North Pacific Enterprises

Plain-English summary

Two North Pacific employees worked from a narrow board on a wooden scaffold more than 25 feet above a concrete parking lot without guardrails or personal fall protection. The company president had seen the same conduct the previous day but did not stop or discipline the workers, and the foreman could have discovered the repeated exposure through reasonable inspection. Judge Nancy J. Spies rejected the employee-misconduct defense because North Pacific did not prove a specific rule, effective communication, monitoring, or enforcement. She held that language and cultural barriers required greater effort rather than excusing weak safety controls. The serious violation was affirmed with a $525 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.451(g)(1).
• Outcome: Serious scaffold fall-protection violation affirmed with a $525 penalty.
• Key point: Employee misconduct is not a defense when management sees the unsafe conduct, fails to intervene, and cannot prove a specific, communicated, monitored, and enforced work rule.

Full text (OSHRC public release)

                                                                   

Secretary of Labor,
Complainant,

              v.                                     OSHRC Docket No. 98-0613

North Pacific Enterprises,
Respondent.


Appearances:

      Cheryl L. Adams, Esquire                       Rip Stephanson, Pro Se
         U. S. Department of Labor                      Saipan, MP
         Office of the Solicitor                            For Respondent
         San Francisco, California
              For Complainant

Before: Administrative Law Judge Nancy J. Spies

                                     DECISION AND ORDER

      North Pacific Enterprises, Inc. (North Pacific), is a contractor specializing in light

commercial and residential construction (Tr. 70). Its primary office is located in Saipan, the
Commonwealth of the Northern Mariana Islands. North Pacific contests the one-item serious
citation issued to it on March 12, 1998, following an inspection by Occupational Safety and
Health Administration Compliance Officer Felipe Lopez and fellow Compliance Officer Castro.
Specifically, the Secretary asserts that North Pacific violated § 1926.451(g)(1) when its
employees worked from a scaffold more than 25 feet above the ground level without using fall
protection. North Pacific admits that its employees were potentially exposed to the fall hazard,
but asserts that the exposure was the result of employee misconduct. For the reasons discussed
below, the undersigned finds that the Secretary established a violation and North Pacific failed to
prove its defense.

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The Inspection
Late in the afternoon on February 18, 1998, Castro and Lopez observed two men sitting
on and working from wooden scaffolding placed around a tall sign at the Microl Toyota
automobile dealership in Saipan. The men were at a height of approximately 28 feet above a
concrete parking lot. Lopez specifically observed that the men were not wearing safety harnesses
or using any other form of fall protection. The scaffold had no guardrails (Exh. C-2; Tr. 9, 29,
30). Because of their observations, the compliance officers decided to inspect the workers’
employer the next morning (Tr. 10).
When Castro and Lopez returned to the Microl site on February 19, 1998, they again
observed two men, Rodolfo Tabianan and Exequiel Jimenez, on the upper part of the scaffold
hammering and working on the sign. The wooden scaffold had no work platform. Tabianan and
Jimenez sat on a piece of 2- by 4-foot lumber, which spanned between the scaffold frames at a
height of at least 25 feet above the concrete parking lot (Tr. 10, 25). Lopez observed that some
safety harnesses were hung from the bottom tier of the scaffold (Exh. R-1; Tr. 11).
The compliance officers approached the scaffold, and the two employees climbed down.
When Tabianan reached the ground, he immediately ran towards the back of the Microl building.
North Pacific’s foreman, Nonito Lapeciros, who was supervising a North Pacific excavation crew
at the back of the Microl building, saw Tabianan run by. Lapeciros went to the front of the
building and spoke with the compliance officers. He directed them to North Pacific’s office (Tr.
13, 24, 37, 40).
Rip Stephanson, North Pacific’s president and general manager, was at the office.
Stephanson advised Lopez and Castro that, like them, he had seen the two employees on the
scaffold on February 18, 1998, and noted that they had not been wearing their safety harnesses
(Tr. 16). Stephanson apparently did not admonish the two employees for their failure to use fall
protection at that time. Stephanson told Lopez of his exasperation with trying to secure the

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cooperation of contract workers,1 like Tabianan and Jimenez, in complying with safety standards.
He concluded that some employees “aren’t trainable” (Tr. 15).
Discussion
In pertinent part, § 1926.451(g)(l) provides:
Each employee on a scaffold more than 10 feet above a lower level
shall be protected from falling to that lower level . . . .
(vii) . . . by the use of personal fall arrest systems or
guardrail systems meeting the requirements of ¶
(g)(4) of this section.

    The Secretary has the burden to establish each of the four elements of her proof. These

are:
(a) the applicability of the cited standard, (b) the employer’s
noncompliance with the standard’s terms, (c) employee access to
the violative conditions, and (d) the employer’s actual or
constructive knowledge of the violation (i.e., the employer either
knew, or with the exercise of reasonable diligence could have
known, of the violative conditions).

Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
Without question, the scaffolding standard applies to North Pacific’s use of the wooden
scaffold. North Pacific’s employees were exposed to a fall hazard as they sat on and worked
from a narrow board more than 25 feet above the ground level. The employees were not wearing
fall protection or protected from falls by guardrails. Only the last element, that of employer
knowledge, remains to be discussed.
As stated, Stephanson saw the employees working on the scaffold the day before the
inspection and knew that they were not wearing fall protection. Without his intervention,
Stephanson should have known that these employees would likely ignore the same fall protection
requirements as they resumed their work.

1
Contract workers from the Phillippines and other countries may enter and work in Saipan under the terms
specified in The Immigration and Nationality Act, 8 U.S.C. 1101, et seq. Employers offer contract workers 40
hours of work a week and provide housing and medical care (Tr. 59-60). The United States Department of Labor
has enforcement responsibility for some of the provisions of that Act (Tr. 61).

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Foreman Lapeciros testified that he instructed Tabianan and Jimenez to wear fall
protection, but Lapeciros’s credibility was seriously undermined by his lack of fluency in the
English language. Even when North Pacific’s engineer translated from English to Tagalog for
him, Lapeciros’s demeanor showed his confusion and indicated a desire to respond without
having an understanding of the question asked. Accordingly, his testimony is not afforded any
significant weight, especially when it lacks corroboration or when it contradicts the testimony of
other witnesses. Lapeciros knew that the men were working from a scaffold just around the front
of the building from the rest of the crew. Had he checked the scaffold work going on in plain
sight, he would have seen the safety harnesses hanging at the bottom of the scaffold.2 It is
concluded that with the exercise of reasonable diligence, North Pacific should have known of the
violative conditions.
The Secretary has met her burden of proof. If an accident occurred, a fall of more than 25
feet to concrete or onto parked cars would result in serious injury or death (Exh. C-1). A serious
violation of the standard occurred.
Employee Misconduct Defense
Once the Secretary proves the violation, unless the employer establishes its defense, the
violation will be affirmed.
North Pacific’s employee misconduct defense centers on its alleged difficulty in
convincing its employees to follow safety procedures. It contends that after an earlier OSHA
citation, the company purchased safety equipment, trained one of its employees, and made an
effort to include safety in the operation of its business (Tr. 48, 50). Even with that, according to
Stephanson, its employees did not embrace a safety program. Especially its contract workers, the
majority of whom were from the Phillippines, considered safety rules and equipment to be a
hindrance to the effective performance of their jobs. Many of the contract employees had work
experience in their home countries and were not familiar with the safety practices required by the

2

Lapeciros’s testimony differs on this point. Lapeciros testified that the employees took their safety harnesses up to the
top of the scaffold but removed them for some unknown reason (Tr. 36, 40). The testimony of Compliance Officer
Lopez was persuasive that the harnesses were hanging from the lowest tier of the scaffold (Tr. 11). Lopez recorded
this observation on OSHA Form 1-B, which was written shortly after the inspection (Exh. R-1).

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Occupational Safety and Health Act. It was also Stephanson’s opinion that regulations which
sought to protect contract employees from exploitation had the unintended consequences of
making such employees almost immune from the employer’s discipline (Tr. 58-60).
It has long been recognized that an employer is not strictly liable for its employees’
actions. One way in which an employer may validly defend against an apparent violation is by
showing that the condition resulted from an isolated incident of employee misconduct. In order
to negate a violation on the grounds of employee misconduct, the employer must show that: (l) it
established work rules designed to prevent the specific violation from occurring; (2) the work
rules were adequately communicated to its employees; (3) it took steps to discover violations of
those rules; and (4) it effectively enforced the rules when violations were discovered. E.g., Gary
Concrete, 15 BNA OSHC 1051, 1055 (No. 86-1087, 1991).
Did North Pacific have a safety rule designed to prevent the specific conduct which
violated the standard? North Pacific did not present evidence that it had a workrule which
required guardrails or the use of safety harnesses while working above 10 feet on scaffolds.
Stephanson testified that North Pacific had a safety manual that was “over 1,000 pages” (Tr. 66).
He explained that he failed to provide Lopez, and later the Secretary’s attorney, with a copy of
the manual because he did not understand that this is what they were seeking. Accepting that the
manual existed, however, does not permit the undersigned to speculate as to what may or may
not have been covered in its pages. North Pacific also claims that it had an oral workrule
regarding the use of safety harnesses (Tr. 36). Again, the testimony was too vague to establish
the existence of a specific workrule.
The second element of the defense concerns communication of the workrule. Even if a
specific workrule existed, North Pacific failed to prove that the workrule was effectively
communicated to its employees. North Pacific conducts monthly safety meetings. It introduced
a one-page “Employee Safety Checklist” as evidence of the fact that the monthly meetings
occurred and to show the topics covered at its monthly meeting on February 15, 1998. There was
nothing on the checklist that addressed fall hazards. Although Stephanson stated that the topic
was covered at that meeting, it is noted that the blank space on the checklist indicating discussion
of “other personal protective equipment ” was left blank (Exh. R-2).

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The third and fourth elements relate to how the employer discovers violations of its
workrule and the enforcement procedures it utilizes when it does. Stephanson did not prevent
Tabianan and Jimenez from continuing their unsafe activities after he saw them working without
fall protection on February 18. This is considered strong evidence that the rule was not
adequately enforced. See Hamilton Fixture, 16 BNA OSHC 1073 (Docket No. 88-1720, 1993).
Further, the fact that two employees felt free to disobey the alleged workrule over a two-day
period sounds less like an idiosyncratic action and more like weak enforcement. See Falcon
Steel Co., 16 BNA OSHC 1179, 1194 (Docket Nos. 89-2883 & 89-3444, 1993). North Pacific
failed to establish that it had an effective disciplinary program. It presented no written program
of progressive measures of discipline. To the contrary, the evidence was that violative conditions
remained uncorrected.
The undersigned does not discount North Pacific’s difficulties in reaching beyond the
barriers of language and custom. These barriers, however, cannot justify a lesser effort towards
maintaining a safe workplace. As the Commission stated in another context, compliance “will,
in some instances, require some creativity on the part of employers seeking to achieve
compliance.” Pitt-Des Moines, 16 BNA OSHC 1429, 1433-34 (Docket No. 90-1349, 1993).
North Pacific needed to prove each of the elements of its defense but proved none of them. The
violation is affirmed.
Penalty
In determining an appropriate penalty, the Commission must give “due consideration” to
the size of the employer’s business, the gravity of the violation, the employer’s good faith, and its
history of past violations. J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2213-14 (No. 87-2059,
1993). These factors are not accorded equal weight. The gravity of the violation is the primary
element in the penalty assessment. Trinity Indus., 15 BNA OSHC 1481, 1483 (No. 88-691,
1992).
North Pacific is a small company with twenty employees (Tr. 70). Although it had a
history of previous serious violations within three years of the inspection, the recommended
penalty mistakenly included a full credit for past history (Tr. 20). Good faith considerations
include North Pacific’s cooperation with the inspection; the fact that it had regular safety

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meetings; and that it had a written (although poorly communicated and enforced) safety program.
Further, North Pacific provided safety harnesses for the use of its employees.
Gravity considerations include the fact that two employees were exposed to a fall of more
than 25 feet for at least portions of two days. They sat on nothing wider than a 2- by 4-foot piece
of lumber and were in the closest proximity to the hazardous condition. The probability of an
accident occurring in these circumstances was high.

   The Secretary has proposed a penalty of $525.00 for the serious violation. Considering

all factors, including any special difficulty North Pacific encountered in enforcement of its safety
procedures, the recommended penalty is more than reasonable and is assessed.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Rule 52(a), Fed. R. Civ. P.
ORDER
Based on the foregoing decision, it is ORDERED that the violation of § 1026.451(g)(1) is
affirmed and a penalty of $525.00 is assessed.

                                                  NANCY J. SPIES
                                                  Judge

Date: August 2, 1999

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