             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                                                     determined that this opinion should not be
                                                     published and is not precedent except under the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.

                                                      2
“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.

                                                    3
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.”

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