OSHA continues to enable company with deadly, unsafe scaffolds - FOX5 Vegas - KVVU

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OSHA continues to enable company with deadly, unsafe scaffolds

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LAS VEGAS (FOX5) -

Performance Builders Incorporated, the construction company, responsible for an unsafe scaffold that killed one of its employees last August at Tivoli Village, is making the same mistakes at Pinecrest Academy Inspirada.

If this story sounds familiar, that's because this is the third case in which Performance Builders has failed to put the proper pins in a scaffold to prevent a collapse. The first violation killed Ricardo Bautista, a father of three, on August 22. The second case was less than a month later at the District in Henderson. 

Randy Sorensen, the owner of the company, was on site days before Bautista's death at Tivoli Village. Investigators said the violations were in plain sight and that Sorensen could have corrected them.

Performance Builders had paid a $7,000 fine for two "serious" violations.

A third work site without pins

Sorensen's name has appeared in OSHA reports again, after his scaffold at Pinecrest Academy Inspirada was deemed unsafe.

"I walked the entire scaffold and observed pins missing on all sides of the scaffolding," wrote OSHA Investigator Mark Nestor. "Mr. Sorensen stated that the connector pins are necessary for high winds where uplift can occur. However, Mr. Sorensen stated that he (sic) considered high winds to be 90-100 mph."

In other words, Sorensen thought he only needed to put pins in his scaffold if his workers experienced hurricane force winds.

OSHA originally proposed a $2,400 fine, which includes a $1,600 discount for "size." OSHA determined Performance Builders is guilty of a "serious" violation, but not a "repeat violation."

The OSHA manual states that supervisors have the authority to withhold discounts if they believe the "full gravity-base penalty is necessary to achieve the appropriate deterrent effect."

Performance Builders indicated to OSHA that it plans to appeal the citation.

OSHA has not yet explained the rationale behind issuing Performance Builders a discount. Similarly, the agency has not yet revealed who made the decision to offer the discount.

UPDATE: OSHA upgraded a "serious violation" worth $2,400, to a "willful" violation totaling $44,000 after pressure from the media.

"I took that opportunity to do a review of the case file. You were right in your questions," said JD Decker. "We can't do a repeat without a final order, but we can do a willful."

Three strikes, zero repeat violations

Companies are supposed to receive stricter punishments and fines when they repeat the same violations. The two unsafe scaffolds erected after Bautista's death have not resulted in a single "repeat violation."

Instead, OSHA offered Performance Builders a settlement, which included discounts. 

FOX5 questioned the decision to provide discounts and started its own investigation. Eventually, the agency's chief administrative officer, Jess Lankford, came forward and admitted the choice to provide discounts in that case was a "mistake."

Still, Lankford allowed that "mistake" to find its way into a settlement with Performance Builders. This inability to correct the "mistake" saved Performance Builders thousands of dollars.

Lankford's boss, Joseph (JD) Decker, said OSHA has since changed its policy to ensure companies stop receiving discounts when people die. He also said that FOX5's investigation led OSHA to provide more oversight so that supervisors have a greater opportunity to review cases before these "mistakes" happen again.

"On this case it's too late," Decker said at the time, partly blaming his subordinates for seeming to apply the discounts automatically.

Still, OSHA defended the decision to not hit Performance Builders with a "repeat violation," despite the lack of pins in a scaffold at the District. Decker admitted the violation was, indeed, repetitive, but they weren't "technically" classified as "repeat violations" because the Tivoli Village case was still open.

Performance Builders paid a $5,600 fine.

Now a spokesperson for OSHA's parent organization, the Nevada Department of Business and Industry, seems to be using that same logic in regards to the Pinecrest Academy Inspirada scaffold. 

"The previous cases did not close until 04/24," wrote Teri Williams. "We cannot retroactively apply a Repeat violation. Any similar violation occurring after Review Board approval of the 04/24 settlement would be considered for Repeat."

Williams' response indicates that Performance Builders dodged two repeat violations by dragging out its two prior cases until April. We asked if that policy gives companies like Performance Builders an incentive to waste everybody's time and money by waiting until the day prior to an official hearing before agreeing to a settlement.

"The appeal, and subsequent withdrawal, had no effect on our inability to classify the violation in question as Repeat," Williams wrote. "However, if the appeal is withdrawn, the closing date defaults back to the date of the Closing Conference."

A closing conference was held in the Tivoli Village case on Oct. 19, which would seem to indicate that Performance Builders should have been eligible for a "repeat violation" in the Pinecrest Academy Inspirada.

Williams said she wouldn't comment or go into detail about the discrepancy before June 5.

FOX5 investigation yields inconsistent cooperation from OSHA

OSHA's policies have either enabled Performance Builders, or OSHA's failure to adopt its own policies have enabled Performance Builders. The company has received lesser fines and more discounts for each instance in which Performance Builders failed to secure scaffolds with proper pins.

FOX5's calls to Lankford have not been returned for months. He failed to show up to a scheduled interview in April to discuss his agency's settlement with Performance Builders.

An inside source familiar with FOX5's relationship with OSHA claimed Lankford has received "marching orders" to specifically avoid interacting with FOX5 journalists.

"No such 'marching orders' were given," wrote Williams, in an email on April 27. "Mr. Lankford was given JD's approval to handle any further inquiries ... in whatever manner Jess deemed appropriate."

Lankford has still refused to confirm or deny the allegations on his own. In June, Williams doubled down on her statement.

"Any response from Nevada OSHA to you now and in the future will be via writing," she wrote. "There is no interest on our part in sitting down with you again for over an hour to provide ACTUAL information about the questions you presume to have ... I understand that this is a world in which you only dabble occasionally so it's understandable that you don't know everything."

Sorensen repeatedly declined requests for an interview. At one point he bragged about his "friends from OSHA" and threatened to send them to the FOX5 television station to investigate working conditions.

OSHA is currently investigating another case in which an employee fell from a Performance Builders scaffold at the Emerus Hospital work site on Blue Diamond Road and South Decatur Boulevard. Construction workers said he suffered broken ribs and internal bleeding. OSHA declined to comment on the case, citing an open investigation.

Protests get heated and creative

The Southwest Regional Council of Carpenters Union has openly criticized Performance Builders and OSHA for its inability to hold the company accountable.

Members protested outside of the Performance Builders office on Friday morning. They parked a car wrapped in designs that criticize the company. 

"PERFORMANCE BUILDERS IS MAKING A KILLING OFF OF YOU," read one decal. "RANDY SORENSEN DESECRATES THE AMERICAN WAY OF LIFE."

Union members also handed out flyers to employees and prospective business partners outside of the business.

"YOU SHOULDN'T HAVE TO RISK YOUR LIFE AND GET PAID LESS AT THE SAME TIME SO RANDY SORENSEN CAN BUY MORE RACE CARS FOR HIS KIDS," read the flyer.

People inside the Performance Builders office got into a shouting match with protesters and called the North Las Vegas Police Department. Officers told the protesters they weren't doing anything wrong so long as they stay on public property.

Union members said they have also driven the car to Performance Builders work sites and to Sorensen's personal home. 

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