Summit Contractors, Inc.

Plain-English summary

OSHA cited Summit, the general contractor for a large apartment project, for several fall hazards affecting subcontractor employees. The judge held that Summit's broad contractual and practical authority made it a controlling employer under the multi-employer worksite doctrine. She vacated the inspection-program item because that standard concerned inspections protecting Summit's own employees, not each subcontractor's work area. She also found that the Secretary did not prove Summit actually knew of the fall hazards or that the conditions lasted long enough for reasonable inspections to discover them. All five items were vacated with no penalties.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.20(b)(2); 29 C.F.R. § 1926.451(g)(1); 29 C.F.R. § 1926.501(b)(1); 29 C.F.R. § 1926.1052(c)(12); 29 C.F.R. § 1926.501(b)(13)
• Outcome: All five inspection and fall-protection items were vacated, and no penalties were assessed.
• Key point: A controlling general contractor is not liable for a subcontractor's violation unless the Secretary proves actual knowledge or that reasonable safety inspections would have discovered the condition.

Full text (OSHRC public release)

Secretary of Labor,
Complainant,
v. OSHRC Docket No. 01-1891
Summit Contractors, Inc.,
Respondent.

Appearances:

      Leslie J. Rodriguez, Esq., Office o f the Solicitor, U . S. De partm ent of Labo r, Atlanta, Geo rgia
      For Com plainant

      Robert E. Rader, Jr., Esq., Rad er & Cam pbe ll, Dallas, Texas
      For Respond ent

Before: Administrative Law Judge Nancy J. Spies

                                             DECISION AND ORDER
      Summit Contractors, Inc., contests a citation issued by the Secretary on October 25, 2001, alleging

serious violations of five construction standards under the Occupational Safety and Health Act of 1970
(Act). The citation resulted from a random programmed inspection conducted by Occupational Safety and
Health Administration (OSHA) compliance officer Luis Ramirez on October 15, 2001. Summit was the
general contractor for the construction of an apartment complex in Statesboro, Georgia.
Item 1 alleges a serious violation of § 1926.20(b)(2) for failure to initiate and maintain a program
of frequent and regular inspections of the job site, materials, and equipment. Item 2 alleges a serious
violation of § 1926.451(g)(1) for allowing employees to work on a scaffold more than 10 feet above a
lower level without fall protection. Item 3a alleges a serious violation of § 1926.501(b)(1) for allowing
employees to work on a walking/working surface with an unprotected side or edge 6 feet or more above
the lower level without fall protection. Item 3b alleges a serious violation of § 1926.1052(c)(12) for failure
to provide a guardrail system for the unprotected sides and edges of stairway landings. Item 4 alleges a
serious violation of § 1926.501(b)(13) for failure to provide fall protection to employees engaged in
residential construction activities 6 feet or more above the lower level.
A hearing was held in this matter on April 3 and 4, 2002, in Savannah, Georgia. The parties have
submitted post-hearing briefs.
The Secretary cited Summit under the multi-employer worksite doctrine. She asserts that Summit
had the requisite supervisory authority over its subcontractors, but that it chose not to exercise that
authority in terms of safety. Summit argues that the multi-employer worksite doctrine is invalid and should
not be enforced. Summit also argues that it lacked the knowledge to make it responsible for the alleged
violations. While Summit’s argument regarding the invalidity of the multi-employer worksite doctrine is
rejected, the undersigned finds that the Secretary failed to establish that Summit had knowledge of the
hazardous conditions present at the site.1
For reasons more fully discussed below, items 1, 2, 3a, 3b, and 4 are vacated.
Background
Summit was the general contractor for a large multi-building apartment complex under construction
in Statesboro, Georgia. The apartment complex, known as Campus Club Apartments, covers more than
20 acres and includes 21 separate buildings. The project began about 4 months before the October 15,
2001, OSHA inspection and had an expected completion date of June 1, 2002 (Tr. 57-58, 64, 69-70).

    Typically, a project such as the Campus Club Apartments could require the services of 30 to

40 subcontractors. The subcontractors themselves hire other subcontractors. The day of the inspection
approximately170 workers from various subcontractors were on the construction site (Tr. 57, 64, 277).
Summit had only three employees at the site: project superintendent James G. (Gus) Pike, and
assistant superintendents (and cousins) Christopher Roberts and Jeremie Roberts (Tr. 13, 59). These three
Summit employees performed no actual construction work or manual labor but were responsible to keep
the overall project on track. They scheduled, inspected, and approved the work for payment. Pike
described the process (Tr. 61):
The schedule is an ongoing process. So like a judgment, you schedule this guy to do this
and there’s eight behind him. If he gets the material in and he gets done on time, the

1
On O ctober 10 , 200 2, Summit sent a letter to the und ersigned (follo wed by a motion) asserting that the Secretary is
collaterally estop ped from contending tha t the degree o f contro l exercised by Summit is sufficient to make Summit
liable for subcontractor violations in the present case. Summit bases this assertion on an unreviewed administrative
law jud ge de cision that bec ame a final ord er on October 10, 200 2. In that decisio n, Sum mit Contra ctors, In c., (No .
01-1614, 2002), Judge Schoenfeld found that Summit did not have the authority typically attributed to general
contractors over the worksite in question. Therefore, Judge Schoenfeld held, the multi-employer worksite doctrine
did not apply in that case. The motion for collateral estoppel is denied. The material facts of the two cases are
different, as are the alleged violations. The ap plication of the m ulti-employer worksite doctrine req uires a case-by-
case analysis. Mc Devitt Street Bov is, Inc., 19 BN A OS HC 1 108 (N o. 97-1918, 20 00). A determination of the
Summit’s autho rity as a gen eral co ntracto r will be m ade indep endently in this case.

                                                           -2-

weather doesn’t bother him and the inspection goes good, then the next guy is scheduled
right in behind him, but it all plays a part.

   On October 15, compliance officer Ramirez arrived at Summit’s construction site at approximately

1:00 p.m. (Tr. 124). Before entering the site’s premises, Ramirez drove to the campus of Georgia Southern
University, located on the north (back) side of the construction site. From there Ramirez observed a
number of subcontractors’ employees exposed to various fall hazards. Employees worked on top of a roof
without fall protection (Exhs. C-22, C-23, C-24; Tr. 126, 134, 185-187, 256, 267). Employees working
from a scaffold without guardrails were performing siding work without fall protection (Tr. 126, 133).
Employees were exposed to falls on stairway landing areas that were missing guardrails (Exhs. C-3, C-19;
Tr. 126, 141-144). Employees were exposed to falls while working on unguarded balconies on the second
and third floors (Exh. C-3; Tr. 141-144, 167). These observations were made from the back of the
worksite in relation to the entrance of the complex and to Summit’s job trailer.
After taking photographs, Ramirez drove to Summit’s trailer and met with Christopher Roberts and
Jeremie Roberts (Tr. 31, 43, 126). Ramirez conducted a walk-around inspection with Christopher Roberts.
At the end of the walk-around inspection, they were joined by project supervisor Pike (Tr. 42).
As a result of Ramirez’s inspection, the Secretary issued citations to Summit, as well as to several
subcontractors and sub-subcontractors (Exhs. R-3, R-4, R-6, R-7, R-9, R-10).
Discussion
The Secretary has the burden of proving her case by a preponderance of the evidence.
In order to establish a violation of an occupational safety or health standard, the
Secretary has the burden of proving: (a) the applicability of the cited standard, (b) the
employer’s noncompliance with the standard’s terms, (c) employee access to the violative
conditions, and (d) the employer’s actual or constructive knowledge of the violation (i.e.,
the employer either knew or, with the exercise of reasonable diligence could have known,
of the violative conditions).

Atlantic Battery Co., 19 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
Summit does not dispute that the cited standards apply to the conditions which existed or that the
subcontractors’ employees were exposed to conditions which violated the terms of the standards. Summit
challenges the applicability of the multi-employer worksite doctrine, which could give it liability for the
violations.

                                               -3-

Multi-Employer Worksite Doctrine
Summit argues, as it has done in previous cases, that the multi-employer worksite doctrine
contravenes the Act and is unenforceable. This argument is rejected.2
For over 25 years, the Review Commission has held that a general contractor on a worksite with
multiple employers possesses sufficient control over the entire worksite “to obtain abatement of hazards,
either through its own resources or through its supervisory role with respect to other contractors.”
Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185, 1185 (No. 1275, 1976). The Review
Commission has held that a general contractor is responsible for violations of other employers where it
could reasonably be expected to prevent or detect and abate the violations due to its supervisory authority
and control over the worksite. Centex-Rooney Construction Co., 15 BNA OSHC 2052, 2055 (No. 90-
2873, 1992). This duty applies to an employer even if its own employees are not exposed to the hazard.
Flint Engineering & Construction Co., 15 BNA OSHC 2052, 2055 (No. 90-2873, 1992).
Summit’s office is located in Jacksonville, Florida, and the worksite at issue in this case was
located in Georgia. Both states are located in the Eleventh Circuit, to which this case could be appealed.
“Where it is highly probable that a Commission decision would be appealed to a particular circuit, the
Commission has generally applied the precedent of that circuit in deciding the case–even though it may
differ from the Commission’s precedent.” Kerns Brothers Tree Service, 18 BNA OSHC 2064, 2067 (No.
96-1719, 2000). Although several employers have argued that the Eleventh Circuit has rejected the multi-
employer worksite doctrine and held that a general contractor is not responsible for the safety violations
of a subcontractor, the Review Commission has ruled otherwise. In McDevitt Street Bovis, Inc., 19 BNA
OSHC 1108 (No. 97-1918, 2000), the Commission held that case law decided by the former Fifth Circuit
rejecting the multi-employer worksite doctrine does not preclude application of the Review Commission’s
precedent regarding the doctrine in the Eleventh Circuit.3 Noting in McDevitt that the Eleventh Circuit
never rejected the multi-employer worksite doctrine in the context of the Act, the Commission concluded
that it was ambiguous whether or not the Eleventh Circuit would consider itself bound by the noted

2
Also rejected is Su mmit’s contention that the multi-employer work site doctrine vio lates § 4 (b)(4 ) of the A ct.
Section 4(b)(4) supports the opposite conclusion from Summit’s. Congress intended for private rights to be
unaffected by the A ct.

3
Dec isions of the form er Fifth C ircuit entered b efore October 1, 19 81, are bind ing pre cedent in the E leventh
Circuit. Bonne r v. City o f Prich ard, Alab am a, 661 F. 2d 1206, 1209 (11 th Cir. 19 81) (en banc).

                                                           -4-

decisions in the former Fifth Circuit. See also Access Equipment Systems, 18 BNA OSHC 1718 (No. 95-
1449, 1999) (Upon review of Eleventh Circuit decisions, Commission determines that it is not precluded
from following its precedent relating to multi-employer worksites.) Conceivably, the case also could be
appealed to the D.C. Circuit which, like the Eleventh Circuit, has not expressly adopted or rejected the
doctrine, although raising questions about its validity.
This case will be analyzed under the multi-employer worksite doctrine as developed under
Commission precedent.
It is helpful to analyze the record within the guidelines set out in an OSHA Directive, CPL 2-0.124
(“Multi-Employer Citation Policy”), issued by the Secretary on December 12, 1999. While OSHA CPLs
and other directives are not binding on the Commission, the Commission has looked to them in the past
as aids in resolving interpretations under the Act. Drexel Chemical Company, 17 BNA OSHC 1908, 1910,
footnote 3 (No. 94-1460, 1997). The CPL is used here only because it provides a useful framework within
which to examine the extent of Summit’s authority on the Campus Club Apartments worksite.
The CPL sets out a two step process to determine whether an employer should be cited under the
multi-employer worksite policy. The first step is to determine whether the employer in question was a
creating, exposing, correcting, or controlling employer. Only if the employer falls into one of these
categories can it be cited under the policy. Step two is to determine whether the employer met its
obligations with respect to OSHA requirements. CPL 2-0.124, ¶ X.A.1 and 2.
The Secretary concedes that Summit was not a creating or exposing employer (Secretary’s brief,
p. 26). Although the Secretary contends that Summit had the authority to correct hazards on the worksites,
Summit does not fit the definition of a correcting employer within the meaning of the CPL. Paragraph
X.D.1 of the CPL defines “correcting employer” as:
An employer who is engaged in a common undertaking, on the same worksite, as the
exposing employer and is responsible for correcting a hazard. This usually occurs where
an employer is given the responsibility of installing and/or maintaining particular
safety/health equipment or devices.

   Although Summit supplied some safety devices (such as guardrails) and contracted with a framer

subcontractor to install them, Summit did not itself install or maintain any safety or health equipment or
devices, nor perform any other physical labor on the worksites.

                                                -5-

Controlling Employer
To determine whether a general contractor is a controlling employer for purposes of multi-employer
liability, OSHA’s CPL suggests looking to the authority contained in explicit provisions of the contract;
or (if not found there) to the authority granted through in a combination of less explicit provisions of the
contract; or to the authority inherent in a general contractor’s actual exercise of control. CPL 2-0.123, ¶
X.E.5.
No Control Established by Explicit Provisions of Contract
The CPL provides (Paragraph X.E.5.a, emphasis in original):
In this case, the Employer Has a Specific Contract Right to Control Safety: To be a
controlling employer, the employer must itself be able to prevent or correct a violation or
to require another employer to prevent or correct the violation. One source of this ability
is explicit contract authority. This can take the form of a specific contract right to require
another employer to adhere to safety and health requirements and to correct violations the
controlling employer discovers.

     Exhibit C-7 is a copy of the contract between Summit and States Property Co., the owner of

Campus Club Apartments. The Secretary finds contractual control in Article 10 of the contract, which
provides in pertinent part:
10.1 SAFETY PRECAUTIONS AND PROGRAMS
10.1.1 The Contractor shall be responsible for initiating, maintaining and supervising all
safety precautions and programs in connection with the performance of the
Contract.
10.2 SAFETY OF PERSONS AND PROPERTY
10.2.1 The Contractor shall take reasonable precautions for safety of, and shall provide
reasonable protection to prevent damage, injury or loss to:
.1 employees on the Work and other persons who may be affected thereby[.]

     These provisions are part of a standard AIA contract. In line with its theory on multi-employer

responsibilities, however, Summit negotiated to delete Article 10.1.l (but not any other portion of Article
10). It substituted:
The Contractor shall be responsible for initiating, maintaining and supervising all safety
precautions for its employees . . .. The Contractor shall require that any and all
Subcontractors and Sub-Subcontractors affect the same responsibility for their employees.

     Further, OSHA’s CPL does not look primarily to the contract between the owner and the general

contractor to determine whether the general contractor is a controlling employer. Paragraph X.E.5.a states

                                                  -6-

that the general contractor’s explicit contractual authority “can take the form of a specific contract right
to require another employer to adhere to safety and health requirements and to correct violations the
controlling employer discovers” (emphasis added). It is the contract between the general contractor and
the subcontractor that one looks to for explicit contractual authority.
The only contract between Summit and one of its subcontractors in the record is Exhibit C-8, the
contract between Summit and Paul’s Drywall. The only section of that contract to which the Secretary
refers is paragraph 5 of Attachment A, which provides:
All parties hereby agree that control of the Work Schedule, use of the site and coordination
of all on-site personnel will be performed under the complete direction of
CONTRACTOR’S supervisory staff. CONTRACTOR may enforce upon
SUBCONTRACTOR any of the following actions in order to expedite or coordinate the
work. However, CONTRACTOR does not assume any liability for delays to
SUBCONTRACTOR or third parties in connection with coordination of on-site personnel.
These actions include, but are not limited to, the following:

              A)   Designated storage, designated unloading and parking areas.
              B)   Require unacceptable materials, equipment or vehicles to be removed
                   from the project.
              C)   Limit the use of the site by SUBCONTRACTOR’S equipment, vehicles,
                   personnel or stored materials.
              D)   Temporarily or permanently bar specific personnel from the site. Listed
                   below is a partial list of reasons to deny a person access to the project:

                   1)      Drug or alcohol use
                   2)      Fighting, possession of weapons
                   3)      Theft
                   4)      Harassment of anyone on or off the project
                   5)      Personal use of the areas near the project limits for parking, eating,
                           sleeping, etc.
                   6)      Failure to cooperate with CONTRACTOR’S supervisory personnel
                           or comply with project documents.

   Absent from this paragraph is any mention of safety and health, or the correction of safety and

health violations. More apposite to the issue at hand is the paragraph immediately preceding the one
highlighted by the Secretary. Paragraph 4 of Attachment A of the subcontractor’s contract provides in
pertinent part:
All parties hereby agree that SUBCONTRACTOR has the sole responsibility for
compliance with all of the requirements of the Occupational Safety and Health Act of 1970

                                                -7-

and agree to indemnify and hold harmless CONTRACTOR against any legal liability or
loss including person injuries which CONTRACTOR may incur due to
SUBCONTRACTOR’S failure to comply with the above referenced act.

    No reference is made to Summit’s ability to enforce compliance with the Act. The subcontractor

is given “sole responsibility” for compliance; no provision is made for Summit to require correction of any
safety violation. No explicit contractual right exists for Summit to require a subcontractor to correct
violations.
Control of Safety Established Through a Combination of Contract Rights and Exercise of Authority
Combined Rights: Paragraph X.E.5.b of the CPL provides:
Where there is no explicit contract provision granting the right to control safety, or where
the contract says the employer does not have such a right, an employer may still be a
controlling employer. The ability of an employer to control safety in this circumstance can
result from a combination of contractual rights that, together, give it broad responsibility
at the site involving almost all aspects of the job. Its responsibility is broad enough so that
its contractual authority necessarily involves safety. The authority to resolve disputes
between subcontractors, set schedules and determine construction sequencing are
particularly significant because they are likely to affect safety.

    As stated, by contract Summit had total control of scheduling and could exact penalties if the

subcontractor failed to meet its schedule. Summit retained the authority to bar the subcontractor’s
employees from the site for failure to cooperate with Summit’s supervisors. Summit could terminate a
subcontractor’s contract for cause or for convenience. Subcontractors could not subcontract without the
prior written consent of Summit, and Summit had sole discretion on whether to approve a subcontractor’s
subcontractor. The subcontractors had to keep their work areas clean and orderly, subject to Summit’s
approval. The subcontractors were required to file MSDSs in Summit’s office. Summit required
subcontractors to repay any OSHA fines it incurred because of a subcontractor’s OSHA violation (Exh.
C-8). Combined, these contract provisions demonstrates broad authority over the subcontractor’s actions,
as well as authority over conditions affecting general safety on the jobsite.4 The authority explicitly granted
by a combination of contract provisions is broad enough to necessarily involve safety.

4
Summit also took the resp onsibility to provide o range chain guardrails to be used throughout the project and to
have the framers install them (Tr. 354).

                                                        -8-

In addition, the final type of control considered by the CPL is that exercised without explicit
contractual authority. The authority the contract granted Summit mirrored how Summit actually controlled
the project.
Control Without Explicit Contractual Authority: Paragraph X.E.5.d of the CPL provides:
Even where an employer has no explicit contract rights with respect to safety, an employer
can still be a controlling employer if, in actual practice, it exercises broad control over
subcontractors at the site[.]

    Summit notes that on a project that typically required a daily presence of 150 to 200 employees,

Summit employed three men (Tr. 13, 59). Summit’s employees coordinated 30 to 40 subcontractors over
the course of the project (Tr. 277). Frequently, the subcontractors would hire other subcontractors. In
many cases the subcontractors’ employees spoke Spanish and not English (Tr. 72, 131, 285).
Pike testified regarding his involvement with the subcontractors: “I’m involved with the scheduling
of the project to keep it going forward and in a timely manner, and do quality work. I deal with change
orders, submittals, owner problems or concerns, and just basically subcontractors in the movement of the
job” (Tr. 68). Pike generated a project diary and daily report at the end of each day or by the following
morning, which detailed who completed what, when, and at which building (Exh. C-1). Chris Roberts
testified that although he made rounds once a month of the whole site, “I try every day to go out there and
walk a building or walk a slab and just look at the work that has been done that day if we can. That’s pretty
much a quality check” (Tr. 328-329).
Summit kept abreast of the subcontractors’ actions on the jobsite. For example, as Ramirez and
the Roberts began walking towards building 3, Ramirez pointed to employees on the roof and asked to
speak with the roofer. The Roberts replied (Tr. 127-128):
And, they told me, “No, that’s not the roofer. It’s the framer.”
And I said, “Okay, let’s talk to them.”
And they said, “Well, I guess you need to talk to another company because these people work for
Parrish Construction, and their foreman is not on site. He went to lunch, and he left another
foreman from another company in charge of them.

    Despite Summit’s frequent inspections for quality and scheduling purposes, Superintendent Pike

testified that he had only a limited ability to require a subcontractor to correct safety violations (Tr. 72):

                                                 -9-

Well, if we see somebody that’s not safe, we tell the foreman – most of these guys don’t
understand what I’m saying, but the foreman does and we tell him, you know, “Hey, you
need to change the way they’re doing this.” Yes, we do that if we see it during that day.

   Hypothetically, Summit’s attorney posed the scenario where a subcontractor would tell Pike “to

go jump in the lake,” if he should request the subcontractor’s abatement of an ongoing safety concern (Tr.
73). Pike stated that although he could ask a subcontractor to abate a hazardous condition, “I don’t have
the authority to do anything. All I can do is warn him. . . . [W]e do not punish the subcontractors” (Tr. 73).
The assertion is disingenuous. As stated, Pike had authority in the contract to terminate any subcontractor
which failed to abide by his directions. Summit, not the subcontractors, dictated what occurred on the
jobsite. At the hearing Pike showed himself to be a forceful, no-nonsense supervisor, capable of
ramrodding the large, fast paced project. One who, according to Christopher Roberts, “wouldn’t take too
kindly to [being told to jump in the lake]” (Tr. 333). Christopher Roberts testified that subcontractors had
not refused any request concerning safety, and “usually, they were pretty good about responding. It’s just
that, you know, like everybody else, they may get lax from time to time” (Tr. 333). Summit “always had
safety in the back of our minds” (Tr. 335). Summit acknowledged general safety oversight. Its safety
director Charles Calloway wrote in response to Ramirez’s request (Exh. C-6):
Safety inspections. Visual checks are accomplished periodically throughout a given week
by Summit employees. All open and obvious violations are brought to the attention of the
respective contractor and followed by discussion and additional reminders at weekly
production meetings. The Director of Safety makes periodic reviews as time and travel
permit. Likewise, violations are reviewed with subcontractors when issued by written
report through the superintendent. Subs are then responsible to abate accordingly. Further,
the general superintendent reviews open and obvious violations during his periodic
production reviews as well.

   Summit was concerned with the severe impact on the project that a delay by one subcontractor

could have for those scheduled to come after. Pike stated that if he had to terminate a subcontractor,
“Well, it’s devastating, as we had that happen on this job with a painter, and it costs me about six weeks
to actually get straightened back out and get another subcontractor in there and get everybody back in line
and get the job going working” (Tr. 88-90). Although termination of a subcontractor could cause serious
problems with the scheduling, nevertheless, he and Summit did exercise that ultimate control when
necessary.

                                                -10-

Summit walked the work areas and had authority to detect safety hazards and to require the
subcontractors to abate them. Summit exercised such broad control over the work of the subcontractors
that it had inherent control over whether they performed it safely. Thus, under the multi-employer
worksite doctrine Summit can be held liable for the subcontractors’ violations, if the Secretary establishes
that Summit knew or should have known of the violative conditions.
Item 1: Alleged Serious Violation of § 1926.20(b)(2)
The Secretary alleges that Summit violated § 1926.20(b)(2), which provides:
(2) Such programs shall provide for frequent and regular inspections of the job sites,
materials, and equipment to be made by competent persons designated by the employers.

     The citation states, “The employer failed to initiate and maintain a program of frequent and regular

inspections of the job site, on or about 10/15/2001.” In its post-hearing brief, the company states, “Summit
freely admits that it does not conduct frequent and regular safety inspections of the subcontractors”
(Summit’s brief, p. 42). The undersigned agrees with Summit that § 1926.20(b)(2) does not apply to it,
as the general contractor, to make it responsible for frequent and regular inspections of the individual job
sites of the numerous subcontractors. A responsibility to make reasonable inspections of the work areas
for safety hazards is not based on this standard, which addresses safety on the jobsite in relation to the
employer’s own employees. The subcontractors themselves were required to conduct these inspections
for their employees. The Secretary did not show that the Summit failed to inspect the workplace of its
three employees or that they were exposed to the same violative conditions cited for the subcontractors’
employees. It is determined that Summit was not in violation of § 1926.20(b)(2).
Items 2, 3a, 3b, and 4
The remaining items allege instances where employees of various subcontractors were exposed to
fall hazards. The cited standards, along with the citation description of the alleged violations, are as
follows:
Item 2
Section 1926.451(g)(2) provides in pertinent part:

     Each employee on a scaffold more than 10 feet (3.1 m) above a lower level shall be
     protected from falling to that lower level.




                                                -11-

The citation alleges: “A- Construction site, building # 16 - Employees working from scaffolds in
excess of 10 feet above the ground without fall protection, on or about 10/15/2001.”
Item 3a
Section 1926.501(b)(1) provides:

     Each employee on a walking/working surface (horizontal and vertical surface) with an
     unprotected side or edge which is 6 feet (1.8 m) or more above a lower level shall be
     protected from falling by the use of guardrail systems, safety net systems, or personal fall
     arrest systems.

     The citation alleges: “A - Construction site, building #17 - Guardrails, safety nets or personal fall

arrest systems were not provided for employees working close to the edges of the balconies which were
9'-1" and 18'-2" above the ground below, on or about 10/15/2001.”
Item 3b
Section 1926.1052(c)(12) provides:
Unprotected sides and edges of stairway landings shall be provided with guardrail systems.
Guardrail system criteria are contained in subpart M of this part.

     The citation alleges: “A - Construction site, building #17 - Guardrail systems were not provided

for employees working close to the edges of the stairway landings which were 9'-1" and 18'-2" above the
ground below, on or about 10/15/2001.”
Item 4
Section 1926.501(b)(13) provides in pertinent part:
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 systems, or personal fall
arrest system unless another provision in paragraph (b) of this section provides for an
alternative fall protection measure.

     The citation alleges: “A - Construction site, building #16 - Guard rails, safety nets or personal fall

arrest systems were not provided for employees working close to the edges of the roof, which was
approximately 28ft. above the ground below, on or about 10/15/2001.”
As noted above, Summit does not dispute that the cited standards were violated by the
subcontractors on the day of Ramirez’s inspection, and that the subcontractors’ employees were exposed

                                                 -12-

to hazardous conditions. Summit argues, however, that its three employees on the site had no knowledge
of the cited violations.
General Contractor’s Knowledge of Subcontractors’ Violations
The Secretary argues that Summit had both actual and constructive knowledge of the violations.
Gus Pike and Christopher Roberts testified at the hearing. Pike stated that the day of the Ramirez’s
inspection, he spent all morning in Summit’s job trailer on the site. When asked if he could see Buildings
16 and 17 (where the alleged violations occurred) from the trailer, Pike stated, “No, not really. If I’m in
the office, I’m working, you know, and I couldn’t see 17 from my office trailer. I could see the front side
of Building 3 if I walked to the other end of the trailer and looked out the window” (Tr. 77). Roberts stated
that he and Jeremie worked most of the morning at Building 7/11, and that they could not see Buildings
16 and 17 from where they were (Tr. 282). Both Pike and Roberts were emphatic that they had no prior
knowledge of the violative conditions (Tr. 74, 297).
The primary evidence presented by the Secretary regarding actual knowledge was the testimony
of Ramirez, who stated that Roberts told him he was aware of the violations during the walk-around
inspection. Roberts explained that he was acknowledging his awareness of the violations as Ramirez
pointed them out. Until that moment, Roberts stated that he did not have knowledge of the violations
(Tr. 290-291). Pike had a similar experience with Ramirez. During the walk-around Ramirez pointed out
a scaffold that did not have guardrails on it. When asked if he told Ramirez that he was aware of this
violation, Pike stated, “When he pointed them out to me, yes, and then he pointed them out to me and
brought them to my attention, correct” (Tr. 51).
In its post-hearing brief, Summit states, “The trial transcript reflects that it was difficult to
communicate with the CSHO because he frequently attached a meaning to statements that was not always
accurate (Cf. Tr. 201-202, 203-206, 208, 214-215).” Observing Ramirez’s demeanor and testimony, the
undersigned agrees that the responses Ramirez elicited from Summit’s employees during his inspection
are ambiguous. Pike and Roberts stated that Ramirez phrased his questions in the present tense, so that
they acknowledged what was pointed out to them at that moment.
The parties’ witnesses disagreed over the substance of various statements made during the
inspection. A miscommunication between Roberts and Ramirez was not improbable. At the hearing they
spoke quite rapidly and with distinctive inflections increasing the likelihood that their statements might

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be misconstrued. For example, confusion was evident as to an alleged admission that guardrails were
missing from areas where even the Secretary’s photographs showed orange chain guardrails in place
(Exh. C-12, C-14). Ramirez imparted too much weight to his interpretation of one or two words. Standing
alone, Ramirez’s testimony that Pike and the Robertses acknowledged awareness of the violations is
insufficient to establish their actual knowledge of the violations.
The Secretary also asserts that Summit had constructive knowledge of the violations because
Summit could have known of the hazards if it inspected the worksite. Summit had an obligation to inspect
the work area, to anticipate hazards, and to take measures to have hazardous conditions abated on the
worksite it controlled. However, the Secretary does not prove that Summit, as a general contractor, had
knowledge of a specific violation simply because Summit admits that it did not inspect for safety. As the
Secretary acknowledges, Summit is not required to make continuous inspections of the worksite to fulfill
its duty as a general contractor. The Secretary must show that Summit would have known of the violations
had it reasonably inspected the worksite for safety.
The Secretary failed to offer evidence of how long the violations may have existed before Ramirez
observed them.5 The Secretary did not show that any of the violative conditions existed longer than the
30 minutes involved in the inspection. She did not offer the testimony of any of the subcontractors or their
employees. Summit’s interaction with the subcontractors relative to the cited hazards is unknown.
Summit’s witnesses testified that the pump jack scaffold was very quickly erected, used, and
dismantled and that missing guardrails from their perspective could have meant that the scaffold was being
dismantled or erected (item 2). Although Summit provided the orange chain guardrails for the project and
directed the framer subcontractor to install them, the missing guardrails could have been removed by other
subcontractors to gain access or to do trim work. Roberts stated that he had earlier seen the guardrails in
place (items 3a & b). Roberts also testified that previously the roofers were “real good” about tying off
while on the roof (Tr. 283). He was unaware that roofers were not tying off the safety harnesses they wore
on the roof at the time of the inspection (item 4).

5
Unsupported hearsay evidence to the effect that a violation existed for a specified period of time is not credited,
especially given the previously discussed m iscommunications.

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Given the size of the worksite, the location of the exposed subcontractors’ employees, and the of
testimony Summit’s employees, the Secretary failed to show that Summit reasonably should have known
of the existence of the violations. Items 2, 3a, 3b, and 4 are vacated.
Findings of Fact and Conclusions of Law
The foregoing decision constitutes the findings of fact and conclusions of law in accordance with
Federal Rule of Civil Procedure 52(a).
ORDER
Based upon the foregoing decision, it is hereby ORDERED that:
Items 1, 2, 3a, 3b, and 4 are vacated, and no penalties are assessed.

                                                        /s/
                                                  NANCY J. SPIES
                                                  Judge

Date: December 23, 2002

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