VAPPI AND COMPANY, INC.

OSHRC Docket No. 6418

Occupational Safety and Health Review Commission

July 21, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Albert H. Ross, Regional Solicitor, U.S. Department of Labor

Jeremiah F. Healy, III, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On December 9, 1974, Administrative Law Judge Abraham Gold issued his decision in this case affirming four items of a non-serious citation for 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"]. Judge Gold found that respondent Vappi & Co., Inc. (Vappi) was an "employer" under section 3(5) of the Act, 29 U.S.C. 652(5), and was required to comply with the construction standards at 29 CFR Part 1926. n1 Vappi petitioned for review of the Judge's decision, and Commissioner Moran ordered review on the following issues:

(1) Did the Judge rule correctly on respondent's defense that it was not an employer as defined in 29 U.S.C. 652(5)?

(2) Was the evidence sufficient to establish the Judge's findings?

(3) Were the occupational safety and health standards upon which the charges were based applicable to the facts of this case?

After consideration of the submissions by the parties, we affirm the [*2] Judge's decision.

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n1 Vappi was cited for violations of the standards at 1926.150(a)(1), 1926.450(a)(10) 1926.500(b)(1), and 1926.500(d)(1). The alleged hazards concerned the absence of firefighting equipment, inadequately secured portable ladders, unguarded floor openings, and open-sided floors.

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The statement of agreed upon facts submitted by the parties establishes the following.

Vappi, a Massachusetts concern, was a "construction manager" engaged in the supervision and coordination of numerous independent contractors who had contracted with Faulkner Hospital to erect a new building. Vappi maintained a compound consisting of four trailers and an additional temporary building approximately 50 feet from the site of the project. Vappi's supervisory employees assigned to the project spent a great majority of their time in this compound, but they would occasionally inspect the project's work progress. In addition, according to the statement,

6. . . . Vappi provided carpenters for certain safety precautions [*3] and temporary scaffolding, and laborers to clean up debris on the Project. No employee of Vappi performed any permanent construction work on the Project at any time.

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10. Vappi neither owned nor controlled any of the equipment or machinery referred to in the citations or the Complaint.

After inspection of the worksite, Vappi was cited for five non-serious violations of the construction standards published at 29 CFR Part 1926.

A hearing was held, after which Vappi conceded the existence of the alleged violations but argued that its employees were not exposed to them. In addition, Vappi argued that as a construction manager it was not engaged in "construction work" as defined at 29 CFR 1910.12(b); that it was not an "employer" as defined at 29 CFR 1926.32(j); and that its employees were not "employees" as defined at 29 CFR 1926.32(i). n2 Vappi contended that inasmuch as the construction standards at 29 CFR Part 1926 were adopted from the Contract Work Hours and Safety Standards Act (the Construction Safety Act, 40 U.S.C. 327 et seq.) the CSA definitions of "employer" and "employee" should apply to the OSHA construction standards.

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n2 The Sections referred to provide in part:

29 CFR 1910.12 - Construction Work

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(b) Definition.

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

29 CFR 1926.32 Definitions

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(i) "Employee" means every laborer or mechanic under the Act regardless of the contractual relationship which may be alleged to exist between the laborer and mechanic and the contractor or subcontractor who engaged him. . .

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(j) "Employer" means contractor or subcontractor within the meaning of the Act and of this part.

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In rejecting Vappi's arguments, Judge Gold noted the definitions of "employer" and "employee" at sections 3(5) and 3(6) of the Act, the comprehensive purpose of the Act, the intended coverage of the construction standards stated at 29 CFR 1910.12(a), and the definition of "construction work" at 29 CFR 1910.12(b). n3 In addition he found that Vappi's employees were exposed to the violations.

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n3 Sections 3(5) and 3(6) of the Act, 29 U.S.C. 652(5), (6) provide:

DEFINTIONS

SEC. 3. For the purposes of this Act -

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(5) The term "employer" means a person engaged in a business affecting commerce who has employees, but does not include the United States or any State or political subdivision of a State.

(6) The term "employee" means an employee of an employer who is employed in a business of his employer which affects commerce.

The purpose of the Act in section 2(b), 29 U.S.C. 651(b) provides in part:

The Congress declares in to be its purpose and policy . . . to assure so far as possible every working man and woman in the Nation safe and healthful working conditions. . . .

29 CFR 1910.12(a) states the intended coverage of the constuction standards in part as:

29 CFR 1910.12 - Construction Work

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(a) The standards prescribed in Part 1926 of this chapter . . . shall apply . . . to every employment and place of employment of every employee engaged in construction work.

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We agree with the Judge's conclusions [*6] with respect to his disposition on issues (1) and (3). Bechtel Power Corp., 4 BNA OSHC 1005, 1975-76 CCH OSHD para. 20,503 (No. 5064, 1976) is controlling on those issues.

With respect to the exposure of Vappi's employees, the Judge correctly found that the evidence of record revealed the employees' exposure to the cited hazards. On review, Vappi concedes that if issues (1) and (3) are decided against it, the evidence is sufficient to establish the Judge's finding of exposure. Moreover, the Judge's holding is well within the Commission's recent decision in Gilles & Cotting, Inc., 3 BNA OSHC 2002, 1975-76 CCH OSHD para. 20,448 (No. 504, 1976), on remand from 504 F.id 1255 (4th Cir. 1974), on the exposure issue.

It is hereby ORDERED that the Judge's decision be affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The citation should be vacated in its entirety because complainant has failed to establish that respondent either created or controlled the violative conditions.

In Anning-Johnson Company v. OSAHRC, n4 the United States Court of Appeals for the Seventh Circuit held that an employer at a multi-employer construction site could not be held liable for [*7] violations which he neither created nor was responsible for, pursuant to his contractal duties. That rule of law is correct and should be followed in this case. In my dissenting opinions in two subsequently-decided rulings of this Commission: Secretary v. Anning-Johnson Co., n5 and Secretary v. Grossman Steel & Aluminum Corp., n6 I expressed my basic agreement with the 7th Circuit's decision n7 and indicated that the complainant has the burden of establishing that respondent had the responsibility for the violative conditions. n8

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n4 516 F.2d 1081 (7th Cir. 1975).

n7 Although the respondent in that case was a subcontractor, rather than a "construction manager," a careful reading of the court's opinion makes it clear that the underlying rationale of the decision was to place responsibility for compliance on those employers, whether subcontractors or not, who either created the violative condition or had the responsibility for abating it. Thus, the case should not be interpreted so as to limit its applicability only to construction subcontractors.

n8 See also 29 C.F.R. 2200.73(a).

[*8]

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Since the record in the instant case fails to disclose who had responsibility for the violative conditions, it is clear that complainant has failed to prove that respondent violated the Act as charged. Accordingly, the citation and assessed penalties should be vacated.