OLSON CONSTRUCTION COMPANY

OSHRC Docket No. 14683

Occupational Safety and Health Review Commission

September 22, 1977

[*1]

Before CLEARY, Chairman; and BARNAKO, Commissioner

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

Dean G. Kratz, for the employer

OPINION:

DECISION

CLEARY, Commissioner:

I.

This matter is before the Commission by my order granting respondent's petition for discretionary review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter "the Act"]. n1 The issues for review specified in the order are the following:

(1) Whether Judge Vernon Riehl erred in finding that respondent was the general contractor on the construction site? If the Judge did err, should respondent still be held liable for the alleged violations?

(2) Whether Judge Riehl erred in affirming the alleged violations as stated in respondent's petition for discretionary review?

The parties were invited to address these issues in light of recent Commission decisions in Anning-Johnson Co., 4 BNA OSHC 1193, 1975-76 CCH OSHD para. 20,690 (Nos. 3694 & 4409, 1976) and Grossman Steel and Aluminum Corp., 4 BNA OSHC 1185, 1975-76 CCH OSHD para. 20,691 (No. 12775, 1976).

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n1 Commissioner Moran has also issued a general direction for review, pursuant to section 12(j) of the Act.

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On August 8, 1975, an OSHA compliance officer conducted an inspection of respondent Olson's worksite at a State office building in Lincoln, Nebraska. Subsequently, four citations for "serious" violations, one citation for a "nonserious" violation, and a notice of proposed penalty were issued to respondent. n2 Four other contractors working at the same jobsite were issued similar citations. n3 Respondent timely contested all of the alleged violations and proposed penalties and a complaint and answer were duly filed.

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n2 The citations alleged conditions in violation of standards promulgated under the Act, as follows:

Citation Number 1 (Nonserious)

Item 1 -- 29 CFR 1926.500(d)(2)

(North Side of Structure) Main access runway to the interior of the structure which was located at 18' above the adjacent level had 8' 9" of its east side unprotected by a guardrail and 36' 6" of its west side lacking an intermediate railing.

Item 2 -- 29 CFR 1926.500(b)(8)

(a) (Interior of Structure) Two 7 1/2" diamter floor holes, one located adjacent to the northwest and one located adjacent to the northeast stairways on floors 1 through 6, were not provided with required covers or guards.

(b) (Interior of Structure) Twenty-four inch by 7 3/4" floorholes located on east side of east mechanical shaft on floors 1 through 6 were not provided with required cover or guards.

Item 3 -- 29 CFR 1926.501(f)

(Interior of Structure) Three stairways, center, southeast and northwest, which ran from the basement to the sixth floor were of the hollow pan tread design and were not filled with concrete or other material.

Citation Number 2 (Serious Violations)

Item 1 -- 29 CFR 1926.500(b)(1)

(Interior of Structure) The following floor openings lacked or were not provided with adequate guardrails: 1. The 40' X 9'4" south elevator shaftway lacked guardrails from the first through the sixth floors. 2. The north mechanical shaftway between the second and sixth floors had guardrails built of 2 X 4's which had uprights spaced 13' 6" apart on two of its sides and 9' 6" on the other two sides. 3. The south mechanical shaftway which measured 13' 6" by 9' 6" was not protected by a cover or guardrail on floors 3 through 6.

Citation Number 3 (Serious Violation)

Item 1 -- 29 CFR 1926.500(c)(1)(i)

(a) (Interior of Structure) Southeast stairway was open on the exterior side. The opening measured 22' in width and was present from the first through the sixth floors.

(b) (Basement Area) Wall opening located in the north side of the south mechanical room and south side of the north mechanical room measured 52" in height, 14' 9" in length and 6' 3" above adjacent level, was not guarded.

Citation Number 4 (Serious Violation)

Item 1 -- 29 CFR 1926.28 and 1926.104(a)

(Exterior Steel Framework of Structure) Four employees were observed working at elevated heights ranging from 30' to 60' without the required protection of lifelines, safety belts and lanyards.

Citation Number 5 (Serious Violation)

Item 1 -- 29 CFR 1926.500(d)(1)

(a) (Interior of Structure) Two hundred and seventy feet of open-sided floor on east side and approximately 140' on the north and south sides of floors 1-3 which were in part finished (concrete poured) and worker noted performing task below, were not equipped with required toeboards.

(b) (Interior of Structure) Floors 1 through 4 which consisted of permanent metal decking and/or poured concrete were not provided with adequate protection on its open sides.

(c) (Basement Area) Open-sided floors in the north and south sides of the area adjacent to the mechanical rooms measured 6' 7" above the next level and were 20' 7" in length and were not guarded.

n3 The four contractors were Baxter Electric Company (docket no. 14741), Wentz Plumbing and Heating (docket no. 14794), Tri Sales Associates (docket no. 14809) and H. H. Robertson (docket no. 15032). The cases were consolidated for hearing and all citations against these contractors were vacated by the Judge. These cases are not before us.

[*3]

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II.

The construction at the worksite involved the participation of several contractors. Allied Steel Erectors was engaged in setting the iron framework of the building, working up vertically between two column lines from the first to the sixth floor, then moving horizontally to the next two columns and repeating the process. H. H. Robertson followed Allied Steel, generally staying about two floors below installing steel decking. Wentz Plumbing and Heating had employees working in the basement on the day of the inspection. Baxter Electric had employees on the third and fourth floors and employees of Tri Sales Associates were shooting studs on the third floor of the building. Respondent's employees were involved in backfilling operations around the east and south part of the building, carpentry work on most floors, pouring concrete on the third and fourth floors, and putting down wire mesh on the fourth and fifth floors.

The main access runway to the interior of the structure had no guardrail on its east side and lacked an intermediate railing on its west side. There were no floor coverings over [*4] floor holes on floors one through six of the building. The south elevator shaftway lacked guardrails on floors one through six and the south mechanical shaftway lacked guardrails on floors three through six. The north mechanical shaftway was provided with guardrails, but the uprights were spaced farther apart than required by 1926.500(b)(1). The wall opening and open-sided floors in the basement were unguarded. The perimeters of floors one through three were not provided with toeboards and floors one through four were provided with a rope barrier rather than the standard guardrail required by 1926.500(d)(1).

The three stairways in the building were of a hollow pan tread design. The southeast stairway was unfilled and was unguarded on its exterior side. A rope barricade was placed in front of this stairway, along with a sign saying "Keep Out." The northwest stairway was similarly unfilled, but could not be used because guardrails and stair treads were being welded into place. The pans on the northeast stairway were filled with wood, although to use this stairway employees were required to walk around a cement-pouring operation on the third floor. Employee mobility and [*5] access to other parts of the building were otherwise unrestricted.

In his decision, Judge Riehl concluded that all of the alleged violations of the standards existed in varying degrees. He considered the evidence to be conflicting regarding the access of employees to the hazards, but concluded that there was access to all of the alleged violative conditions except those noted in citation no. 4. He further concluded that respondent was the "general contractor" at the worksite. The Judge affirmed the citations for "serious" violations of 29 CFR 1926.500(b)(1), 1926.500(c)(1)(i) and 1926.500(d)(1). The citation for "nonserious" violations of 1926.500(d)(2), 1926.500(b)(8) and 1926.501(f) was also affirmed, but the citation for a "serious" violation of 1926.28 and 1926.104(a) was vacated, apparently because Judge Riehl concluded that a different contractor, which was not cited, was responsible for the creation and abatement of the hazard. n4

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n4 Complainant has not excepted to the vacation of this citation and it is not before us on review.

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In its brief on review, respondent asserts that it was technically not a general contractor and that the owner awarded several "prime" contracts, one of them to respondent. The others were to Wentz Plumbing and Heating and Commonwealth Electric. Respondent claims that since it is not a "general contractor" it was not liable for the safety of employees of other contractors. Respondent contends that even if it is found to be the "general contractor," no exposure or access to the hazards on the part of respondent's employees was proved by complainant. Respondent, relying on Gilles and Cotting, Inc., 3 BNA OSHC 2002, 1975-76 CCH OSHD para. 20,448 (No. 504, 1976) on remand from 504 F.2d 1255 (4th Cir. 1974), contends that complainant has not proved that its employees will be, are, or have been in the zone of danger, as respondent believes is required by that case.

On the other hand, the Secretary asserts that respondent was the "general contractor" on the worksite, that it was considered to be so by other contractors on the site, and that it had overall supervisory responsibility over the site, in addition to sole responsibility for providing [*7] safe working conditions and abating all safety violations discovered by other contractors and their employees. As support of this assertion, complainant notes that all safety complaints were addressed to respondent and that respondent had erected all barricades and guarding devices present at the time of the inspection.

Complainant also contends that employees of respondent and the other subcontractors on the site were exposed or had access to the hazardous conditions alleged in the citations. Further, complainant asserts that the lack of safeguards coupled with the mobility of the employees on the site raises an inference that employees had been, or would be, exposed to the violative conditions.

III.

First we turn to respondent's contentions that it was not the "general contractor" on the site and was not responsible for the safety of employees other than its own. These contentions are untenable. Although respondent may not have been a "general contractor" in a technical sense, it was a contractor having control over many aspects of construction. On the basis of respondent's creating some hazardous conditions and exercising control over all such conditions enabling it to [*8] accomplish or order abatement within the terms of the cited standards, it is responsible for the safety of all employees having access to the hazardous conditions. Anning-Johnson Co., supra, 4 BNA OSHC at 1199. Other contractors on the site were doing specialty work. Respondent exercised supervisory control over all safety matters. Complaints concerning safety were brought to respondent's attention. Respondent issued instructions regarding safety measures which were applicable to all contractors on the site and installed all safety devices present on the day of inspection. Respondent was in control of the worksite and liability attaches upon proof by complainant establishing by preponderating evidence (1) specific standards applicable to the facts, (2) failure to comply with the standards and (3) employee access to the hazards. Anning-Johnson Co., supra, 4 BNA OSHC at 1197.

Respondent was thus responsible for the safety of employees exposed to the alleged hazardous conditions. Except for the northwest stairway, the record does not support respondent's contention that employees did not have access to the hazards. The OSHA compliance officer testified that [*9] he saw employees using the main access runway, which was in constant use and was not provided with guardrails. Employees of H. H. Robertson were found to be working within 10 feet of the unguarded elevator shaft and about 30 feet form the mechanical shaft. The testimony of the compliance officer and other of complainant's witnesses indicates that employees approached to within one foot of the edge of the unguarded floors on the day of the inspection. Employees of respondent were working below the floors which were not provided with toeboards and were thus exposed to a hazardous condition. Employees of Wentz Plumbing and Heating were seen working in the basement near the unguarded wall opening. The testimony of the compliance officer and that of other of complainant's witnesses indicate that the uncovered floor holes, which were located on floors one through six of the building, were accessible to a number of employees. No barricades were erected to prevent employee access to any of the above hazards, and employees testified that they would often take shortcuts through the building, thereby being exposed to these hazards. Accordingly, the citations for nonserious violations [*10] of 1926.500(d)(2) and 1926.500(b)(8) and for serious violations of 1926.500(b)(1) and 1926.500(d)(1) are affirmed.

The southeast stairway, although barricaded, was used by a number of employees. Respondent's supervisor testified that the barricade had not prevented employees from using the stairway. Although he directed employees to use other stairways, the supervisor was on notice that employees failed to comply with his request. In spite of this, no disciplinary action was taken against any of the employees. Inasmuch as the pans were unfilled and the stairway was unguarded on its exterior side, the citations for violations of 1926.500(c)(1)(i) and 1926.501(f) as they relate to the southeast stairway must be affirmed.

The evidence does not support the Judge's affirmance of the citation for violation of 1926.501(f) as it relates to the northwest and northeast stairways. There was no access by employees to the northwest stairway because that stairway was occupied by welders who were installing stair treads and guardrails. Consequently, employees could not use the northwest stairway. The testimony of both complainant's and respondent's witnesses indicated that the [*11] pans of the northeast stairway were filled with wood and were thus in compliance with the requirements of 1926.501(f). The above citation as it relates to the northwest and northeast stairways is vacated.

Accordingly, the citations for "serious" violation of 1926.500(b)(1), 1926.500(c)(1)(i) and 1926.500(d)(1), and the citation for "nonserious" violation of 1926.500(d)(2) and 1926.500(b)(8) are affirmed. The citation for "nonserious" violation of 1926.501(f) is affirmed as to the southeast stairway and vacated as to the northeast and northwest stairways. A penalty of $2000 is assessed on the basis of the criteria set forth in section 17(j) of the Act.

So ORDERED.