________________________________
                                :
SECRETARY OF LABOR,             :
                                :
          Complainant,          :
                                :
          v.                    :   OSHRC Docket No. 96-0898
                                :
DAVID WEEKLY HOMES,             :
                                :
          Respondent.           :
________________________________:

*/DECISION/*

Before: ROGERS, Chairman; VISSCHER and WEISBERG, Commissioners.

BY THE COMMISSION:

On June 10, 1996, David Weekley Homes ("Weekley") was issued a willful
citation stemming from the inspection of a worksite located at the
Horizon Pointe development ("Horizon Pointe") in Westminster, Colorado.
Weekley is a general contractor who was engaged in the construction of
residential homes at Horizon Pointe. At the time of the inspection, two
houses were in the process of being framed. For this part of the
project, Weekley had contracted with Dave Axt Construction ("Dave Axt")
to serve as the general framing contractor. Dave Axt, in turn, had
contracted with Axt Construction to serve as project manager, and three
subcontractors Genuine Construction, Handyman Hank, and Leon Siding to
perform the actual framing work.

Under the citation, the Secretary alleged six willful violations of
various construction standards relating to safety programs, hard hats,
scaffolds, fall protection, and ladders. A total penalty of $221,500 was
proposed. All but one of the alleged violations were created by one or
more of the three framing subcontractors, none of whom had a contractual
relationship with Weekley.^(1) <#N_1_> None of Weekley's own employees
were exposed to the alleged hazards.

The Secretary argued that as general contractor, Weekley was the
"controlling employer" at the worksite and therefore, could be held
responsible under the multi-employer worksite doctrine for the safety of
all onsite employees, including those of the framing subcontractors. In
response, Weekley claimed that its subcontractors were solely
responsible for the safety of their own employees. Weekley also
challenged the validity of the multi-employer worksite doctrine and
argued that the Secretary had failed to prove the company had knowledge
of the cited conditions.

Judge Sidney Goldstein affirmed all six of the alleged violations. He
concluded that Weekley had "controlling authority" over the
subcontractors' employees at Horizon Pointe, noting that "[t]he duty of
a general contractor is not limited to the protection of its own
employees from safety hazards, but...extends to the protection of all
employees engaged at the work site." The judge also found that Weekley
had knowledge of the cited conditions, stating that "[i]f the violations
were seen by the compliance officer, they surely were in view of
Weekley's representatives." However, the judge characterized the
violations as serious, not willful, finding that Weekley's belief that
"the various subcontractors should be the only employers concerned with
[the] safety of their workers" was not, by itself, evidence of a total
disregard for employee safety. In recognition of a disparity between the
penalties proposed for Weekley and those assessed of the "creating"
subcontractors for the same violations, the judge assessed for each
serious violation a penalty of $1,500, for a total penalty of $9,000.

On review, Weekley has again disputed the validity of the multi-employer
worksite doctrine, as well as the finding of knowledge on Weekley's
part.^(2) <#N_2_>However, in deciding the current case, we need not
reconsider the applicability or validity of the doctrine. Even if we
assume that under Commission precedent, the multi-employer worksite
doctrine has been properly applied to Weekley, we find that the
Secretary has not met her burden of proving the alleged violations, as
discussed below.



*_SAFETY PROGRAM VIOLATION_*

The Secretary alleged that Weekley violated § 1926.20(b)(1) by failing
to implement its safety program at Horizon Pointe.^(3) <#N_3_>
Specifically, the Secretary claims that Weekley failed to "inspect the
jobsite regularly to provide a safe and healthful workplace for
subcontractor employees." Weekley does not deny that it never conducted
safety inspections at Horizon Pointe, but maintains that it was not
Weekley's responsibility to ensure the safety of its subcontractors'
employees. For the following reasons, we vacate this item.

First, there is no question that Weekley had only a limited presence at
Horizon Pointe. Four Weekley employees were assigned to the project:
Matt Clark, Jim Wilson, and Robert Horn, all of whom worked as job site
superintendents, also known as "builders;" and Mark Almquist, a project
manager. None of these employees performed any construction work. In
addition to managing other Weekley projects, Almquist was primarily
responsible for supervising the builders assigned to Horizon Pointe.^(4)
<#N_4_> He visited Weekley's trailer at the development "probably every
day, usually...stopping at least a couple times," but was not required
by Weekley to perform any type of inspections on these occasions.

The three builders were primarily responsible for scheduling and
coordinating the various subcontractors, like Dave Axt, engaged in
building homes for Weekley. Like Almquist, they were responsible for
other Weekley projects, but one of the builders visited the Horizon
Pointe worksite at least twice a day in order to open the homes in the
morning, lock them up at night, and verify that the scheduled work crews
and necessary materials were present. The builders were also required to
inspect a house whenever payment was due to a subcontractor in order to
determine whether Weekley's specifications had been met.^(5) <#N_5_>

Secondly, the record shows that Weekley expected its onsite
representatives to play a role in maintaining a safe worksite for the
benefit of all employees, including those of other employers,
notwithstanding Weekley's claims that it was not responsible for the
safety of its subcontractors' employees. In its safety program, Weekley
acknowledged that its builders were not a constant presence on any of
its worksites, but stated that "[w]hen a builder is on the job site
he/she should be alert to observe job site hazards and to require
corrective action from the appropriate subcontractor." Weekley also
required builders to seek corrective action from the appropriate
subcontractor for hazards about which Weekley was notified. To enable
its builders to better recognize worksite hazards, Weekley provided them
with training on the requirements of OSHA's construction standards, an
effort which was consistent with the company's safety policy: "It is the
obligation of all employees to be knowledgeable of the [safety]
standards established by [federal, state and local] agencies and to
implement the rules and regulations contained therein on projects under
their direction."

In arguing that Weekley was responsible for conducting "regular" safety
inspections at Horizon Pointe, the Secretary cites to additional
language from Weekley's safety program found under a section entitled
"Job Site Safety:"

As general contractor, it is our responsibility to insure that outside
subcontractors correct any job site hazards that we observe or that are
called to our attention.

Relying on Weekley's stated position that it was not responsible for the
safety of its subcontractor employees, the Secretary claims that Weekley
failed to fulfill this "responsibility" at Horizon Pointe. But the
Secretary has ignored evidence in the record which establishes that
Weekley did, in fact, notify subcontractors when hazardous conditions
were observed or brought to its attention, and that the subcontractors
immediately complied with Weekley's requests for corrective action. For
instance, Weekley's safety coordinator, Gary Bryant, testified that on
one occasion when he was accompanying builder Robert Horn on a
walk-through at Horizon Pointe, a subcontractor's employees were
observed using a job-built ladder. According to Bryant, Horn promptly
located the appropriate subcontractor and the ladder was destroyed.

Similarly, upon receiving inspection warrants from OSHA on two different
occasions, each of which referenced potential fall hazards at Horizon
Pointe, Weekley contacted the appropriate subcontractors to alert them
to the problem. In fact, safety coordinator Bryant testified that he met
with Dave Axt personally after receiving the second warrant (which
ultimately led to the issuance of the subject citation) to "remind" him
of his company's contractual obligation to comply with the Act.^(6)
<#N_6_> In addition, Bryant specifically told Axt that OSHA had fall
protection concerns.

Finally, in focusing solely upon Weekley's disavowal of legal
responsibility for the employees of its subcontractors, the Secretary
has failed to address how Weekley's actual efforts with regard to safety
notwithstanding its limited presence were deficient under the terms of
the standard. The Commission has stated that "[u]nder § 1926.20(b)(1),
'an employer may reasonably be expected to conform its safety program to
any known duties[,] and...a safety program must include those measures
for detecting and correcting hazards [that] a reasonably prudent
employer similarly situated would adopt.'" /Lancaster Enterp. Inc./, 19
BNA OSHC 1033, 1034 (No. 97-0771, 2000) (citation omitted). Here,
compliance officer Nelson simply testified that as general contractor,
Weekley was required to do "something" under § 1926.20(b)(1) to ensure
OSHA compliance on the worksite, but was unable to identify what that
"something" should have been: "It would depend on the situation.
Whatever it takes to verify compliance with the regulation[s] and that
the employees are working safely on the job site." When asked
specifically whether Weekley should have conducted safety inspections
three times a day, Nelson suggested that such matters were within
Weekley's own discretion: "If that's what they want to do to [e]nsure
compliance, then that is their option." We find on this record that the
Secretary has not shown that Weekley's conduct was insufficient,
particularly in light of the combination of its limited onsite presence
and actual exercise of safety responsibilities. Accordingly, we conclude
that a violation of § 1926.20(b)(1) has not been established.



*_FALL PROTECTION TRAINING VIOLATION_*__

Under this item, the Secretary alleged that Weekley violated §
1926.503(a)(1) by failing to "ensure" that Handyman Hank, one of the
framing subcontractors working at Horizon Pointe, had developed and
provided training to its employees in the recognition and avoidance of
fall hazards.^(7) <#N_7_> The Secretary relies on compliance officer
Nelson's testimony that Weekley builders Wilson and Horn were not
familiar with the fall protection programs of any subcontractor at
Horizon Pointe. According to project manager Almquist, such inquiries
were not made because the employees of Weekley's subcontractors "were
not our responsibility."

We find that the Secretary has not shown what was required of Weekley
under the terms of the cited standard. Specifically, it is not clear
whether the Secretary would have had Weekley simply determine whether
Handyman Hank, a subcontractor with whom Weekley had no contractual
relationship, had a fall protection training program, or would have
required Weekley to make a more detailed inquiry in order to verify
whether the subcontractor had a program that effectively covered all of
the fall protection requirements set forth under Subpart M. Furthermore,
the Secretary has not addressed whether "ensuring" that its
subcontractor's employees had received fall protection training meant
that Weekley itself was required to develop and provide such training
even though such a program would not be required for its own employees,
none of whom were ever exposed to fall hazards.^(8) <#N_8_> We also note
that when Weekley did become aware of fall hazards, as referenced in the
OSHA warrant, it addressed the problem with Dave Axt, the general
framing contractor. Because the Secretary has failed to define what
would have constituted compliance for Weekley underthe circumstances and
how Weekley's conduct was deficient, we conclude that a violation of
§ 1926.503(a)(1) has not been established. *__*



*_SUBSTANTIVE VIOLATIONS_*

With regard to the remaining violations set forth under citation items
2, 3, 4a, 5a, 5b, 6a and 6b, we find that the Secretary has failed to
establish knowledge on Weekley's part. The Secretary does not dispute
that Weekley lacked actual knowledge of these violations, but contends
that Weekley could have known of the cited conditions with the exercise
of reasonable diligence. However, in concluding that the violations
"surely were in view" of Weekley's representatives since they were seen
by compliance officer Nelson, the judge failed to consider the nature,
location, and duration of these conditions. Indeed, Weekley can only be
held responsible for those violations "which it could reasonably be
expected to prevent or detect." /Centex-Rooney Constr. Co./, 16 BNA OSHC
2127, 2130, 1993-95 CCH OSHD ¶30,621, p. 42,410 (No. 92-0851, 1994);
/Blount Intl. Ltd./, 15 BNA OSHC 1897, 1899, 1991-93 CCH OSHD ¶29,854,
p. 40,749-50 (No. 89-1394, 1992)/; Red Lobster Inns of America, Inc./, 8
BNA OSHC 1762, 1763, 1980 CCH OSHD ¶ 24,636, p.30,220 (No. 76-4754,
1980); /Gil Haugan d/b/a Haugan Constr. Co./, 7 BNA OSHC 2004, 2006,
1979 CCH OSHD ¶ 24,105, p. 29,290 (No. 76-1512, 1979). //

A review of the record reveals that most of the substantive conditions
for which Weekley was cited were of brief or indeterminate duration. For
instance, compliance officer Nelson observed two Handyman Hank employees
working without hard hats and fall protection on the second floor of one
of the houses being framed (citation items 2 and 4a), but gave no
indication of how long the employees were working without these
safeguards.^(9) <#N_9_> Four additional instances of insufficient fall
protection were observed by Nelson at both of the houses in question
(citation item 4a), but one instance lasted no more than five minutes
and the duration of the others was not clear. It is also not apparent
from the record how long guardrails placed around a stairway
opening^(10) <#N_10_> and a window opening at one of the houses existed
in their non-compliant conditions (citation items 5a and 5b).^(11)
<#N_11_> Finally, Nelson observed a damaged ladder (citation item 6b)
chained to a pump jack scaffold located at the back of one of the
houses, but failed to state how long the ladder had remained in this
location.^(12) <#N_12_> Even if Weekley had maintained a constant
presence at Horizon Pointe, the Secretary has failed to show that these
conditions were present for a sufficient amount of time such that, with
the exercise of reasonable diligence, Weekley could have discovered
their existence. /Cf. R.P. Carbone Constr. Co. v. OSHRC/, 166 F.3d 815,
819-20 (6th Cir. 1998) (general contractor liable for subcontractor's
lack of fall protection where condition was in plain view and lasted for
two weeks); /Centex-Rooney/, 16 BNA OSHC at 2130, 1994 CCH OSHD at p.
42,410 (where conditions were in plain view and existed for a
significant period of time, general contractor could have ascertained
their existence through the exercise of reasonable diligence).

The two remaining conditions, set forth under citation items 3 and 6a,
were of some duration, but were not obvious or in plain view such that
Weekley's representatives could have known of their existence during
their visits to the worksite. Compliance officer Nelson observed two
employees of Leon Siding working on a pump jack scaffold without "mud
sills," a type of footing which prevents the scaffold's poles from
shifting in loose or wet soil (citation item 3).^(13) <#N_13_> According
to Nelson, the scaffold was in place for over a day at the back of one
of the houses in question and was visible from Weekley's trailer, as
well as from the street running along the front and side of the
corner-lot house. However, based upon photographs of the scaffold which
show the inconspicuous location of the missing mud sills, we are not
persuaded that a Weekley representative could have readily detected this
condition even if he had walked directly past the scaffold on the day in
question. //

Similarly, Nelson testified that a ladder which did not extend the
required three feet above the second floor of one of the houses
(citation item 6a) was placed just inside the front entry on two
consecutive days.^(14) <#N_14_> Since only the first floor of the house
was fully framed, the ladder extended above the second floor and was
visible, according to Nelson, from about a block away. However, we find
that the photographs submitted in support of this violation simply do
not support Nelson's claims regarding the ladder's visibility, let alone
the visibility of its violative condition. Accordingly, we conclude that
Weekley lacked knowledge of all of the substantive conditions for which
it was cited.



*_ORDER_*

For the foregoing reasons, we reverse the judge's decision to affirm
Items 1 through 6 of Citation 1 and vacate the citation in its entirety.





_/s/ _

Thomasina V. Rogers

Chairman



_/s/ _

Stuart E. Weisberg

Dated: _September 28, 2000 _	Commissioner

VISSCHER, Commissioner, concurring:

I join the majority in vacating the citations issued against David
Weekley Homes ("Weekley") at issue in this case. I would vacate the
citation alleging violation of 29 C.F.R. § 1926.20(b)(1) for the reasons
given in the majority opinion. As to the other citations, while I agree
with the majority that the Secretary has not proven that Weekley had
knowledge of the violative conditions, I would not have reached the
knowledge issue, but would hold that the cited standards do not apply.

In my dissent today in /McDevitt Street Bovis/, /Inc/., Docket No.
97-1918 (September 28, 2000), I explain why, in my view, a general
contractor cannot be held liable for a subcontractor's violations simply
because it failed to supervise the subcontractor to ensure compliance.
Unless the cited standard imposes such a duty to supervise, I do not
believe the Secretary can impose the duty by invoking the so called
multi-employer worksite doctrine. The standards under which Weekley was
cited do not impose any such duty to supervise on the general
contractor. On that basis I would vacate the citations against Weekley
for its subcontractors' alleged violations of 29 C.F.R. §
1926.503(a)(1)(fall protection training), § 1926.100(a) (head
protection), § 1926.501 (fall protection), § 1926.1053 (ladders), and §
1926.451 (scaffolding).

While the Commission is properly vacating the citations against Weekley,
I make special note of the method of enforcement employed by the
Secretary in this case. Weekley is a large national developer of
residential subdivisions which maintained only a minimal presence at the
cited development in Westminster, Colorado. With respect to this
particular development, Weekley contracted with Dave Axt Construction to
be the general framing contractor. Dave Axt Construction in turn
contracted with Axt Construction to serve as project manager, and with
subcontractors Genuine Construction, Handyman Hank, and Leon Siding to
actually perform the framing and siding work. Following the inspection,
the Secretary issued all citations in quadruplicate: one set to the
subcontractor which created the alleged violative conditions and whose
employees were exposed to the alleged hazards, another set to Axt
Construction, still another set to Dave Axt Construction, and the
contested set to Weekley. Not only did the Secretary claim that all four
employers were responsible for each violative condition, but the
penalties proposed against Weekley indicate that the Secretary considers
a general contractor's responsibility for a violative condition to be
far greater than that of the employer who is directly responsible for
the condition and whose employees are exposed to the hazard. For
instance, for the failure of Handyman Hank employees to wear hardhats,
Weekley was issued a proposed penalty of $49,500, while Handyman Hank
received a proposed penalty of $225. For Handyman Hank's failure to
install proper guardrails on an interior stairway, the proposed penalty
against Weekley was $49,500, while the proposed penalty against Handyman
Hank was $300. For employees of Handyman Hank using a ladder that did
not extend 3 feet beyond the upper landing, Weekley's proposed penalty
was $24,750, while Handyman Hank's was $300. While Leon Siding was
issued a proposed penalty of $300 for using a damaged ladder, the
Secretary proposed a penalty of $24,750 against Weekley for the same
violation. As there is no basis in any of these standards for a general
contractor's duty to supervise, there is certainly no basis for the
Secretary to place far greater weight on the general contractor's duty
to supervise than on the direct employer's unqualified duty to comply.







_/s/ _

Gary L. Visscher

Commissioner





Date: _September 28, 2000 _

SECRETARY OF LABOR,

Complainant,

v.



OSHRC DOCKET NO. 96-0898





DAVID WEEKLEY HOMES,



Respondent.



APPEARANCES:



Evert H. Van Wijk, Esq., Office of the Solicitor, U.S. Department of Labor,

Kansas City, Missouri

Robert E. Rader, Esq., Rader, Campbell, Fisher & Pyke, Dallas, Texas



Before: Administrative Law Judge Sidney J. Goldstein





_DECISION AND ORDER_



This is an action by the Secretary of Labor to affirm a "Willful"
citation issued to the Respondent by the Occupational Safety and Health
Administration for alleged violations of a series of safety regulations
relating to the construction industry. The matter arose after a
compliance officer for the Administration inspected two work sites of
the Respondent, concluded that it violated the safety regulations, and
recommended that the citation be issued. The Respondent disagreed with
the citation and filed a notice of contest. After a complaint and answer
were filed with this Commission, a hearing was held in Denver, Colorado.



The citation alleged (1) that the employer did not initiate and maintain
a safety and health program for residential construction; (2) that
employees were not protected by helmets while working where there was
danger of head injury; (3) that poles of pump jack scaffold(s) were not
bearing on mud sills or other adequate firm foundations; (4) that
employees engaged in residential construction activities six feet or
more above the lower levels were not protected from fall hazards; (5)
that the employer did not provide a training program which enabled
employees to recognize and minimize the hazards of falls; (6) that
guardrails did not have a vertical height of 42 inches; (7) that
midrails or equivalent were not provided between the top edge of the
guardrail system and the walking working surface; (8) that the portable
ladder's length did not extend at least three feet above the upper
landing surface; and (9) that portable ladders with structural defects
were not withdrawn from service, all in violation of the regulations
found in 29 C.F.R. ¶1926.20(b)(1); ¶1926.100(a); ¶1926.451(y)(5);
¶1926.501(b)(13); ¶1926.503(a)(1); ¶1926.502(b)(1); ¶1926.502(b)(2);
¶1926.1053(b)(1); ¶1926.1053(b)(16), respectfully.

The material facts are not in substantial dispute and may be briefly
summarized. At the time of the inspection the Respondent was engaged in
the construction of two homes in the Denver, Colorado area. It acted as
a general contractor subcontracting construction activity to other
employing units. Framing was subcontracted to Dave Axt Construction who,
in turn, selected Axt Construction as project manager, Genuine
Construction and Handyman Hank as framing subcontractors, and Leon
Siding as siding subcontractor. No Respondent employee was engaged in
construction work.

At the hearing the compliance officer testified that he observed
infractions of the regulations at the work sites and took photographs of
the houses under construction. As a result of his inspections the
subcontractors were issued "Serious" citations for these violations with
recommended penalties in the $4,000.00 to $5,000.00 range, all of which
citations were settled for substantially lesser amounts.



The Respondent received a "Willful" citation with a penalty of
$221,500.00 because its representative understood that his company was
not responsible for the misdeeds of other employers.

Documents in the record include the Respondent's safety rules and
policies, recognizing its responsibility to insure that outside
subcontractors correct any job hazards that are observed or called to
its attention. In its safety program, employees are admonished that
safety is the result of careful attention to all company operations by
those who are directly or indirectly involved, and company builders are
to be alert to observe jobsite hazards and to require corrective action.

On these factors, the Complainant's position is that the Respondent was
in violation of the safety regulations despite the fact that its
employees were not working at the jobsite. The Respondent disclaims
responsibility for the safety infractions on the grounds that the
workers were not its employees; and that the violations were created by
the subcontractor whose workers were the only individuals exposed to any
danger.

The question whether a contractor may be held in violation of a safety
regulation although it had no employees at the jobsite has been before
the Commission in the past. On this point the Commission rejected the
idea that liability under the Occupational Safety and Health Act of 1970
should be based solely on the employment relationship. And in the case
of /Brennan v. Occupational Safety and Health Review Commission
(Underhill Construction Corporation), /513 F.2d 1032, the court held
that an employer's specific duty to comply with the Secretary's
standards is in no way limited to situations where a violation of a
standard is linked to exposure of his employees to the hazard. It is a
duty over and above his general duty to his own employees.

General contractors normally have the responsibility and means to assure
that other contractors fulfill their obligations with respect to
employee safety. The Commission has stated that it will hold a general
contractor responsible for safety standard violations which it could
have reasonably have been expected to prevent or

abate by reason of supervisory capacity. The duty of a general
contractor is not limited to the protection of its own employees from
safety hazards, but it extends to the protection of all employees
engaged at the work site.

While the subcontractors had authority to control their employees, the
Respondent also had controlling authority over these workers.
Admittedly, the violations were not created by the Respondent, and none
of its workers were exposed to the dangers. However, both the Commission
and the courts have held that overall responsibility for the safety of
all workers on the project is in the general contractor's province.

The Respondent asserts that there was no admissible evidence of actual
knowledge of the violations. However, the inspector observed and
photographed the work sites and spoke with company representatives. The
evidence also discloses that the builders visited each work site a
minimum of twice daily. Also under company rules they were required to
look for safety infractions. If the violations were seen by the
compliance officer, they surely were in view of Respondent's
representatives.

With respect to the individual items of the citation, the compliance
officer was informed that some of the subcontractors did not initiate or
maintain a safety program. Their employees were not protected by helmets
where there was danger of head injury. Poles of jump jack scaffolding
did not have an adequate firm foundation, and employees working six feet
or more above floor levels were not protected from fall hazards. The
inspector learned there was no program enabling employees to recognize
fall hazards; that guardrails did not have the required height; that
midrails or their equivalent were not provided; that portable ladders
did not extend at least three feet above the landing surface; and that
those with defects were not withdrawn from service.

The Respondent contends that it is irrelevant whether Weekley's builders
knew or could have known of the alleged violations, citing /Southeast
Contractors, Inc. v. Dunlop/, 512 F.2d 675 (5th Cir. 1975). In a one
paragraph /per curium/ opinion the court decided that it was in
agreement with a dissenting opinion of Chairman Moran

that a contractor is not responsible for the acts of his subcontractors
or their employees, and that it was unnecessary to decide the
constitutionality of the Occupational Safety and Health Act of 1970 and
its enforcement procedures, a matter also pending and under submission
before another panel of the court in /Atlas Roofing Company, Inc./ A few
months after the /Southeast Contractors/ case was decided, Chief Judge
John R. Brown of the same circuit, in a detailed decision, upheld the
constitutionality of the Act, including enforcement. /Atlas Roofing
Company v Secretary of Labor/, 518 F.2d 990 (5th Cir. 1975).

In sum, I find that the Respondent was in violation of the various items
of the citation.

_Willful Violation_

The term "willful violation" has been defined as follows:

A willful violation is one committed with intentional, knowing or voluntary

disregard for the requirements of the Act, or with plain indifference to

employee safety. E.g., /Williams Enterprises, Inc/., 13 BNA OSHC 1249,

1256-57, 1986-87 CCH OSHD ¶27,893, p.36,589 (No. 85-355, 1987).

It is differentiated from other types of violations by a "heightened
awareness -- of the illegality of the conduct or conditions -- and by a
state of mind -- conscious disregard or plain indifference." /Id/.



/Calan/g/Corp.,/ 14 BNA OSHC 1789, 1791, 1990 CCH OSHD ¶29,531 (No.
85-319, 1990).

As noted, the compliance officer recommended and the Administration
adopted his conclusion that the infractions were willful in nature,
resulting in a suggested penalty of $221.500.00. The classification of
willful was the result of the Respondent's builder's opinion that the
company was not responsible for the safety of the employees of the
subcontractor. He believed that the various subcontractors should be the
only employers concerned with safety of their workers. The builder's
remarks should not be equated with a total disregard of employee safety.
This is especially true where documents in the record disclose
Respondent's concern for employee safety.





While the Respondent's failure to comply with the regulations under
consideration was not willful, it does come within the definition of
"serious" which is defined in Section 17(k) of the Occupational Safety
and Health Act of 1970, as follows:

(k) For purposes of this section, a serious violation shall be deemed

to exist in a place of employment if there is a substantial probability

that death or serious physical harm could result from a condition which

exists, or from one or more practices, means, methods, operations, or
processes which have been adopted or are in use, in such place of
employment unless the employer did not, and could not with the exercise
of reasonable diligence, know of the presence of the violation.

I also conclude that serious injuries could occur if employees did not
wear hard hats, if scaffolding was not provided with mud sills in water,
mud and snow, if workers worked on roofs without fall protection, if
guardrails were not of proper height, and if ladders did not extend
three feet above the landing.

There remains the question of penalties. The Administration settled the
cases in which the subcontractors who created the hazards and who had
employees subject to the dangers with substantially reduced penalties. I
believe that the penalties assigned to the Respondent should be in the
same range as those charged to the subcontractors. Accordingly, the
penalties in this case should be in the amount of $1,500.00 for each of
the six items in the citation for a total of $9,000.00.

In summary, I find that the Respondent was in violation of the
regulations as charged in the citation; and that the citation should be
reclassified as "serious" with a penalty of $9,000.00.



_/s/ _

Sidney J. Goldstein

Judge, OSHRC



Dated: December 1, 1997

1. Weekley was considered the "creating" employer of the safety program
violation set forth under the first citation item.

2. Weekley also filed a motion for oral argument. However, upon review
of the record, the judge's decision, and the briefs, we conclude that
oral argument is unnecessary.

3. The cited provision requires as follows:

*§ 1926.20 General safety and health provisions.*

(a) /Contractor requirements./

. . . .

(b)/Accident prevention responsibilities./

(1) It shall be the responsibility of the employer to initiate and
maintain such programs as may be necessary to comply with this part.

4. Almquist also testified that he had the authority to remove any
employee engaging in unsafe work practices from the worksite and to
withhold payment from Weekley's subcontractors.

5. **At the hearing, the Secretary seemed to place significance on the
fact that Weekley's framing specifications required builders to walk
through a house a minimum of three times a day in order to "answer any
questions and spot potential problems that can be corrected before the
[framing] job is complete." However, according to the record, these
walk-throughs were not necessarily done every day and could take place
during the builder's morning and afternoon visits to the worksite.

6. Paragraph 11 of Weekley's contract with Dave Axt provided that Dave
Axt agreed to comply with various legal and regulatory requirements,
including those set forth under the Act.

7. The cited provision requires as follows:

*§ 1926.503 Training requirements.*

(a) /Training Program./

(1) The employer shall provide a training program for each employee who
might be exposed to fall hazards. The program shall enable each employee
to recognize the hazards of falling and shall train each employee in the
procedures to be followed in order to minimize these hazards.

8. In /Access Equipment Systems/, 18 BNA OSHC 1718, 1730, 1999 CCH OSHD
¶ 31,821, p. 46,786 (No. 95-1449, 1999),the Commission vacated a
training violation cited under § 1926.21(b)(2), noting that it was
unaware of any case holding a cited employer responsible under the
multi-employer worksite doctrine for failing to instruct another
employer's employees under § 1926.21(b)(2). However, we note that that
particular citation item involved the relationship between two
subcontractors on a worksite, not between a general contractor and a
subcontractor as here.

9. These conditions were cited under § 1926.100(a) and §
1926.501(b)(13), respectively:

*§ 1926.100 Head Protection*

(a) Employees working in areas where there is a possible danger of head
injury from impact, or from falling or flying objects, or from
electrical shock and burns, shall be protected by protective helmets.

. . . .

*§ 1926.501 Duty to have fall protection.*

(a) /General./

//. . . .

//(b)(1) /Unprotected sides and edges./

. . . .

(13) /Residential construction./ Each employee engaged in residential
construction activities 6 feet (1.8 m) or more above lower levels shall
be protected by guardrail systems, safety net system, or personal fall
arrest system unless another provision in paragraph (b) of this section
provides for an alternative fall protection measure. Exception: When the
employer can demonstrate that it is infeasible or creates a greater
hazard to use these systems, the employer shall develop and implement a
fall protection plan which meets the requirements of paragraph (k) of §
1926.502.

10. We note that compliance officer Nelson agreed at the hearing that
the condition of the guardrail in this location could be considered
"latent [in] that you would have to look for [it] in order to find [it]."

11. These conditions were cited under § 1926.502(b)(1) and (b)(2),
respectively:

*§ 1926.502 Fall protection systems criteria and practices.*

(a) /General./

. . . .

(b) /Guardrail systems./ Guardrail systems and their use shall comply
with the following provisions:

(1) Top edge height of top rails, or equivalent guardrail system
members, shall be 42 inches (1.1 m) plus or minus 3 inches (8 cm) above
the walking/working level. When conditions warrant, the height of the
top edge may exceed the 45-inch height, provided the guardrail system
meets all other criteria of this paragraph.

. . . .

(2) Midrails, screens, mesh, intermediate vertical members, or
equivalent intermediate structural members shall be installed between
the top edge of the guardrail system and the walking/working surface
when there is no wall or parapet wall at least 21 inches (53 cm) high.

12. This condition was cited under § 1926.1053(b)(16), which requires as
follows:

*§ 1926.1053 Ladders*

(a) /General./

. . . .

(b) /Use./

. . . .

(16) Portable ladders with structural defects, such as, but not limited
to, broken or missing rungs, cleats, or steps, broken or split rails,
corroded components, or other faulty or defective components, shall
either be immediately marked in a manner that readily identifies them as
defective, or be tagged with "Do Not Use" or similar language, and shall
be withdrawn from service until repaired.

13. This condition was cited under § 1926.451(y)(5) which requires as
follows:

*§ 1926.451 Scaffolding.*

(a) /General requirements./

. . . .

(y) /Pump jack scaffolds./

. . . .

(5) All poles shall bear on mud sills or other adequate firm foundations.

In 1996, two months after the subject citation was issued, § 1926.451
was revised and subsection (y)(5) was deleted. /See /61 Fed. Reg.
46,026, 46,078 (August 30, 1996). This requirement is currently set
forth at § 1926.451(c)(2).

14. This condition was cited under § 1926.1053(b)(1) which requires as
follows:

*§ 1926.1053 Ladders*

(a) /General./

//. . . .

(b) /Use./ The following requirements apply to the use of all ladders,
including job-made ladders, except as otherwise indicated:

(1) When portable ladders are used for access to an upper landing
surface, the ladder side rails shall extend at least 3 feet (.9 m) above
the upper landing surface to which the ladder is used to gain access;
or, when such an extension is not possible because of the ladder's
length, then the ladder shall be secured at its top to a rigid support
that will not deflect, and a grasping device, such as a grabrail, shall
be provided to assist employees in mounting and dismounting the ladder.
In no case shall the extension be such that ladder deflection under a
load would, by itself, cause the ladder to slip off its support.