 .) Those
employees
which
completed the
NCCER
scaffolding
course and passed
were deemed a “competent person” by both Respondent and Formosa. (Tr. 389.) Those
workers
that
were issued an NCCER car d had to complete “performance verified tasks” that included :

dismantle a tube and coupler scaffold . Safety for tube and coupler scaffold, he wo u ld’ v e had to
ev aluate and inspect the jobsite to set up the scaf f old, select and inspect system scaffold components, safety erect the scaffold system, inspect a completed scaffold system, and dismantle a complete scaffold.

(Tr. 408
(Mr. Arias
quoting Ex. R-10 ) .)
According
to the NCCER program
description , “all performance ver i fications have been developed and approved by subject matter experts from the respective craft.” (Ex. R-10 .)
According to
Mr. Arias ,
to achieve the
NCCER Plus
designation , a n instr uctor visually watches the student erect a scaffold and me e t the requirements of the performance verification using
actual materials and equipment. (Tr. 406.)
Mr. Arias did not take this training. (Tr. 455-456.)

SG ,
Mr. A brego, Mr. Lopez,
Mr.
Gonzalez,
and
Mr. Hernandez
all
took the Formosa and PAYCOM computer-based training.
Mr.
Hernandez, Mr. Gonzalez, and even Mr. Abrego
were designated NCCER Plus, meaning they were trained in scaffolding through NCCER
and therefore deemed
to be
a “competent person”
by Formosa and Respondent
on
the
worksite with regard to scaffolding .

(Tr. 390, 401-412, 419-421, 455.) Respondent
also
provided in-person training in the form of daily safety meetings with all types of craftsmen, where everyone would discuss general safety topics for scaffolding,
welding,
and pipefitters; and
also,
daily crew meetings, where
crew members discussed safety topics for their task that day like drinking water and ensuring PPE was working properly. (Tr. 111-113.)

As an example of in-person training,
SG testified that
while
his computer-based training covered scaffold topics, his training specifically for building the hooch came
directly
from
Mr. Hernandez : “If we had any questions or know how to build it haven’t ever building the one he would explain to us how the process goes.” (Tr. 139-140.) SG testified
Mr. Hernandez
gave training and direct instructions to the team on how to build the skeletal structure. (Tr. 78.) SG explained a hooch
is
a “similar to a complete scaffold. It’s just not 100 percent complete. So on the [computer-based] training it’s not going to tell you specific a hooch [.]
It just tell you build a scaffold.” (Tr. 142.)
Mr. Hernandez documented a morning crew meeting regarding the hooch assembly on the day of the incident in the JSA in which he
designated scaffold hazards. (Tr. 114-119; Ex. R-5.)

SG testified in the time he worked at the Formosa plant,
six months,
he had built hundreds of scaffolds throughout the plant. (Tr. 50.) SG testified he had four and a half years of experience building scaffolds, and everyone else on his team had more experience than he had. (Tr. 83.) No
sworn
testimony from
Mr. Abrego, Mr. Lopez, Mr. Gonzalez,
or
Mr. Hernandez
is in this record.

PPE

CSHO Guzun entered Formosa’s plant with the impression, based on the safety orientation he went through at Formosa’s gate and his opening conference, that all workers must wear FRC at the plant at all times. (Tr. 293-294.) He stated the workers walk from unit to unit, from one project to another; and in the case of “a potential explosion or release of the chemical, you have downwind,
you can have upwind directions of the wind
[, and] an adequate FRC will be the best FRC in case something happen.” (Tr. 294-295.)

According to the testimony in t he record , however,
Respondent required its workers to wear FRC in the live area, but not the non-live areas. For example, S G
testified he
was required to wear FRC
when
working
in
a
live area, which w as
three-fourths
mile away from the non-live unit where he w a s working on the day of the incident. (Tr.
61 , 72 ,
75,
111.)
SG
explained he wore the
FRC
that morning because, in the event he was called to a live worksite, he would not have to take the time to change into
FRC . 10
(Tr. 149-150.) Similarly, Mr. Arias testified
consistently with SG
that Respondent required FRC in live areas only. ( Tr.
320 , 414 .)

In terms of fall protection,
Respondent’s employees were expected to
follow Respondent’s 100% tie-off rule:
“ a n employee is better to be tied off 100 percent.” (Tr. 360-36 1.) This 100% tie-off rule was communicated during on-site safety crew meetings as well as worksite JSAs. (Tr.
76-77; Ex. R- 5 at 1 “100% tie off at all times”).

SG and Mr. Arias testified consistently Respondent provided PPE, including fall harness es
and FRC coveralls,
to its workers. However, if workers preferred to wear their own PPE, workers were allowed to purchase
(through a payroll deduction)
and bring their own preferred
private
PPE
as long as it
“meets all the credentials.” (Tr.
81-82,
338-340,
424-425.) Respondent’s inspection procedures of company-owned and employee-owned PPE
are discussed below.

V. Discussion

A.
Applicable Law

i. The Secretary ’s
Prima Facie
Case

When th ere has been a violation of any specific OSHA regulation, such as the alleged
violations in the instant case, such violation constitutes violation of the “special duty clause” of the Act, 29 U.S.C. § 654(a)(2).

Sw. Bell Tel. Co. v. Chao,
No. 00-60814,
2001 WL 1485847, at *4 (5th Cir. Nov. 15, 2001) (unpublished) .

Under
the law of the
Fifth
Circuit where this case arose , 11
“[t]o establish an employer has violated a regulation, the Secretary has the burden to prove (1) ‘that the cited standard applies’; (2) that the
employer has not complied with the cited standard; (3) that employees have ‘access or exposure to the violative conditions’; and (4) ‘that the employer had actual or constructive knowledge of the conditions,’ i.e., that it actually knew of the conditions or, with the exercise of reasonable diligence, should have known. ”
S .
Hens, Inc. v. O SHRC , 930 F.3d 667, 675 (5th Cir. 2019) (quoting
Sanderson Farms, Inc. v. Perez , 811 F.3d 730, 735 (5th Cir. 2016)) ;
Atl .
Battery Co ., 16 BNA OSHC
at
2138 .

ii. Secretary’s
Burden of Proof

The Secretary
has the burden of establishing each element by a preponderance of the evidence.

Sanderson Farms, Inc. v. Perez,
811 F.3d
at 735;
Hartford Roofing Co ., 17 BNA OSHC 1361, 1365-66 (No. 92-3855, 1995). Preponderance of the evidence has been defined as:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Preponderance of the
evidence,
Black’s Law Dictionary,
(10th ed. 2014).

At trial,
the Secretary
brought to the Court’s attention Respondent failed to produce documents which would have assisted him in meeting his burden.

(Tr.
323,
433-443 ) .
Yet, the Court notes
the Secretary
failed to avail himself of the remedies provided under Commission Rule
52 and Fed eral Rule of Civil Procedure
37 which would have compelled Respondent to produce those documents. In addition,
the
Secretary
did not take the deposition of a crucial and mai n
witness in this case – Mr. Hernande z
– who
the Secretary
alleges was
not
a competent person and
who
was the person directing and supervising the work of the crew in assembly of the hooch
project . Finally, while
the Secretary
did identify Mr. Hernandez as
a witness to be called at trial and served a subpoena on him, when Mr. Hernandez failed to show for the trial,
the
Secretary
made an oral motion to enforce the subpoena at the end of the trial only to then withdraw th e
motion to enforce after trial. (Tr. 369-377);
see also
Sec’y Notice of Intent to Withdraw Motion to Enforce Subpoenas
dated
Dec. 2, 2021; Order d ated
Dec. 2, 2021 ( O rder issued on
M otion for
E nforcement of
S ubpoenas).

Failure of
the Secretary
to be diligent in pursuit of discovery ,
which would assist him in meeting his burden of proof to establish violation s
of the standards cited,
does not excuse
him
from meeting his burden required under the law. In essence, even if
the Secretary
demonstrated good faith reasons for its lack of diligence and pursuit of available rem e dies (which he did not do here), it would not excuse or lessen
his
burden to prov e
his case by
the
preponderance of the evidence. As noted below,
the Secretary,
in every cited standard, failed to meet his burden to establish a violation of the cited standard s . A different conclusion may have been
dictated if due diligence had been pursued by t he Secretary . The Court has no power ,
or the patience ,
to grant relief to
the Secretary
for non-performance of Respondent
during the discovery phase
(if indeed established which that fact has not) during the course of the trial for which remedies could have been obtained
by
the Secretary
during the discovery phase of this case. See, e.g.,
No. 19-0550,
UHS of Denver, Inc., d/b/a Highlands Behav. Health Sys. , 2022 WL 17730964, at *3 ( OSHRC,
Dec. 8 , 2022) (holding post-hearing requested adverse inference was in line with a discovery sanction which should have been, but was not, handled during discovery, and setting aside adverse inference finding in that regard).

B. Threshold
Findings

Two issues the parties dispute affect more than one
citation item. The Court addresses those issues
as a threshold matter here.

1. The Skeletal Structure : A
   Scaffold Under Erection

As an initial matter, the Court finds the skeletal frame
Respondent’s
workers were building
during the hooch project
is a scaffold as recognized under OSHA’s scaffolding standards found at 29 C.F.R. §  1926.450. The record establishes
Respondent ’s workers used wooden planks , elevated at
seven
feet above the ground,
and which were
supported by
the skeletal steel structure , to support the workers as they built up the hooch.

Auer
v. Robbins
instructs
that
courts must defer to an agency’s construction of its own regulation unless that interpretation is “plainly erroneous or inconsistent with the regulation.” Auer v. Robbins , 519 U.S. 452 , 46 1
(1997) ;
Bowles v. Seminole Rock & Sand Co ., 325 U.S. 410 , 414
(1945).

T he Supreme Court emphasized that
Auer
does not apply unless the regulation is “genuinely ambiguous” meaning it does not lend itself to a single correct interpretation after a court exhausts all traditional tools of construction by considering the text, structure, history, and purpose of the regulation. Kisor v. Wilkie ,
588 U.S. ______,
139 S. Ct. 2400, 2414 (2019) . Thus, nothing in
Kisor
changes the Commission’s longstanding approach to regulatory interpretation:
“ begin with the text of the regulation, and if the meaning is clear, look no further. ”
See Scalia v.
Wynnewood Refining Co., LLC ,
978 F.3d 1175, 1181 ( 10 th
Cir.
2020) ;
s ee also Mitchell v. Comm’r , 775 F.3d 1243, 1249 (10th Cir. 2015);
c . f .
Callahan v. U. S. Dep’t of Health and Human Servs , 939 F.3d 1251, 1259 n.9, 1262 (11th Cir. 2019)
(noting, post- Kisor , that courts need not “consult extra[]textual evidence concerning ‘history’ and ‘purpose’” of regulation where “text is clear”; explaining that “ Kisor
itself disclaims any groundbreaking”).

Th e
skeletal
scaffold
structure
at issue in this case , and its
wooden planks ,
fall squarely
within the definition s
of “scaffold” and “platform” as
set forth in OSHA scaffold standard 29 C.F.R.   §   1926.450(b)(“Definitions”). 12

The cited regulation is clear on its face and is not ambi guous
i n this
regard .

Respondent
then argues if the hooch is a
s caffold, then
this matter is not a scaffold “use” case, it is a scaffold “erection” case. (Resp ’t Br.
4,
7, 10, 13 . ) According to Respondent, the cited standards apply only to
workers “using”
completed scaffolds , not to
workers
“ erecting ”
s caffolds
which Respondent claims is the case here. As
such, Respondent argues
the Secretary
failed to establish the
cited
standards
applied
to Respondent’s
worksite
for Citation Items
1(a),
2(b), 3(a)
and 4(a). 13

The Secretary
does not address this argument in his brief. At
trial ,
however,

he
stated ,
“the dispute here [is]
w h e n
it actually became a scaffold.” (Tr.
450)
(emphasis added). CSHO Guzun testified, “they build already th e
first section of the scaffold. They was working in that section to build the second section. So they was working in the first section of the sc affold .” (Tr. 232.) T he Court finds the
parties have litigated
whether
the first level platform
of the skeletal
scaffold
structure
was a completed scaffold
or whether the skeletal
scaffold
structure as a whole was
under erection.

See
Fed .
R .
Civ .
P .
15(b)(2)
( provid ing
that “issues litigated by express or implied consent are ‘treated in all respects as if they had been raised in the pleadings,’ and any relevant amendments of the pleadings may be made upon any party ’ s motion ‘at any time, even after judgment.’” );
see also
Nat ’ l Bus. Forms & Printing, Inc. v. Ford Motor Co ., 671 F.3d 526, 538 (5th Cir. 2012) (citing Fed.
R.
Civ.
P. 15(b)(2)) ;
Zenergy, Inc. v. Performance Drilling Co ., 603 F. App ’ x 289, 292 (5th Cir. 2015)
(unpublished)
(same) .

The Court finds the skeletal
scaffold
structure as a whole
was under erection at the
time
of the incident.

The Court notes 29 C.F.R. § 1926.451(f)(“Use”) includes, as one of its
sub - standards
( and indeed is one of the standards cited in this case
(Item
3(b)) ,
requirements for how a scaffold shall be “erected, moved, dismantled, or altered [.]” 29
C.F.R. § 1926.451(f)(7).
When the regulations are read as a whole, again, the Court finds it is clear and not ambiguous.
Therefore, the Court finds that scaffold
“ erection ”
is a type of scaffold
“ use. ”
Am. Fed ’ n of Gov't Emps., Local 2782 v. FLRA , 803 F.2d 737, 740 (D.C. Cir. 1986)  (“[R]egulations are to be read as a whole, with each part or section ... construed in connection with every other part or section”) (internal citation omitted) .

Re- enforcing
the Court’s
finding the regulations at issue are clear and no t
ambiguous , the
Court has located the following
language regarding
the
scaffold erection
process
from OSHA
in a letter of interpretation
in which
OSHA finds the regulation clear and not ambiguous.

Would moving work platforms, (including outriggers (buck boards), or scaffold planking) from a second level to higher levels be considered erection and dismantling requiring employers to comply with Subpart L's §1926.451(e)(9)(i) and (iii)?

…

[ M] oving, altering, removing, reassembling or reconstructing scaffold components/parts is considered part of the erection and dismantling processes , requiring employers to comply with the provisions of §1926.451(e)(9) introductory text and (i) through (iv).

See
Dep’t
of Labor ,
L etter of Interpretation ,
“ Clarification of requirements for construction scaffold erection/dismantling; safe means of access; blocks for two-point suspension scaffolds , ”
(Jan 2, 2002)
(emphasis added)
(“January 2002 LOI”) .

With regard to the skeletal scaffold structure
for the hooch project , t he record establishes that, once SG was finished with the first level of the platform , the wooden plank
he was standing on
was to be
“ removed ”
at that time. (Tr. 81) ; (January 2002 LOI).
The Secretary
has not addressed this
issue
either in its post - trial brief .

All the record evidence indicates the workers were intent on building up the skeletal structure; in no way was any part of
the skeletal
scaffold
structure
considered “complete”
at the time of the incident.

(Tr. 79-80, 433.) Therefore, the Court finds the skeletal
scaffold
structure , including the scaffold platform that SG was standing
on when it broke,
was
in the process of being
erect ed
at the time of the incident.

The Court notes, however,
the
determination of the
applicability of
a
cited standard
is more than a simple
“ use ”
or
“ erection ”
analysis. Under Commission precedent, “the focus of the Secretary's burden of proving the cited standard applies pertains to the cited conditions, not the particular cited employer.”
Ryder Transp. Servs. , 24 BNA OSHC 2061, 2064 (No. 10-0551, 2014)
(concluding “that the Secretary has failed to establish that the cited general industry standard applies to the working conditions here”);
KS Energy Servs., Inc.,
22 BNA OSHC 1261, 1267 (No.
06-1416, 2008)(finding “the cited ... provision was applicable to the conditions in KS Energy's traffic control zone”),
aff'd , 701 F.3d 367 (7th Cir. 2012);
Active Oil Serv., Inc.,
21 BNA OSHC 1092, 1094 (No. 00-0482, 2005)(finding “that the confined space standard applies to the cited conditions” because “the vault was a confined space”);
Arcon, Inc.,
20 BNA OSHC 1760, 1763 (No. 99-1707, 2004)
(“In order to establish a violation, the Secretary must show that the standards applied to the cited conditions.”)

While upon completion of the project the hooch would not be classified as a completed scaffold, until the hooch
was
completed the steps and conditions leading to completion of the hooch are considered elements of scaffold erection since Respondent uses scaffold techniques to accomplish the finished project. As such, all of the Citation Items derive from Title 29, Subpart B, Chapter XVII, Part1926, Subpart L. This subpart applies to all scaffolds used in workplaces covered by this part.

29 C.F.R. § 1926.450(a). As determined above, the hooch
project structure
has been determined to be a scaffold in the erection phase
(which is a type of “use”)
and the cited regulations
generally
apply to each scaffold violation. Nevertheless ,
t he Court will analyze each cited regulation on applicability addressing the arguments of the
p arties on the question of whether the cited regulation applies
to the specific alleg ed violative conditions .

2. Competent Person :
   The Secretary’s
   Failure to Carry
   Burden of Pr o of

One of the central issues in this case is whether
the Secretary
has established, by preponderance of the evidence, that Mr. Hernandez was
not
a “competent person” as defined by the cited OSHA regulations. The Secretary
bears the
burden to prove Mr. Hernandez
did not
meet the requirements of a “competent person.” S .
Hens, Inc. v. O SHRC , 930 F.3d
at
675 . As it is
Secretary’s
burden,
he
must set forth
some affirmative evidence
and cannot rely on
a lack of evidence to meet the preponderance of evidence standard. On this issue,
the Secretary has
failed
to carry his burden
to establish Mr. Hernandez was
not
a competent person for the purpose
of determining compliance with the cited regulations.

The relevant regulation provides that a:

Competent person
means one who is capable of identifying existing and predictable hazards in the surroundings or working conditions which are unsanitary, hazardous, or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them.

29 C.F.R. § 1926.450(b)(“Definitions”). Regarding
29 C.F.R. §
1926.451(f)(3), the preamble
to the final rule
provides:

[T]” he Agency notes that the criteria for a “competent person” depend s
on the situation in which the competent person is working. For example, a “competent person” for the purposes of this provision must have had specific training in and be knowledgeable about the structural integrity of scaffolds and the degree of maintenance needed to maintain them. The competent person must also be able to evaluate the effects of occurrences such as a dropped load, or a truck backing into a support leg that could damage a scaffold. In addition, the competent person must be knowledgeable about the requirements of this standard. A competent person must have training or knowledge in these areas in order to identify and correct hazards encountered in scaffold work .

Safety Standards for Scaffolds Used in the Construction Industry, 61 F ed.
R eg.
46026 ,
46059 ( to be codified at 29 C.F.R. pt. 1926 ). OSHA has also issued a letter of interpretation regarding the requirements of a competent person:

Thus, successful completion of a course does not, alone, necessarily establish an individual as a
‘ competent person ’
for a number of reasons. By its terms, the definition of a
‘ competent person ’
compels the employer to select an employee based upon his or her
capability
to identify hazards. The course may not be sufficiently comprehensive with respect to the information needed to meet the knowledge requirement in the definition. Remember that the type and extent of the knowledge will vary with what is necessary to successfully perform the task required of the competent person in the standard. Also, the course may not adequately test the employee's
understanding of the course material.

Finally, the definition of a competent person requires the individual to have the authority to take prompt corrective action. No course can provide that authority, since it can only be provided by the employer.

OSHA Interpretation Letter ,
Re: Requirements for being designated a competent person under Part 1926 Subpart L (Scaffolds), June 17, 2005
( emphasis in original). Simply stated a competent person is one:  

1. Who knows the hazards existing and likely to exist;

2. Knows how to control or eliminate the hazards; and

3. Has been given the authority to promptly correct the hazards and does.  

The Court determines, at a minimum,
the Secretary
must
establish Mr. Hernandez did not , for the purpose of the scaffold regulations, satisfy
the
requirements
as to
what is included in the training regulations for scaffolds found at 29 C.F.R. §  1926. 454
(“Training requirements ”). Understanding of the
scaffold training requirements are necessary for Mr. Hernande z , as a competent person ,
to ma k e the
determi n ations a competent per s on in scaffolds must make . A person cannot be deemed a competent person under the scaffolding regulation unless he possesses at least knowledge of the scaffolding requirements. The Court also determines, with regard to the
skeletal scaffold structure for the
hooch project,
the Secretary
must also establish that Mr. Hernandez did not
know the hazards likely to exist – namely, fall
hazards and scaffold material (i.e., the wooden plank) failure.

Superior Masonry Builders, Inc. , 20 BNA OSHC 1182, 1188-1189 (No. 96-1043, 2003)
(holding that
lead laborer was not instructed about specific hazards to enclosed scaffold and there fore
was incapable of identifying hazard) .
Again, the Secretary
has failed to meet this burden.

The Secretary has
proffer ed
affirmative evidence
in the form of the interview statements
to support his contention that Mr. Hernande z was not a competent person in scaffolding . As noted above, the interview statements
have issues regarding their reliability
which affect this factual finding. The Secretary
relies heavily on the statement attributed to Mr. Hernandez where he
allegedly
states:

I’m a competent person for building scaffolds for this company. I’m a competent person for about one year. The Safety Council of Port Lavaca provided me with the computer-based trainings to be a competent person. The hands-on training as a competent person I got for one day about a year ago provided by the City of Victoria. My company management never provide me a company hands-on training on how to inspect the scaffolding materials (for scaffold building purpose) . . . we did not spend too much time to inspect the scaffolding materials. Nobody from my company trained me that the inspection of the scaffold have to be planked at the working area.. . . I think I did not have enough training as a competent
person….

( Sec’y Br. 29 citing
Tr. 2 18-219; Ex.
C-7 at DOL 86-87 . )

The
Secretary
asked Mr.
Arias
the following regarding
Mr. Hernandez ’s statement: “what do you make about him calling his own qualifications as a competent person into question?” (Tr. 421.) Mr. Arias testified he did not remember
Mr. Hernandez
stating his training was not sufficient to be deemed a competent person
in scaffolds . (Tr. 421.) Mr. Arias testified
Mr. Hernandez
had worked for Respondent for eight years, never once had any kind of violation with safety and never before shown a disregard of safety. (Tr. 423-424.) He testified that “this is an accident of [ Mr. Hernandez ] not being able to see something inside of a board,” and the allegation, if true, would be an “intentional” or “criminal” act because
Mr. Hernandez
himself placed the board for SG to walk on after visually looking at it. (Tr. 423.) He testified he did not believe
Mr. Hernandez ’s act was intentional. (Tr. 423.)
When challenged by
the Secretary
for implying that CSHO Guzun made up Mr. Hernandez’s statement, Mr. Arias conceded he had no reason to doubt Mr. Hernandez would make that statement. (Tr. 427.)

As noted above, CSHO Guzun interview ed
Mr. Hernandez two days after the incident. 14 It is
apparent
to this Court Mr. Hernandez ha d ample
time to think about his liability, as
Mr. Arias
testified, regarding the incident ,
especially since he was responsible for placing the wooden plank
on which SG walked and from which
SG
fell and sustained his serious injuries. Mr. Hernandez ,
therefore ,
had
time to realize his own self-interest , thus affecting the reliability of this aspect of his interview statement. Regina Constr. Co. , 15 BNA OSHC
at
1047-1048 .
The Secretary
does not address this even though Mr. Arias raised this possibility at
trial .

The re mainder
of
the Secretary ’s
arguments on this issue are
also not persuasive. He
criticizes Respondent ’s
training records
claiming they do
not illustrate the requirements of the scaffold training regulations and
they
do not demonstrate Mr. Hernandez’s capability to identify and control hazards. (Sec’y Br. 29.) However,
the record , though thin, establishes the scaffolding training
Mr. Hernandez took
through NCCER was established by “subject matter experts,” and included in-person performance verification tasks. (Tr. 408; Ex. R-10.) To
achieve the NCCER Plus designation,
which Mr. Hernandez did,
an instructor visually watches the student erect a scaffold and meet the requirements of the performance verification using actual materials and equipment. (Tr. 406.) N owhere does
the Secretary
proffer any affirmative evidence Mr. Hernandez was
not
a competent person
as defined by OSHA regulations .

Further, the Secretary
criticizes the fact Mr. Arias had not taken the NCCER scaffolding training. “It is hard to imagine how an employer can verify an employee’s qualification to be competent person based on a training it never took.” (Sec’y Br. 31.) But Mr. Arias is not a scaffold builder
and
is not the individual who was designated as the competent person at this worksite . The Secretary
had the opportunity to gather testimony from someone who had taken the
NCCER
training but failed to pursue that opportunity. The cited standards require
the
Secretary
to carry this burden of proof with regard to Mr. Hernandez
–
not Mr. Arias.

The Secretary
cannot
vicariously
impute
the lack
of
scaffold training of
Mr. A rias to Mr. Hernandez when the record demonstrates otherwise.

Additionally, a s
discussed
infra ,
the record establishes :
(1)
Respondent
designated
Mr.
Hernandez a competent person because he had a NCCER Plus certification
– which includes in person performance verification , (2)
Mr.
Hernandez selected the team members for the hooch project, (3) Mr. Herna n dez provided
in-person specific
hooch instructions to the team members
before beginning work on the hooch , (4)
Mr. He r nandez filled out the JSA – including fall hazards
– for the hooch,
(5) Mr. Hernandez visually looked at the scaffold materials
for the hooch
before passing them up to SG,
in accordance with Respondent’s scaffold building policies,
( 6 ) SG r ecognized Mr. Hernandez as
being the “foreman”
for the hooch project ,
and
( 7 )
a ll of the other hooch team members were more experienced in scaffolding than SG, who had 4 and a half years of experience building scaffolds. (Tr. 60 , 62 , 65 , 78,
83,
98 -99 ,
130,
140 , 367 ,
411-412,
420 ; Ex. R-5 );
Superior Masonry Builders, Inc. , 20 BNA OSHC
at
1188-1189 .

T he Court determines
that
the Secretary has
failed to prove Mr.
Hernandez
was
not
a competent person in scaffolds b y
preponderance of
evidence. T he record evidence supports a finding Mr. Hernandez
was a competent person as defined by OSHA regulations
to act in the scaffolding arena . This ruling
affects
Citation 1, Items
2(b),
3 (a) , 3(b),
and 4(a) .

C. Citation 1, Item 1 (a)
– The
A lleged
Employer Provided PPE
V iolation

Citation 1, Item 1(a) alleges a serious violation of 29
C.F.R.
§ 1926.20(f)(1), which provides:

(f)
Compliance duties owed to each employee
– (1)
Personal protective equipment . Standards in this part requiring the employer to provide personal protective equipment (PPE), including respirators and other types of PPE, because of hazards to employees impose a separate compliance duty with respect to each employee covered by the requirement. The employer must provide PPE to each employee required to use the PPE, and each failure to provide PPE to an employee may be
considered a separate violation.

The Secretary
alleges Respondent violated
2 9
C.F.R. §
1926.20(f)(1) in the following manner: “At this establishment, the employer did not provide personal protective equipment to each employee required to use the personal protective equipment, when employees were assigned to work with and around scaffold, fall hazards and hazardous materials. 15 ” (Citation at 6).
The Secretary further
states
OSHA cited Respondent for a violation o f
this standard “because, during employee interviews, [Respondent] employees stated they purchased their own FRCs and harnesses while employed with [Respondent].” (Sec’y Br. 12.)

a.
Does the
Regulation
Apply?

Under Commission precedent, “the focus of the Secretary's burden of proving that the cited standard applies pertains to the cited conditions, not the particular cited employer.”
Ryder Transp. Servs. , 24 BNA OSHC
at
2064 (concluding “that the Secretary has failed to establish that the cited general industry standard applies to the working conditions here”);
KS Energy Servs., Inc.,
22 BNA OSHC 1261, 1267 (No. 06-1416, 2008)
(finding “the cited ... provision was applicable to the conditions in KS Energy's traffic control zone”),
aff'd , 701 F.3d 367 (7th Cir. 2012);
Active Oil Serv., Inc.,
21 BNA OSHC 1092, 1094 (No. 00-0482, 2005)
(finding “that the confined space standard applies to the cited conditions” because “the vault was a confined space”);
Arcon, Inc.,
20 BNA OSHC
at
1763 (“In order to establish a violation, the Secretary must show that the standards applied to the cited conditions.”)
While upon completion of the project the hooch
would
not be classified as a completed scaffold,
until the hooch is completed
the steps
and
conditions
leading to completion of the hooch
are considered elements of
scaffold
erect ion since Respondent uses scaffold techniques to accomplish the finished project. As
noted above ,
a ll of the Citation Items derive from
Title
29,
Subpart B, Chapter X V II , Part
1 9 26, Subpart L. This subpart applies to all scaffolds used in workplaces covered by this part.
2 9
C.F.R. § 1926.450(a).

As determ ined above, the hooch
project structure
has been determined to be a scaffold
in the erection phase and the cited regulations
generally
apply to each scaffold violation.

As an initial matter
as it relates to this Citation Item ,
the Secretary
has not
explained
how this
standard applies
to Respondent’s workers on the skeletal structure at issue
at the
non-live area
at the Formosa plant .

The Secretary
claims
the standard applies because Respondent “performed work at the [Formosa] petrochemical plant in Port Co m fort, Texas” citing section 1926.20(c). 16 (Sec’y Br. 12.) The cited
standard, however,
requires
in pertinent part
employers “must provide PPE to each employee
required to use
the PPE [.]” 29
C . F . R .
§ 1926.20(f)(1)
(emphasis added) . Respondent
claims
the cited standard does not apply because
fall protection and FRC
PPE
were not required
by Respondent
at th e
stage of the project
at issue
–
the workers were at
a height
less than 10 feet and they were
three-fourths mile away from a live area of the Formosa plant , where FRC was required
by Respondent . (Resp’t Br.
2-5.)

Respondent
fails to
understand there is a distinction between whether or not a cited regulation applies
and, if so, whether it was violated.
The two requirements are distinct from each other.

The Court
nevertheless
finds that the standard is applicable
to the cited conditions . The Commission has
analyzed OSHA’s PPE
requirements within it s
construction standards
in con junction
with each other . Custom Built Marine Constr. Co. ,  23 BNA OSHC 2237, 2239 (No. 11-0977, 2012) ( holding that
“certain personal protective equipment standards in Part 1926, Subpart E, may not explicitly specify that use of such equipment is required, but  §   1926.28  makes clear that those standards do impose a use requirement if they ‘indicate the need for using such equipment to reduce . . . hazards,’ and if employees are in fact exposed to hazardous conditions”) (citing   Turner Communic ’ns
Corp. v. OSHRC,  612 F.2d 941 (5 th
Cir. 1980) ) ;
see also
Am. Fed ’ n of Gov ’ t Emps., Local 2782 v. FLRA , 803 F.2d
at
740
(regulations are to be read as a whole) .

The scaffold fall protection standard, which
the Secretary
argues also applies to Respondent’s worksite, requires fall protection
in two instances:
at 10 feet when the scaffold is in use, and at the discretion of the competent person when the scaffold is under erection. 29 C.F.R.
§  1926. 451(g)(1), (2). 17
Contrary to Respondent’s arguments, t he record establishes even though Respondent’s workers were only at
seven
feet
in heigh t
at
the time of the incident, the workers were fully expecting to
eventually
work up to 18 feet in height .
SG wore his harness and tied off,
in accordance with Respondent’s 100
percent tie-off policy
and with what Mr. Hernandez required in the JSA ,
once
SG
reached the
seven-foot-high
plank. (Ex. R-5.) Additionally,
again contrary to Respondent’s arguments,
SG wore his FRC even though he was not working
i n a live
area ,
also
i n accordance with what Mr. Hernandez indicated
was required
in the JSA . SG testified that he
could be expected to go to a live site, where he could be exposed to flammable hazards, during the day. The Court finds that these facts triggered the
requirement of fall protection
and FRC PPE on Respondent’s worksite
as they show what Respondent required as well as a potential exposure to
the relevant
hazardous condition s .
Custom Built Marine Constr. Co. ,  23 BNA OSHC
at
2239 . Accordingly, the cited standard applies.

b.
Was the
Regulation
Violated?

Respondent
argues
even if the standard applies, Respondent complied with it because it did provide company-issued fall protection harnesses and FRC to it workers. (Resp’t Br. 5.)
While
the Secretary
cherry-picks
excerpts
from SG ’s testimony and the confidential employee’s statement, which indicate
some
workers bought their own PPE,
he
fails to address
the undisputed evidence in the record that
estab lished , while
e mployees were free to purchase and wear their own PPE as long as it met company requirements,
Respondent provided t h e required PPE
(including harnesses and FRC)
in the tool rooms for workers to pick up on their w ay
to the ir
jobs tasks. Mr. Arias testified CSHO Guzun’s allegations were based on opinions by “somebody who had never worked in this environment.” (Tr. 423-424.) For example, Mr. Arias testified, contrary to CSHO Guzun’s testimony, “[w]e do provide FRCs for our employees. But our employees have the right to buy their own FRCs,” and similarly, the same for harnesses. (Tr. 424-425.)

The Secretary
relied heavily on the interview statements
to
which the Court , as previously stated,
gives
no
or very little
weight.

The Court
is troubled
the Secretary
jumped to the conclusion
Respondent
did not provide the required PPE simply
based
on the
fact that some employees bought their own PPE. The Secretary
would have been be tter
served if he focused on the plain requirement of the cited regulation
–
whether
Respondent provide d
the
required
PPE to those employees who did not purchase their own. He
offered no proof to support this
prima facie
element
of the regulation.

He
claims
Respondent
did not
offer evidence of company-issued harnesses and then
c laims that “PMI records show that it only offered harnesses to
employees
for a fee.” Id . As noted above, Mr. Arias explained Respondent’s
company-issued
common
PPE
is
located in the tool rooms for workers to use. Mr. Arias explained Respondent will purchase
private PPE for its employees via a payroll deduction, but that does not mean Respondent never provided
common
PPE . (Tr. 338-340.) He
did not address any of this record evidence. He
also does not claim common PPE is
insufficient.

The Secretary
has therefore failed to establish non-compliance with the cited standard.

Citation 1, Item 1(a)
is
VACATED.

D. Citation 1, Item 1 (b)
– The Alleged
Employee-Owned
PPE Violation

Citation 1, Item 1(b) alleges a serious violation of 29
C.F.R.
§ 1926.95(b), which provides:

(b)
E mployee-owned equipment. Where employees provide their own protective equipment, the employer shall be responsible to assure its adequacy, including proper maintenance, and sanitation of such equipment.

The Secretary
alleges Respondent violated
29 C.F.R. §
1926.95(b) in the following manner: “At this establishment, the employer did not assure that employee-owned equipment was adequate and safe to use, when employees were assigned to work with and around scaffold, and exposed to fall hazards and hazardous materials.” (Citation at 7).
The Secretary
states OSHA cited Respondent for a violation of this standard “because, during employee interview, [Respondent] employees stated that [Respondent] did not inspect their FRCs and harnesses for adequacy.” (Sec’y Br. 18.)

a .
D oes the Regulation Apply?

As discussed above in the analysis for C itation 1, Item 1(a), the Court finds the cited standard applies
to this
worksite .
Respondent’s employees were free to
bring
their own PPE, and
since
SG
brought
his own fall harness
and FRC
on the day of the incident ,
Respondent was
therefore
obligated to assure its workers’ PPE w ere
adequate, including proper maintenance, and sanitation of such equipment.

a.
Was the Regulation Violated?

The Secretary
relies solely on employee interview state ments
to
which the Court previously stated it was giving
little to
no w e ight.

The record , however,
establishes Respondent had procedures in place to regularly inspect employee-owned and company-owned fall protection harnesses
to assure they were adequate . Mr. Arias testified
employees
were responsible for bringing their own
harness es
to the tool room
for inspection. (Tr. 354.) Mr. Arias testified harnesses go through a monthly and quarterly inspection process that is documented using a color-coding system. (Tr. 354-355.) At
trial , Mr. Arias described the harness SG wore on the day of the incident and shown in CSHO Guzun’s photographs that he took during his inspection. 18 (Tr. 354-355.) Mr. Arias explained the different colored pieces of tape on the pelican hooks on SG’s
own
harness indicated either a safety representative or a tool room attendant that had been instructed on the functions of harnesses had verified that
SG’s own
harness could retract, opened up properly, and was free of tears, wear, and damage. (T. 172-173, 354-359; Ex. R-32 at DOL - 141). This testimony
remained unrebutted by
the Secretary
during the trial.

SG knew about this monthly and quarterly color-coding inspection process for his
own
harness. (Tr. 122-124) (describing his harness pictured in Ex. R-32 at DOL - 141.) According to SG, one color of tape indicates the monthly inspection was successfully completed and the other color of tape indicates the quarterly inspection was successfully completed. (Tr. 124.) SG also confirmed he inspects his own harness every day by putting it on, stretching it out all the way down and retracting it back. (Tr. 122.)

This testimony remained unrebutted during the trial. In addition,
the Court notes the discredited interview statements contain no inquiry by the CSHO into this line of testimony. The Secretary taking
an employee’s statement as
carte
blanche
evidence
to determine there
was a violation , without further due inquiry, ultimately is fatal to
his

case
with
regard to this Citation Item.

Mr. Arias
also
testified Respondent had similar procedures in place to regularly inspect employee-owned and company-owned FRC .

(Tr. 319-320.) According to Mr. Arias, all FRC must “have a tag on the pants, the shirt or the coverall that states FR clothing.” (Tr. 320.) Then, the FRC is visually inspected to make sure it has “no tears, no fraying of the waistline of the pants…no hole in an elbow, the arm, the stomach region.” (Tr. 320.) If it is visually damaged, the FRC is taken out of service and, if a worker was wearing it, the worker receives a written infraction, which is sent to Mr. Arias and human resources and noted in the worker’s file. (Tr. 320-321.) Mr. Arias testified his safety representatives conduct daily safety audits, which include FRC
inspection
audits . He also
specified the frequency of FRC
inspection
audits varies. (Tr. 323-324.)

Mr. Arias also testified CSHO Guzun’s allegation Respondent did not assure adequate PPE, specifically the fall protection harness, was incorrect because of Respondent’s color-coding inspection process. (Tr. 415-416.) The Secretary
argues these “visual inspections” by Respondent
are inadequate to meet the requirements of the cited standard . (Sec’y Br. 19-20.) He , however,
despite carrying the burden of proof,
does not explain how
Respondent ’s policies and
inspections are deficient. Mr. Arias explained that : “If somebody is observed, and the color code for that obviously was yellow and orange, if it is yellow and green, that mean s
that harness was not inspected for that month. That means it was either a month prior and it’s still not inspect ed
but is in use, which is a violation.” (Tr. 415-416.)

The Secretary

states, in a footnote,
that
Mr. Arias’s testimony
regarding “records” of the color-coding system
was inconsistent with his interview statement given to CSHO G uzun
during the j oint
interview . (Sec’y Br. 20 n.4
citing Tr. 354-357 .) However,
the
alleged
interview statement
( “We don’t have any records of the inspections of FRC”)
is not inconsistent
with
Mr. Arias’s testimony stating the tape
on the fall protection harness pelican hook
is considered
the “record”
for
harness inspections.

Additionally,
a record
of inspections
is not required under the cited standard. T he question posed by CSHO Guzun
in the interview
is not included in the interview statement
– it is unknown in what context
Mr. Arias’s
alleged statement was made . Moreover , the Court accepts Mr. Arias’s testimony regarding Respondent’s
“color-coding”
inspection process
in part because
the Secretary
had the opportunity to cross-examine him at trial and
could have
raise d
the issue of a deficient discovery response before discovery ended but did not do so
and
his testimony is consistent with the photographs taken by the CSHO
which shows the color coding.

Similarly,
the Secretary
points to the confidential informant’s interview statement. (Sec’y Br. 19 citing Tr. 210-212.) In this statement, the confidential informant
allegedly
stated in pertinent part: “Nobody from my company inspect my FRC [.] Our
company did not inspect our harnesses. We inspect them but nobody train us how to inspect the harnesses, fall personal
protection.” (Tr. 211.) This allegation
– from a heavily
redacted and illegible document
rendering it difficult for an employe to verify as accurate –
swings wide away from SG’s and Mr. Arias’s testimony with no
other
corroborative evidence in the record .
In addition,
If the Secretary
knew the identi t y of the government informant and could have pr oduced the informant at trial for cross - examination and failed to do so. Without such
fundamental due process opportunity being provided, the Court
gives
little
weight to
the unidentified
informant’s
statement .
Beta Constr. Co. , 16 BNA OSHC at 1442 (out-of-court, contemporaneous statements made by the employee to the OSHA compliance officer during the OSHA investigation “should be given weight only to the extent they are reliable.”). Further, the
confidential informant and Mr. Hernandez’s statements
revolve around SG’s fall and how his harness failed to protect him. But that fact is irrelevant to whether the harness es
were inspected
by Respondent a n d
functioned properly – SG fell to the ground because , as CSHO Guzun testified, the
fall “was too short distance to be anchored under his foot.” (Tr. 267.) CSHO Guzun testified he found nothing inadequate with SG’s harnes s or the FRC. (Tr. 267, 303-304.)
The Secretary
has failed to carry his
burden of proof
of establishing noncompliance
for this citation item .

Citation 1, Item 1(b) is VACATED.

E. Citation 1, Item 2(b) – The Alleged
Damaged Scaffold
Violation

Citation 1, Item 2(b) alleges a serious violation of 29
C.F.R.
§ 1926.451(f)(4), which provides:

(f)
Use.
– (4) Any part of a scaffold damaged or weakened such that its strength is less than that required by
paragraph (a)
of this section shall be immediately repaired or replaced, braced to meet those provisions, or removed from service until repaired.

29 C.F.R. § 1926.451(f)(4) (emphasis added). 19
The Secretary
alleges Respondent violated
29 C.F.R. §
1926.451(f)(4) in the following manner: “At this establishment, employees worked from a scaffold with damaged and broken scaffold components such as planks.” (Citation at 9) ;
see also
Sec’y Br. 23 (OSHA cited Respondent
“ for failing to repair, replace, brace, or remove the damaged plank from service . ”)

a. Does the Regulation Apply?

As noted above, the Court found the skeletal
scaffold
structure as a whole was under erection at the time of the incident. It is unclear
based on the plain language
of
the standard
whether
2 9
C.F.R. §
1926.451(f)(4) applies to scaffold erection procedures . Unarco Comm. Prods. , 16 BNA OSHC, 1499, 1502 (No. 29-1555, 1993) (holding Commission has always looked to the language of the standard to determine whether it applies) . As Respondent not es ,
however,
OSHA has issued a Letter of Interpretation
discussing whether
2 9
C .F.R.
§
192 6. 451(a)
– which is
incorporated by reference
in to
the cited
standard
–
must be met during the
scaffold
erection process. (Resp’t Br. 8-9 citing
Dep’t of Labor ,
Letter of Interpretation,
Whether 2”-x-6” No. 2 pine boards may be used as a scaffold platform; whether §1926.451(a) and §1926.451(f)(16) are applicable when erecting and dismantling scaffolds ,
d ated
Apr. 5, 2005
(“April 2005 LOI” ) . ) In this letter, OSHA
states
in pertinent part :

Consequently, we cannot say as a general matter that, in all cases and at all times
throughout the erecting and
dismantling process , the capacity and deflection requirements must be met. Rather, under the direction and supervision of the competent person, they must be met
to the extent feasible .

( April 2005
LOI at
¶ 1B )
(emphasis added).
OSHA has therefore stated , during the
scaffold
erection process ,
paragraph (a) of section 1926.451
must be met under the direction and supervision of the competent person
to the extent feasible . 20
Respo n d ent did not argue the
April 2005 LOI
clarifying this requirement
was inconsistent
with the regulation or such requirement
of relying on the
competent
person was unreasonable.
Respondent
focuses
on
the part of the
April 2005 LOI
stating OSHA could not determine
i f
at all times during the erection phase of a scaffold, the regulation
applied. T he Court
relies on the interpretation of
the Secretary
as being a reasonable
interpretation
of the regulation.
The Court notes when the regulations are read as a whole,
the designated competent person
is
charged with
ensuring
the workplace and work being performed is safe.

Accordingly, the Court finds the
cited
standard is applicable
to t h e skeletal scaffold structure under erection
here , but only to the extent required by paragraph (a). 29 C.F.R. § 1926.451(f)(4) ;
April 2005 LOI .

b.
Was
the Regulation Violated?

With regard to inspecting scaffold
parts
during
the
scaffold erection 21
procedure , Mr. Arias testified Respondent’s competent person conducts the inspections as required by OSHA. (Tr. 328, 364, 367.) Mr. Arias testified the competent person performs a visual inspection of the planks, runners, legs, scaffold equipment, line wire, nails, braces, and tow boards. (Tr. 328.) He testified the inspection entails picking up the material, looking at it, then handing over or placing the
material as the scaffold is being built. (Tr. 328.) He testified this inspection procedure is documented in Respondent’s “scaffolding policy,” which follows “FPC Procedure 41” that is “in all scaffold trailers, tool rooms” and which “is above” OSHA and PMI that FPC’s employees must follow. 22 (Tr. 329, 434.) SG’s testimony is consistent with Mr. Arias’s testimony. SG testified
Mr. Hernandez
would inspect materials when he passed material or placed material. (Tr. 128-129.) SG
agreed ;

he
saw with his “own eyes” that
Mr. Hernandez
handled the plank at issue and placed it on the skeletal structure. (Tr. 130-131.)

Despite having th is
burden of proof,
the Secretary
points only to the pictures of the
broken
wooden plank and Mr. Hernandez’s questionable interview statement
(to which the Court gives
little to
no weigh t )
as evidence establishing
non-compliance with the cited standard. (Sec’y Br. 2 3 -25.)

CSHO Guzun pointed to a picture of the broken wooden plank and stated it looked rotten. (Tr. 173.) Upon being asked, however, whether it is possible that a piece of wood looks fine externally but that it could be rotten in the middle, CSHO Guzun stated he did not know. (Tr. 190.) Instead, he stated he determined the wooden plank was rotten based on a post-incident examination of the piece of wood, post-incident pictures, and post-incident interview statements. (Tr. 192-193.) SG testified the blackened condition on the board does not “exactly” mean the wooden plank is compromised,
and
“I will double check myself to see if it’s worth it to me to work on.” (Tr. 160 ).

The Secretary
does not proffer what else Respondent should have done to ensure the requirements of paragraph (a) of section 1926.451 were met under the direction and supervision
of Mr. Hernandez to the extent feasible. (April 2005 LOI at ¶ 1B.)
Rather, he
makes broad assertions
or assumptions
without scientific evidence to argue Respondent failed to comply with the standard by using the wooden plank that broke underneath SG. Latent defects in wooden planks are sometimes not visually detectible, as even CSHO Guzun agreed. (Tr. 190.) CSHO Guzun also conceded that OSHA itself does not have a testing mechanism “to prove that we have rotten wood beside our visual inspection[.]” (Tr. 192-193.) However, despite the
acknowledgments
of the CSHO set forth above, the CSHO determine d
the wooden plank must have been defective
because after the inspection he determined the wooden plank was rotten inside .

This conclusion is a classic argument
that things become clearer
in
hindsight.

As noted above, Mr. Hernandez
is found to be a competent person
and
the evidence establishes he indeed
followed
R espondent’s
scaffold building procedures, including personally looking over and handling the wooden plank at issue, before
placing it on the runner of the skeletal structure. It was in place
for 10 -20 minutes, and
SG
had
successfully walked across it at least once,
before it suddenly broke
to the surprise of SG and Mr. Hernandez. (Tr. 51-52, 67.) Mr. Arias testified that
“[t] his
is an accident of [Mr. Herna n dez] not being able to see something inside of a board. ” (Tr. 422.) The Court agrees
because there is no other evidence in this record to indicate how
else
Mr. Hernandez would be able to
satisfy the capacity requirement
of
the
cited standard. In addition,
the Secretary
offered no expert testimony , no
scientific
evidence,
or any other helpful evidence
that Mr. Hernandez looking at the color and condition of the wooden plank wou ld have
led
to a conclusion the wooden plank was defective.

The Secretary
did not establish
it was
feasible
for Mr. Hernandez, the competent person, to
ensure the wooden plank met the requirements of paragraph (a) of section 1926.451 , beyond that which he
already did,
while working on the hooch project. (April 2005 LOI at ¶ 1B.) The
Secretary

failed to
meet
his burden of establishing non-compliance with
section 1926.451( f)(4).

Citation 1, Item 2(b) is VACATED.

F. Citation 1, Item
3 ( a ) – The Alleged
Scaffold Inspection Violation

Citation 1, Item 3(a) alleges a serious violation of 29
C.F.R.
§ 1926.451(f)(3), which provides:

(f)
Use.
– (3) Scaffolds and scaffold components shall be inspected for visible defects by a competent person
before each work shift , and after any occurrence which could affect a scaffold’s structural integrity.

The Secretary
alleges Respondent violated
29 C.F.R. §
1926.451(f)(3) in the following manner: “At this establishment, the employer failed to inspect the scaffold and its component s
for defects and missing parts.” (Citation at 10).

a.
Does the Regulation Apply?

The Court finds the cited standard applies.

As found above,
the
skeletal structure supporting the wooden planks was a scaffold ; the
scaffold was under erection at the time of the incident .
Also as found above, s caffold erection is a type of scaffold use.
T he wooden planks w ould be considered
scaffold components. Therefore, Respondent was required to inspect
the wooden planks f or “visible defects”
before each work shift which, in this case, was before SG and Mr. Hernandez began
working on assembling the
skeletal scaffold structure for the
hooch
project . 29 C.F.R. § 1926.451(f)(3).

b.
Was the Regulation Violated?

The Court finds Respondent complied with the cited standard. SG testified Mr. Hernandez or Mr. Gonzalez would inspect materials when they arrived at the jobsite. (Tr. 128.) Mr. Hernandez’s interview statement
includes a statement that he looked the materials over
before working on the project . ( Tr. 218-219.) The Secretary
claims
j u s t
looking at the materials is insufficient to satisfy the requirements of the
standard .
(Sec’y Br.
27-28.) T he Court disagrees. The standard
is clear on its
face and
requires
an inspection for
only
“ visible defects.”

CSHO Guzun
testified he recommended this citation item based on the incident itself – that SG
in fact
fell through
the wooden plank – and Mr. Hernandez’s interview statement
that he did not inspect the scaffold building materials. (Tr. 202-203.) “ Determining
whether
t he
standard was violated
i s
not dependent
on the
cause of the accident …[but] the
circumstances of an accident may provide probative evidence of whether a standard was violated.” 
Am. Wrecking Corp . ,
19 BNA OSHC
1703,
170 7
n.4 (No.
96-133 1 , 2000)
( consolidated )
aff’d in
relevant
part ,
351 F.3d 1254
(D.C.
Cir. 2003).

Mr. Her nan dez’s interview statement contains this relevant part:

And that morning we went to our companies scaffold materials laydown yard to pick up materials to build that scaffold frame.
We looked at those materials very quick. But we did not spend so much time to inspect the scaffolding materials.
Nobody from my company trained me that the first section of the scaffold had to be planked at the working area.
[SG] ( he is the victim) has harnesses and the lanyard that he used for the last five years. The lanyard was too long and
[SG ]
hit the ground. I don’t know if that was his personal or company personal fall arrest system. Nobody inspect and November 12, 2019 the day of the incident
[SG]
that personal fall arrest system, fall protection.

I’m guessing it’s a company practice to not inspect meticulously all scaffold components. We did not inspect adequately those plans.

(Tr.
218-2 20
reading Ex. C- 7 at DOL- 85-87)
(emphasis added).
The Secretary
claims Mr. Hernandez did not inspect the materials at all, but that is not what is written in the statement. (Sec’y Br. 27-28.) According to CSHO Guzun, t he statement includes the clarification that
Mr. Hernandez
did not “inspect meticu lously” all scaffold components. 23 But the standard requires inspecting for “visible defects,” not
defects
that would be discovered
only
from
a meticulous inspection .

CSHO Guzun
pointed
to
a picture of the broken wooden plank and stated it looked rotten. (Tr. 173.) Upon being asked, however, whether
it is possible that
a piece of wood looks fine externally but
that
it could be rotten in the middle, CSHO Guzun stated he did not know. (Tr.
190.) Instead, h e stated he
determined the wooden plank was
rotten
based on
a
post-incident
examination of
the piece of wood, post-incident pictures, and post-incident interview statements. (Tr. 192-193.) SG testified the blackened condition on the board
does not “exactly” mean that the wooden plank is compromised, but “I will double check myself to see if it’s wort h
it to me to work
on.” (Tr. 160 .)

As noted above
in the discussion with Item 3( b ),
latent defects in a wooden plank are not
necessarily uncovered by a visual inspection. Th is record is not sufficiently developed to make a determination
that
the wooden plank at issue
visually
appeared defective before it broke. A l s o
noted above, despite C SH O Guzun’s belief to the contrary, the Commission has long held that
a violation of
a
regulation
is not proven
just
b ecause an accident took plac e .

Am.
Wrecking Corp. , 19 BNA OSHC
at
1707 n.4 .
The Secretary
must still establish, by a preponderance of the evidence, that
Mr. Hernandez did
not
inspect
the wooden plank – or other scaffold components –
for “visual defects . ”

29 C.F.R. § 1926.451(f)(3).

When weighing th e
evidence, the Court is mindful
of
who has the burden in establishing the violation here. The Secretary
ha d
the opportunity to gather testimony , either from deposition or at
trial ,
from Mr. Hernandez himself to
flesh out what he meant by
a
“ meticulous ”
inspection as opposed to
looking at the scaffolding materials but
failed to do so .
The Secretary
offered nothing but post-incident evidence
that CSHO Guzun himself brought into question . As noted above, the evidence establishes Mr. Hernandez
followed Respondent’s inspection procedures for scaffold and scaffold components
by visually looking at them as he
gathered materials and
then
as he passed the materials while helping build the
skeletal scaffold structure for the
hooch
project .
Also, as stated previously ,
the wooden plank had been in place for approximately
10-20
minutes and
SG walked on it and did not notice any issue
or he indicated he would have stopped and did an inspection himself of the wooden plank .
(Tr. 67 , 131-132 .) Therefore, t he
preponderance of
the
probative
evidence
does not establish that Mr. Hernandez did
not
examine
the materials
for visual defects
in violation of
the cited regulation . As this was
the Secretary’s
burden
to
carry ,
he
failed
to establish th e
regulation was violated.

Citation 1, Item
3 ( a ) is VACATED. 24

G. Citation 1, Item 3( b ) – The Alleged Scaffold
Erection
Violation

Citation 1, Item 3(b) alleges a serious violation of 29
C.F.R.
§ 1926.451(f)(7), which provides:

(f)
Use.
– (7) Scaffolds shall be erected, moved, dismantled, or altered only under the supervision and direction of a competent person qualified in scaffold erection, moving, dismantling or alteration. Such activities shall be performed only by experienced and trained employees selected for such work by the competent person.

The Secretary
alleges Respondent violated section 1926.451(f)(4) in the following manner: “At this establishment, employees were exposed to fall hazard[s] while working from a scaffold. The
Respondent
did not provide a trained and experienced competent person for scaffold erection and dismantling.” (Citation at 11).
The Secretary
states in his brief that OSHA cited Respondent
for an alleged violation of this standard because “during employee interviews, [Respondent] employees stated that [Respondent] did not have a qualified competent person inspecting the planks for defects.” (Sec’y Br. 32.)

a . Does the Regulation Apply?

As noted above in the threshold issue
section, the Court found the skeletal
scaffold
structure was a scaffold being erected at the time of the incident. As it was being erected it w a s
also
being
altered
as it was built up .

The
cited standard applies.

b.

Was the Regulation Violated?

As also found above Mr. Hernande z
was
found to be
a competent person as defined by OSHA regulatory requirements. It is undisputed that he
was in charge of the hooch project. The record establishes
Mr. Hernandez selected SG,
Mr. Abrego and Mr. Lopez, all of
whom
had a least four and a half years of scaffold building experience
and had attended scaffold training
to work
on the hooch project.
(Tr. 83, 97, 380-385, 411-414, 419.) Mr. Herna n dez
and
Mr. Abrego
both had the NCCER Plus
certification, which
designat ed them both by
Respondent and Formosa as being a competent person in scaffolding . SG, Mr. Abrego
and Mr. Lopez
all
attended Mr. Hernandez’s specific in-person training on how to build the hooch project at issue
before beginning work. The evidence also establishes Mr. Hernandez
inspected the planks for visual defects, as discussed above. The Secretary ’ s
so le re liance
to establish a violation of this regulation was
an employee interview
statement . That interview was discussed above in the threshold determination section finding
Mr.
Hernandez
a competent person. Without more evidence,
the Secretary
has failed
to
establi sh
non-compliance with this citation item.

Citation 1, Item 3(b) is VACATED.

H. Citation 1, Item
4 ( a ) – The Alleged Scaffold Erection
Training
Violation

Citation 1, Item 4(a) alleges a serious violation of 29
C.F.R.
§ 1926.454(a), which provides:

(a) The employer shall have each employee who performs work while on a scaffold trained by a person qualified in the subject matter to recognize the hazards associated with the type of scaffold being used and to understand the procedures to control or minimize those hazards. The training shall include the following areas, as applicable: (1) The nature of any electrical hazards, fall hazards and falling object hazards in the work area; (2) The correct procedures for dealing with
electrical hazards and for erecting, maintaining, and disassembling the fall protection systems and falling object protection systems being used; (3) The proper use of the scaffold, and the proper handling of materials on the scaffold; (4) The maximum intended load and the load-carrying capacities of the scaffolds used; and (5) Any other pertinent requirements of this subpart.

29
C.F.R.
§ 1926.454(a). The Secretary
alleges Respondent violated
29 C.F.R. §
1926.45 4 ( a ) in the following manner: “At this establishment, employees were exposed to fall hazards when working above lower level. The employer did not provide training to employees to recognize the hazards associated with erection of the scaffolds.” (Citation at 12 . )
In his post-hearing brief,
the Secretary
states the citation
was issued “because, during employee interviews, [Respondent] employees stated that they were not properly trained on the use of scaffold materials.” (Sec’y Br. 34.)

a.
Does the Regulation Apply?

The
applicability of this standard
has been
called into question because, as the
C ourt found, the skeletal structure was under erection at the time of the incident. The workers on the
wooden planks were considered “scaffold builders,” and, as found above, the
skeletal structure was not complete and was still being erected by Respondent ’ s scaffold builders at the time
of the incident. Respondent points out while
the cited standard,
section
1926. 454(a), applies to workers who “perform work” on a scaffold, the companion training standard
at
section
1926. 454(b) , not cited here,
specifically applies to
workers who are “ involved in
erecting , disassembling, moving, operating, repairing, maintaining, or inspecting a scaffold trained by a competent person to recognize any hazards associated with the work in question.”

(Resp’t Br. 14 );
29 C.F.R. § 1926.454(b ) ( emphasis added). The Secretary
has not addressed this issue. Under these
circumstan ces, the Court cannot find
that the Secretary
established the cited standard was applicable.
The Secretary
has failed to establish
the cited regulation applied in the face of Respondent’s argument on preemption ,

b. Alternative Finding – Was the Regulation violated?

Even if
the Secretary
had cited the correct standard,
section 1926.454(b), the Court finds the evidence establishes
Respondent complied with it. If an employer “rebuts the allegation of a training violation ‘by showing that it has provided the type of training at issue, the burden shifts to the Secretary to show some deficiency in the training provided.’   ”   N & N Contractors, Inc. , 18 BNA OSHC 2121, 2126-27 (No. 96-0606, 2000) (quoting  Am. Sterilizer Co . , 18 BNA OSHC 1082, 1086 (No. 91-2494 , 1997)),  aff'd ,  255 F.3d 122 (4th Cir. 2001) . 

The alleged violation description (AVD ) of the citation suggests this citation arises out of the fact that SG tied off at his feet using his harness that was too long to protect him from a
seven-foot
fall. The AVD
seems to claim that none of the workers on the hooch project were trained to identify fall hazards because the situation demonstrated that SG and Mr. Hernandez did not understand that SG’s fall harness would be ineffective at
seven
feet. As noted above, testimony at trial explained this confusing situation. Mr. Hernandez wrote in the JSA that to minimize fall hazards, all workers would comply with the 100 percent tie off rule. (Ex. R-5.) The fall protection standards require protection at
ten
feet, and the workers were only at
seven
feet at the time of the incident. However, in accordance with Mr. Hernandez’s instructions, SG tied off even at
seven
feet , knowing
his harness would not protect
him
against a fall
but
intending
to tie off again once he reached a higher anchor point. (Tr. 106 .)

In so doing, SG showed that he was trained in and complied with Respondent’s 100 percent tie off requirement. Archer-Western Contractors Ltd. , 15 BNA OSHC 1013, 1019-20 (No. 87-1067, 1991) (relying on uncontested testimony regarding “rigging and signaling” to hold that “the performance of those employees establishes that they were trained in rigging and signaling”),
aff'd , 978 F.2d 744 (D.C. Cir. 1991) (unpublished).

The Secretary also claims Respondent failed to
properly
train
its employees on
the use of
scaffold materials. (Sec’y Br. 34.). As noted above, Respondent trained its employees in scaffold
requirements. Mr. Hernandez, Superintendent Gonzalez and Mr. Abrego all held the NCCE R Plus
certification. The course
included
“ performance verified tasks” that
specifically
included
“ selecting and inspecting scaffold components ” :

dismantle a tube and coupler scaffold. Safety for tube and coupler scaffold, he would’ve had to evaluate and inspect the jobsite to set up the scaffold,
select and inspect system scaffold components , safety erect the scaffold system, inspect a completed scaffold system, and dismantle a complete scaffold.

(Tr. 408 (Mr. Arias quoting Ex. R-10)
(emphasis added) .)
Additionally,
SG testified he received in person training, from
Mr. Hernandez and another
competent person, regarding hazards associated with construction sites, including those
hazards associated with scaffolds. (Tr.
98-99.)

SG also testified he received the skeletal structure
scaffold
training directly from Mr. Hernandez before starting to work on the hooch project , as did the rest of the hooch team. (Tr. 78.)

The Secretary
does
not
show any deficiency in this training. N & N Contractors, Inc. , 18 BNA OSHC
at
2126-27 .
Rather,
he
resorts
to
throwing irrelevant
red herrings
into
play
to
sh i ne the light away from
his

lack of due diligence in conducting
discovery and
preparing for and calling the appropriate witnesses at trial.

Further, he
criticizes Respondent’s training
policies and
records, but yet does not proffer affirmative evidence these workers were not trained .

As noted above,
he
does not even address the testimony that is in the record .

Instead,
the Secretary
argued
that
Respondent has failed to produce
evidence
which is irrelevant at this stage of adjudication . ( Sec’y B r. 35 -36 .)
He
failed to file a motion to compel during discovery
and
failed to file a motion for sanctions. At trial,

he
failed to
request the Co u rt for a
negative inference
during the trial
due to the failure to produce the requested dis covery.

UHS of Denver, Inc., d/b/a Highlands Behav. Health Sys. ,
No. 19-0550,
2022 WL 17730964, at * 3 ,
(OSHRC Dec. 8, 2022)
he
also
did not pursue
a
written
motion
for
subpoena
enforcement for Mr.
Hernandez’s
testimony and
withdrew his
oral
motion to enforce
Mr. Hernande z’s subpoena
after the trial
was recessed
to permit him the opportunity to present to the Court a written
m otion to
e n force .

Red herrings and failure to pursue available remedies for non-producti on of documents or for a witness’ s
failure to appear do not equate to
the Secretary
meeting his burden of proof on this citation, or any citation in this case.
The Court finds
the Secretary
has also failed to establish non-compliance with this citation
I tem.

Citation 1, Item 4(a) is VACATED.

ORDER

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. Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that
Citation 1, Items 1(a), 1(b), 2(b), 3(a), 3(b) and 4(a) are VACATED.

SO ORDERED.

/s/ Patrick B. Augustine

Date:
February 21, 2023

Denver, Colorado

Patrick B. Augustine

First Judge
- Denver
OSHRC

"

1
“[T]he Commission is responsible for the adjudicatory functions under the OSH Act”
StarTran, Inc. v. O SHRC , 290 F. App'x 656, 670 (5th Cir. 2008)
(unpublished) , and serves “as a neutral arbiter and determine whether the Secretary's citations should be enforced over employee or union objections.”
Cuyahoga Valley Ry. Co. v. United Transp. Union,
474 U.S. 3, 7 (1985) (per curiam). Thus, Congress vested the Commission with the “adjudicatory powers typically exercised by a court in the agency-review context.”
Martin v. OSHRC,
( CF&I Steel Corp . ) , 499 U.S.
144,
151
(2012) .

2
In the interest of personal privacy, the name of the injured worker has been
removed from this Decision and Order.
See
29
C.F.R. §§ 2200.8(c)(6),
(d)(5).

3
At the
trial,
the Secretary
withdrew
Citation 1, Items 2(a) and 4(b)
and so those citation items are not adjudicated herein. (Tr. 11;
Ex. J-1
¶¶ e, f);
Cuyahoga Valley Ry. Co. v. United Transp. Union , 474 U.S. 3 (1985)  (holding that the Secretary's discretion to withdraw citation is unreviewable).

4
See Armstrong Utils. Inc. , No.
18-0034, 2021 WL 4592200, at *2
n.2 (OSHRC,
Sept. 24, 2021) (finding it
was “plain
error” to not accept parties’ stipulation);
CF & T Available Concrete Pumping, Inc ., 15 BNA OSHC 2196, 2199
(No.
90-329, 1993)
(the Commission accepted the parties’
stipulation the alleged violation, if
any, was serious).

5
When asked about the legs of the skeletal structure, SG testified: “They have a rosetta where you put in the runner and it has a pin where the bar gets locked. It won’t move nowhere. You just hit it with a hammer. It’s a pin. It’s like a little hole, the rosetta. The pin goes in. Then you hit it all the way down. It locks. It makes the runner go nowhere. That what I’m referring to as the leg.” (Tr. 54.)

6
The record does not establish what the term “LDPE” means. (Tr. 109-110.)

7
CSHO Guzun has been employed by OSHA since May 2, 2014. He has a master’s degree in Ecology and Environmental Protection, and another master’s degree in Science International Affairs and Public Administration. He has a bachelor’s degree in Biology and Chemistry. (Tr.
163.) CSHO Guzun has attended the OSHA
Training Institute, OSHA Region VI trainings, area office trainings, and online training including OSHA E-Learning, as well as field training provided by management and senior CSHOs. (Tr. 163-165.) CSHO Guzun performs about 30-40 inspections per year. (Tr. 166.)

8
Supervisor Gonzalez
did not testify
at the
trial.

9
The Court has appended the Interview Statements, which were marked as Ex. C-7, to this Decision and Order
as Decision Appendix A.

10
As
discussed
infra , however,
Mr. Hernandez required FRC to be worn during work on the hooch project
in the JSA. (Ex.
R-5.)

11
The employer or the Secretary may appeal a final decision and order to the federal court of appeals for the circuit in which the violation allegedly occurred or where the employer has its principal office, and the employer also may appeal to the D.C. Circuit.
See
29 U.S.C. §§ 660(a) and (b). Here, the violation occurred in Texas
which is
in the Fifth Circuit. The Commission has held that where it is highly probable that a case will be appealed to a particular circuit, it generally has applied the precedent of that circuit in deciding the case— even though it may differ from the Commission’s precedent.
Kerns Bros. Tree Serv ., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000). The
Court therefore applies the precedent of the Fifth Circuit in deciding the case where it is highly probable the case would be appealed.

12
Section 1926.450(b)(“ Definitions ”) states in pertinent part:

Scaffold
means any temporary elevated platform (supported or suspended) and its supporting structure (including points of anchorage), used for supporting employees or materials or both.

…

Platform
means a work surface elevated above lower levels. Platforms can be constructed using individual wood planks, fabricated planks, fabricated decks, and fabricated platforms.

29 C.F.R. 1926.450(b).

13
W hether the skeletal structure was being erected or was in “use,” is an important factual finding in this case ;
however,
as discussed
infra ,
th is factual finding is not determinative of the applicability of each citation item. The Court , however,
will analyze each citation item keeping in mind this factual finding.

14
The Court notes some of the
basic
information that CSHO Guzun wrote within Mr.
Hernandez’s statement appears to be factually incorrect. For example, CSHO Guzun wrote down that Mr. Hernandez
allegedly
stated, “the
incident happened yesterday. Mr. Jose Gonzalez assigned me yesterday 11/12/2019 approximately at 7:00 a.m. to build a
temporary laydown yard shop for the welders [the hooch].” (Tr. 218.) However,
it is undisputed that
CSHO
Guzun
interviewed Mr. Hernandez on November 13, 2019,
and the incident
occurred on November 11, 2019.

15
The Secretary
failed to establish Respondent’s employees were working around hazardous materials
since the worksite was a “non-live”
work area where hazardous
chemicals
were not
present. The “live” work area where hazardous chemicals
was present was three-fourths of a mile away. The Secretary’s
failure to establish the work area where employees were working contained hazardous chemicals,
the cited regulation would not require FPC
which
he
argued was not provided to Respondent’s employees.

If the regulation does not
require
it,
Respondent cannot be found to have violated
the regulation as it relates to FPC as FPC was not required at the “non-live”
worksite.

Thus, the focus of
the Secretary
should have been confined to
whether Respondent provided
fall protection equipment
to its employees.

16
Section 1926.20(c) states:

The standards contained in this part shall apply with respect to employments performed in a workplace in a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, Wake Island, Outer Continental Shelf lands defined in the Outer Continental Shelf Lands Act, and Johnston Island.

29 C.F.R. § 1926.20(c).

17
Section 1926.451(g)(“Fall protection”) states in pertinent part:

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. Paragraphs (g)(1)(i) through (vii) of this section establish the types of fall protection to be provided to the employees on each type of scaffold. Paragraph (g)(2) of this section addresses fall protection for scaffold erectors and dismantlers.

29 C.F.R.
§  1926. 451(g)(1).

[T]he employer shall have a competent person determine the feasibility and safety of providing fall protection for employees erecting or dismantling supported scaffolds. Employers are required to provide fall protection for employees erecting or dismantling supported scaffolds where the installation and use of such protection is feasible and does not create a greater hazard.

29 C.F.R. § 1926.451(g)(2).

18
CSHO Guzun testified he understood the scene of the accident was preserved from the moment of the incident until he arrived on site for his inspection and took the photographs testified to at
trial. (Tr. 300.)

19
Section 1926.451(a)(1) states in pertinent part: “(a)
Capacity . (1)
each scaffold and scaffold component shall be capable of supporting, without failure, its own weight and at least 4 times the maximum intended load applied or transmitted to it.” 29 C.F.R. § 1926.451(a)(1).

20
The Secretary has not addressed this
April 2005
LOI.

21
The Court has found that the scaffold at issue was under erection
and therefore analyzes this citation item based
upon
that factual finding. It is noted, however, t he record
contains evidence
Respondent had procedures in place to inspect a
completed
scaffold under the direction of Mr. Hernandez, the competent person (as found above). SG testified a competent person, like Mr. Hernandez, inspects all “complete scaffolds” in the morning, and if it passes inspection, he signs and dates a tag that is placed on the completed scaffold that would indicate to any worker whether the scaffold is safe from which to work. (Tr. 79-80.) The skeletal structure at issue, however, according to SG, was never intended to be a complete scaffold from which to work, and so there was no inspection of the skeletal structure to indicate that it was a “complete scaffold.” (Tr. 79-80.) SG’s testimony is consistent with Mr. Arias’s testimony regarding the skeletal structure at issue. Mr. Arias agreed the skeletal structure would not have been inspected yet because it was “nowhere near complete.” (Tr. 433.) And when it was complete, Mr. Arias further testified, “it would have been a red-tag scaffold, as well, because it was not a working scaffold.” (Tr. 433.)

22
The record does not contain Respondent’s written scaffolding policy or “FPC Procedure 41.” The Court notes this deficiency in the record was addressed at
trial. (Tr. 439-444.) The Court further notes
that the Secretary
did not file a motion to compel for such documentation during discovery, nor did
he ask
during the trial for an adverse inference against Respondent for any alleged lack of production of such documentation during discovery.

23 The use of the
word “meticulously” in the statement written by CSHO Guzun is also suspect. It appears out of character with the rest of the way the statement was written. The Court has doubts whether Mr. Hernandez used the word while making his statement to CSHO Guzun, which further makes the statement unreliable as it may not reflect the exact words used – only the ones written down by the CSHO.

24
The Court noted at
trial
that Items 2(b)
(alleged damaged scaffold) and 3(a) (alleged scaffold inspection)
appeared duplicative. (Tr. 202-204.) Neither party addressed the issue
in post-hearing briefs. As the parties have not raised the issue and the Court has resolved the citation items on other grounds, the Court declines
to address the apparent issue of these citation items being duplicative.