D.H. Shelton Associates, Inc. (ALJ decision, April 29, 1993)

Plain-English summary

D.H. Shelton Associates was a subcontractor on an automobile dealership construction project in El Paso, Texas. The judge rejected the company's challenge to the OSHA inspection because the general contractor consented and a worker who identified himself as Shelton's foreman did not object. OSHA found that the worker used a narrow scaffold about nine feet high without required guardrails. The serious violation was affirmed. Because only one employee was shown to be exposed and the company was no longer operating, the proposed $210 penalty was reduced to $25.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.451(a)(4)
• Outcome: Serious scaffold guardrail violation affirmed; penalty reduced to $25
• Key point: Cross braces did not satisfy the required guardrail protection for the narrow elevated scaffold.

Full text (OSHRC public release)

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW
4Tt-i FLOOR
WASHINGTON, DC 20006-
1246

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 90-0143
D. H. SHELTON & ASSOCIATES, INC.
Respondent.

NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Re ort in the above referenced case was docketed with the Commission on Marc K 30, 1993. The decision of the Judge will become a final order of the Commission on April 29, 1993 unless a ’ Commission member directs review of the decision on or before that date. ANY PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW. Any such etition should be received by the Executive Secretary on or before- April 19, P993 in order to ermit suffbent time for its review. See Commission Rule 91, 29 c!.F.R. 2200.91. All further pleadings or communications regarding this case shall be addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1825 K St. N.W., Room 401
Washington, D.C. 20006-1246

Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
Room SC1004
200 Constitution Avenue, N.W.
Washington, D.C. 20210

If a Direction for Review is issued by the Commission, then the Counsel for Regional Trial Litigation will represent the Department of Labor. Any party havmg questions about review rights may contact the Commission’s Executive Secretary or call (202) 634-7950.
FOR THE COMMISSION

                                      K+            fi        l   LL       -““s.,y/

Date: March 30, 1993 Ray H. Darling, Jr. Y
Executive Secretary
DOCKET NO. .90-0143

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mid, Esq.
Counsel for Re ‘onal Trial Liti ation
Office of the So7 icitor, U.S. DO5
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 202 10

James E. White, Esq.
Re ‘onal Solicitor
Of&e of the Solicitor U S DOL
525 Griffin Square Blhg.,’ iuite 501
Griffin & Youn Streets
Dallas, TX 752 %2

David H. Shelton
14457 Loving Lane
El Paso, TX 79936

E. Carter Botkin
Administrative Law Jud e
Occupational Safety an d Health
Review Commission
Federal Building, Room 7Bll
1100 Commerce Street
Dallas, TX 75242 0791

00103401386:06
 UNJTED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION ~00~ 7811, FEDERAt NILDING
1100 COMMERCE
DALLAS, TEXAS 75242-0791

PHONE: FAX:
COM (214) 767-5271
COM (214) 767-0350
FTS 729-5271
n-s 729-c350

..
..
SECRETARY
OF LABOR,
.
..
Complainant,
.

v. OSHRC DOCKET NO. 90-0143-S

D.H. SHELTON & ASSOCIATES,
INC.,

Respondent.

APPEARANCES:
.

Jack F. Ostrander, Esquire
David H. Shelton
Dallas, Texas
El Paso, Texas
For the Complainant.
For the Respondent, pro se.

Before: Administrative Law Judge E. Carter Botkin a
DECISION AND ORDER

          This is a proceeding        brought before the Occupational          Safety and Health Review
Commission (“the Commission”)              pursuant to section 10 of the Occupational          Safety and

Health Act of 1970, 29 U.S.C. 6 651 et seq. (“the Act”).
On November 2 and 3, 1989, the Occupational Safety and Health Administration
(“OSHK’) conducted an inspection of a worksite in El Paso, Texas, where Respondent was a subcontractor in a project involving the construction of a building to house an automobile
dealership. As a result of the inspection, Respondent was issued one serious citation
alleging a violation of 29 C.F.R. 5 1926.451(a)(4), wh erein a penalty of $210.00 was sought.
Respondent contested not only the citation, but also the propriety of the inspection itself, and a hearing addressing these matters was held in El Paso, Texas.
 2

The Inspection

Bonita Horton, the OSHA compliance officer (“CO”) who conducted the inspection,
was the only individual who testified in this case. Horton testified she met with Frank Bacquera, the job superintendent for Arrow Building Corporation, the general contractor at the site, and that after he granted permission for the inspection to take place she held an opening conference to which the subcontractors were invited. Luis Garcia, who attended as the representative of D.H. Shelton & Associates, represented himself to be the foreman. Horton identified herself and explained her mission, giving each representative the opportunity to notify his employer that an OSHA inspector was at the site. Garcia did not object to the inspection and returned to his work after the conference, and Horton commenced her inspection with the activities of the general contractor’s employees. When Horton inspected Respondent’s activities at the site, Garcia answered her questions about the scaffolding he had been using. (Tr. 15-28; 33-37).
Respondent asserts OSHA had no right to conduct the inspection without a warrant,
and that its rights were further compromised by the CO’s failure to give it an opportunity to have a representative accompany her during the inspection.’ It is well settled that OSHA must have either valid consent or a warrant to conduct an inspection. A4z&zaZZV.Barlow’s, JIzc., 436 U.S. 307 (1978). It is clear from the record that no warrant was obtained in this case. However, it is equally clear OSHA obtained valid consent to conduct the inspection, and that Respondent was not denied the opportunity to have a representative present during the inspection. My reasons follow.
Frank Bacquera, the job superintendent
for the general contractor, gave the CO
permission to inspect the site, and Luis Garcia, who represented himself to be Respondent’s foreman, did not object to the inspection or request a warrant; Garcia was also given the \
opportunity to notify Respondent of the inspection, and he answered the CO’s questions about the scaffolding. Although David Shelton, Respondent’s president, asserted on the record that Garcia was not a foreman and was not fluent in English, unsworn statements are

‘See Respondent’s notice of contest and correspondence to the Commission. A

3

not evidence. 2 Moreover, the CO testified that Garcia spoke English, that she had no trouble understanding him, and that when she asked him if he wanted an interpreter he said he did not. (Tr. 32-33). Since there was no evidence to rebut the CO’s testimony, which I
found credible, it can only be concluded that the CO reasonably relied on Garcia’s
representation that he was a foreman, that OSHA had valid consent to inspect the site, and that Respondent was not denied its right to accompany the CO. Accordingly, Respondent’s challenge to the inspection is deniedo3

The Citation

The subject standard provides, in pertinent part, as follows:
Scaffolds 4 feet to 10 feet in height, having a minimum horizontal dimension in either direction of less than 45 inches, shall have standard guardrails installed on all open sides and ends of the platform.
Bonita Horton testified the scaffold Garcia had been using, as shown in C-1 atid C-2, had two levels of planking; the first, on which Garcia had been working, was about 9 feet from the ground, and the second, on which he had laid his tools, was about 10 feet from the ground. The planks were 19 inches wide, making the first level, on which two planks were laid, 38 inches wide. Garcia told Horton he had been using the scaffold to strap pipe to the walls and ceiling of the building, that it had been up a week, and that he had been using it about six hours a day; he also told her he had been working over the unplanked opening, as shown in C-2, and that he thought the cross braces on the scaffold were guardrails. Horton opined Garcia could have fallen and been seriously injured.
(Tr. 20-29; 33-37).
Shelton asserted at the hearing that Garcia was in the process of moving the scaffold,
and that Garcia had informed the CO of this fact. However, as noted supra, unsworn statements are not evidence. Moreover, the CO unequivocally testified that Garcia told her

2Shelton was advised of this fact several times during the hearing; however, he declined to testify or present any witnesses on behalf of the company. (Tr. 14-15; 43-46).

31n so doing, the undersigned has noted Shelton’s assertion he had asked the OSHA area director to inform the company of inspections and to present warrants for inspections. However, the CO testified she was unaware of the request, and that in any case it is impermissible to give advance notice of inspections. (Tr. 38-39). Moreover, while an employer has the right to request a warrant before allowing OSHA access to the worksite, no such request was made in this case. 4

he had worked on the scaffold in the condition in which she observed it. (Tr. 33-36). Based on the record, the Secretary has established a serious violation of the cited standard.
As noted above, the Secretary proposed a penalty of $210.00 for this citation.
In
assessing penalties, the Commission is required to give due consideration to the employer’s size, history and good faith, and to the gravity of the violation. I note that while Respondent had approaately 50 employees at the time of the inspection there were just two at the site, only one of whom, based on the record, was exposed to the hazard. 1 note also that Respondent is no longer in business, and that while there was evidence in the record of previous citations, those citations, which did not involve the same standard as the. one at issue, had settled.4 Under the circumstances of this case, it is concluded that the assessment of a penalty of $25.00 is appropriate.

Conclusions of Law

1. Respondent, D.H. Shelton & Associates, Inc., is engaged in a business affecting
commerce and has employees within the meaning of section 3(5) of the Act.’ The Commission has jurisdiction of the parties and of the subject matter of the proceeding.
2. Respondent was in serious violation of 29 C.F.R. 0 1926.451(a)(4).

Order
.

On the basis of the foregoing Findings of Fact and Conclusions
of Law, it is
ORDERED that:
1. Item 1 of serious citation number 1 is AFFIRMED, and a penalty of $25.00 is assessed.

E Carter Botkin
Administrative Law Judge

4Thqsecitations apparently settled for Sl.00 each. (Tr. 41-43).

‘See Tr. 11-13 and attachment to Respondent’s correspondence to the Commission dated May 8, 1990.