An administrative law judge of the Occupational Safety and Health Review Commission affirmed most safety citations issued against a New Jersey construction employer, but reduced the associated penalties because the company was inappropriately held responsible for a history of U.S. Occupational Safety and Health Administration violations at other companies.

On April 18, 2015, an OSHA compliance officer noticed what appeared to be employees working from a scaffold without fall protection at a New Jersey construction worksite and opened an inspection into Passaic, New Jersey-based concrete and masonry company E&N Construction Inc., according to commission documents.

In September 2015, OSHA issued a citation alleging five serious violations of OSHA's scaffold standard for a total proposed penalty of $35,000. The five citation items alleged the company had not adequately planked the scaffold’s working platforms, employees were climbing the scaffold’s frame to access the scaffold, a pre-shift inspection of the scaffold was not conducted, employees were working more than 10 feet above ground without fall protection and cross-braces were missing from the scaffold.

The judge affirmed most of the serious violations, but determined the agency did not prove that the scaffold had not been inspected by a competent person before the April 18, 2015, work shift in vacating one alleged violation. 

“It was E&N’s practice and procedure for its on-site foreman to inspect the scaffolding at the beginning of each workday to make sure that it was in compliance with OSHA standards,” the judge said in his ruling. “There is insufficient evidence showing that E&N deviated from its usual practice the morning of April 18, 2015.”

The judge assessed a total of $7,560 in penalties for the affirmed violations, but reduced the fines issued against the company by 25% — on top of the typical 60% reduction for the company’s small size and 10% for its prior citation-free inspection — because the OSHA assistant area director inappropriately imposed the maximum penalty on E&N due to his previous interactions with one of its managers.

The assistant area director had a history with the project manager, who previously worked at or owned companies where there were other OSHA violations. The assistant area director decided against applying penalty reductions to the $7,000 per item statutory maximum because of this history and because he believed E&N had not been cooperative during the inspection and had not made efforts to minimize the harm to employees at the site, according to the ruling.  

“There is no place for spitefulness when assessing penalties under the act,” the decision stated.

The administrative law judge’s decision became a final order of the commission Tuesday.

Attorneys for the company and the U.S. Department of Labor could not be immediately reached for comment.