N Dallas Acrylic v. OSHC

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

m 02-60255 Summary Calendar _______________

NORTH DALLAS ACRYLIC & STUCCO, INC.,

Petitioner,

VERSUS

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION; ELAINE CHAO, SECRETARY, UNITED STATES DEPARTMENT OF LABOR,

Respondent.

_________________________

Petition for Review of an Order of the Occupational Safety and Health Review Commission (01-0727) _________________________ October 16, 2002

Before HIGGINBOTHAM, SMITH, and North Dallas Acrylic & Stucco, Inc. CLEMENT, Circuit Judges.

PER CURIAM:* (...continued) determined that this opinion should not be published and is not precedent except under the * Pursuant to 5TH CIR. R. 47.5, the court has limited circumstances set forth in 5TH CIR. R. (continued...) 47.5.4.

(“NDAS”), seeks review of an order of the quez, who was NDAS’s field superintendent, Occupational Safety and Health Review Com- testified. Moore spoke primarily about his mission (“OSHRC”) upholding a citation un- inspection of the Keller site. Mayfield testified der the Occupational Safety and Health Act of about NDAS’s safety and enforcement poli- 1970, 29 U.S.C. § 651 et seq., for violations of cies. 29 C.F.R. § 1926.451(e)(1), (g)(1). Conclud- ing that the order rests on an error of law, we Each newly hired employee receives a safe- grant the petition for review and vacate and ty handbook in his language and watches safe- remand. ty videos, including information on the use of scaffolding. Employees attend weekly job site I. safety meetings with their foremen. Foremen The facts are simple and undisputed. sometimes discuss scaffolding safety at these NDAS is a small stucco contractor. Its em- meetings. Vasquez is responsible for inspect- ployees were working on a stucco project at a ing job sites for safe scaffolding and disciplin- Wal-Mart store under construction. Foreman ing employees for safety infractions. Noel Juarez led a crew applying stucco to an exterior wall. The crew had nearly completed NDAS does not maintain written disciplin- the wall and, as they began to put the final ary records or use a “progressive” discipline touches on it, they erected a new segment of policy of increased punishments for each in- scaffolding that had a platform at just over ten fraction, but repeated infractions result in ter- feet and another platform at eighteen feet. The mination. Mayfield recollected giving verbal higher platform had guardrails to prevent reprimands to at least three workers. He also workers from falling and a ladder to allow thought Juarez ran a safe site based on past them to climb onto the platform. The lower personal inspections, but he reprimanded Juar- platform had neither guardrails nor a ladder, a ez as a result of the OSHA citation. violation of 29 U.S.C. § 1926.451(e)(1), (g)(1). As it happened, Larry Moore, a Vasquez testified about his training in scaf- compliance officer for the Occupational Safety folding safety, which is extensive; his safety & Health Administration (“OSHA”), was in- inspections, which he conducts at each job site specting the Keller site just as two employees twice per week; and NDAS’s safety and disci- were working from the lower platform. plinary policies. His testimony about these OSHA issued three citations to NDAS, which policies and Juarez’s safety record does not contested each.1 differ from Mayfield’s. Vasquez added that NDAS did not have a formal rule about the An administrative law judge (“ALJ”) held a number of infractions necessary for termina- hearing on the citations. Moore, Juarez, tion, though he did recall that at least two em- NDAS president Gary Mayfield, and Jose Vas- ployees had been fired partly for safety infrac- tions and partly for insubordination.

1 In addition to the guardrail and ladder cita- Juarez testified about his decision not to in- tions, OSHA cited NDAS for failing to secure the stall guardrails or a ladder on the lower plat- scaffolding with base plates on the ground. 29 form. He took full responsibility for the safety C.F.R. § 1926.451(c)(2). The ALJ vacated this infraction, stating that he accepted the blame citation for lack of evidence.

“because it was my violation.” He had been II. trained on safe scaffolding practices and had a A. clean safety record, which documentary evi- This case boils down to one simple dispute, dence supported. He therefore knew not to al- namely, whether NDAS adequately enforced low workers on scaffolding without guardrails its safety policy. NDAS and the Secretary and ladders, but the two workers needed to agree that “[k]nowledge is a fundamental ele- use the lower platform for only a few minutes, ment of the Secretary of Labor’s burden of much less time than it would have taken to in- proof for establishing a violation of OSHA stall the guardrails and the ladder. regulations.” Trinity Indus., Inc. v. OSHRC, 206 F.3d 539, 542 (5th Cir. 2000). They also Juarez knew Vasquez would reprimand him agree that the Secretary may prove (construc- for the safety infraction if Vasquez observed it. tive) knowledge by showing that an employ- He did not think anyone would notice, though, ee’s misconduct was foreseeable because the because the job would be quick. Juarez stated, employer’s safety and disciplinary policy is in- however, that he did not think Mayfield or adequate. Horne Plumbing & Heating Co. v. Vasquez reprimanded him because of the OSHRC, 528 F.2d 564, 569 (5th Cir. 1976). OSHA citation; rather, he said “they called it to my attention so that it [would] not happen The parties simply disagree on whether again.” NDAS adequately enforced its safety policy. Likewise, they dispute only one element of the The ALJ upheld the citations for failure to affirmative defense of unpreventable employee install guardrails and a ladder on the lower misconduct, i.e., whether NDAS adequately platform. The order concentrated exclusively enforced its safety policy when it discovered on NDAS’s defense of unpreventable employ- violations. Sec’y of Labor v. Precast Servs., ee misconduct. The ALJ concluded that Inc., No 93-2971, 1995 WL 693954, at *1 NDAS had not established an essential element (Rev. Comm’n 1995) (stating elements).2 of the defense, namely, adequate enforcement Thus, whether for the Secretary’s prima facie of its safety policies. Yet, the ALJ imposed showing of constructive knowledge or relatively meager penalties of $250 for each NDAS’s affirmative defense of unpreventable citation because of the short duration of the employee misconduct, they dispute only infractions, the low risk of injury, NDAS’s whether NDAS adequately enforced its safety small size, its good history with OSHA, and its policy. The evidence on this question is the extant, “albeit imperfect,” safety policy. same at either stage.

NDAS filed a petition for discretionary re- B. view with OSHRC. Because no commissioner The parties contest the proper standard of directed the petition to OSHRC for review, the review for this question. The Secretary insists ALJ’s decision became the final order of that we should review the ALJ’s decision that OSHRC. 29 U.S.C. § 661(j). NDAS now pe- titions this court for review of that order. 29 U.S.C. § 660(a). 2 The other three elements are (1) established work rules, (2) adequate communication of these rules, and (3) steps taken to discover violations. Precast Servs., 1995 WL 693954, at *1.

NDAS did not adequately enforce its safety ary policy. Precast Servs., 1995 WL 693954, policy only for substantial evidence. 29 U.S.C. at *1. “The conventional way to prove the en- § 660(a); Cleveland Consol., Inc. v. OSHRC, forcement element is for the employer to in- 649 F.2d 1160, 1167 (5th Cir. Unit B July troduce evidence of a disciplinary program by 1981). NDAS, on the other hand, insists that which the company reasonably expects to in- we should review the ALJ’s decision de novo, fluence the behavior of employees.” Id. Pre- because he applied the wrong legal standard. cast Services then noted that an employer may Horne Plumbing, 528 F.2d at 567. We agree provide this evidence by using a progressive with NDAS and apply the de novo standard, disciplinary policy, but it never held that an because the ALJ’s decision is “not in accor- employer must use such a policy. Indeed, it dance with law.” 5 U.S.C. § 706(2)(A). offered the example of a progressive disciplin- ary policy only “[f]or instance.” Id. Moreov- C. er, Precast Services expressly stated, contrary The ALJ committed an error of law when to what the ALJ stated, that “[i]n rare instanc- he purported merely to apply Precast Services es, the employer may be able to establish that to NDAS’s affirmative defense.3 The ALJ cit- its work rules were enforced with evidence of ed Precast Services for the proposition that only verbal reprimands.” “[t]hough an employer may rebut that evi- dence by showing that it had a progressive These errors of law fatally infected the disciplinary plan with increasingly harsh pun- ALJ’s decision. The ALJ reviewed the evi- ishment for infractions of work rules, the dence looking for an adequate progressive dis- Commission has found that programs consist- ciplinary policy, when he should have reviewed ing only of pre-inspection verbal warnings are it looking for an adequate disciplinary policy, insufficient to establish the defense.” (Em- given all the circumstances. Perhaps the phasis added.) Using this standard to review evidence still would support the citations the evidence, the ALJ concluded that NDAS under this standard, but perhaps not. The evi- did not have an adequate progressive disciplin- dence against NDAS seems picayune, but it is ary policy. the responsibility of the ALJ, not this court, to weigh the evidence. Our responsibility is only Precast Services, however, does not require to ensure that the ALJ applies the proper legal an employer to rebut the Secretary’s prima fa- standard when evaluating the evidence, which cie case with evidence of a progressive disci- he did not in this case. plinary policy; rather, Precast Services simply requires evidence of an “[a]dequate” disciplin- The petition for review is GRANTED, the citations against NDAS are VACATED, and the case is REMANDED to OSHRC for fur- 3 ther proceedings consistent with this opinion. The ALJ never discussed how the Secretary made a prima facie showing of NDAS’s know- ledge as required by Horne Plumbing, 528 F.2d at 569, and Trinity Indus., 206 F.3d at 542. He ap- parently presumed the prima facie showing be- cause Juarez was a supervisor: “It is well settled that misconduct by [a] supervisor constitutes strong evidence that [the] safety program is lax.”