BECHTEL POWER CORPORATION

OSHRC Docket No. 5064

Occupational Safety and Health Review Commission

March 11, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

T. A. Housh, Jr., Regional Solicitor, USDOL

James O. Ball and Michael A. Fletcher, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On August 13, 1974, Judge Vernon Riehl issued his decision in this case affirming all five items of a citation and assessing a total penalty of $190. n1 The citation issued by the Secretary of Labor alleged an "other than serious" violation 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 failure to comply with 29 CFR 1926.500(b)(1), (d)(1), (d)(2), 1926.24, 1926.350(a)(9), 1926.51(b)(1) (uncontested), and 1926.25(a). On September 11, 1974, the respondent's petition for discretionary review was granted. The primary issues raised are whether the respondent, as a construction manager, is subject to the Construction standards of 29 CFR Part 1926, and if so, whether the Administrative Law Judge erred in finding that respondent's employees were exposed to hazards for which respondent was cited. These issues have been thoroughly briefed by the parties. For the reasons which follow, we affirm the Judge's [*2] report.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 One of these items was not contested by respondent, and thus became a final order of the Commission by operation of law. See e.g., St. Paul Feed & Supply, Inc., No. 1122 (October 2, 1974).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

I.

Respondent employer, Bechtel Power Corporation, was the construction manager at the site of a power plant under construction at Crystal City, Missouri. As construction manager, it did no actual work of construction; had no craft labor; and had no direct contracts with any craft unions in connection with work on this project. The actual construction was performed by various contractors, all of whom had prime contracts with the owner, Union Electric. Each of these prime contractors may have had one or more subcontractors.

Respondent's services included the development and design of the plant. It expertly administered and coordinated the construction on behalf of the owner and conducted daily inspections of the work in progress to ensure that the various prime contractors and subcontractors adhered [*3] to design specifications. Its employees checked the payrolls to see if they reflected the actual number of workmen employed; monitored and recorded the progress of the work; and interpreted design drawings. Its role is comprehensive and vital to the orderly completion of the work.

Bechtel employed at least two safety representatives who policed the site; reported hazardous conditions to the prime contractors; and coordinated the safety program. Safety violations were also reported to the Bechtel coordinator assigned to the particular prime contractor. When hazards were present, Bechtel attempted to persuade the contractors to comply. It concedes that it could have dispatched letters asking for correction (Tr. 12), but also, at least in the case of serious hazards, it could have actually directed that work be stopped until the condition is corrected.

To carry out its functions, respondent employed 83 workmen, of which 33 were administrative and office personnel and the remaining 50 were engineers, timekeepers, and safety inspectors. Their duties took them all over the jobsite. About 850 workmen were employed at the site by the various construction contractors. It was stipulated [*4] that the hazardous conditions alleged by the Secretary actually existed, and that the proposed penalties were reasonable and appropriate.

II.

Respondent argues that its employees are not engaged in construction work, and that it is therefore not subject to the provisions of 29 CFR Part 1926. n2 We disagree.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 Respondent does not claim that it is exempt from the requirements of the Act. It concedes the applicability of section 5(a)(1), and of section 5(a)(2) only insofar as 29 CFR Part 1910 is applicable to its work.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

"Construction work" is defined by 29 CFR 1910.12(b) as "work for construction, alteration, and/or repair, including painting and decorating." The scope of Part 1926 reaches "to every employment and place of employment of every employee engaged in construction work." 29 CFR 1910.12(a).

Bechtel urges that we adopt a narrow interpretation of the terms "work for construction" and "engaged in construction" so that construction managers who do none of the actual construction will be exempt from the [*5] requirements of 29 CFR Part 1926, the Safety and Health Regulations for Construction. The terms are not so construed. We agree with Judge Riehl's analysis:

Those engaged in construction . . . do not necessarily have to be a carpenter, bricklayer, cement mason, ironworker or others engaged with their hands in working upon materials. There are . . . other[s] in the industry such as timekeepers who are not permitted to touch the work in anyway [sic] . . . [and] also foremen who do just about the same type of work that the Bechtel Company does [--p]erhaps not on as a sophisticated plane but substantially the same.

The work performed by Bechtel's employees (timekeepers, engineers, safety representative, and administrative personnel) has been already noted. In determining whether they are "engaged" in work "for" construction, several judicial opinions are instructive. The question in each case was whether employees were engaged in construction work in interstate commerce. In Ritch v. Puget Sound Bridge & Dredging Co., 156 F.2d 334, 337 (9th Cir. 1946) the Court cogently observed that:

. . . [D]raftsmen engaged in designing and laying out the work to be done by others [at [*6] a dredging site] . . . and timekeepers engaged in keeping the time of all who worked on the project . . . were as much engaged in construction . . . as were the men dredging . . ., the cement men . . ., and the mechanics . . . .

And the Court in Mitchell v. Brown Engineering Co., 224 F.2d 359, 364-365 (8th Cir.), cert. denied 350 U.S. 875 (1955), examined a similar question:

To hold that the 'resident engineer' exercises no control over the work of the contractor and does not perform a vital function in the total activities of a construction project, is to turn away from the realities and practical considerations of the situation and be guided by technical conceptions . . . .

That defendant's employees performed no actual manual labor on the projects . . . appears not to be of controlling consideration.

* * *

[It] is of minor significance.

See also, Mitchell v. Lublin, McGaughy & Associates, 358 U.S. 207 (1959), rev'g 250 Fed. 253 (4th Cir. 1957). n3

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 These cases are of course not dispositive of the instant matter. In their final analysis they concern questions of whether employees were "engaged" in commerce. But insofar as they speak to the scope and nature of construction work, we find their analysis instructive. Here, as there, a broad approach is necessary to carry out the purposes of the Secretary's regulations and the Act itself.

[*7]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Here, respondent was an integral part of the total construction system at the site. Its functions were inextricably intertwined with the actual physical labor. We believe that because respondent's 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, and performed work "for" construction, within the meaning of the regulations. Cf. Heede International, Inc., No. 1887 (January 7, 1975). We also note that the construction standards in Part 1926 are specifically designed for construction work. Their provisions are in some respects different from the requirements of Part 1910. Compare: Subpart L of Part 1910 with Subpart F of Part 1926; 29 CFR 1910.164 (fire brigades, no standard) with 29 CFR 1926.150(a)(5). In short, it would create impracticalities and confusion, and be anomalous, to hold that the construction manager on a worksite is not covered by the same rules as others.

III.

Bechtel argues that in adopting the construction standards of Part 1926 as Federal [*8] standards established n4 under the Contract Work Hours and Safety Standards Act, 40 U.S.C. 327 et seq. (popularly known and hereinafter cited as the "Construction Safety Act"), the Secretary did not expand the coverage of the construction standards to persons engaged solely in engineering and management functions, but instead retained the Construction Safety Act's restrictive application to contractors and subcontractors who employ laborers and mechanics. n5 Bechtel claims that in adopting the Construction Safety Act standards as standards under OSHA the Secretary specifically adopted the Construction Safety Act's definitions of "employee," "contractor" and "subcontractor."

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 The term "established Federal standard" is defined at section 3(10) of the Act.

n5 A similar argument was made in Bechtel Corp., No. 1038 (October 31, 1974).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The construction standards in Part 1926 reach to "every employment and place of employment of every employee engaged in construction work." 29 CFR 1910.12(a). Paragraph [*9] (b) of 1910.212 defines "construction work" and refers, for further discussion, to 1926.13 of Subpart B of Part 1926, which in turn discusses extensively the terms "contractor" and "subcontractor." Bechtel urges that because it is neither a contractor nor subcontractor within the discussion in 1926.13, it is without the scope of Part 1926.

The argument overlooks, however, that in adopting Part 1926 under the Occupational Safety and Health Act, the Secretary specifically eschewed adoption of Subpart A and B of Part 1926:

(c) Construction Safety Act distinguished. This section adopts as occupational safety and health standards under section 6 of the Act the standards which are prescribed in Part 1926 of this chapter. Thus, the standards (substantive rules) published in Subpart C and the following subparts of Part 1926 of this chapter are applied. This section does not incorporate Subparts A and B of Part 1926 of this chapter. Subparts A and B have pertinence only to the application of section 107 of the Contract Work Hours and Safety Standards Act (the Construction Safety Act). For example, the interpretation of the term "subcontractor" in paragraph (c) of 1926.13 [*10] of this chapter is significant in discerning the coverage of the Construction Safety Act and duties thereunder. However, the term "subcontractor" has no significance in the application of the Act, which was enacted under the Commerce Clause and which establishes duties for "employers" which are not dependent for their application upon any contractual relationship with the Federal Government or upon any form of Federal financial assistance. [Emphasis added].

Thus, Subparts A and B of Part 1926 have no application to the Occupational Safety and Health Act. Tishman Realty & Constr. Co., Inc., No. 567 (July 31, 1973).

The argument also overlooks the fact that with regard to Subpart C the Secretary clearly distinguished between the substantive safety rules which he adopted and the interpretative rules applicable only to the Construction Safety Act. Cf. Underhill Constr. Corp. v. Secretary of Labor, No. 75-4058 (2d Cir., November 24, 1975). This is clear not only from the terms of 1910.12(c), but also from 1910.11(b), which reads in pertinent part as follows:

(b) It bears emphasis that only standards (i.e., substantive rules) relating to safety or health are adopted [*11] by any incorporations by reference of standards prescribed elsewhere in this chapter or title. Other materials contained in the referenced parts are not adopted. Illustrations of the types of materials which are not adopted are these. . . . Similarly, the incorporation by reference of Part 1926 in 1910.12 is not intended to include references to interpretative rules having relevance to the application of the Construction Safety Act but having no relevance to the Occupational Safety and Health Act.

Thus, 1926.32(a), (i), and (j) of Subpart C of Part 1926 defining "Act" as the Construction Safety Act, "employee" as "every laborer or mechanic under the [Construction Safety] Act," and "employer" as a "contractor or subcontractor within the meaning of the [Construction Safety] Act and of this part [1926]" are interpretative rules applying only to the Construction Safety Act. Reading 1910.11(b) and 1910.12(c) together and in their entirety make it plain that the exclusion of Subpart A and B is given only by way of example of the type of interpretative rules which were not adopted; they do not imply that all the provisions of the following subparts of Part 1926 were adopted. [*12] Underhill Constr. Corp., supra. In contrast, examples of substantive rules in Subpart C which are applicable under the Occupational Safety and Health Act are 1926.21, and 1926.23-29.

Therefore, while it is undisputed that under the Construction Safety Act compliance by an employer is predicated upon there being a "laborer or mechanic employed in the performance of the contract" by a "contractor or subcontractor," n6 no such limitation is applicable under the Occupational Safety and Health Act. Any references to contractors, subcontractors, laborers, or mechanics in Part 1926 are interpretative rules not adopted by the Secretary and have no force and effect under OSHA.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n6 Construction Safety Act, section 107(a); 40 U.S.C. 333.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Bechtel also argues that, in adopting the Construction Safety Act standards under OSHA, the Secretary was not authorized to expand their coverage to employers other than contractors and subcontractors without further rulemaking proceedings. This argument has no merit. The legislative [*13] history of the Act makes clear that in adopting Construction Safety Act standards as established Federal standards under OSHA, the Secretary was empowered by sections 4(b)(2) and 6(a) to extend their coverage without resort to formal rulemaking procedures. Thus, S. Rep. No. 91-1282, 91st Cong., 2d Sess. 6 (October 5, 1970), n7 states:

The bill [S. 2193, 91st Cong., 1st Sess. (May 16, 1969), subsequently enacted] also provides for the issuance in similar fashion of those standards which have been issued under other Federal statutes and which under this act may be made applicable to additional employees who are not under the protection of such other Federal laws. [Emphasis added].

Thus, in declaring that the provisions of Subpart B of Part 1910 "adopt and extend the applicability of established Federal standards . . . with respect to every employer, employee, and employment covered by the [Occupational Safety and Health] Act," 29 CFR 1910.11(a) (emphasis added), and that the standards in Part 1926 should apply to "every employment and place of employment of every employee engaged in construction work," 29 CFR 1910.12(a) (emphasis added), the Secretary acted [*14] within his statutory authority. Cf. Lee Way Motor Freight Co., Inc., No. 1105 (April 23, 1974), aff'd 511 F.2d 864, 869 (10th Cir. 1975); Coughlan Constr. Co., Nos. 5303 & 5304 (October 28, 1975).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n7 Set forth in full in Staff of Senate Committee on Labor & Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, 141, 146 (Comm. Print 1971).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

IV.

The respondent also contends, citing Anning-Johnson Co. v. O.S.H.R.C., 516 F.2d 1081 (7th Cir. 1975), that the citations must be vacated because it neither created nor controlled the violative conditions to which its employees were exposed. The holding of the Seventh Circuit is narrow. Among other things, it is limited to a subcontractor having severe problems in abating hazards resulting from a violation of a standard.

But Bechtel is not a subcontractor. It is a construction manager. As a construction manager, it was empowered to organize, plan and, manage the construction program. It was [*15] also empowered to administer, inspect, approve, and coordinate n8 the performance of the prime contracts. Thus, respondent is clearly not the type of construction contractor that the Anning-Johnson decision concerned. It has the power to protect its employees and other employees against violations committed by the various prime and lower tier contractors,

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n8 See 516 F.2d at 1089-1090. The Court was very concerned with the confusion and disruption which might be engendered by allocating abatement responsibilities outside normal working relationships. Here, however, such tensions were entirely avoidable.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

V.

We turn now to Bechtel's contention that the Judge's findings of employee exposure were not supported by a preponderance of the evidence. It was stipulated that the hazardous conditions for which Bechtel was cited actually existed. There were 850 workers on the jobsite engaged in construction. These workers were employed by various contractors hired directly by the electric company. Bechtel had 83 [*16] employees on the site whose job was to coordinate the work of the various contractors. The evidence indicates that of the 83 employees at the project, 33 were administrative and office personnel and the remaining 50 were engineers, timekeepers and safety inspectors. At least two of these employees were safety representatives who policed the site and reported hazardous conditions to the prime contractor.

The duties of Bechtel's employees required them to work throughout the entire jobsite. Regarding the unguarded floor holes, runways, and platforms, n9 one compliance officer testified that Bechtel employees were spotted at numerous above-ground locations, and he was "quite certain" that a Bechtel employee was on a checker deck over some coal silos. Bechtel employees were identified either by their "Bechtel buttons" or their hard-hats or by identification by a Bechtel representative. Another Bechtel employee (R. Jones) was working on the ground level of a power block, below which were the cavities into which turbines were to be lowered. (See exhibit G-1).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n9 Items 1A, B and C alleged noncompliance with 29 CFR 1926.500(b)(1) (unguarded floor openings), (d)(1) (unguarded open sided floors) and (d)(2) (unguarded runways).

[*17]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

With regard to lack of fire protection and suppression equipment n10 at the power block at ground level, one employee was definitely spotted in this area. In any event, Bechtel's employees had to be in this area because their work required them to be above ground, and the only hoist was in this area.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n10 Item 2 alleged noncompliance with 29 CFR 1926.24 for failure to maintain an effective fire protection and prevention program in that respondent failed to insure the availability of the equipment required by subpart F of Part 1926.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In regard to the unsecured compressed gas cylinders, n11 from the evidence it appears that if a valve had been ruptured in a fall, a cylinder (weighing 92 pounds) might have become a projectile and could have traveled anywhere on the jobsite. Thus, all employees on the jobsite were exposed. See Dore Wrecking Co., No. 597 (January 24, 1974); Peter Bratti Assoc., Nos. 1990 & 1956 (January 17, [*18] 1975) (Cleary, Commissioner, dissenting).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n11 Item 3 of the citation alleged noncompliance with 29 CFR 1926.350(a)(9).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In regard to the housekeeping violations, n12 one Bechtel employee, a timekeeper, was actually observed stepping over spilled barrels of trash on a stairway. The employee was identified by a Bechtel representative.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n12 Item 5 alleged a failure to comply with 29 CFR 1926.25(a) in that debris was not cleared from work areas.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The evidence (and the other evidence relied upon by the Judge) provides both direct and circumstantial evidence of actual employee exposure to the cited hazards. Sletten Constr. Co., No. 11027 (December 31, 1975); Chicago Bridge & Iron Co., No. 224 (December 26, 1974). In any event, access to the hazards was clearly demonstrated. Gilles & Cotting, Inc., No. 504 (February 20, 1976); General [*19] Electric Co., Inc., No. 2739 (April 21, 1975) (concurring opinion). Cf. Brennan v. O.S.H.R.C. and Underhill Constr. Corp., 513 F.2d 1032, 1039 (2d Cir. 1975) (employees need not teeter on edge; access sufficient). n13

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n13 The respondent's heavy reliance on Humphreys & Harding, Inc., No. 621 (May 9, 1974) and Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255, 1260-1262 (4th Cir. 1974) is misplaced. Here the respondent's own employees were exposed to a hazard. See 504 F.2d at 1263.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

On this record, we therefore find respondent to have violated the Act in the manner alleged. n13a The appropriateness of the penalties is not in dispute, and we find no error in the Judge's action in this regard. See Thorlief Larsen & Son, Inc., No. 370 (October 11, 1974).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n13a Our colleague in dissent would hold that the cited construction standards do not apply to respondent because the date of its contract anteceded the publication of these standards. The principal thrust of the argument is that generally construction contractors who have submitted bids before the effective dates had not been able to compute them with reference to the costs of compliance, and that unfairness should be avoided by an exemption from compliance. We note that respondent has never raised this issue, it was never raised in the order for review, and has not been litigated with either the express or implied consent of the parties. Compare State Contracting Company, Inc., No. 1871 (January 3, 1975) with Steel Erectors, Inc., No. 5842 (September 23, 1975). To decide the case on this issue might well be unfair to the parties, Mobil Oil Company, No. 2128 (February 6, 1976), and would raise a serious question of our compliance with 5 U.S.C. 554(b)(3), section 5(a)(3) of the Administrative Procedure Act, as well as our impartiality. See N.L.R.B. v. Tamper, Inc., 37 Ad.L. 2d 290 (4th Cir., July 24, 1975). Cf. Consolidated Pine, Inc., No. 5543 (May 1, 1975) (Administrative Law Judge should not inject defenses which parties have not raised). Nor is the question raised one of jurisdictional dimension. Underhill Construction Corp., No. 1307 (January 31, 1975), aff'd 526 F.2d 53 (2d Cir. 1975). As to the nature of jurisdictional questions, and whether they are affected by the merits, see generally, West Coast Exploration Co. v. McKay, 213 F.2d 582, 591-592 (D.C. Cir.) (collecting authorities), cert. denied 347 U.S. 989 (1954); 21 C.J.S. Courts 23, 35(b) and (c), and 37-49.

Also, our precedent rejects our colleague's theory. Underhill Construction Corp., supra.

[*20]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Accordingly, the Judge's decision is affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

This decision finds the respondent in violation of the Act because of noncompliance with a number of safety standards codified in 29 C.F.R. Part 1926. They are listed in subparts C, D, J and M thereof. The Facts of this case make clear, however, that respondent is exempt from the purview of the regulations at issue because the work for which it was cited was being performed pursuant to a contract which predated the effective date of these regulations. The citation is therefore jurisdictionally defectived and should be vacated in its entirety. n14

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n14 I include item number 4 of the citation (noncompliance with 1926. 51(b)(1) - requiring identifying signs for nonpotable water outlets) even though it was not contested by the respondent. The finality provision in 29 U.S.C. 659(a) does not preclude the Commission from acting on a citation where there is a jurisdictional defect therein. See Secretary v. Phoenix, Inc., 1 OSAHRC 355 (1972).

[*21]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

29 C.F.R. 1926.1050 provides:

"Except where different effective dates are specifically provided in 1926.1051, the safety and health standards published in Subparts C through U of this part shall become effective on April 24, 1971, for all Federal and federally assisted advertised contracts subject thereto which are advertised after that date and on April 27, 1971, for all such negotiated contracts for which negotiations begin after that date."

At the time this citation issued, respondent was performing managerial services at the inspected worksite pursuant to a contract dated April 1, 1971. Thus, respondent's activities at that worksite clearly fall within the stated exemption. n15 In my dissenting opinion in Secretary v. Underhill Construction Corporation, 15 OSAHRC 366, 370-373 (1975), I pointed out that the exclusionary dates in the above-cited sectioin apply to private as well as Federal and federally assisted contracts. This exemption was inserted for an easily understandable reason. A contractor who had submitted a bid when these regulations did not apply was not to be forced to absorb [*22] the extra costs which compliance therewith would entail.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n15 Messrs. Barnako and Cleary take the position that even though the application of a regulation to certain pre-existing projects is specifically exempted by the terms of the regulations itself, the exemption does not apply unless the respondent raised this issue. See note 13a supra. Under this "logic" a law requiring that a seat-belt interlock system be installed in all automobiles manufactured in 1968 and later years would apply to a 1903 Stanley Steamer unless the respondent specifically called to the attention of the Judge that 1903 was not subsequent to 1968. I submit that this is carrying legal gamesmanship to the extreme. After examining the case citations included in note 13a, I am constrained to comment that they have been employed much in the same manner as a drunken man uses a lamppost - for support rather than for illumination.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Furthermore, the uncontroverted evidence in this case established that respondent had neither the responsibility [*23] nor the authority to implement safety and health measures or to correct hazardous conditions at the project. See Anning-Johnson Company v. OSAHRC, 516 F.2d 1081 (7th Cir. 1975). Contractural restraints precluded the respondent from taking any affirmative action other than reporting possible violations. Nor is there anything in the record to indicate that the respondent created any of the cited hazards.

For the foregoing reasons and those I discussed at greater length in the Underhill case, supra, I would reverse the decision below. However, I incorporate Judge Riehl's decision herein as Appendix A in order to provide a full exposition of the factual context in which this case arose.

Appendix A

SUE ANN WOLFF, United States Department of Labor, Office of the Solicitor, for the Complainant

JAMES O. BALL and MICHAEL A. FLETCHER, Bechtel Corporation, for the Respondent

Hearing held April 2, 1974, St. Louis, Missouri, Judge Vernon Riehl presiding.

STATEMENT OF CASE

Vernon Riehl, Judge, OSAHRC

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970, (29 U.S.C. 651 et seq., hereinafter called the Act) contesting a [*24] citation issued by the complainant against the respondent under the authority vested in complainant by section 9(a) of that Act. The citation alleges that an inspection of the workplace under ownership, operation, and control of respondent reveals the existence of workplace conditions that violate section 5(a)(2) of the Act for the reason that these conditions fail to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to section 6 thereof.

The citation alleges that the violation results from a failure to comply with standards promulgated by publication in the Federal Register.

A description of alleged violations contained in said citation states:

CITATION NUMBER 1 FOR NONSERIOUS VIOLATION

Item

Standard, regulation

Date by which

num-

or section of the Act

alleged violation

ber

allegedly violated

Description of alleged violation

must be corrected

1A

1926.500(b)(1)

The flooring openings were

October 16, 1973

not guarded

by a standard railing and

toeboards or

cover, as specified in

Paragraph 1926.

500(f) in the following

locations:

A. The ground level

turbine pit for

No. 1 unit;

B. The turbine generator

openings in

the turbine generator floor at

elevation 458.2.

1B

1926.500(d)(1)

The open-sided floors

October 16, 1973

were not guarded

by a standard railing

and toeboards as

specified in Paragraph

1926.500(f) in

the following locations:

A. The deck over the

top of the coal

silos at elevation 534.7

for Unit No. 1;

B. The auxiliary

equipment floor at

elevation 472.6.

1C

1926.500(d)(2)

The runways between

October 16, 1973

No. 1 and No. 2

power block were not

guarded by a stan-

dard railing and toeboard

as specified

in Paragraph 1926.500(f)

at the follow-

ing locations: 523, 534,

545, 559, 577,

587, 596, and 646.

2

1926.24

The fire protection and

October 3, 1973

prevention pro-

gram was not effectively

maintained due

to the non-availability

of fire pro-

tection and suppression

equipment, as

required by Subpart F,

at the ground

level of the power

block structure.

3

1926.350(a)(9)

There were many compressed

October 4, 1973

gas cylinders

lying or standing unsecured

throughout

the project.

4

1926.51(b)(1)

The restrooms were

November 29, 1973

supplied with non-

potable water in the

washing facilities

used by employees to

wash their hands.

5

1926.25(a)

Throughout the jobsite

October 9, 1973

scrap lumber and

general construction

debris was not kept

cleared from work areas,

passageways,

runways, stairs, and landings.

[*25]

The above alleged violations are cited from 29 CFR 1926 as appears in Volume 37, Federal Register dated December 16, 1972, Number 243.

A progress report will be forwarded to the Area Director at the end of each 30-day period. The progress report should detail what has been done, what remains to be done, and the time needed to abate the violation.

In its notice of contest, the respondent contested all citations with the exception of item number 4, 1926.51(b)(1).

ISSUES

The principal issue herein is whether or not respondent Bechtel's employees are engaged in construction under 29 CFR 1926, and, if they are so engaged whether or not respondent has violated the cited standards.

It was stipulated that the hazardous conditions set forth in paragraph IV of the complaint existed. Respondent contends however that Bechtel employees were not exposed. IV(d) applied to a violation that existed at the Bechtel office and this penalty was paid (T. 16). It was also stipulated that the method of computing the penalties was done in accordance with OSHA rules and respondent does not contest the reasonableness of the penalty (T. 17).

Therefore, respondent's primary contention is that it [*26] was not engaged in construction and, therefore, improperly cited under 1926 standard.

DISCUSSION

Respondent's contention is that it is a construction manager for the Union Electric Company. It is respondent's contention that there are Bechtel employees who go on or about this job (T. 7); that they do no work of construction; they have no craft labor, they have no contract with any union; and that every one of the people who are performing and responsible for performing the work, such as the carpentry, the piping, the steel erection and so forth, have prime contracts with the owner, Union Electric (T. 8).

Respondent states that it coordinates the safety program and it did so at the time of the inspection. They have at least two safety representatives on the project whose job it is to go around, and if they see anything which indicates a hazardous condition, they must then report it to the prime contractor who is responsible for that work; and secondly, they report it to the Bechtel coordinator who works with that particular [*27] prime contractor.

Respondent argues that its job of getting the hazardous conditions corrected is primarily one of persuasion and that if a real serious condition, which might bring death or serious injury, has occurred it is to be reported immediately to the Bechtel man in charge who goes to the contractor and can under these conditions direct that work be stopped in an area until it is corrected (T. 9). Respondent says it has the authority to point out hazards and to attempt to get the contractors to comply but cannot direct the contractors (T. 10).

Respondent also states that its construction manager may coordinate and try to get the contractors who work in the same or similar areas to coordinate their efforts (T. 10). Respondent stated also that each major contractor who performs the work of construction is a prime contractor; because, he has a contract directly with the owner of Union Electric. This contractor may in turn have one or more subs of various tiers; but each of those are prime contractors (T. 11); that respondent is purely a manager of construction and that their duties are administrative. They keep track of the cost, make cost estimates, and do some inspection [*28] work (T. 11).

None of respondent's employees do any work of construction, they have no craft labor whatsoever, they are not exactly supervisors, some of them are timekeepers. They spot check and the timekeepers check the men in and out. Respondent has 83 men in all employed on the project (T. 12). The various contractors and sub-contractors employ about 850 men on the total project.

Abatement is not an issue.

Both complainant and respondent submitted exhaustive briefs. We follow and adopt the reasoning of the complainant's brief. Section 2(b) of the Act provides:

"The Congress declares it to be its purpose and policy, through the exercise of its powers . . . to assure so far as possible every working man and woman in the Nation safe and healthful working conditions. . . ." (emphasis added)

The Act defines employer, section 3(5), as:

". . . a person "engaged" in a business affecting commerce who has employees . . . ." (emphasis added)

The American College Dictionary defines the word "engaged" as:

"1. busy or occupied; involved . . . . interlocked."

The word "engaged" means to:

"1. occupy the attention or efforts of (a person, etc). 2. to secure for aid, employment, [*29] use, etc; hire; to engage a workman. 11. to occupy oneself; become involved: to engage in business, . . . . 12. to take employment."

Respondent's employees while on the production site and working for their employer were involved (engaged) in construction work within the meaning of the Occupational Safety and Health Act.

There are no exemptions of anyone who is engaged in a business affecting commerce and who has employees with the exception of certain exemptions which do not fit the instant case.

Section 3(8) of the Act states:

"The term 'occupational safety and health standard' means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment."

This means any workplace, where you employ people, must conform to the standards required for the particular area of work.

Section 5(a)(2) states:

"Each employer -- shall comply with occupational safety and health standards promulgated under this Act."

"(b) Each employee shall comply with occupational safety and health standards and all rules, regulations, and [*30] orders issued pursuant to this Act which are applicable to his own actions and conduct."

Respondent is "engaged" in the construction industry. Such jobs as timekeeper are used by many construction firms on large jobs, and also the jobs of safety engineers and other people, who make recommendatioins for the changes in the work, are usually comparable to similar occupations of large construction companies who are engaged only in construction. All of the work done by respondent is in connection with the construction of a facility. They are not engaged in any other effort but in construction itself, although in a more or less supervisory capacity.

Those engaged in construction within the meaning of the Occupational Safety and Health Act do not necessarily have to be a carpenter, bricklayer, cement mason, ironworker or others engaged with their hands in working upon materials. There are also other jobs in the industry such as timekeepers who are not permitted to touch the work in anyway (by union rules), also foremen who do just about the same type of work that the Bechtel Company does. Perhaps not on as a sophisticated a plane but substantially the same.

Respondent is [*31] engaged in a construction industry and is an integral part of the total construction going on at the site at the time of inspection. Respondent is totally involved in construction work on a different plane with that of, say, a bricklayer or ironworker but nonetheless engaged in the same total project.

The construction standards are designed to prevent hazards during construction work such as performed for Union Electric. The standards are designed to protect any employee working for any employer on a construction project. Section 5(a)(1) and (2) means exactly what it says, "Each employer shall furnish to each of his employees . . . a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;" and, "shall comply with occupational safety and health standards promulgated under this Act." A place of employment is always covered by the Act and the standard applicable to the particular employment applies to any employer and his employees working on such a project.

Therefore in summarization, the respondent is an employer within the meaning of the Act and is subject to the standards for which [*32] he was cited.

"A workplace is anywhere an employee is required by his employer to perform work in the course of his employment.

It may be a publicly owned or privately owned facility; it may be enclosed as a factory, or, public property such as a manhole out on the city street; it may or may not be an area owned by the employer.

Ownership or sovereignty of an area are not controlling.

The standards cover the hazards involved from specific working conditions of employees. The Act does not contemplate exempting from coverage specific working conditions that an employer subjects his employees to by directing them to work at a given locality. The very clear purpose of the Act is to require every employer to provide safe and healthful working conditions for his employees wherever he requires them to work. So far as possible every working man [*33] and woman in the Nation is to be assured safe and healthful working conditions. The Act covers every worker (except those exemptions provided by the Act) while subject to working conditions imposed upon them by their employer at a given location.

Also specific working conditions are discussed, pages 10 through 25.

Having found that respondent is an employer subject to construction standards on the day of inspection, we now turn to the question of whether or not the evidence establishes an exposure of respondent's employees to the hazards found.

The site is a construction site. Any employee working there is subject, therefore, to the construction standards given OSAHRC jurisdiction. Respondent's employees worked all over the site, some in almost identical types of jobs as those performed by the various contracted employees. The "working conditions" are almost identical. The hazards are the same.

Item 1: Credible evidence of record [*34] (testified to without contradiction) establishes that respondent's employees were observed in places where there were numerous unguarded floor openings, open-sided floors, and runways at various locations on the worksite (T. 27, 30, 49, 50).

Item 2: Respondent failed to maintain an effective fire protection and prevention program in that they did not insure the availability of fire protection and suppression equipment at the ground level of the power block structure. There were assorted fire hazards at this location (T. 32). A respondent engineer was identified in this area (T. 49, 50). Respondent's own witness admitted on cross-examination that no fire protection equipment was provided for Bechtel employees in this location (T. 69, 70).

Item 3: Numerous compressed gas cylinders' located throughout the project were not secured in an upright position. If these unsecured cylinders fell and the valve was ruptured, then the cylinders would become a projectile and could go just about anyplace on the worksite; the path of the projectile would be unpredictable; the projectile weighs approximately 92 pounds (T. 45, 47). Inasmuch as respondent's employees were all over the project [*35] at various times on the day of the inspection, they were exposed to the hazard of flying projectiles.

Item 5: One of the respondent's employees, a timekeeper, was specifically observed exposed to a hazard on a stairway wherein he had to step over some trash on the way downstairs (T. 28, 29). Respondent had control over such violations; because, they had previously contracted out necessary clean-up work on the jobsite.

52 of respondent's employees had occasion to go onto the construction site in the course of performing their duties (respondent's statement of facts, page 2).

The violations have since been abated.

Item 4: Respondent has not contested item 4 which alleges that the restroom were supplied with nonpotable water in the washing facilities used by employees to wash their hands. This is a tacit admission by respondent that it is subject to citation under construction standards where its own employees are exposed to the hazards.

Therefore, it appears that the total, substantial, credible evidence of record establishes that the respondent has in fact violated the standards in all five items.

FINDINGS OF FACT

1. Respondent, Bechtel Power Corporation, is a [*36] construction manager at the Rush Island, Missouri, jobsite under a contract with Union Electric Company. As construction manager, respondent does no actual work of construction, has no craft labor and has no contracts with any craft unions in connection with work on this project. The construction work is performed by numerous contractors, all of whom have prime contracts with the owner, Union Electric. Each of the prime contractors may have one or more sub-contracts with other contractors (T. 10, 11).

2. There were a total of 83 employees employed by respondent on the construction site at the time of the inspection by the compliance officer (T. 12). There were about 850 other employees, of the contractors and sub-contractors, working on the same jobsite (T. 12, 13).

3. 52 of respondent's employees had occasions in the course of their employment to go upon the construction site while performing their duties (respondent's statement of facts, page 2).

4. The conditions alleged in the citation existed on the day of inspection. These violations have since been abated, and the penalties are appropriate (T. 15, 19).

5. Respondent did not contest item 4 of the citation.

6. [*37] Some of respondent's employees walk all over the project continually looking over things to see if they are up to snuff, checking to see that the terms of respondent's contract with Union Electric are carried out and making spot inspections (T. 23).

7. On the date of the compliance officer's inspection, he observed employees of Bechtel Power Corporation at numerous locations throughout the worksite on the ground and above the ground and on structure under construction (T. 28). These employees were identified in part due to the fact that they were wearing a button which has a yellow base will Bechtel's name on it, from their hard-hats, and also from the person who accompanied the compliance officer representing Bechtel and who indicated at least once that a certain person was an employee of respondents.

8. One of respondent's employees, a timekeeper, was observed approximately 200 feet above the ground on the structure in close proximity to hazardous conditions as set forth in the citation. This happened to be a housekeeping condition wherein a group of barrels, one or two of them broken, were filled with assorted trash and trash was lying around the barrels on a landing at the [*38] foot of a flight of stairs. There was another flight of stairs proceeding down from the landing. The employee was observed coming, down the stairs. He had to step over the barrels and was going on down below. He was identified by Mr. Schrage, respondent's employee, as one of respondent's timekeepers who was checking the job for workmen and hours (T. 29).

9. Another of respondent's employees was observed on a level of the checker deck over the top of the coal silos near a hazard caused by an open-sided floor (T. 29).

10. Mr. Schrage, who accompanied the compliance officer, was employed by Bechtel in the Safety and Security office and his assignment was to continually check the job for violations of safety standards and for unsafe conditions and to make proper notification thereof (T. 30).

11. The violations as contained in the citation were pointed out to Mr. Schrage during the walkaround. Mr. Schrage indicated that he had pointed out these hazards on numerous occasions previously to the supervisor (T. 31). There were numerous poor housekeeping conditions noted at the ground level of the power block structure, numerous oxygen acetylene bottles were in use for cutting steel [*39] and other metals. There was a lack of fire suppression equipment throughout this whole area. There were only two fire extinguishers available, one being in the bottom of the tool box, gang box, that belonged to Westinghouse Elevator erectors and they did not even know it was there. The other was on the hoist used to transport people from the ground to higher elevations (T. 32). The hoist was not regularly on the ground floor level. Any of respondent's 52 employees who were on the jobsite who would have need to go upon the structure would have had need to pass through this area as this was the only way up (T. 32).

12. Bechtel had a number of engineers, inspectors and timekeepers who, in the normal course of their work, had the regular function of going upon a structure of the power plant to look at the construction work that was in progress to ascertain if the prime and sub-contractors were building in accordance with the planned specifications. The timekeeper made sure that the proper number of people who were submitted for payment were actually at work on the site (T. 34).

13. The power plant is a steel structure extending approximately 250 feet into the air. On the one [*40] side was the area where the boilers were going to be built, and on the other side or adjacent to it, actually was the area where the turbines were going to be erected (T. 34).

14. A number of gas cylinders were not secured in an upright position. This made it possible that if the cylinders fell and the valve for any reason ruptured or was completely torn apart from the cylinder, there could be a projectile hazard in the sense that the cylinder could go anyplace on the worksite. The oxygen cylinders had a range of 1800 to around 2000 feet p.s.i. The acetylene cylinders were approximately 250 to 300 p.s.i. (T. 45). If one of these cylinders fell, and a valve was ruptured or torn apart from the cylinder, it was unpredictable as to where it would fly, and all employees within their range were in a hazardous position, including Bechtel employees in their customary work on the power block structure of the power plant under construction (T. 40, 46).

15. Mr. R. Jones, who was the safety engineer for respondent, was observed in the lower level near an opening where some generators were being inserted which was a hazardous area as set forth in the citation (T. 50).

16. Respondent [*41] employed seven timekeepers whose function is to go on the actual construction project and count the employers' workmen, contracted workmen, to make sure they are on the job. They go into various areas and monitor certain phases of the work to get an idea or monitoring count of certain people working on various phases of the work. This is done approximately once a day with the work being split up as to the various activities. One or more of these timekeepers are on the project worksite at least once a day checking out whether or not employees are at their post.

17. The engineers on the worksite have a basic function to interpret drawings, interpret design, interpret changes, and, in effect see that the contractors, through the coordinator, have proper drawings to do their work. It is part of their regular duties to go out on the worksite and monitor the work as it is actually being performed. There are about 17 engineers so employed (T. 72). In some instances these engineers spend about half their time on such work. Part of the engineers are on the project everyday. Also, on the project daily are some security officers (T. 73).

CONCLUSIONS OF LAW

1. Respondent is, and [*42] at all times material hereto, engaged in a business affecting commerce within the meaning of section 3 of the Act.

2. The Occupational Safety and Health Review Commission has jurisdiction of the subject matter and the parties.

3. At the time of the alleged violations, respondent provided an unsafe place of employment for its employees who were engaged in construction work within the meaning of 29 CFR 1910.12, and, therefore was in violation of the construction standards as alleged by the Secretary.

4. Respondent has violated section 5(a)(2) of the Act by violating each of the standards as set forth in the citation, items 1 through 5. The violations of the items set forth in paragraphs IV(a) of the complaint, and in the citation constituted nonserious violation within the meaning of the Act.

5. The penalties proposed for each violation were appropriate with respect to the gravity of the violations, the size of respondent's business, respondent's history of previous violations, and respondent's good faith.

6. The conditions as set forth in the citation have been abated.

DECISION

Based upon the above Findings of Facts and Conclusions of Law, it is hereby ORDERED that: [*43]

1. Items 1 through 5 of the nonserious violations, set forth in the citation, are affirmed.

2. The penalties for the violation of items 1 through 5 of the nonserious violations are affirmed.

Vernon Riehl, Judge, OSAHRC,

Date: AUG. 13, 1974