“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 wereaffirmed our earlier holding in \/Skidmore\/, \/Owings & Merrill\/, 5 BNAOSHC 1762, 1977-78 CCH OSHD ? 22,101 (No. 2165, 1977) (\”\/SOM\/\”), thatemployers providing professional services for construction projects whodo not perform actual construction trade labor, such as architects andengineers, are subject to the construction standards prescribed in 29C.F.R. Part 1926 only if they substantially supervise actualconstruction labor. The issue before us here is whether the \”substantialsupervision\” test we originally set forth in \/SOM\/ and have now restatedin \/SGH\/ is satisfied with respect to an employer having a contract withthe owner of a building under construction to furnish managementservices for the project.Administrative Law Judge David G. Oringer held that Respondent, KulkaConstruction Management Corporation (\”Kulka\”), did not have \”supervisorypower or responsibility\” because it could only suggest but not requiresubcontractors to correct hazardous conditions. Rather, the judge foundtat the \”power to supervise and issue orders was retained by the owner.Accordingly, he concluded that Kulka was not governed by theconstruction standards, and he vacated the Secretary’s amended citationalleging Kulka committed two repeated violations of the OccupationalSafety and Health Act of 1970, 29 U.S.C. Sections 651-678 (651-678 (\”theAct\”). Recognizing however, that the Commission or appellate court onreview could disagree and hold Kulka subject to the standards in Part1926, the judge also made findings pertaining to the merits of thealleged violations. He found that Kulka had failed to comply with thetwo cited standards, 29 C.F.R. Sections 1926.500 (c) (1), which requiresguarding 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 judgeconcluded that penalties of $500 and $300 respectively, rather than thepenalties of $800 and $640 proposed by the Secretary, would beappropriate if violations were found, he did not make a determination asto whether they were repeated and serious in nature as alleged.As the party aggrieved by the judge’s decision, the Secretary filed apetition, for review under Commission Rule 91(b), 29 C.F.R. Section2200.91(b), and review was directed on whether the judge erred invacating the citation on the ground that Kulka was not engaged inconstruction work. No issue was raised in either the direction forreview or subsequent briefing notice regarding the judge’s alternativefactual findings. Kulka did not respond to our briefing notice. Briefswere received from the Secretary and from the American ConsultingEngineers Council, The National Society of Professional Engineers andThe American Institute of Architects as \/amici curiae.\/ The brief of the\/amici \/addresses only the question of the test to be applied indetermining whether the construction standards apply to employers suchas Kulka who do not perform physical trade labor; the amici take noposition on whether Kulka is subject to the construction standards onthe facts here. [[2]]The Secretary contends, and we agree, that the judge erred in findingthe construction standards inapplicable to Kulka. For the reasons thatfollow, we conclude that Kulka did exercise substantial supervisoryauthority over the construction work at the jobsite here. We thereforereverse that portion of the judge’s decision in which the judge held thecited standards inapplicable to Kulka. Although we further find that theSecretary proved that Kulka violated the Act as alleged and that theviolations were repeated and serious in nature, we conclude that thejudge did not err in determining that if violations were found,penalties in an amount lower than that proposed by the Secretary wouldbe appropriate.I. APPLICABILITY OF THE CONSTRUCTION STANDARDS TO KULKAA. BackgroundKulka was the construction manager for a 3-story building underconstruction in Smithtown, New York, having a contract with the buildingowner, the Eghrari family (\”Egghrari\”), \”to furnish businessadministration and management services.\” There was no generalcontractor, Eghrari had contracted directly with each tradesubcontractor.[[3]] According to the contract, Kulka would provide\”evaluation,\” \”review,\” \”coordination,\” \”analysis,\” \”verification,\”\”assistance,\” and \”recommendations\” in a number of areas, including thebudget for the project, its design, the schedule for work, theavailability of labor, equal employment opportunity, and a word ofsubcontracts. In addition, Article 1.1.5.1 of the contract stated thatKulka, among other things, would \”[p]rovide recommendations andinformation to the Owner and the Architect regarding the assignment ofresponsibilities for safety precautions and programs [and verify] thatthe requirements and assignment of responsibilities are included in theproposed Contract Documents.\” David Ridell, Kulka’s vice president forfinance, testified that Kulka would review the safety programs of\” eachcontractor who is contractually responsible to the building owner forsafety.\”Kulka had an on-site representative at the project. John McKee, whosetitle was project manager and field superintendent. McKee, who also wasresponsible for five or six other projects at the same time, visited thejob two or three times a week. Sometimes these visits would be verycursory, at times nothing more than driving by the worksite. Kulka hadno other employees on the site, except for occasional visits by McKee’ssupervisor, Tom Orr, either monthly or on an as-needed basis. McKeewould communicate directly with Eghrari’s representative, who also cameto the site occasionally. According to McKee, Kulka was responsible forgiving general instruction to the various contractors as to how the jobwas to proceed and would coordinate and schedule the work based oninformation supplied by the contractors, such as the number of workerseach contractor had available at any given time. McKee gave thefollowing characterization of his duties:Well, effectively what I did was work at the site on a partial basiseffectively as eyes and cars so to speak of the owner, generallyoverseeing that the work performed was in conformance with architecturaldrawings and making sure the trades were there when they said they weregoing to be there.In some respects it has some similarities [to an architect], but inaddition to my being there the architect also would still be on the jobmaking specific inspections, testing laboratories [sic], made [sic]specific inspections of steel and concrete. My function was more ofmaking sure that this mold went in where it was supposed to go and thatgenerally 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 sawsomething that was blatantly dangerous I would tell the contractor thatI thought it was dangerous and that he shouldn’t do it that way, butfrom a strict responsibility standpoint, we would tell the owner of theproject that we felt that there was a dangerous condition which existedand have him handle it directly with the contractor.On cross-examination, McKee conceded that he would bring unsafe workingconditions to the attention of the responsible contractors butemphasized that they were not obligated to comply with his requests, andhe opined that enforcement of safety rules was the responsibility ofEghrari.Compliance officers Kevin Brennan and Robert Niagee inspected theworksite on April 13, 1988. The only contractor working was the glass oraluminum contractor, although McKee arrived during the inspection. Therewere unguarded wall openings on the second and third floors which wereaccessible to anyone using the stairs. The same stairs had no railing onthe open side, and employees on the site, including McKee himself, usedthat stairwayMcKee and Orr first noticed that guarding around the wall openings wasmissing on their on-site visit a day or two before the inspection. Atthat time Orr informed the carpentry contractor that the perimeterguarding needed to be replaced immediately, and the carpenter agreed.For reasons not disclosed in the record, the guarding was in fact notreplaced by the time of the OSHA inspection, and after the OSHAinspectors left, McKee informed the owner that there was an OSHAviolation and that the owner should have the guarding installed.[[4]] Asto the missing stair railing, Brennan testified that McKee told him thatthe work was in the process of being completed, that he would \”makesure\” that the stair railing would be put in place, and that he would\”direct the proper person to put them up.B. Discussion and AnalysisOn the facts here, we conclude that Kulka is subject to the constructionstandards under the test of \/SOM\/ and \/SGH.\/ In addition to Kulka’sgeneral contractual obligation to provide for the institution of safetymeasures and safety programs, it is clear that the owner, Eghrari,depended upon Kulka to maintain safe working conditions at thesite.[[5]] McKee himself considered his role to be that of the \”eyes andears\” or Eghrari. In our view, the judge placed undue emphasis onMcKee’s testimony that he could not personally enforce any instructionshe gave to a subcontractor. There is no evidence to show thatcontractors routinely or customarily would ignore requests from McKeefor the correction of safety hazards form which we could conclude thatKulka could not effectively exercise the authority that Eghrari intendedit to have. As we have noted regarding the specific hazardous conditionsat issue here, the record does not show why the carpentry contractor didnot replace the perimeter guarding after promising to do so. Absentspecific evidence on the point. We cannot infer that the lack ofguarding was due to disobedience by the contractor as opposed to someother cause. Similarly, McKee did not deny having told Brennan that hewould ensure that a stair railing was installed. We conclude that theevidence preponderates in favor of a finding that Kulka substantiallysupervised the performance of the construction work.II. MERITS OF THE ALLEGED VIOLATIONSA. FactsThe wall openings were located along the stairway landing; as someoneused the stairs, he would approach within 2 to 3 feet of these openingsand would be exposed to a fall distance of 10 feet from the second floorand 20 feet from the third floor. The same stairs had no railing on theopen side, with a possible fall distance, according to Brennan, of 7 or8 feet from the top step. Brennan testified that a fall through the wallopenings could cause death and that serious injury could result from afall from the stairs to the concrete surface below. Employees on thesite, including McKee himself, used the stairway. McKee, however,testified that the configuration of the stairway minimized any hazardpresented by the absence of the railing. The stairway was a split set ofstairs; halfway up between the two floors there was a small landingwhere the stairs turned, and the upper half of the stairs extended aboveand back over the lower portion. As a result, McKee felt that the openarea between the stairs where an employee might fall was minimized, andthat the possibility of a fall existed only at the lower end of thestairs, so that the maximum possible fall distance would only be 1 and1\/2 to 2 feet.B. Discussion and AnalysisIn order to prove that an employer has violated a standard, theSecretary must show that the cited standard applies, that its terms werenot complied with, that employees had access to the violativeconditions, and that the employer knew or with reasonable diligencecould 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 areapplicable to Kulka. Since no issue was raised with respect to thejudge’s factual findings regarding the existence of violative conditionsand employee exposure thereto, and Kulka presented no argument to us, wedecline to disturb !hose findings. \/New England Tel. & Tel Co.,\/ 11 BNAOSHC 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 decidefactual issues addressed by the judge on which it did not request briefseven when the affected party files a brief on those issues). As to theissue of employer knowledge, which the judge did not address in hisdecision, it is uncontroverted that McKee was aware before theinspection of the unguarded condition of the wall openings and the lackof stair railing. Since McKee was Kulka’s supervisory employee, hisknowledge is imputable to Kulka. \/Baytown Constr. Co\/., 15 BNA OSHC1705, 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 betweenBrennan’s testimony and McKee’s testimony regarding the distance anemployee could fall from the open stairway. An examination of one of thephotographs taken by compliance officer Magee, however, shows that thedistance could not have been as little as 1 1\/2 to 2 feet, as McKeeclaimed, and that Vrennan’s figure of 7 to 8 feet is more accurate. Inthe absence of any argument to the contrary from Kulka, we find that apreponderance of the evidence establishes that employees were exposed tothe hazard of a fall of up to 8 feet from the unprotected stairs. \/SeeWell 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 partyfails to respond to a briefing notice, it runs the risk that theCommission will decide an issue against it without the benefit of theparty’s views or position on the question). We further find that thepossibility of a fall of this distance onto a concrete surface and theuncontroverted evidence that an employee could fall 10 to 20 feet fromthe wall openings is sufficient to establish that both violations wereserious 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-footfall is serious); \/Automatic Sprinkler Corp. of America\/, 8 BNA OSHC1384,1390,1980 CCH OSHD ? 24,495, p. 29,929 (No. 76-5089, 1980)(concrete surface below as a factor exacerbating the severity of a fallhazard). The Secretary also showed that Kulka had previously been citedfor violations of the same standards at issue here and had not contestedthose citations. This evidence, which Kulka did not rebut, is sufficientto establish a prima facie case that the violations alleged here wererepeated. 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 wereexposed to the hazards, and their exposure does not appear to have beenfrequent or of long duration. The fact that McKee also had concurrentresponsibility for several other jobs as well suggests that Kulka is arelatively small employer. Considering the factors set forth in section17(j) of the Act, 29 U.S.C. section 666(j), we conclude that thepenalties the judge would have assessed had he found Kulka in violationof the Act are appropriate.Accordingly, we affirm the amended citation alleging repeated andserious 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 ChairmanDonald G. Wiseman CommissionerVelma Montoya CommissionerDated: August 28, 1992————————————————————————SECRETARY OF LABOR, Complainant, v.KULKA CONSTRUCTION MANAGEMENT CORP.,Respondent.Docket No. 88-1167APPEARANCES:FOR THE COMPLAINANT:Patricia M. Rodenhausen, Esq., Regional SolicitorAlan Kammerman, Esq., of CounselOffice of the Regional SolicitorU.S. Department of LaborFOR THE RESPONDENT:Kaufman, Frank, Naness, Schneiderand Rosensweig, Esqs.Thomas J. Bianco, Esq., of Counsel_DECISION AND ORDER_ORINGER, JUDGE: This is a proceeding brought under. ? 10(c) of theOccupational Safety and Health Act of 1970, 84 stat. 1590, 29 U.S.C. ?651 et seq. (hereinafter sometimes referred to as \”the Act\”), to reviewcitations issued by the Secretary of Labor pursuant to ? 9(a) and aproposed assessment of penalties thereon issued, pursuant to ? 10(a) ofthe Act.Subsequent to an inspection of a construction worksite, the Secretary ofLabor served upon the respondent one citation alleging repeated seriousviolations of the standards set forth at 29 C.F.R. 1926.500(c) (1) and29 C.F.R. 1926.500 (e) (1) (ii). The Secretary proposed penalties of $840 for the aforesaid first allegation of violation and $600 for theaforesaid second allegation.The respondent timely filed with the Secretary of Labor a notificationof intent to contest the citation, all items thereon, and the proposedpenalties. The hearing was held on Monday, October 30, 1989 pursuant todue notice however the respondent’s chief witness did not obey asubpoena 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 hearingbriefs._THE TRANSCRIPT OF THE PROCEEDINGS_While this tribunal and other tribunals of record understand thattranscripts often are inaccurate as to certain words and phrases, thistranscript appears to be inaccurate in some areas to the point ofridicula ad absurdum specifically on page 77 of the transcript, there isan example of the Judge speaking and the comments are totallyinaccurate. There are certain other inaccuracies in the transcript butthey do not taint the evidence in the case._THE ISSUES_1. In this case did the respondent’s work activities come within thepurview of the construction standards?2. Was the respondent in violation of either of the standards as allegedby the Secretary?3. In the event that a violation of the standard alleged to be repeatedand serious was proven by the Secretary, was the characterization ofrepeated and or serious appropriate therefor and, if not, what was theproper characterization therefor?4. In the event that a violation of the standard was proven what is theappropriate penalty to be assessed therefor?_THE FACTS_Two compliance officers were assigned by their supervisor to perform ageneral inspection at a construction worksite. Compliance Officersvisited the site and while they were inspecting the work of a contractornamed Williamson, a Mr. Jack McKee arrived who was a representative ofthis respondent. (Tr. 8) The worksite was a three-story office buildingwith a super-structure basically finished. The employees were completingthe work, such as interior partitions and glass and windows. During theopening conference Mr. McKee stated that he represented Kulka, theconstruction manager on the job.Mr. Brennan, one of the Compliance Officers, (C.O.), stated that heissued 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 secondfloor at the top of the stairs. It had a plastic covering however therewere no guardrails and it was accessible to employees at the top of thestairway on the second floor and on the third floor. He further allegedthat 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 otherand they were 7 foot 6 inches high. There was also a 13 inch parapetwall going around the bottom. Floor openings began 18 inches above thefloor. There were no guardrails and nothing prevent an employee fromfalling through the openings. Brennan alleged that if you came around alanding you would come within a couple of feet of the opening and it washis opinion that they were readily accessible.This was a multi-employer worksite without a general contractor. Theconstruction manager was the respondent, Kulka. The citation waspredicated upon the fact that McKee walks the site a couple of times aweek and as a result he would be exposed to the hazard. In answer toinquiry McKee advised Brennan that he used the stairways. (Tr- 12, 13)Brennan testified that Kulka had no other employees on the job and McKeewould be the only representative for Kulka during the times that heinspected the job. (Tr. 14)Brennan further stated that McKee advised him that in the event thatguardrails were necessary he would direct the proper person to put themup if it was the carpenter or if Ii had his own equipment he would putthem up himself. Brennan said that the fall hazard from the second floorwas approximately 10 feet and from the third floor approximately 20feet. Brennan testified that he classified the alleged violation asserious in that if an employee fell from an opening it could causedeath. He further found that it was a repeat violation because therespondent had violated the same standard previously and was issued acitation for it December 9, 1985. The citation was never contested bythe respondent and therefor it was affirmed by operation of law. (Exh.C1, C2) Brennan utilized the Labor Department’s criteria for repeatpenalties and proposed a penalty of $840 therefor.Brennan also recommended issuing a citation for a violation of thestandard set forth at 29 C.F.R. 1926.500 (e)(1)(ii). The predicate ofthe violation according to Brennan, was that the stairs leading to thesecond floor had no railing and was opened sided. Going up to the secondlevel, there were 12 risers, 42 inches in width. The standard requires aguardrail on the open side of the stairway for any steps that are 44inches or less. On the other side of the stairs was a wall.On cross-examination Brennan testified that the predicate of theviolation was the exposure of Jack McKee, who told him that he usedthose stairs for access to the second and third floors. (Tr. 23)A citation was issued to Kulka Construction Management Corporation, therespondent, on November 3, 1986, for a violation of the identicalstandard. Respondent failed to contest that allegation of violation andit became a final order by operation of law, which was the predicate forthe characterization of \”repeat\” to this allegation of violation. Thecharacterization of the original violation was other than serious. (Tr.26) Utilizing the Secretary’s criteria for penalties, Mr. Brennanproposed a penalty of $600 for this allegation of repeated seriousviolation. (Tr. 28)Mr. McKee, in answer to inquiry by Brennan told him that he visited thepremises two to three times a week some visitors were only an hour andothers as much as six. McKee also advised Brennar that he simply was amanagement employee and not a tradesperson on this job. Brennan admittedthat the violation issued to Kulka was solely based on the allegedexposure of Mr. McKee. (Tr. 44) In answer to inquiry on cross-examination, Brennan testified that Mckee advised him that he used thestairways in question.Mr. Magee, the Compliance Officer who accompanied Mr. Brennan during theinspection, testified out added nothing of substance to the testimonygiven by Compliance Officer Brennan. After the government rested therespondent advised the tribunal that his primary witness, Mr. McKee,didnot respond to the subpoena and he put on as his only witness for theday the Vice-President in charge of finance, one, a Mr. Ridell. Hetestified that in the contract between the respondent and the owner, theconstruction manager, to wit, Kulka, was assigned responsibility forsafety precautions and programs. Kulka reviewed the safety programs ofeach contractor who was contractually responsible to the owner forsafety. (Tr. 81) In answer to inquiry from the bench, the witnesstestified that Kulka does construction management and it is sometimes aprime contractor, although possibly through a different corporation (Tr. 90)The witness testified that respondent would have one or two personsvisit the jobsite at the most. The second individual would be theproject manager, one, Thomas Orr. also no longer employed by respondent.Mr. McKee, the project superintendent, was subordinate to Mr. Orr whowas the project manager. (Tr. 91) The project manager administersKulka’s obligations under the contract (Tr. 91, 92).At the reconvening of the hearing on December 22, 1989 the respondentcontinued its case by putting on Mr. McKee the former projectsuperintendent, who was employed by respondent at the time of theincident in question. Mr. McKee testified that he left Kulka in August1988 to open his own business as a general contractor and carpenter.Prior thereto he was employed by the respondent as a project coordinatorand was hired approximately 7 years prior to the day of thehearing.[[1]] (T-2, 8). While originally hired as a project coordinatorhe was subsequently promoted to project manager and during the month ofApril 1988 when the incident in question took place he was a projectmanager for Kulka. He was both project manager and field superintendentinsofar as this new construction, three story office building, wasconcerned.McKee testified that what he did was on a partial basis. He would act asthe eyes and ears of the owner, generally overseeing that the workconformed with architectural drawings and also made sure that the tradeswere there during the time they stated that they were going to bethere.(T-2, 9)Mckee testified that in some respects his responsibility was similar toa supervising architect however the differences were that an architectwould also remain on the job making specific inspections, testing andlooking at steel concrete laboratories. His function was to make surethat mechanical work such as molds were of a quality expected on thejob. He did no physical labor and the temporary office that Kulka hadinitially was demolished. It had been an existing structure and theyjust kept same material in it. Primarily, he worked out of his vehicle.Mr. McKee was the only employee other than the project manager who wouldvisit the site possibly once a month or as needed. In other words, ifMcKee had a particular problem, he would call his superior, the projectmanager.He testified that Kulka had no specific authority to direct thecontractors what to do. If he saw something that was blatantly dangeroushe would advise the contractor that it was dangerous and that he shouldnot do It that way, but from a strict responsibility standpoint, hestated, he would tell the owner of the project that he believed therewas a dangerous condition and let the owner handle it directly with thecontractor. The owner was the Eghrari family. Isabelle Eghrari came tothe site periodically. Principally, her son Mark was the representativeof the owner. Any recommendations or problems that existed were broughtto Mark Eghrari’s attention, inasmuch as the Eghrari’s acted as thegeneral contractor and maintained separate contracts with eachindividual subcontractor.On the average McKee would visit the site two the tree times weekly. Atthe time this project was going on Mr McKee was running another five orsix jobs. He testified that often the time spent would be very cursoryand, in fact, sometimes he would just drive by to take a quick look outthe window of his vehicle to see if somebody in particular was there onthe site. Much of his time was spent on the telephone withsubcontractors which was done out of his office rather than at the sitein question. Neither he or anyone from Kulka did any physical labor onthe job. If there were trades working on the job the Kulkarepresentative would walk around making sure that the work was doneproperly. When interior trades were working on the building he wouldwalk through the building. In addition, he would take a body count ofhow many carpenters were working, how many electricians were working andwhat type of work they were doing. He would inspect the location of thework, whether they were on the second floor or what wing of the buildingthey were working in and would keep a log of such information. In ageneral sort of way, Kulka directed the contractors as to how theywanted the job to proceed but from an actual scheduling standpoint,McKee testified, that the subcontractors contributed as much to theschedule as did Kulka. The subcontractors usually determined the amountof men allocated to do the job and the work was done directly by thesubs. Information was given to Kulka by the subs and Kulka wouldcoordinate 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 therespondent’s employee McKee was exposed and which was the predicate ofthe citation. (T-2, 37)_DISCUSSION__I DID THE CONSTRUCTION STANDARDS APPLY TO THE RESPONDENT GIVEN ITSDUTIES AND RESPONSIBILITIES IN THE INSTANT CASE_The first salient question is whether or not this respondent was Coveredby the construction standards under the contract between it and theowner as well as the actual duties and responsibilities of thisrespondent anent this construction site.The Secretary relies oh’ the cases of Bechtel Power Corp. 4 BNA OSHC1005 (Review Commission 1976; affirmed 548 F. 2d 249 (8th Cir. 1977) andBertrand Goldberg Associates 4 BNA OSHC 1587 (Review Commission 1976).While other cases were discussed by the Secretary these were primarilythe important cases upon which the Secretary relied. She mentioned inpassing also her reliance on Vappi and Co., Inc., 4 OSHC 1479 (ReviewCommission 1976) which cited Bechtel, supra. The respondent, while itmentioned and discussed many cases on the subject, principally relied onSkidmore, Ownings. and Merrill 5 BNA OSHC 1762.Interestingly enough the three cases that were principally relied uponby the parties to wit Bechtel, Goldberg, and Skidmore, Owings, andMerrill (SOM) all were authored by former Commissioner Timothy F.Cleary. In Bechtel the respondent was the construction manager at thesite of a power plant in Missouri. As construction manager it did noactual work of construction and had no direct contacts with any craftunions in connection with work on the project. The actual constructionwas performed by various contractors all of whom who had prime contractswith the owner. These prime contractors may have had one or moresubcontractors.Bechtel’s services included the development and design of the plant. Itexpertly administered and coordinated the construction on behalf of theowner and conducted daily inspections of the work and progress to ensurethat the various prime contractors and the subs adhered to designspecifications. In addition thereto its employee’s checked the payrollsto see if they reflected the actual number of workmen employed. Bechtelalso monitored and recorded the progress of the work and interpreteddesign drawings. Its role was described by the Commission majority ascomprehensive and vital to the orderly completion of the work.Respondent employed at least two safety representatives who policed thesite and reported hazardous conditions to the prime contractors as wellas coordinating the safety program. Bechtel attempted to persuade thecontractors to comply with safety regulations when and if hazards werepresent. In the case of serious hazards it could have actually directedthat work be stopped until the condition was corrected. To carry out itsfunctions Bechtel employed 83 workmen of which 33 were administrativeand office personnel and the remaining 50 were engineers, timekeepersand safety inspectors. Their duties took them all over the job site.The Commission majority concluded that respondent was an integral partof the total construction system at the site and that its functions wereinextricably intertwined with the actual physical labor performed at thesite. Commissioner Cleary went on to state that because respondent’swork was so directly and vitally related to the construction beingperformed and because it’s employee worked at this construction site itwas \”engaged\” in construction and performed work \”for\” constructionwithin the meaning of the regulations.Bechtel also contended that the citations against it must be vacatedbecause it neither created nor controlled the violations or conditionsto which its employees were exposed and pointed to the decision inAnning-Johnson, Co. v. OSHRC 516 F. 2d 1081 (7th Cir. 1975). The 7thCir. opinion in Anning-Johnson, as pointed out by the Commission in itsdecision, is limited to a subcontractor having severe problems inabating hazards resulting from a violation of the standard. TheCommission majority correctly pointed out that Bechtel was not asubcontractor, but rather a construction manager. Given the facts ofthat 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 thetype of construction contractor found within the purview of theAnning-Johnson decision. It had tae power to protect its employees andother employees against violations committed by the various prime andlower-tier contractors.In Secretary of Labor against Bertrand Goldberg Associates, supra,respondent was employed by the state of New York as an architect andmanager of a construction project on the campus of the stat universityin Stoney Brook, Long Island. Under its contract with the state therespondent was responsible for the development and design of theproject, the preparation of documents, the administration of contractsheld by contractors hired to build the project as well as the inspectionof the worksite to ensure that the plans were properly executed andspecifications met. The Commission majority found that the respondenthired inspectors and other field employees in order to fulfill itsresponsibilities.The Commission majority stated that in its contracts with certain of thebuilders the state specifically assigns safety responsibilities however,as manager of the project, it was respondents duty to see that thebuilders complied with the terms of their contracts which includedsafety. The respondent’s inspectors continually surveyed the worksiteand in the event that, an inspector found a safety hazard or a failureto meet project specifications Goldberg’s representatives had theauthority to stop the work if in its opinion the circumstances warrantedsuch action.Again in this case, the first issue before the Commission was whether ornot respondent was subject. to the construction safety and healthstandards at 29 C.F.R. part 1926. The Commission majority decided thatits decision in Bechtel Power Corporation was dispositive of theidentical issue in Goldberg. It found Respondent Goldberg to be onemployer under the Act and subject to the construction safety and healthregulations found at 29 C.F.R. part 1926. Again the Commission majorityfound the this respondent could not avail itself of the Anning-JohnsonCo. defense just as it did in Bechtel and that this respondent did notqualify as a non-creating non-controlling subcontractor. Here theCommission found the respondent’s position more akin to that of ageneral contractor and that it possessed \”sufficient control ever theentire worksite to give rise to a duty under section 5(a) (2) of the Actto either comply fully with the standards or to take the necessary stepsto ensure compliance.\” The Commission cited Anning-Johnson supra andGrossman Steel & Aluminum corporation BNA 1 OSHC 3337.The third important decision on this subject, also authored byCommissioner Cleary was Skidmore, Ownings and Merrill BNA 5 OSHC 1762,an unanimous decision of the Commission. Here, the Commission found thatthe Construction standards of 29 C.F.R. part 1926 did not apply to anarchitect who was employed by the owner of the building and exercisedonly limited supervision over actual construction work. Again therespondent’s primary argument was that it was not engaged in\”construction work\” within the scope of 29 C.F.R. part 1926 and that asan architect and engineer could not be responsible under section 5(a)(2)of the Act for violations of conditions to which its employees wereexposed but which it did not control or create. The construction was atthe Sears Tower site in Chicago. The general contractor on the site wascommonly designated \”Diesel Construction\”. The respondent, _Skidmore_,_Ownings and Merrill_ (SOM) had a contract with the owner sears Roebuckand under the contract inspected the work of the various contractors toensure that design specifications were met. For this purpose respondentemployed four field representatives to observe the work as it wasperformed and review the results of tests performed by independenttesting companies. It was SOM’s duty to determine whether or not thework did not conform to the specifications and was unacceptable to theowner. In such case respondent would meet with representatives of Dieseland the subcontractor and, if necessary, direct that the work be redoneor repaired. While SOM field representatives performed no actualphysical labor, their employment necessitated movement throughout theconstruction site. SOM’s contract with Sears provided that nothing inthe 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 contractwith Sears provided that Diesel had the responsibility for establishing,maintaining and supervising the safety and loss prevention programscovering all work performed by it and its subcontractors. The salientquestion in this case was whether the work performed by SOM comes withinthe purview of part 1926, (the construction standards).The unanimous opinion of the Commission was that under the facts in thiscase 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 notperforming the actual work of construction but performing work directlyand vitally related thereto. The commission also stated \”although we donot over-rule these decisions, they should not be read more broadly thentheir facts permit. As we have noted in another case, ‘generalexpressions 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. Althoughthey performed no actual physical construction, each retainedsubstantial supervision over the progress of the work and the safetyprogram, at the worksite. During construction, their functions asconstruction managers were management functions similar to that of ageneral contractor.\”) (citations)\”In contrast, the architect engineer in this case has more limitedfunctions and authority over the work. And we note that this isgenerally true in assessing the role of an architect both in thetraditional arrangement where, as here, the architect works directly forthe owner, who has contracted with a general contractor to perform theactual construction work, and in the construction management arrangementwhere the architect is part of the construction management team.\”In the instant case the exact function of Kulka Construction ManagementCorporation is similar to that of SOM. This respondent only reported tothe site two to three times weekly, generally for short time periods. Inaddition, the contract required it to be the eyes and ears oil the ownerand to coordinate the different contractors and coordinate the safetyfunctions. It did not have supervisory power or responsibility. It couldnot order the different subs to remove certain hazards; it could onlysuggest it.The power to supervise and issue orders was retained by the owner, theEghrari family. I find that the duties of Kulka, given the facts of thisspecific case only, was most similar to that of SOM, rather then thoseof _Bechtel_ or _Goldberg_. Accordingly, I find that respondent was notsubject to the construction standards and the citation and penaltiesmust fall.Assuming arguendo however, that an appellate reviewing authority decidesthe question differently, I do find that the violations were present.The lower stair case had no handrail and accordingly it was technicallyin violation of the standard. The penalty however, given the shortdistance of any fall and the chances of it occurring would be sufficientat $300.Insofar as the wall openings are concerned I find that just as thecompliance officers were exposed to them upon ascending in the buildingso was McKee. Had the standard applied to McKee and Kulka, then and insuch case, the violation would have been proven and the proper penaltywould have been $500. For the reasons annunciated by the Commission in_Bechtel_ and _Goldberg_ I find that the _Anning-Johnson_ defense wouldnot be available to this respondent as it is not a subcontractor.To reiterate while I find that the Secretary had ample justification forissuing the citation and the items thereon I find under the peculiar andparticular facts of this case the construction standards do not apply tothis respondent for the aforecited reasons.Any case cited in the parties briefs not discussed in this decision werefound nonanalgous, nonprecedential or unnecessary to the resolution ofthis controversy._FINDINGS OF FACT AND CONCLUSIONS OF LAW _The findings of facts and conclusions of law contained in this opinionare incorporated herein in accordance with Rule 52 of the Federal Rulesof 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 thecitation issued to it is vacated together with and penalty proposedtherefor.IT IS SO ORDERED.DAVID G. ORINGER, JUDGE, OSHRCDated: 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 adrop of more than 4 feet, and the bottom of the opening is less than 3feet above the working surface, shall be guarded as follows: [either atop rail, midrail, or toeboard, or any combination thereof is requireddepending on the size and position of the opening](e) Stairway railings and guards. (1) Every flight of stairs having fouror more risers shall be equipped with standard stair railings orstandard handrails as specified below, the width of the stair to bemeasured clear of all obstructions except handrails:(ii) On stairways less than 44 inches wide having one side open, atleast one stair railing on the open side [.]Subsequent to the inspection here, the requirements dealing withstairways were removed from this section and rewritten and recodified insection 1926.1050.55 Fed. Reg. 47,660 (1990).[[2]] We deny the motion of the amici curiae that they be permitted topresent oral argument. The same amici participated in oral argumentbefore the Commission in SGH, in which we decided the issue of the legaltest to be used in determining whether the construction standards applyto employers who do not perform actual trade labor. Since we apply outholding in SGH here, we have no need for oral argument in this case.[[3]] The record indicates that Kulka has been the general contractor onsome jobs, directly hiring and supervising the subcontractors. WhenKulka 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 necessaryequipment in his truck. he would have installed the guardrails himself.McKee did not deny having made this statement, but he explained that hemade that statement not because it was part of his job to provideguarding but because he felt \”it was the right thing to do.\” He knew andhad been told that he was not supposed to perform actual physical laboron 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 thatEghrari may have had overall responsibility for safety matters, however,does not preclude Eghrari from delegating authority over safetyconditions 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 supervisionover subcontractor regarding the safety of working conditions.[[6]] The merits of the alleged violations were not included within thedirection for review. While the Commission has discretion to limit thescope of its review, Pennsylvania Steel Foundry &.Machine Co., 12 BNAOSHC 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 hasauthority 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 onreview by the Secretary, and deciding those questions is necessary to afull 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.”