OSHA Review Board decides valley company responsible for deadly work site is still guilty

Nevada OSHA is changing its policies after settling a case with the company responsible for an unsafe work site that killed an employee last Aug.  (FOX5)

A company responsible for the death of its employee at Tivoli Village in Aug. of 2016 has been fighting to get fines and violations removed from its record. Ricardo Bautista was 30 years old when the scaffold he was working on collapsed. Performance Builders Incorporated was fined $7,000 for two serious violations stemming from the case.

In Jan., Jacquelyne Bautista and her attorneys filed a lawsuit against Performance Builders for the death of her husband.

Less than a month after the Tivoli Village collapse, OSHA determined Performance Builders was continuing to make the same deadly mistakes at a work site at the District, next to Green Valley Ranch. OSHA fined Performance Builders $5,600.

A few months later, Performance Builders was hit with $44,000 worth of fines for "willful" violations because of an unsafe scaffold at a third job site: Pinecrest Academy Inspirada.

The company's owner, Randy Sorensen, stated his employees did not need to place pins in his scaffold to lock it into place.

Since the accident, OSHA has admitted the fines should have been higher and agreed to change multiple policies as a result of a FOX5 investigation. OSHA blamed a lack of oversight for accidentally giving Performance Builders discounts on their fines.

OSHA settled the initial case with Performance Builders regarding the deadly Tivoli Village collapse, and Sorensen agreed to pay $7,000.

However, Sorensen has contested fines and violations stemming from the District case and the Pinecrest Academy Inspirada case. Nobody was injured in either case. 1 year later: Woman visits construction site for the first time where husband died FOX5 investigation into worker's death leads to new OSHA policies, but it's too late Company held responsible for worker's death ignores widowThe District: to be determined

On Wednesday, after approximately six hours of testimony at a public hearing, members of the OSHA Review Board unanimously made a "preliminary" vote to remove at least one of the violations against Performance Builders stemming from the District case. A finalized determination could be made next month.

Francis Milligan, a member of the OSHA Review Board, said he would not vote to dismiss violations stemming from a lack of safety pins. That issue was still up for debate.

"Human safety is my primary goal, and I don't want to see anyone hurt or killed in Nevada, and I take it very seriously," he said. "I'm hopeful that maybe there's a lesson that can be learned from this one."

Sorensen's attorney, Rick Roskelley, argued that the scaffold at the District was assembled in a way that would not necessitate the regulations cited by OSHA. He stated that pins were not necessary to keep the scaffold from collapsing because employees were not working around heavy machinery or during windy conditions.

OSHA called a witness to the stand who testified he saw employees up on the scaffold while forklifts operated in the area, which would have necessitated the use of pins.

Sorensen said he would not do an on camera interview, but he said he believed putting pins in his scaffold would make the scaffold more dangerous instead of less dangerous.Pinecrest Academy Inspirada: Violations Affirmed

Testimony regarding the company's third case at Pinecrest Academy Inspirada ended on Thursday, with the OSHA Review Board formally voting to uphold OSHA's decision to issue willful violations to Performance Builders.

Roskelley and the Sorensen family argued that the windy conditions on the job site were not sufficient enough to cause the scaffold to collapse. Laura Sorensen, co-owner of Performance Builders, testified she preferred to not put pins in the scaffold because it becomes more obvious when there are safety issues for crews to correct.

"I had found what I believed was the conditions where uplift can occur," she testified. "A 100+ ... mile per hour wind would have to be required to displace an end frame. I have never heard of an over 100 mile per hour wind in Las Vegas. Why would I need to throw those (pins) in there?"

The OSHA Review Board ultimately decided that Performance Builders deserves to be fined for intentionally refusing to put locking pins in the scaffold despite repeated warnings to do so. Members voted 3-1 in favor of OSHA.

"They made a willful choice to disregard the use of pins," OSHA Review Board member Rodd Weber said. "To me, what it seems for, is for the convenience of not having to reinspect the entire scaffold."

Case 1 — Tivoli Village (fatal)$7,000Case 2 — The District$5,600Case 3 — Pinecrest Academy Inspirada$44,000All three cases involve the same violations w/ the same company. The first two cases involve “mistakes” made by OSHA, giving out discounts to Performance Builders https://t.co/TXDim6gROK— Adam Herbets (@AdamHerbets) February 15, 2018

Ricardo Bautista's widow, Jacquelyne Bautista, was in the room for the hearing. She sat two chairs away from the Sorensen family. Neither side spoke to each other.

"They're the ones that killed my husband, and it's hard being in the same room ... It's like they don't even care," she said. "Seeing (Laura Sorensen) laugh, smile. It breaks my heart ... they destroyed my family."

Members of the Southwest Regional Council of Carpenters Union were also in attendance to support the Bautista family and protest the conduct of Performance Builders.

"I feel like I need a shower, like a decontamination or something," union president Kyle Hail said. "Just sitting next to (Randy Sorensen), he comes off as arrogant and smug, and there's no indication that he cares."

Francis Milligan, a member of the OSHA Review Board, said he hopes he stops seeing so many similar cases involving this company.

"Absolutely. That concerns me, and I'm hopeful that maybe there is a lesson that can be learned from this (case)," Milligan said.

"This is the third time you forgot to put the pins," Jacquelyne Bautista said. "Do you want a second person to have the same accident?"

The #ShameonPerformanceBuilders car is parked outside this hearing pic.twitter.com/zVoh6FrT5q— Adam Herbets (@AdamHerbets) February 15, 2018

If the Sorensen family chooses to appeal the decision made by the OSHA Review Board, a judge would hear the case in Clark County District Court.Fractured skull, internal bleeding, no violations

Since Ricardo Bautista's death, another employee has been injured on a Performance Builders work site.

A man fractured his skull and suffered internal bleeding after falling nine feet from a scaffold on the work site for Dignity Health - St. Rose Dominican, Blue Diamond (Emerus) Hospital.

OSHA investigated, but did not cite Performance Builders for the case, stating that the company was not required to give the employee certain safety equipment because he wasn't very high off the ground.

Months prior to the injury, FOX5 showed up to the work site and asked about Performance Builders' involvement.

"It ain't going to happen on my job," a superintendent for SR Construction said. "I didn't hire them... to be honest with you, I keep a close eye on them. They have a safety inspection every day that gets turned into me."

Laura Sorensen stated that Performance Builders has since been putting locking pins in all of its scaffolds, even though she and her husband still argued that it does not make the work site safer.

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