SECRETARY OF LABOR,

Complainant,

v.

KULKA CONSTRUCTION MANAGEMENT CORP.,  

Respondent.

Docket No. 88-1167

DECISION

BEFORE: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners;
BY THE COMMISSION:

This case involves the application of our decision in Simpson, Gumpertz & Heger, Inc., No. 89-1300 (Aug. 28, 1992) in which we reaffirmed our earlier holding in Skidmore, Owings & Merrill, 5 BNA OSHC 1762, 1977-78 CCH OSHD 22,101 (No. 2165, 1977) ("SOM"), that employers providing professional services for construction projects who do not perform actual construction trade labor, such as architects and engineers, are subject to the construction standards prescribed in 29 C.F.R. Part 1926 only if they substantially supervise actual construction labor. The issue before us here is whether the "substantial supervision" test we originally set forth in SOM and have now restated in SGH is satisfied with respect to an employer having a contract with the owner of a building under construction to furnish management services for the project.

Administrative Law Judge David G. Oringer held that Respondent, Kulka Construction Management Corporation ("Kulka"), did not have "supervisory power or responsibility" because it could only suggest but not require subcontractors to correct hazardous conditions. Rather, the judge found tat the "power to supervise and issue orders was retained by the owner. Accordingly, he concluded that Kulka was not governed by the construction standards, and he vacated the Secretary's amended citation alleging Kulka committed two repeated violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. Sections 651-678 (651-678 ("the Act"). Recognizing however, that the Commission or appellate court on review could disagree and hold Kulka subject to the standards in Part 1926, the judge also made findings pertaining to the merits of the alleged violations. He found that Kulka had failed to comply with the two cited standards, 29 C.F.R. Sections 1926.500 (c) (1), which requires guarding of wall openings, and 29 C.F.R Sections 1926.500 (e)(1)(ii), which requires stair failings, [[1]] and that Kulka's superintendent, John McKee, was exposed to the resulting hazards. Although the judge concluded that penalties of $500 and $300 respectively, rather than the penalties of $800 and $640 proposed by the Secretary, would be appropriate if violations were found, he did not make a determination as to whether they were repeated and serious in nature as alleged.

As the party aggrieved by the judge's decision, the Secretary filed a petition, for review under Commission Rule 91(b), 29 C.F.R. Section 2200.91(b), and review was directed on whether the judge erred in vacating the citation on the ground that Kulka was not engaged in construction work. No issue was raised in either the direction for review or subsequent briefing notice regarding the judge's alternative factual findings. Kulka did not respond to our briefing notice. Briefs were received from the Secretary and from the American Consulting Engineers Council, The National Society of Professional Engineers and The American Institute of Architects as amici curiae. The brief of the amici addresses only the question of the test to be applied in determining whether the construction standards apply to employers such as Kulka who do not perform physical trade labor; the amici take no position on whether Kulka is subject to the construction standards on the facts here. [[2]]

The Secretary contends, and we agree, that the judge erred in finding the construction standards inapplicable to Kulka. For the reasons that follow, we conclude that Kulka did exercise substantial supervisory authority over the construction work at the jobsite here. We therefore reverse that portion of the judge's decision in which the judge held the cited standards inapplicable to Kulka. Although we further find that the Secretary proved that Kulka violated the Act as alleged and that the violations were repeated and serious in nature, we conclude that the judge did not err in determining that if violations were found, penalties in an amount lower than that proposed by the Secretary would be appropriate.

I. APPLICABILITY OF THE CONSTRUCTION STANDARDS TO KULKA

A. Background

Kulka was the construction manager for a 3-story building under construction in Smithtown, New York, having a contract with the building owner, the Eghrari family ("Egghrari"), "to furnish business administration and management services." There was no general contractor, Eghrari had contracted directly with each trade subcontractor.[[3]] According to the contract, Kulka would provide "evaluation," "review," "coordination," "analysis," "verification," "assistance," and "recommendations" in a number of areas, including the budget for the project, its design, the schedule for work, the availability of  labor, equal employment opportunity, and a word of subcontracts. In addition, Article 1.1.5.1 of the contract stated that Kulka, among other things, would "[p]rovide recommendations and information to the Owner and the Architect regarding the assignment of responsibilities for safety precautions and programs [and verify] that the requirements and assignment of responsibilities are included in the proposed Contract Documents." David Ridell, Kulka's vice president for finance, testified that Kulka would review the safety programs of" each contractor who is contractually responsible to the building owner for safety."

Kulka had an on-site representative at the project. John McKee, whose title was project manager and field superintendent. McKee, who also was responsible for five or six other projects at the same time, visited the job two or three times a week. Sometimes these visits would be very cursory, at times nothing more than driving by the worksite. Kulka had no other employees on the site, except for occasional visits by McKee's supervisor, Tom Orr, either monthly or on an as-needed basis. McKee would communicate directly with Eghrari's representative, who also came to the site occasionally. According to McKee, Kulka was responsible for giving general instruction to the various contractors as to how the job was to proceed and would coordinate and schedule the work based on information supplied by the contractors, such as the number of workers each contractor had available at any given time. McKee gave the following characterization of his duties:

Well, effectively what I did was work at the site on a partial basis effectively as eyes and cars so to speak of the owner, generally overseeing that the work performed was in conformance with architectural drawings and making sure the trades were there when they said they were going to be there.

In some respects it has some similarities [to an architect], but in addition to my being there the architect also would still be on the job making specific inspections, testing laboratories [sic], made [sic] specific inspections of steel and concrete. My function was more of making sure that this mold went in where it was supposed to go and that generally the quality was up to par, that type of situation.

Specifically with respect to safety matters, McKee stated:

We had no specific authority to tell the contractors exactly what to do. It was more of an overseeing type of thing. If I personally saw something that was blatantly dangerous I would tell the contractor that I thought it was dangerous and that he shouldn't do it that way, but from a strict responsibility standpoint, we would tell the owner of the project that we felt that there was a dangerous condition which existed and have him handle it directly with the contractor.

On cross-examination, McKee conceded that he would bring unsafe working conditions to the attention of the responsible contractors but emphasized that they were not obligated to comply with his requests, and he opined that enforcement of safety rules was the responsibility of Eghrari.

Compliance officers Kevin Brennan and Robert Niagee inspected the worksite on April 13, 1988. The only contractor working was the glass or aluminum contractor, although McKee arrived during the inspection. There were unguarded wall openings on the second and third floors which were accessible to anyone using the stairs. The same stairs had no railing on the open side, and employees on the site, including McKee himself, used that stairway

McKee and Orr first noticed that guarding around the wall openings was missing on their on-site visit a day or two before the inspection. At that time Orr informed the carpentry contractor that the perimeter guarding needed to be replaced immediately, and the carpenter agreed. For reasons not disclosed in the record, the guarding was in fact not replaced by the time of the OSHA inspection, and after the OSHA inspectors left, McKee informed the owner that there was an OSHA violation and that the owner should have the guarding installed.[[4]] As to the missing stair railing, Brennan testified that McKee told him that the work was in the process of being completed, that he would "make sure" that the stair railing would be put in place, and that he would "direct the proper person to put them up.

B. Discussion and Analysis

On the facts here, we conclude that Kulka is subject to the construction standards under the test of SOM and SGH. In addition to Kulka's general contractual obligation to provide for the institution of safety measures and safety programs, it is clear that the owner, Eghrari, depended upon Kulka to maintain safe working conditions at the site.[[5]] McKee himself considered his role to be that of the "eyes and ears" or Eghrari. In our view, the judge placed undue emphasis on McKee's testimony that he could not personally enforce any instructions he gave to a subcontractor. There is no evidence to show that contractors routinely or customarily would ignore requests from McKee for the correction of safety hazards form which we could conclude that Kulka could not effectively exercise the authority that Eghrari intended it to have. As we have noted regarding the specific hazardous conditions at issue here, the record does not show why the carpentry contractor did not replace the perimeter guarding after promising to do so. Absent specific evidence on the point. We cannot infer that the lack of guarding was due to disobedience by the contractor as opposed to some other cause. Similarly, McKee did not deny having told Brennan that he would ensure that a stair railing was installed. We conclude that the evidence preponderates in favor of a finding that Kulka substantially supervised the performance of the construction work.

II. MERITS OF THE ALLEGED VIOLATIONS

A. Facts

The wall openings were located along the stairway landing; as someone used the stairs, he would approach within 2 to 3 feet of these openings and would be exposed to a fall distance of 10 feet from the second floor and 20 feet from the third floor. The same stairs had no railing on the open side, with a possible fall distance, according to Brennan, of 7 or 8 feet from the top step. Brennan testified that a fall through the wall openings could cause death and that serious injury could result from a fall from the stairs to the concrete surface below. Employees on the site, including McKee himself, used the stairway. McKee, however, testified that the configuration of the stairway minimized any hazard presented by the absence of the railing. The stairway was a split set of stairs; halfway up between the two floors there was a small landing where the stairs turned, and the upper half of the stairs extended above and back over the lower portion. As a result, McKee felt that the open area between the stairs where an employee might fall was minimized, and that the possibility of a fall existed only at the lower end of the stairs, so that the maximum possible fall distance would only be 1 and 1/2 to 2 feet.

B. Discussion and Analysis

In order to prove that an employer has violated a standard, the Secretary must show that the cited standard applies, that its terms were not complied with, that employees had access to the violative conditions, and that the employer knew or with reasonable diligence could have known of the violative conditions. Eg., Walker Towing Corp., 14 BNA OSHC 2072, 2074, 1991 CCH OSHD   129,239, p. 39,157 (No. 87- 1359, 19-91).[[6]] For the reasons stated above, the cited standards are applicable to Kulka. Since no issue was raised with respect to the judge's factual findings regarding the existence of violative conditions and employee exposure thereto, and Kulka presented no argument to us, we decline to disturb !hose findings. New England Tel. & Tel Co., 11 BNA OSHC 1501, 1505 n.6, 1983 CCH OSHD 126,535, p. 33,839 n.6 (No. 80-6519, 1983); Commission Rule 92(a), 29 C.F.R. section 2200.92 (a); cf. Dover Elevator Co., 15 BNA OSHC 1378, 1378 n.2, 1991 CCH OSHD 29,524. P. 39,846 n.2 (No. 88-2642, 1991) (Commission declines to decide factual issues addressed by the judge on which it did not request briefs even when the affected party files a brief on those issues). As to the issue of employer knowledge, which the judge did not address in his decision, it is uncontroverted that McKee was aware before the inspection of the unguarded condition of the wall openings and the lack of stair railing. Since McKee was Kulka's supervisory employee, his knowledge is imputable to Kulka. Baytown Constr. Co., 15 BNA OSHC 1705, 1710, 1992 CCH OSHD Paragraph 29,741, p. 40,414 (No. 88- 2912S, 1992)

We now turn to the remaining issue: characterization of the violations. [[7]] The judge made no finding to resolve the conflict between Brennan's testimony and McKee's testimony regarding the distance an employee could fall from the open stairway. An examination of one of the photographs taken by compliance officer Magee, however, shows that the distance could not have been as little as 1 1/2 to 2 feet, as McKee claimed, and that Vrennan's figure of 7 to 8 feet is more accurate. In the absence of any argument to the contrary from Kulka, we find that a preponderance of the evidence establishes that employees were exposed to the hazard of a fall of up to 8 feet from the unprotected stairs. See Well Solutions, Inc., 15 BNA OSHC 1718. 1720 n.2. 1992 CCH OSHD 29,743, p. 40,418 n.2 (No. 89-1559, 1992) (when a non-petitioning party fails to respond to a briefing notice, it runs the risk that the Commission will decide an issue against it without the benefit of the party's views or position on the question). We further find that the possibility of a fall of this distance onto a concrete surface and the uncontroverted evidence that an employee could fall 10 to 20 feet from the wall openings is sufficient to establish that both violations were serious in nature. See Whiting-Turner Contrac. Co., 13 BNA OSHC 2155, 2157, 1987-90 CCH OSHD 28,501, p. 37,772 (No. 87-1238, 1989) (12-foot fall is serious); Automatic Sprinkler Corp. of America, 8 BNA OSHC 1384,1390,1980 CCH OSHD 24,495, p. 29,929 (No. 76-5089, 1980) (concrete surface below as a factor exacerbating the severity of a fall hazard). The Secretary also showed that Kulka had previously been cited for violations of the same standards at issue here and had not contested those citations. This evidence, which Kulka did not rebut, is sufficient to establish a prima facie case that the violations alleged here were repeated. Potlatch Corp., 7 BNA OSHC 1061, 1063, 1979 CCH OSHD 23,294, p. 28,171 (No. 16183, 1979).

Finally, we note that only one or possibly two employees of Kulka were exposed to the hazards, and their exposure does not appear to have been frequent or of long duration. The fact that McKee also had concurrent responsibility for several other jobs as well suggests that Kulka is a relatively small employer. Considering the factors set forth in section 17(j) of the Act, 29 U.S.C. section 666(j), we conclude that the penalties the judge would have assessed had he found Kulka in violation of the Act are appropriate.

Accordingly, we affirm the amended citation alleging repeated and serious violations of the Act for failure to comply with 29 C.F.R. Sections 1926.500(c)(1) and 1926.500(e)(1)(ii) and assess penalties of $500 and $300 respectively.

Edwin C. Foulke, Jr                                                                                                                                                                                                           Chairman

Donald G. Wiseman                                                                                                                                                                                                      Commissioner

Velma Montoya                                                                                                                                                                                                                       Commissioner

Dated: August 28, 1992


SECRETARY OF LABOR, Complainant, 

v.

KULKA CONSTRUCTION MANAGEMENT CORP.,

Respondent.

Docket No. 88-1167

APPEARANCES:

FOR THE COMPLAINANT:

Patricia M. Rodenhausen, Esq., Regional Solicitor

Alan Kammerman, Esq., of Counsel

Office of the Regional Solicitor

U.S. Department of Labor

FOR THE RESPONDENT:

Kaufman, Frank, Naness, Schneider

and Rosensweig, Esqs.

Thomas J. Bianco, Esq., of Counsel

DECISION AND ORDER

ORINGER, JUDGE: This is a proceeding brought under. 10(c) of the Occupational Safety and Health Act of 1970, 84 stat. 1590, 29 U.S.C. 651 et seq. (hereinafter sometimes referred to as "the Act"), to review citations issued by the Secretary of Labor pursuant to 9(a) and a proposed assessment of penalties thereon issued, pursuant to 10(a) of the Act.

Subsequent to an inspection of a construction worksite, the Secretary of Labor served upon the respondent one citation alleging repeated serious violations of the standards set forth at 29 C.F.R. 1926.500(c) (1) and 29 C.F.R. 1926.500 (e) (1) (ii). The Secretary proposed penalties of $ 840 for the aforesaid first allegation of violation and $600 for the aforesaid second allegation.

The respondent timely filed with the Secretary of Labor a notification of intent to contest the citation, all items thereon, and the proposed penalties. The hearing was held on Monday, October 30, 1989 pursuant to due notice however the respondent's chief witness did not obey a subpoena served upon him and, in response to the respondent's request, after taking a days testimony, the hearing was put over and continued. It was completed on December 22, 1989. The parties filed post hearing briefs.

THE TRANSCRIPT OF THE PROCEEDINGS

While this tribunal and other tribunals of record understand that transcripts often are inaccurate as to certain words and phrases, this transcript appears to be inaccurate in some areas to the point of ridicula ad absurdum specifically on page 77 of the transcript, there is an example of the Judge speaking and the comments are totally inaccurate. There are certain other inaccuracies in the transcript but they do not taint the evidence in the case.

THE ISSUES

1. In this case did the respondent's work activities come within the purview of the construction standards?

2. Was the respondent in violation of either of the standards as alleged by the Secretary?

3. In the event that a violation of the standard alleged to be repeated and serious was proven by the Secretary, was the characterization of repeated and or serious appropriate therefor and, if not, what was the proper characterization therefor?

4. In the event that a violation of the standard was proven what is the appropriate penalty to be assessed therefor?

THE FACTS

Two compliance officers were assigned by their supervisor to perform a general inspection at a construction worksite. Compliance Officers visited the site and while they were inspecting the work of a contractor named Williamson, a Mr. Jack McKee arrived who was a representative of this respondent. (Tr. 8) The worksite was a three-story office building with a super-structure basically finished. The employees were completing the work, such as interior partitions and glass and windows. During the opening conference Mr. McKee stated that he represented Kulka, the construction manager on the job.

Mr. Brennan, one of the Compliance Officers, (C.O.), stated that he issued a citation to Kulka for an alleged violation of 29 C.F.R. 1926.500(c)(1) because of wall openings that you reach on the second floor at the top of the stairs. It had a plastic covering however there were no guardrails and it was accessible to employees at the top of the stairway on the second floor and on the third floor. He further alleged that there were two wall openings on each floor. (Tr. 9, 10)

The floor openings were 6 feet wide on one side and 8 feet on the other and they were 7 foot 6 inches high. There was also a 13 inch parapet wall going around the bottom. Floor openings began 18 inches above the floor. There were no guardrails and nothing prevent an employee from falling through the openings. Brennan alleged that if you came around a landing you would come within a couple of feet of the opening and it was his opinion that they were readily accessible.

This was a multi-employer worksite without a general contractor. The construction manager was the respondent, Kulka. The citation was predicated upon the fact that McKee walks the site a couple of times a week and as a result he would be exposed to the hazard. In answer to inquiry McKee advised Brennan that he used the stairways. (Tr- 12, 13) Brennan testified that Kulka had no other employees on the job and McKee would be the only representative for Kulka during the times that he inspected the job. (Tr. 14)

Brennan further stated that McKee advised him that in the event that guardrails were necessary he would direct the proper person to put them up if it was the carpenter or if Ii had his own equipment he would put them up himself. Brennan said that the fall hazard from the second floor was approximately 10 feet and from the third floor approximately 20 feet. Brennan testified that he classified the alleged violation as serious in that if an employee fell from an opening it could cause death. He further found that it was a repeat violation because the respondent had violated the same standard previously and was issued a citation for it December 9, 1985. The citation was never contested by the respondent and therefor it was affirmed by operation of law. (Exh. C1, C2) Brennan utilized the Labor Department's criteria for repeat penalties and proposed a penalty of $840 therefor.

Brennan also recommended issuing a citation for a violation of the standard set forth at 29 C.F.R. 1926.500 (e)(1)(ii). The predicate of the violation according to Brennan, was that the stairs leading to the second floor had no railing and was opened sided. Going up to the second level, there were 12 risers, 42 inches in width. The standard requires a guardrail on the open side of the stairway for any steps that are 44 inches or less. On the other side of the stairs was a wall.

On cross-examination Brennan testified that the predicate of the violation was the exposure of Jack McKee, who told him that he used those stairs for access to the second and third floors. (Tr. 23)

A citation was issued to Kulka Construction Management Corporation, the respondent, on November 3, 1986, for a violation of the identical standard. Respondent failed to contest that allegation of violation and it became a final order by operation of law, which was the predicate for the characterization of "repeat" to this allegation of violation. The characterization of the original violation was other than serious. (Tr. 26) Utilizing the Secretary's criteria for penalties, Mr. Brennan proposed a penalty of $600 for this allegation of repeated serious violation. (Tr. 28)

Mr. McKee, in answer to inquiry by Brennan told him that he visited the premises two to three times a week some visitors were only an hour and others as much as six. McKee also advised Brennar that he simply was a management employee and not a tradesperson on this job. Brennan admitted that the violation issued to Kulka was solely based on the alleged exposure of Mr. McKee. (Tr. 44) In answer to inquiry on cross- examination, Brennan testified that Mckee advised him that he used the stairways in question.

Mr. Magee, the Compliance Officer who accompanied Mr. Brennan during the inspection, testified out added nothing of substance to the testimony given by Compliance Officer Brennan. After the government rested the respondent advised the tribunal that his primary witness, Mr. McKee,did not respond to the subpoena and he put on as his only witness for the day the Vice-President in charge of finance, one, a Mr. Ridell. He testified that in the contract between the respondent and the owner, the construction manager, to wit, Kulka, was assigned responsibility for safety precautions and programs. Kulka reviewed the safety programs of each contractor who was contractually responsible to the owner for safety. (Tr. 81) In answer to inquiry from the bench, the witness testified that Kulka does construction management and it is sometimes a prime contractor, although possibly through a different corporation (Tr. 90)

The witness testified that respondent would have one or two persons visit the jobsite at the most. The second individual would be the project manager, one, Thomas Orr. also no longer employed by respondent. Mr. McKee, the project superintendent, was subordinate to Mr. Orr who was the project manager. (Tr. 91) The project manager administers Kulka's obligations under the contract (Tr. 91, 92).

At the reconvening of the hearing on December 22, 1989 the respondent continued its case by putting on Mr. McKee the former project superintendent, who was employed by respondent at the time of the incident in question. Mr. McKee testified that he left Kulka in August 1988 to open his own business as a general contractor and carpenter. Prior thereto he was employed by the respondent as a project coordinator and was hired approximately 7 years prior to the day of the hearing.[[1]] (T-2, 8). While originally hired as a project coordinator he was subsequently promoted to project manager and during the month of April 1988 when the incident in question took place he was a project manager for Kulka. He was both project manager and field superintendent insofar as this new construction, three story office building, was concerned.

McKee testified that what he did was on a partial basis. He would act as the eyes and ears of the owner, generally overseeing that the work conformed with architectural drawings and also made sure that the trades were there during the time they stated that they were going to be there.(T-2, 9)

Mckee testified that in some respects his responsibility was similar to a supervising architect however the differences were that an architect would also remain on the job making specific inspections, testing and looking at steel concrete laboratories. His function was to make sure that mechanical work such as molds were of a quality expected on the job. He did no physical labor and the temporary office that Kulka had initially was demolished. It had been an existing structure and they just kept same material in it. Primarily, he worked out of his vehicle. Mr. McKee was the only employee other than the project manager who would visit the site possibly once a month or as needed. In other words, if McKee had a particular problem, he would call his superior, the project manager.

He testified that Kulka had no specific authority to direct the contractors what to do. If he saw something that was blatantly dangerous he would advise the contractor that it was dangerous and that he should not do It that way, but from a strict responsibility standpoint, he stated, he would tell the owner of the project that he believed there was a dangerous condition and let the owner handle it directly with the contractor. The owner was the Eghrari family. Isabelle Eghrari came to the site periodically. Principally, her son Mark was the representative of the owner. Any recommendations or problems that existed were brought to Mark Eghrari's attention, inasmuch as the Eghrari's acted as the general contractor and maintained separate contracts with each individual subcontractor.

On the average McKee would visit the site two the tree times weekly. At the time this project was going on Mr McKee was running another five or six jobs. He testified that often the time spent would be very cursory and, in fact, sometimes he would just drive by to take a quick look out the window of his vehicle to see if somebody in particular was there on the site. Much of his time was spent on the telephone with subcontractors which was done out of his office rather than at the site in question. Neither he or anyone from Kulka did any physical labor on the job. If there were trades working on the job the Kulka representative would walk around making sure that the work was done properly. When interior trades were working on the building he would walk through the building. In addition, he would take a body count of how many carpenters were working, how many electricians were working and what type of work they were doing. He would inspect the location of the work, whether they were on the second floor or what wing of the building they were working in and would keep a log of such information. In a general sort of way, Kulka directed the contractors as to how they wanted the job to proceed but from an actual scheduling standpoint, McKee testified, that the subcontractors contributed as much to the schedule as did Kulka. The subcontractors usually determined the amount of men allocated to do the job and the work was done directly by the subs. Information was given to Kulka by the subs and Kulka would coordinate the information given to it.

Mr. Brennan testified on rebuttal, on answer to inquiry by the bench, that he walked up the very steps containing the exposure to which the respondent's employee McKee was exposed and which was the predicate of the citation. (T-2, 37)

DISCUSSION

I DID THE CONSTRUCTION STANDARDS APPLY TO THE RESPONDENT GIVEN ITS DUTIES AND RESPONSIBILITIES IN THE INSTANT CASE

The first salient question is whether or not this respondent was Covered by the construction standards under the contract between it and the owner as well as the actual duties and responsibilities of this respondent anent this construction site.

The Secretary relies oh' the cases of Bechtel Power Corp. 4 BNA OSHC 1005 (Review Commission 1976; affirmed 548 F. 2d 249 (8th Cir. 1977) and Bertrand Goldberg Associates 4 BNA OSHC 1587 (Review Commission 1976). While other cases were discussed by the Secretary these were primarily the important cases upon which the Secretary relied. She mentioned in passing also her reliance on Vappi and Co., Inc., 4 OSHC 1479 (Review Commission 1976) which cited Bechtel, supra. The respondent, while it mentioned and discussed many cases on the subject, principally relied on Skidmore, Ownings. and Merrill 5 BNA OSHC 1762.

Interestingly enough the three cases that were principally relied upon by the parties to wit Bechtel, Goldberg, and Skidmore, Owings, and Merrill (SOM) all were authored by former Commissioner Timothy F. Cleary. In Bechtel the respondent was the construction manager at the site of a power plant in Missouri. As construction manager it did no actual work of construction and had no direct contacts with any craft unions in connection with work on the project. The actual construction was performed by various contractors all of whom who had prime contracts with the owner. These prime contractors may have had one or more subcontractors.

Bechtel'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 and progress to ensure that the various prime contractors and the subs adhered to design specifications. In addition thereto its employee's checked the payrolls to see if they reflected the actual number of workmen employed. Bechtel also monitored and recorded the progress of the work and interpreted design drawings. Its role was described by the Commission majority as comprehensive and vital to the orderly completion of the work. Respondent employed at least two safety representatives who policed the site and reported hazardous conditions to the prime contractors as well as coordinating the safety program. Bechtel attempted to persuade the contractors to comply with safety regulations when and if hazards were present. In the case of serious hazards it could have actually directed that work be stopped until the condition was corrected. To carry out its functions Bechtel 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 job site.

The Commission majority concluded that respondent was an integral part of the total construction system at the site and that its functions were inextricably intertwined with the actual physical labor performed at the site. Commissioner Cleary went on to state that because respondent's work was so directly and vitally related to the construction being performed and because it's employee worked at this construction site it was "engaged" in construction and performed work "for" construction within the meaning of the regulations.

Bechtel also contended that the citations against it must be vacated because it neither created nor controlled the violations or conditions to which its employees were exposed and pointed to the decision in Anning-Johnson, Co. v. OSHRC 516 F. 2d 1081 (7th Cir. 1975). The 7th Cir. opinion in Anning-Johnson, as pointed out by the Commission in its decision, is limited to a subcontractor having severe problems in abating hazards resulting from a violation of the standard. The Commission majority correctly pointed out that Bechtel was not a subcontractor, but rather a construction manager. Given the facts of that case as construction manager Bechtel was empowered to organize, plan and manage the construction program and also empowered to inspect, approve and coordinate the performance of the prime contracts therefor, the Commission majority decided that the respondent was clearly not the type of construction contractor found within the purview of the Anning-Johnson decision. It had tae power to protect its employees and other employees against violations committed by the various prime and lower-tier contractors.

In Secretary of Labor against Bertrand Goldberg Associates, supra, respondent was employed by the state of New York as an architect and manager of a construction project on the campus of the stat university in Stoney Brook, Long Island. Under its contract with the state the respondent was responsible for the development and design of the project, the preparation of documents, the administration of contracts held by contractors hired to build the project as well as the inspection of the worksite to ensure that the plans were properly executed and specifications met. The Commission majority found that the respondent hired inspectors and other field employees in order to fulfill its responsibilities.

The Commission majority stated that in its contracts with certain of the builders the state specifically assigns safety responsibilities however, as manager of the project, it was respondents duty to see that the builders complied with the terms of their contracts which included safety. The respondent's inspectors continually surveyed the worksite and in the event that, an inspector found a safety hazard or a failure to meet project specifications Goldberg's representatives had the authority to stop the work if in its opinion the circumstances warranted such action.

Again in this case, the first issue before the Commission was whether or not respondent was subject. to the construction safety and health standards at 29 C.F.R. part 1926. The Commission majority decided that its decision in Bechtel Power Corporation was dispositive of the identical issue in Goldberg. It found Respondent Goldberg to be on employer under the Act and subject to the construction safety and health regulations found at 29 C.F.R. part 1926. Again the Commission majority found the this respondent could not avail itself of the Anning-Johnson Co. defense just as it did in Bechtel and that this respondent did not qualify as a non-creating non-controlling subcontractor. Here the Commission found the respondent's position more akin to that of a general contractor and that it possessed "sufficient control ever the entire worksite to give rise to a duty under section 5(a) (2) of the Act to either comply fully with the standards or to take the necessary steps to ensure compliance." The Commission cited Anning-Johnson supra and Grossman Steel & Aluminum corporation BNA 1 OSHC 3337.

The third important decision on this subject, also authored by Commissioner Cleary was Skidmore, Ownings and Merrill BNA 5 OSHC 1762, an unanimous decision of the Commission. Here, the Commission found that the Construction standards of 29 C.F.R. part 1926 did not apply to an architect who was employed by the owner of the building and exercised only limited supervision over actual construction work. Again the respondent's primary argument was that it was not engaged in "construction work" within the scope of 29 C.F.R. part 1926 and that as an architect and engineer could not be responsible under section 5(a)(2) of the Act for violations of conditions to which its employees were exposed but which it did not control or create. The construction was at the Sears Tower site in Chicago. The general contractor on the site was commonly designated "Diesel Construction". The respondent, Skidmore, Ownings and Merrill (SOM) had a contract with the owner sears Roebuck and under the contract inspected the work of the various contractors to ensure that design specifications were met. For this purpose respondent employed four field representatives to observe the work as it was performed and review the results of tests performed by independent testing companies. It was SOM's duty to determine whether or not the work did not conform to the specifications and was unacceptable to the owner. In such case respondent would meet with representatives of Diesel and the subcontractor and, if necessary, direct that the work be redone or repaired. While SOM field representatives performed no actual physical labor, their employment necessitated movement throughout the construction site. SOM's contract with Sears provided that nothing in the agreement could be construed as giving SOM the responsibility for, or the authority to, direct or supervise construction methods, techniques, procedures or safety methods. Diesel Construction's contract with Sears provided that Diesel had the responsibility for establishing, maintaining and supervising the safety and loss prevention programs covering all work performed by it and its subcontractors. The salient question in this case was whether the work performed by SOM comes within the purview of part 1926, (the construction standards).

The unanimous opinion of the Commission was that under the facts in this case SOM did not perform construction work described in 29 C.F.R. 1910.12. The Commission then stated that in Bechtel Power Corporation they read section 1910.12 as applying to employers who are not performing the actual work of construction but performing work directly and vitally related thereto. The commission also stated "although we do not over-rule these decisions, they should not be read more broadly then their facts permit. As we have noted in another case, 'general expressions transported to other facts are often misleading'." Monroe & Sons, Inc. BNA 4 OSHC 2016.

The decision letter stated that

("Bechtel and Bertrand Goldberg ware construction managers. Although they performed no actual physical construction, each retained substantial supervision over the progress of the work and the safety program, at the worksite. During construction, their functions as construction managers were management functions similar to that of a general contractor.") (citations)

"In contrast, the architect engineer in this case has more limited functions and authority over the work. And we note that this is generally true in assessing the role of an architect both in the traditional arrangement where, as here, the architect works directly for the owner, who has contracted with a general contractor to perform the actual construction work, and in the construction management arrangement where the architect is part of the construction management team."

In the instant case the exact function of Kulka Construction Management Corporation is similar to that of SOM. This respondent only reported to the site two to three times weekly, generally for short time periods. In addition, the contract required it to be the eyes and ears oil the owner and to coordinate the different contractors and coordinate the safety functions. It did not have supervisory power or responsibility. It could not order the different subs to remove certain hazards; it could only suggest it.

The power to supervise and issue orders was retained by the owner, the Eghrari family. I find that the duties of Kulka, given the facts of this specific case only, was most similar to that of SOM, rather then those of Bechtel or Goldberg. Accordingly, I find that respondent was not subject to the construction standards and the citation and penalties must fall.

Assuming arguendo however, that an appellate reviewing authority decides the question differently, I do find that the violations were present. The lower stair case had no handrail and accordingly it was technically in violation of the standard. The penalty however, given the short distance of any fall and the chances of it occurring would be sufficient at $300.

Insofar as the wall openings are concerned I find that just as the compliance officers were exposed to them upon ascending in the building so was McKee. Had the standard applied to McKee and Kulka, then and in such case, the violation would have been proven and the proper penalty would have been $500. For the reasons annunciated by the Commission in Bechtel and Goldberg I find that the Anning-Johnson defense would not be available to this respondent as it is not a subcontractor.

To reiterate while I find that the Secretary had ample justification for issuing the citation and the items thereon I find under the peculiar and particular facts of this case the construction standards do not apply to this respondent for the aforecited reasons.

Any case cited in the parties briefs not discussed in this decision were found nonanalgous, nonprecedential or unnecessary to the resolution of this controversy.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The findings of facts and conclusions of law contained in this opinion are incorporated herein in accordance with Rule 52 of the Federal Rules of Civil Procedure.

ORDER

In view of the foregoing, good cause appearing therefor, it is ORDERED that:

1. The allegation of repeat violations by this respondent found in the citation issued to it is vacated together with and penalty proposed therefor.

IT IS SO ORDERED.

DAVID G. ORINGER, JUDGE, OSHRC

Dated: September 17, 1990,

Boston Massachusetts


FOOTNOTES:

[[1]] At the time in question here, the standards provided:

1926.500 Guardrails, handrails, and covers.

(C) Guarding of wall openings. (1) Wall openings, from which there is a drop of more than 4 feet, and the bottom of the opening is less than 3 feet above the working surface, shall be guarded as follows: [either a top rail, midrail, or toeboard, or any combination thereof is required depending on the size and position of the opening]

(e) Stairway railings and guards. (1) Every flight of stairs having four or more risers shall be equipped with standard stair railings or standard handrails as specified below, the width of the stair to be measured clear of all obstructions except handrails:

(ii) On stairways less than 44 inches wide having one side open, at least one stair railing on the open side [.]

Subsequent to the inspection here, the requirements dealing with stairways were removed from this section and rewritten and recodified in section 1926.1050.55 Fed. Reg. 47,660 (1990).

[[2]] We deny the motion of the amici curiae that they be permitted to present oral argument. The same amici participated in oral argument before the Commission in SGH, in which we decided the issue of the legal test to be used in determining whether the construction standards apply to employers who do not perform actual trade labor. Since we apply out holding in SGH here, we have no need for oral argument in this case.

[[3]] The record indicates that Kulka has been the general contractor on some jobs, directly hiring and supervising the subcontractors. When Kulka acts as the general contractor rather than construction manager, however, it does so through a different corporate affiliation.

[[4]] Brennan testified that McKee stated that if he had the necessary equipment in his truck. he would have installed the guardrails himself. McKee did not deny having made this statement, but he explained that he made that statement not because it was part of his job to provide guarding but because he felt "it was the right thing to do." He knew and had been told that he was not supposed to perform actual physical labor on the site, such tasks were reserved for the craft tradesmen and mechanics.

[[5]] McKee agreed that Kulka's contract addressed the matter of safety, but he stated that it was his impression from "meetings and briefings" in Kulka's office that Eghrari was responsible for safety. The fact that Eghrari may have had overall responsibility for safety matters, however, does not preclude Eghrari from delegating authority over safety conditions at the site to Kulka. See Central of Georgia Railroad Co. v. OSHRC. 576 F.2d 620. 624 (5th Cir. 1978). McKee's testimony, therefore, is not inconsistent with our finding that Kulka exercised supervision over subcontractor regarding the safety of working conditions.

[[6]] The merits of the alleged violations were not included within the direction for review. While the Commission has discretion to limit the scope of its review, Pennsylvania Steel Foundry &.Machine Co., 12 BNA OSHC 2017, 2014 n.3,1986-87 CCH OSHD 27,671 p.36,063 n.3 (No. 78-638,1986). aff'd. 831 F.2d 1211 [3d Cir. 1997). The Commission has authority to consider any issues raised in a case directed for review. Hamilton Die Cast Inc., 12 BNA OSHC 1797, 1986-87 CCH OSHD 27,576 (No. 83-308, 1986). The elements of proof that the standards were violated, as well as the characterization of the violations, were briefed on review by the Secretary, and deciding those questions is necessary to a full disposition of the case.

[[7]] See Supra note 6.

[[1]] Testimony adduced on December 22, 1989 will be referred to as "T-2" and then the page will follow.