CAULDWELL-WINGATE CORPORATION

OSHRC Docket Nos. 14620; 14858

Occupational Safety and Health Review Commission

May 8, 1978

[*1]

Before CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

Franklin E. Tretter, for the employer

Alan D. Cirker (for Nat'l Constructors), Amicus Curiae

John P. Arness (for Bechtel Power), Amicus Curiae

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

On March 17, 1976, Administrative Law Judge Richard DeBenedetto issued a decision affirming 11 items contained in two citations that alleged "nonserious" violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq. [hereinafter the "Act"] for respondent's failure to comply with various construction standards contained in 29 CFR Part 1926. He assessed to total penalty of $325.

Neither party filed a petition for discretionary review of the Judge's decision. Former Commissioner Moran directed review without specifying issues to be reviewed. Respondent declined to submit a brief but stated that it would rely on its memorandum of law submitted to the Judge. No response to the direction for review was submitted by the complainant. Subsequently, upon respondent's motion, oral argument [*2] was presented to the Commission. For the reasons set forth below, we affirm the Judge's decision. n1

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n1 The Judge vacated item 6 of the citation in Docket No. 14620. Since the parties have not taken exception to the Judge's disposition of that item, we will not review it. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD para. 20,780 (No. 4136, 1976); Crane Co., 76 OSAHRC 37/A2, 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976).

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Respondent, a New York corporation, was under contract to the Dormitory Authority of the State of New York to act as "construction manager" at the site of the construction of multiple buildings for the campus of Kingsborough Community College in Brooklyn, New York. Following inspection of that worksite on July 16, 1975, and on August 5 and 7, 1975, respondent was issued the aforementioned citations.

Before the Judge, the parties stipulated, among other things, that the violative conditions existed, that respondent did not [*3] create the hazards, that respondent was not responsible for the physical maintenance of the worksite, that respondent employed neither laborers nor craftsmen, that respondent had no means of correcting the violative conditions other than those contained in Appendix A to the stipulation (a portion of respondent's contract with the Dormitory Authority), and that the proposed penalties were appropriate if respondent were to be found in violation of the Act. The stipulated facts also establish that respondent's employees were actually exposed to the violative conditions or had access to them. Further, it is undisputed that for each building under construction the Dormitory Authority had direct ("prime") contracts with respondent (as construction manager), a general contractor, and three other contractors. The prime contractors, other than respondent, contracted with subcontractors for various portions of the work. Respondent had no contractual relationship with any other contractor on the job.

Before the Judge the respondent contended that it was not an employer engaged in construction within the meaning of 29 CFR 1910.12 n2 and, therefore, was not subject to the construction industry [*4] standards at 29 CFR Part 1929. Respondent also argued that under Anning-Johnson Co. v. O.S.H.R.C., 516 F.2d 1081 (7th Cir. 1975), it was not liable under the Act for exposure of its employees to nonserious hazards which it neither created nor controlled. Relying on Brennan v. O.S.H.R.C. and Underhill Construction Corp., 513 F.2d 1032 (2d Cir. 1975), respondent also contended that, in the absence of a showing that it maintained or controlled the area in which the hazards were located, it was not liable under the Act.

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n2 Paragraph (b) of this regulation provides that:

For purposes of this section, "construction work" means work for construction, alteration, and/or repair, including painting and decorating.

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The Judge rejected respondent's arguments. In holding that respondent was engaged in construction, he observed that "respondent shares with the general contractor and subcontractors a principal common goal, and that is the construction of the project in accordance with the specifications and conditions [*5] of the contract." Similarly, the Judge held that the rationale of Anning-Johnson Co. v. O.S.H.R.C., supra, was inapposite in that the court's holding was limited to noncreating, noncontrolling subcontractors whose employees were exposed to hazards on a multi-employer construction site. He found that respondent was in sufficient control of the worksite "to bring about by practicable means the correction of the violations." Further, the Administrative Law Judge found that respondent's situation was closely akin to that of the employer in Underhill Construction Corp., supra, in that respondent "had considerable control over the worksite." The Judge noted that in Underhill, the court affirmed a citation against a respondent "who even as [a] subcontractor had considerable control over and responsibility for the work areas on the building site." The essence of the Judge's decision is his conclusion that respondent, while neither a general contractor nor a subcontractor in the technical sense, nonetheless possessed sufficient control to take action to correct the violations.

In its argument to the Commission, respondent emphasizes its unique role as construction manager, [*6] contending that it had no part in the actual construction (employing neither craftsmen nor laborers), that it had no contractual relationships with other contractors at the site, that it had no power to order others to act and, finally, that it could only report on matters to the owner who then could take action.

We first conclude that the Judge was correct in finding that respondent was engaged in construction within the meaning of the regulations. Two Commission decisions are pertinent to the instant situation.

In Skidmore, Owings & Merrill, 78 OSAHRC 1/A2, 5 BNA OSHC 1762, 1977-78 CCH OSHD para. 22,101 (No. 2165, 1977), the Commission found that the respondent, an architect, due to its "limited functions and authority over the work," n3 was not "engaged" in construction and thus not subject to the construction standards. The Commission held that "to be within section 1910.12 an employer must perform actual construction work or exercise substantial supervision over actual construction." (Emphasis added.)

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n3 Skidmore, Owings and Merrill's functions were described as "inspect[ing] the work of various contractors to ensure that design specifications were met." The Commission took cognizance of the contract between the respondent and the owner which provided, in part, that Skidmore had no responsibility or authority "to direct or supervise construction methods, techniques, procedures or safety methods."

[*7]

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In Bechtel Power Corp., 76 OSAHRC 38/E2, 4 BNA OSHC 1005, 1976-77 CCH OSHD para. 20,503 (No. 5064, 1976), aff'd, 548 F.2d 248 (8th Cir. 1977), we considered whether a construction manager with duties similar to those of the respondent was engaged in construction work. There, Bechtel contended that construction managers "who [did] none of the actual construction" should be exempt from the requirements of 29 CFR Part 1926. We found, however, that Bechtel was "an integral part of the total construction system at the site," and that "[i]ts functions were inextricably intertwined with the actual physical labor." We determined that because its work was "so directly and vitally related to the construction being performed and because its employees worked at this construction site, it was 'engaged' in construction." What we said in Bechtel is also applicable in the instant case. n4 See also Bertrand Goldberg Associates, 76 OSAHRC 102/A2, 4 BNA OSHC 1587, 1976-77 CCH OSHD para. 20,995 (No. 1165, 1976).

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n4 Respondent, who had no contractual safety duties, contends that the factor controlling the Commission's finding in Bechtel was Bechtel's contractual duties as to safety. To support this contention, respondent relies on the Eighth Circuit's decision in Bechtel, which in affirming our decision, found that we "factually distinguished Anning-Johnson by noting that Bechtel unlike a subcontractor, was contractually responsible for the construction site's safety program and thus possessed the power to protect its employees." 548 F.2d at 249. This, however, was not the entire basis of our decision. We found the construction manager's safety duties to be only one of the many functions "inextricably intertwined with the actual physical labor" that was carried out on the worksite. Although Bechtel's safety duties were enumerated by contract, a duty to an employer's employees under the Act is present regardless of contractual arrangements. R.H. Bishop Co., 74 OSAHRC 35/C14, 1 BNA OSHC 1767, 1973-74 CCH OSHD para. 17,930 (No. 637, 1974); Robert E. Lee Plumbers, Inc., 75 OSAHRC 56/C2, 3 BNA OSHC 1150, 1975-76 CCH OSHD para. 19,594 (No. 2431, 1975) (concurring opinion). But see, Commissioner Barnako's concurring opinion in Bertrand Goldberg Associates, supra.

[*8]

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Moreover, the respondent's responsibilities in this case are considerably more extensive than those of the archited in Skidmore, Owings & Merrill, supra. That is evident from Appendix A to the stipulation, which is attached as an appendix to this decision. After reviewing the terms of respondent's contract with the Dormitory Authority as set forth in that appendix, we conclude that the functions performed by respondent constitute "substantial supervision over actual construction." Therefore, respondent was engaged in construction and is subject to the standards set forth in 29 CFR Part 1926.

We also reject respondent's contention that it is not liable under the Act because it did not create or control the violative conditions. The evidence of record establishes sufficient control on which to find respondent liable.

Paragraph 14 of the stipulation between the parties n5 shows that respondent had all the powers enumerated in Appendix A at its disposal had it chosen to exercise them. The Judge, taking special note of paragraphs 14 and 23 of the appendix, found these powers to be particularly [*9] demonstrative of respondent's ability to effect abatement. A thorough reading of Appendix A is instructive. Respondent had authority to "take action on behalf of the Owner," "coordinate," "organize," "incite," "review," "expedite," "evaluate," and "implement," in addition to "observe" and "report." Indeed, a consideration of Appendix A as a whole leads us to conclude that respondent's authority went far beyond a mere ability to check the site and report back to the owner.

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n5 The paragraph reads as follows:

14. The Respondent as Construction Manager of the Dormitory Authority had no means of correcting [the cited] hazards other than those methods contained in Appendix A.

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Respondent also refers to the Commission decisions in Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD para. 20,690 (No. 3694, 1976), and Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD para. 20,691 (No. 12775, 1976), holding that the general contractor on a multi-employer worksite [*10] is responsible for violations which it could reasonably be expected to prevent or abate because of its supervisory capacity. Respondent seeks to avoid liability because it was not the general contractor at the worksite. There is no merit in the respondent's position. The labels used to describe the various contractors are not controlling as the record shows that respondent had the ability to effect abatement and held a position "akin to that of a general contractor." Bertrand Goldberg Associates, supra. Therefore, respondent had the duty under section 5(a)(2) of the Act to at least take the necessary steps to assure compliance with the standards.

Even if we were to conclude that respondent was in the position of a subcontractor at the worksite, we would reach the same result. A subcontractor who neither created nor controlled a hazardous condition will be held liable where its own employees are exposed to it unless he can establish either that his employees were protected by realistic measures taken as an alternative to literal compliance with the cited standard or that it did not have, nor with the exercise of reasonable diligence could have had, notice that the condition [*11] was hazardous. Anning-Johnson Company, supra. Respondent has neither claimed nor presented evidence that it took such alternative action or that it did not have notice that the violative conditions were hazardous.

Finally, we reject respondent's contention that holding respondent liable will give rise to attempts by employers on multi-employer construction sites to devolve themselves of safety responsibilities by contract. The Commission has held that an employer's statutory duty under the Act cannot be delegated to others by contract. R.H. Bishop Co., supra, and Robert E. Lee Plumbers, Inc., supra. But see, Commissioner Barnako's concurring opinion in Bertrand Goldberg Associates, supra.

Accordingly, the Judge's decision is affirmed.

APPENDIX A

Construction Phase

During the Construction Phase of the work, the Construction Manager shall:

1. Establish procedures for and maintain coordination among the Owner, the Architect, the various Contractors and the Construction Manager itself with respect to all aspects of the project.

2. Recommend on-site organization and lines of authority in order to carry out the project on a totally [*12] coordinated basis.

3. Organize, staff and assign personnel to various areas, to effect a positive means by which the project will be professionally controlled, coordinated and expedited. Staffing shall be in accordance with Appendix B attached hereto and made a part hereof.

4. Conduct necessary job meetings and progress meetings. Job meetings shall be held on a bi-weekly basis. Coordination meetings shall be held as required. Write detailed minutes of every job and coordination meeting and issue same to the attendees, prime contractors, Architect, Owner, City University of New York, the college and other parties designated by the Owner to receive such minutes. Issue all such minutes within two working days of the date of the meetings.

5. Prepare, develop and maintain on-site record keeping systems including daily logs, progress schedules, financial reports, job correspondence, change order logs, shop drawing logs and semi-monthly job progress reports for the Owner. Copies of all correspondence pertaining to the work shall be reviewed and maintained by the Construction Manager.

6. Coordinate the timely submittal and issuance of all required shop drawings, samples, catalog [*13] cuts, review shop drawings, brochures, guarantees, certificates of compliance, etc.

7. Review all shop drawings, samples, catalog cuts, brochures, guarantees, certificates of compliance, etc., for coordination among the prime contractors, subcontractors, trades, etc., and for compliance with the contract documents, stamp them indicating they have been so reviewed and submit them to the Architect for his review and approval (or disapproval).

8. Receive and reply to all correspondence from the prime contractors.

9. Maintain as-built drawings prepared by Contractors.

10. Coordinate the work of the scheduling consultant who has been hired by the Owner to schedule the project.

11. Expedite and coordinate the work of all phases and contractors so that job progress will be accelerated.

12. Endeavor to recognize potential delays and on behalf of the Owner incite the Contractors to take the necessary compensating measures.

13. Evalute manpower, equipment and procurement. Notify the Owner of the project status and immediately advise the Owner of any delays or serious potential delays that will affect the ultimate completion date. Take action on behalf of the Owner to eliminate [*14] or minimize such delays where possible and make recommendations to the Owner as to a plan of action, if necessary.

14. Continually observe work being performed by the contractors by inspecting the site for the purpose of controlling, coordinating, expediting and reporting the construction progress, and to assure compliance with plans and specifications.

15. With respect to portions of the work to be performed by change order or otherwise on a time and materials, unit cost or similiar basis requiring the keeping of records and computation therefrom, maintain daily cost-accounting records.

16. Implement the Owner's procedure for the processing of change orders.

17. Make recommendations to the Owner for such changes in the work as the Construction Manager may consider necessary or desirable for the expeditious completion of the work.

18. Analyze and perform economic evaluation of all contractor claims for contract cost adjustment resulting from change and/or field orders and recommend approval or disapproval to the Owner for processing.

19. Perform economic evaluation and evaluate the effect on other work of all proposed change orders. Investigate alternatives and economies, [*15] coordinate with the Architect and make recommendation to the Owner prior to issuance of change order requests.

20. On behalf of the OWNER issue all field orders and change orders initiated by the Construction Manager, Owner and/or Architect and approved by the Owner to contractors for added or deleted work resulting from change in scope or field conditions not covered by contract.

21. Review and analyze claims by contractors for compensation for extra work performed or delays incurred, etc., beyond the scope of contract or change orders.

22. Review all contractor insurance documents to assure that the documents fully comply with the contract, and forward same to the Owner.

23. Review monthly contractors' invoices and if considered fully consistent with job progress and other contract criteria, recommend payment. When no payment or only partial payment is recommended, the Owner and the Contractor shall be so advised and the reasons for such determination fully explained.

24. Prior to final payment establish that no liens have been filed and that all necessary guarantees, as-built drawings, operating and maintenance manuals, certificates of compliance, etc., have been submitted [*16] and all operating instructions have been given to the Owner's personnel and consistent with contract requirements.

25. Prepare supplemental sketches or details as reasonably necessary to clarify minor field conditions not covered in the contract drawings or specifications, for use by the architect or engineer authorize to practice engineering in the State of New York.

26. Consult with the Architect concerning proposed design changes and obtain his approval for same.

27. Inspect the project jointly with the Owner and Architect between 30 to 45 days prior to the time the Owner is to take over, use, occupy or operate any part or all of the project, and furnish a detailed report to the Owner of observed discrepancies and deficiencies in the work performed by the contractor.

28. Inspect the project joinly with the Owner and Architect between 10 to 30 days prior to the end of the one-year guarantee period provided in the contracts of the various contractors, and furnish a detailed report to the Owner and the Architect of observed discrepancies and deficiencies applicable to such guarantees.