RED LOBSTER INNS OF AMERICA, INC.  

OSHRC Docket No. 76-4754

Occupational Safety and Health Review Commission

July 18, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Charles G. Demarco, Staff Attorney, Red Lobster Inns of America, Inc., for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Jerry W. Mitchell is before the Commission for review pursuant to section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   Judge Mitchell vacated a citation alleging that Respondent, Red Lobster Inns of America, Inc., violated section 5(a)(2) of the Act, 29 U.S.C. §   654(a)(2), by failing to comply with the standard at 29 C.F.R. §   1926.401(c). n2 We reverse the judge's decision and affirm the citation.

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n1 29 U.S.C. §   661(i).

n2 This standard provides:

§   1926.401 Grounding and bonding.

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(c) Effective grounding. The path from circuits, equipment, structures, and conduit or enclosures to ground shall be permanent and continuous; have ample carrying capacity to conduct safely the currents liable to be imposed on it; and have impedance sufficiently low to limit the potential above ground and to result in the operation of the overcurrent devices in the circuit.

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A building under construction in El Paso, Texas, was to be used by Respondent as a restaurant.   Respondent contracted with various subcontractors to perform the construction work according to certain plans and specifications. The jobsite superintendent in overall charge of the construction work was Peter Raby, an employee of Respondent.   Raby had previously supervised the construction of a number of Red Lobster Inns throughout the country.   He was responsible for coordinating the operations of the subcontractors and for seeing that their work conformed to the plans and specifications. Raby was Respondent's only employee on the worksite. He did not perform any actual construction work, nor did he have supervisory authority over any other employee of Respondent.   If a problem involving a subcontractor arose, Raby would contact either the jobsite foreman or the owner of the subcontractor to resolve the problem.

During the course of construction, Raby rented an electric generator for use at the site.   The generator had a connection by which it could be grounded but it was put into service without being [*3]   grounded. The Secretary's compliance officer, upon inspecting the worksite, observed that the generator was not grounded and that two carpenters, who were using equipment connected to the generator, were thereby exposed to a hazard. The parties stipulated that the hazard could cause death or serious harm. In the compliance officer's opinion, Raby was not exposed at any time to the hazard created by the ungrounded generator. After the compliance officer pointed out the lack of grounding for the generator, Raby had the electrical subcontractor ground the generator.

The citation alleged that Respondent failed to comply with section 1926.401(c) because the generator was not grounded. Judge Mitchell found that Raby, Respondent's sole employee at the worksite, was not exposed to the hazard presented by the ungrounded generator. Relying on the absence of any exposure of Respondent's employees to the hazard, Judge Mitchell vacated the citation.   The judge did not address the Secretary's argument that Respondent should be held responsible for the violation by virtue of its supervisory control over the entire construction site.

The Secretary petitioned for review of the judge's decision,   [*4]   and Chairman Cleary granted the petition.   The primary issue before us, as stated in the Chairman's direction for review, is "[w]hether respondent, by virtue of its authority at the worksite and control over the hazard, failed to comply with the cited standard even though its employees were not exposed to the hazard."

In the ordinary case, the Secretary must prove that employees of a cited employer were exposed or had access to a condition that contravenes a standard in order to prove that the employer violated section 5(a)(2) of the Act.   Wander Iron Works, Inc., 80 OSAHRC    , 8 BNA OSHC 1354, 1980 CCH OSHD P24,457 (No. 76-3105, April 30, 1980).   There are, however, two situations in which an employer on a multi-employer worksite may be held responsible for a violation of the Act due to the exposure or access of employees other than its own.   First, an employer who creates or controls the hazard may be found in violation of the Act.   Harvey Workover, Inc., 79 OSAHRC 72/D5, 7 BNA OSHC 1687, 1979 CCH OSHD P23,830 (No. 79-1408, 1979); Jackson Construction Co., 77 OSAHRC 137/C14, 5 BNA OSHC 1608, 1977-78 CCH OSHD P21,981 (No. 13843, 1977).   Second, an employer is responsible [*5]   for violations of other employers where it could be reasonably expected to prevent or detect and abate the violations due to its supervisory authority and control over the worksite. See Gil Haugan, 79 OSAHRC    , 7 BNA OSHC 2004, 1979 CCH OSHD P24,105 (No. 76-1512, 1979); Knutson Construction Co., 76 OSAHRC 131/F3, 4 BNA OSHC 1759, 1976-77 CCH OSHD P21,185 (No. 765, 1976), aff'd, 566 F.2d 596 (8th Cir. 1977). Liability under the latter test does not depend on whether the employer actually created the hazard or has the manpower or expertise to itself abate the hazard.

We conclude that Respondent is responsible for the ungrounded generator because of its supervisory control over the worksite. Respondent, through Raby, supervised the various subcontractors to assure that the construction work was completed according to the plans and specifications. Raby alone had the authority to decide whether the subcontractors were performing their work properly and to resolve problems that arose in the course of construction.   Indeed, it was at Raby's direction that the electrical subcontractor ultimately abated the hazard that gave rise to this case.   These facts demonstrate [*6]   that Respondent possessed the type of supervisory control over the construction work that gives rise to liability under the Act when the employer fails to use such control to have violations abated. n3 Accordingly, we conclude that Respondent is responsible for the violation. n4

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n3 Normally, the employer with supervisory control over a construction site is termed the "general contractor." E. g., Gil Haugan, supra. The record in this case does not refer to Respondent as possessing the title of general contractor. However, it is the functions that an employer performs, and not its title, that determine liability under the Act.   See Cauldwell-Wingate Corp., 78 OSAHRC 39/A2, 6 BNA OSHC 1619, 1621, 1978 CCH OSHD P22,729 at 27,437 (No. 14260, 1978).

n4 Respondent argues that it did not create the hazard because renting the generator and bringing it onto the construction site did not result in the hazard presented by the use of the generator in an ungrounded condition.   However, because we are finding Respondent liable by reason of its supervisory control over the worksite, we need not decide whether it should also be found liable for creating or otherwise controlling the hazard.

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Respondent argues that it should not be held responsible for the violation because it did not and could not, with reasonable diligence, know of the violation.   Although conceding that Raby had actual knowledge that the generator was ungrounded, Respondent argues that Raby's knowledge should not be imputed to it because Raby had no supervisory authority over any other employee of Respondent.

This argument is without merit.   Although he did not supervise other employees, Raby held a highly responsible position and was invested by Respondent with substantial authority.   It was Raby's responsibility as Respondent's representative on the worksite to see that the construction work was completed successfully.   Indeed, it was only through Raby that Respondent had knowledge of the status of a major corporate project.   Respondent cannot divest itself of such knowledge simply by not assigning Raby supervisory status over other employees.   We conclude that Raby's actual knowledge of the ungrounded generator is properly imputed to Respondent.   See Packerland Packing Co. of Texas, 77 OSAHRC 203/A2, 6 BNA   [*8]   OSHC 1126, 1977-78 CCH OSHD P22,366 (No. 13315, 1977).

The parties stipulated that an accident resulting from the violation could result in death or serious harm. That, coupled with our conclusion that Respondent knew of the violative condition, establishes that the violation was serious in nature.   Niagara Mohawk Power Corp., 79 OSAHRC 36/A2, 7 BNA OSHC 1447, 1979 CCH OSHD P23,670 (No. 76-2414, 1979).

The Secretary proposed that a penalty of $600 be assessed.   In assessing penalties, the Commission must consider the gravity of the violation, the size of the employer, the employer's prior history, and the employer's good faith.   29 U.S.C. §   666(i).   The record establishes that Respondent has an annual gross income of 20 to 30 million dollars.   There is no evidence that Respondent committed prior violations of the Act, and we have no reason to doubt that it acted in good faith.   However, the gravity of the violation was high, as at least two employees were exposed to the danger of death or serious injury.   Under the circumstances, we conclude that a penalty of $300 is appropriate.

Accordingly, the citation for serious violation of 29 C.F.R. §   1926.401(c) is affirmed and a penalty [*9]   of $300 is assessed.   SO ORDERED.  

CONCURBY: BARNAKO

CONCUR:

BARNAKO, Commissioner, Concurring:

I agree with my colleagues that Respondent violated 29 C.F.R. §   1926.401(c).   However, I do not join with them in their rationale for this conclusion.

My colleagues state that there are two situations in which an employer on a multi-employer worksite may be held responsible for a violation of the Act due to the exposure of employees other than its own.   The first situation, that an employer who creates or controls the hazard may be found in violation of the Act, was originally limited to subcontractors on multi-employer construction worksites. Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD P20,691 (No. 12775, 1976); Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD P20,690 (Nos. 3094 & 4409, 1976).   It was subsequently extended by a majority of the Commission to employers at non-construction worksites in Harvey Workover, Inc., 75 OSAHRC 72/D5, 7 BNA OSHC 1687, 1979 CCH OSHD P23,830 (No. 76-1408, 1979).   However, I did not address whether the Grossman Steel and Anning-Johnson principle should be extended to non-construction worksites [*10]   in Harvey Workover since I found a violation on other grounds.   Similarily, in this case, Respondent is engaged in activities at a multi-employer construction worksite and therefore the principles to be applied if Respondent were working at a non-construction worksite are immaterial.

The second situation, that an employer is responsible for violations of other employers where it could be reasonably expected to prevent or detect and abate the violations due to its supervisory authority and control over the worksite, represents a departure from past precedent.   In the two cases cited by my colleagues in support of this proposition, Gil Haugan, 79 OSAHRC    , 7 BNA OSHC 2004, 1979 CCH OSHD P24,105 (No. 76-1512, 1979) and Knutson Construction Co., 76 OSAHRC 131/F3, 4 BNA OSHC 1759, 1976-77 CCH OSHD P21,185 (No. 765, 1976), aff'd, 556 F.2d 596 (8th Cir. 1977), the Commission limited its holding to a general contractor on a multi-employer construction worksite. n1 My colleagues, without explanation, now extend these holdings to non-construction worksites and to employers who are not general contractors.   I disagree with their action.   See H. B. Zachry, No. 76-2617 [*11]   (July 1, 1980), slip op. at 6 n. 4.

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n1 The Commission has held that a general contractor is presumed to have supervisory authority over the entire worksite. Gil Haugan, surpa. Contrary to my colleagues' assertion, however, we have not stated that "[n]ormally, the employer with supervisory control over a construction site is termed the "general contractor." Cf. Bechtel Power Co., 76 OSAHRC 38/E2, 4 BNA 1005, 1975-76 CCH OSHD P20,503 (No. 5064, 1976) (construction manager who was empowered to organize, plan and manage construction program as well as administer, inspect, approve and coordinate performance of prime contracts was held subject to construction standards even though it was neither general contractor nor subcontractor within the meaning of the Grossman Steel and Anning-johnson decisions).

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The record in this case demonstrates that Respondent had supervisory authority over the worksite, including the right to assure that the plans and specifications were followed and that the subcontractors [*12]   were performing their work properly.   As such Respondent was for all intents and purposes a general contractor and was subject to the same duties and responsibilities as a general contractor. Accordingly, Respondent was responsible for the violation.   The issue of whether the holdings in Gil Haugan and Knutson should be extended to all employers with supervisory authority over either multi-employer construction or non-construction worksites need not be reached.