Company behind deadly scaffold collapse benefits from OSHA's 'mi - FOX5 Vegas - KVVU

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Company behind deadly scaffold collapse benefits from OSHA's 'mistake'

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A construction company responsible for an unsafe work site that killed one of its employees has settled their case with OSHA. A construction company responsible for an unsafe work site that killed one of its employees has settled their case with OSHA.
LAS VEGAS (FOX5) -

A construction company responsible for an unsafe work site that killed one of its employees has settled its case with OSHA.

On Wednesday, Performance Builders Incorporated agreed to pay a discounted rate of $7,000 for erecting an unsafe scaffold that broke apart last Aug. with Ricardo Bautista on top.

Bautista fell multiple stories to his death at Tivoli Village. He was a husband and a father.

OSHA changes its policy

On Thursday, Performance Builders was scheduled to fight their case in front of the OSHA Review Board.

OSHA's chief administrative officer, Jess Lankford, said the company gave up hours before the public hearing and agreed to pay the proposed fines.

"They conceded ... We didn't make any compromises," Joseph (JD) Decker, Lankford's boss, said. "The case, I think, resonated with everybody."

Still, a FOX5 investigation revealed that Performance Builders should have been fined more than just $7,000.

Lankford said it was a "mistake" to offer Performance Builders a discount on their penalty because of the company's repeated history of OSHA violations. That same "mistake" made its way into the settlement because OSHA chose not to rework the initial proposed fine.

Decker and Lankford blamed the mistake on a lack of administrative oversight.

The two said they have since reworked their policies to ensure companies with deadly accidents stop receiving discounts, but the new policy will not apply to this case.

"On this case it's too late," Decker said. "In the case of a fatality, it doesn't seem appropriate to me to be reducing the penalties for an unsafe condition that led to someone losing their life."

If Performance Builders never received a discount, the company would have been fined $10,000 for the two serious violations that resulted in Bautista's death. The scaffold did not have the proper bracing or pins in place to lock it together.

OSHA fails to label repeated violations

Less than a month later, Performance Builders was fined $5,600 for the exact same "serious" violations on a scaffold at The District in Henderson. 

Decker said Performance Builders also received discounts in that case despite what appears to be an obvious repeat violation. He said it may not have "technically" been classified as a repeat violation because the Tivoli Village case was still open.

Both cases were settled on the same day. If the case was heard by the OSHA Review Board, the fines could have theoretically been increased. Lankford and Decker said that is an uncommon practice.

In the future, Decker said he wants to make sure repeated violations similar to this case will be classified with much more severity, resulting in much steeper fines.

"I would like (those violations) to be willful," Decker said.

Violations are classified as "willful" and "repeated" instead of "serious" if OSHA determines there was a “clear disregard for the standards” or a “willful indifference to the standard.”

Willful violations that result in an employee's death could result in a criminal case.

“We don’t want to see fines,” Jacquelyne Moreno, the victim's wife, said. “I’d like to see (the owner) in jail.”

Randy Sorensen, the owner of Performance Builders, has not been charged with a crime and has not been hit with a willful violation despite witnessing problems with the work site, ignoring the problems days before Bautista's death and then repeating the same violations less than a month later.

“He has his challenges,” Lankford said. “He’s very opinionated and he’s very firm in how he deals with his business.”

Decker did not say whether a willful violation was ever on the table when determining how to punish Sorensen or Performance Builders.

"Well, I wasn't part of the discussions on the reductions of penalties," he said. "I don't have a message for the family because I don't think anything I could say would address the horrific event that they're having to deal with."

Sorensen and his attorney have repeatedly declined or ignored requests for an interview.

Union fights against both sides

Members of the Southwest Regional Council of Carpenters Union said they were disgusted with OSHA's toothless fines and failure to hold Performance Builders accountable.

OSHA officials said even though the fines may seem low, they hope the punishment will ensure Performance Builders cleans up its act. If not, they promised to act with more force in the future.

Workers said they expect Performance Builders to continue violating and they'll only believe in OSHA when they finally see the agency step up.

Currently, OSHA fines in Nevada are not in accordance with the federal OSHA system's fine schedule. Decker said the fines will become harsher in 2019 if it is approved by lawmakers at the next legislative session.

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