CB&I Constructors, Inc.

Plain-English summary

CB&I was the general contractor for an elevated water tower where an electrical subcontractor had an extension cord without visible ground-fault circuit-interrupter protection connected to a conduit threader. The judge found that the Secretary did not prove the outlet was single-phase and rated at 15 or 20 amperes, facts required for the cited standard to apply. The machine was not in use, CB&I did not own or use the equipment, and its supervisor was briefly on site for a water-tank test rather than to oversee electrical work. Because CB&I could not reasonably have been expected to detect or abate the condition, the multi-employer theory also failed. The citation was vacated with no penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.404(b)(1)(ii)
• Outcome: The serious GFCI citation was vacated with no penalty.
• Key point: A controlling contractor is not liable when the Secretary fails to prove the cited electrical rule applies and the contractor could not reasonably detect the specialist subcontractor's condition.

Full text (OSHRC public release)

Secretary of Labor,
Complainant,
v. OSHRC Docket No. 03-0333
CB&I Constructors, Inc., EZ
Respondent.

Appearances:

Oscar L. H amp ton, III, E sq., Office of the S olicitor, U. S. D epartment of Lab or, Kansas City, Missouri
For Com plainant

Carl B. Carruth, Esq., McNa ir Law Firm, P.A., Columbia, South Carolina
For Respond ent

Before: Administrative Law Judge Ken S. Welsch

                                        DECISION AND ORDER
       CB&I Constructors, Inc. (CB&I), through the CB&I Water division, contracted to design,

fabricate, and erect an elevated water tower for the City of Blue Springs, Missouri. CB&I’s
employees performed the general construction work for the water tower, and other contractors were
used for specialty jobs such as the electrical work. After an inspection by Occupational Safety and
Health Administration (OSHA) on November 21, 2002, when CB&I was testing the water tower for
leaks, CB&I received a serious citation on December 18, 2002. CB&I timely contested the citation.
The citation alleges a serious violation of 29 C.F.R. § 1926.404(b)(1)(ii) for failing to have
ground fault circuit interrupter (GFCI) protection on the electrical contractor’s extension cord used
to power the contractor’s conduit threader machine. The citation proposes a penalty of $1,500.
The case was designated to proceed under the Review Commission’s EZ Trial procedure, 29
C.F.R. § 2200.200. The hearing was held on May 23, 2003, in Kansas City, Missouri. Jurisdiction
and coverage are stipulated (Tr. 5).
CB&I denies that a violation of § 1926.404(b)(1)(ii) has been shown and also claims the
multi-employer work site doctrine. CB&I argues that the record fails to show that the electrical
contractor was not utilizing an assured equipment grounding program instead of GFCI or that the
extension cord outlet was “120-volt, single phase, 15- and 20- ampere” as required by the standard.
Even if noncompliance with the standard is established, CB&I asserts that it did not create or control
the lack of a GFCI and its employees were not exposed to a hazard. As general contractor, it claims
that it should not be held responsible for the alleged violation. It was the electrical contractor who
was responsible for providing ground fault protection and for operating the conduit threader
machine.
For the reasons discussed, a violation of § 1926.404(b)(1)(ii) is vacated.
The Inspection
CB&I was contracted by the City of Blue Springs, Missouri, to design, fabricate, and erect
an elevated water tower. The completed water tank was to be made of corrugated steel and sit on
top of an enclosed concrete foundation with four floors or levels. CB&I is headquartered in
Woodlands, Texas. While CB&I’s employees actually erected the water tower, it subcontracted
some specialty work, such as the foundation work, painting, electrical work, and the installation of
an overhead door, to specialty contractors. Kansas City Electric Construction Co. was the electrical
contractor (Exh. R-1; Tr. 91-92, 98, 112-113, 127, 153).
The work on the water tower was done sequentially in that each phase was performed
independently by CB&I or a specialty contractor. CB&I did not have a supervisor on site to oversee
the work of a specialty contractor. The foundation and construction work was completed by the
middle of May 2002. CB&I then left the site and Kansas City Electric came on site to “rough-in”
the electrical work. Afterward, the painters painted the tower. Kansas City Electric then returned
to complete the electrical work. In November, 2002, work on the water tower was near completion.
The electrical work was almost done and CB&I needed to test the tank for any leaks (Tr. 14, 96, 108,
126-127, 128, 130).
On November 21, 2002, OSHA Compliance Officer (CO) Robert Vezeau initiated a
programmed inspection of the work site. He arrived at approximately 8:50 a.m. Two CB&I
employees, Steven Swanson, CB&I Water construction supervisor, and his assistant, Scott McLean,
who had arrived on site at approximately 7:00 a.m., were in the water tank to prepare for the hydro
test.1 Also on site were three employees of Kansas City Electric who were installing electrical
conduit on the upper floors of the foundation. Two City of Blue Springs’ employees were on the

1
Hydro testing the tank involved filling the tank with water and checking for leaks (Tr. 130).

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ground level of the foundation to observe the hydro test. There was no other work or employees on
site (Tr. 12-13, 27, 48, 49-50, 130-131, 145, 163).
CO Vezeau entered the enclosed ground level of the foundation, which is approximately 78
feet in diameter,2 with a concrete floor. No work was being performed and only the two city
employees were present on the ground level. Other than a conduit threader machine used to cut
threads on the ends of conduit, the area was essentially empty and “fairly clear” (Exh. C-2; Tr. 15,
27, 34, 52, 81).
A city employee notified supervisor Swanson of OSHA’s presence. Swanson returned to the
ground level and participated in the opening conference. CO Vezeau and Swanson then went to the
floor where the electrical contractor’s employees were installing conduit (Tr. 17-18, 20-21, 27, 43).
Having observed no unsafe conditions on the upper floors, CO Vezeau and Swanson returned
to the ground level where Vezeau then observed that the 40-foot extension cord connected to the
conduit threader machine and plugged into an electrical outlet did not have GFCI (Exh. C-1; Tr. 20-
21, 26, 28, 57, 155). The extension cord and threader machine were owned by Kansas City Electric
(Tr. 47). The threader machine was not in operation and no metal shavings were observed on the
floor around the machine (Tr. 46, 74). Kansas City Electric abated the condition immediately by
adding a GFCI to the extension cord (Tr. 40). CO Vezeau concluded his inspection at approximately
10:10 a.m. (Tr. 25).
The lack of a GFCI was the only alleged OSHA violation observed by CO Vezeau. Both
CB&I and Kansas City Electric received similar citations (Tr. 52).

                                               Discussion

2
CO Vezeau estimated the ground level was approximately 60 feet in diameter (Tr. 34, 57). CB&I construction
supervisor Swanson’s estimate, however, is accepted because he was involved in the construction process of the
tower (Tr. 159).

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Item 1 - Alleged serious violation of § 1926.404(b)(1)(ii)3
The citation alleges that an extension cord used to power a conduit threader machine did not
have GFCI protection. Section 1926.404(b)(1)(ii) provides in part that:
All 120-volt, single-phase, 15- and 20- ampere receptacle outlets on
construction sites, which are not a part of the permanent wiring of the
building or structure and which are in use by employees, shall have
approved ground-fault circuit interrupters for personnel protection.

A. Applicability of § 1926.404(b)(1)(ii)
The Part 1926 construction standards were applicable to CB&I’s construction project in
erecting the elevated water tower. There is no dispute that a 40-foot extension cord connected the
conduit threader machine to the electrical outlet. Also, CB&I does not dispute that there was no
GFCI protection (EZ Prehearing Telephone Conference Order, April 15, 2003).
Section 1926.404(b)(1)(ii) applies to all employers on construction sites who use 120-volt,
single-phase, 15- and 20- ampere receptacle outlets which are not part of the permanent wiring of
the building. The extension cord was not part of the water tower’s permanent wiring.
In accordance with § 1926.404(b)(1)(i), an employer can use either GFCI or an assured
equipment grounding conductor program as described in § 1926.404(b)(1)(iii). CB&I argues that
the record fails to show that Kansas City Electric was utilizing GFCI protection as opposed to an
assured equipment grounding conductor program (Tr. 82). CO Vezeau testified that he did not ask
whether Kansas City Electric was utilizing an assured equipment grounding conductor program
(Tr. 45-46).
Despite his testimony, the record makes a prima facie showing that Kansas City Electric was
using GFCI. GFCI was noted at other locations on site and, when notified by OSHA of the lack of

3
To establish a violation of a standard such as § 1926.404 (b)(1)(ii), the Secretary has the burden of proving:
(a) the applicability of the cited standard, (b) the em ployer’s nonc omp liance w ith
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).

Atlan tic Battery Co., 16 B NA O SHC 2131, 21 38 (No . 90-1747, 199 4).

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a GFCI for the extension cord, Kansas City Electric immediately abated the condition by adding
GFCI protection (Tr. 46, 75, 79). There is no evidence that Kansas City ever claimed it was using
an assured equipment ground conductor program instead of GFCI. Also, CB&I did not present any
evidence to show that an assured equipment program was being utilized by its subcontractor.
CB&I also claims that the receptacle outlet was not shown to be a 120-volt, single-phase, 15-
and 20- ampere outlet (Tr. 84). The record does establish that the receptacle outlet was 120-volt.
Although CO Vezeau did not test the outlet to determine the voltage or ampere, he testified that
based on his experience4 and observation, he knew the receptacle was 120-volt (Tr. 55, 65). He
testified that it is unusual for an outlet to be less than 120 volts in a commercial industrial setting
(Tr. 67). Vezeau’s testimony is uncontroverted. CB&I’s project manager Darwin White agreed that
120-volt was normal (Tr. 121, 123).
Despite the evidence of voltage, the record fails to show that the outlet was single-phase or
the amperes. Vezeau’s testimony regarding single-phase or ampere is silent. He presented no basis
for concluding that the outlet was single-phase or that the amperes were 15 and 20 as required by §
1926.404(b)(1)(ii). Although he had a three-way electrical tester with him during the inspection, he
apparently never used it on this outlet (Tr. 13, 65). In describing the purpose of GFCI, Vezeau
testified that it was “used to cut off the flow of amperage before it does harm to a person if there is
a fault in the circuitry” (Tr. 56). Project manager White testified that normal ampere was between
15 and 30 (Tr. 122, 124). OSHA standards at § 1926.404(b)(2) regulate outlet devices and set
maximum ampere ratings for various circuits from 10 amperes to 50 amperes. Without a showing
that the outlet was single-phase5 and the amperes were 15 and 20, the record fails to establish the
application of 1926.404(b)(1)(ii).
B. Noncompliance with the terms of § 1926.404(b)(1)(ii)
It is undisputed that if § 1926.404(b)(1)(ii) applies, there was no GFCI .

4
CO V ezeau has been an OSHA compliance officer since February 2002. Previously, he had worked for the Postal
Service as a construction project manager for facilities (Tr. 66).

5
It is noted that OSH A’s elec trical stand ards regulate both single phase and thre e pha se circuits. See
§ 1926 .404(f)(1).

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C. Employee access to the violative conditions
There is no dispute that the threader machine was not being used at the time of the OSHA
inspection (Tr. 46, 57). CO Vezeau did not know when the threader machine was last used (Tr. 28).
There were no metal shavings on the floor around the machine (Tr. 74). However, the electricians
were installing conduit which had been threaded on the upper floors (Tr. 61-62).
The test for determining employees’ exposure to a hazard is whether it is “reasonably
predictable” that employees would be in the zone of danger created by a noncomplying condition.
Kokosing Constr. Co., 17 BNA OSHC 1869, 1870 (No. 92-2596, 1996). The Secretary must show
that it is reasonably predictable, either by operational necessity or otherwise, including inadvertence,
that employees have been or will be in the zone of danger. Fabricated Metal Products, Inc.,18 BNA
OSHC 1072 (No. 93-1853, 1997).
In the instant case, employees of the electrical contractor were installing conduit on the fourth
floor. The threader machine was used to cut threads on the ends of the conduit so that the conduit
could be fastened together to protect the electrical cord inside (Tr. 26-27, 63). The threader machine
was plugged into the electrical outlet. It was available for use. Dover Elevator Co., 16 BNA OSHC
1281, 1284 (No. 91-862, 1993) (proof of availability for use is sufficient to establish employees’
exposure to the standard requiring GFCI on an unprotected receptacle). Although a GFCI was
immediately placed on the extension cord when discovered by CO Vezeau, there is no showing that
a GFCI had previously been utilized.
D. Employer’s actual or constructive knowledge
Neither the threader machine, extension cord, nor outlet receptacle were hidden from view
or obstructed in any way (Exh. C-1; Tr. 36-37, 138). The ground level was “essentially an empty
concrete floor” (Exh. C-2; Tr. 81). The threader machine was approximately 3 feet high and 1 foot
wide (Tr. 35). Construction supervisor Swanson crossed directly over the extension cord twice prior
to OSHA’s inspection (Tr. 143). He saw the extension cord on the floor (Tr. 138).
In order to establish employer knowledge of a violation, the Secretary must show that the
employer knew, or, with the exercise of reasonable diligence, could have known of a hazardous
condition. Dun Par Engd. Form Co.,12 BNA OSHC 1962 (No. 82-928, 1986). An employer must
make a reasonable effort to anticipate hazards to which employees may be exposed in the course of

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their scheduled work. Automatic Sprinkler Corp. of America, 8 BNA OSHC 1384, 1387 (No 76-
5089, 1980).
Also, an employer is chargeable with knowledge of conditions which are plainly visible to
its supervisory personnel. A. L. Baumgartner Constr., Inc., 16 BNA OSHC 1995 (No 92-1022,
1994). When a supervisory employee has actual or constructive knowledge of the violation
conditions, knowledge is imputed to the employer. Dover Elevator Co., 16 BNA OSHC 1281, 1286
(No. 91-862, 1993). Swanson was a supervisory employee and his knowledge is imputed to CB&I.
CO Vezeau considered the lack of GFCI protection as in plain view (Tr. 36-37). Except for
the threader machine and extension cord, the ground floor was essentially empty. Based on his
observations on the ground floor, Vezeau knew that the extension cord lacked GFCI (Tr. 24, 76).
Supervisor Swanson had only been on site that morning and was on the ground floor for a
short duration, less than 10 minutes6 (Tr. 132, 149). The electrical equipment, including the threader
machine and extension, did not belong to CB&I (Tr. 47). No employees were at the threader
machine and it was not in use. There is no evidence that CB&I employees had ever used the threader
machine or were exposed to the lack of a GFCI (Tr. 47). It was not CB&I’s responsibility to provide
the GFCI.
Also, if the lack of a GFCI was in plain view, CO Vezeau did not notice it when he first
initiated the OSHA inspection on the ground floor and conduced the opening conference (Tr. 44).
He was also on the ground floor for approximately 10 minutes before going to the upper floors
(Tr. 16-17).
Unlike Vezeau, who was conducting a safety inspection, Swanson was only on site to
conduct a hydro test of the tower, which was not on the ground floor. He was not on site to
supervise or audit the electrical contractor’s work (Tr. 134). When he arrived, Kansas City Electric’s
employees were already working on the 4th floor (Tr. 149). There was no one on the ground level
(Tr. 157). Also, Swanson testified that he is not familiar with electrical equipment. He is not an
electrician (Tr. 152). CB&I did not “have expertise to do the electrical work” (Tr. 92).

6
He had not been to the water to wer for at least two weeks (Tr. 159 ).

                                                         -7-

Although possibly in plain view, the lack of a GFCI in this case was not shown to be readily
apparent. As discussed, the requirement for GFCI is conditioned on knowing that the receptacle
outlet was “120-volt, single-phase, 15- and 20- ampere” and an assured equipment grounding
conductor program was not being utilized. As CB&I construction supervisor, it was not shown that
he should have known the outlet capacity. Also, Swanson was on the ground level for a short
duration and for another purpose. The threader machine was not used by CB&I, nor was it CB&I’s
equipment. At the time, the threader machine was not in use and no employees were in the area.
Further, the GFCI could have been placed at either end of a 40-foot extension cord (Tr. 56).
Multi-Employer Work Site7
A general contractor, who, as in this case, did not have employees exposed and did not create
the violative condition may still be considered responsible for violations of a subcontractor where
the general contractor could reasonably be expected to prevent or detect and abate the violation.
Centex-Rooney Construction Co., 16 BNA OSHC 2127 (No. 92-0851, 1994).8 A general
contractor’s responsibility does not depend on whether it actually created the hazard or has the
manpower and expertise to abate the hazard. Red Lobster Inns of America, Inc., 8 BNA OSHC 1762
(No. 76-4754, 1980).
In Knutson Construction Co., 4 BNA OSHC 1759, 1761 (No. 765, 1976), aff’d. 566 F.2d 596
(8th Cir. 1977), the Review Commission did not hold a general contractor responsible for failing to
detect a one-inch crack on the underside of a scaffolding platform before it collapsed. The
Commission concluded that it was unreasonable to expect a general contractor to detect such a crack.
However, in Blount International Ltd., 15 BNA OSHC 1897, 1899 (No. 89-1394, 1992), the
Commission found it reasonable to expect a general contractor to detect a GFCI problem in a panel
distribution box even though the condition was by nature latent and hidden from view. The

7
CB& I’s argument that this was not a multi-employer worksite, but rather a sole employer site, is rejected. CB&I as
general contracto r contracted Kansas C ity Electric to perform the electrical work. Both CB& I and Kansas C ity
Electric were on site at the time of the OSHA inspection.

8
It is noted that CB&I is headquartered in Texas within the 5 th Circuit Court of Appeals, which has rejected the
multi-employer concept in a series o f mostly tort cases but has not co nsidered the issue in the context of a
Commission ca sework site do ctrine. See disc ussion, Mc Devitt Street Bov is, Inc., 19 BNA OSH C 1108, 1109 (No.
97-1 918 , 200 0).

                                                        -8-

Commission concluded that the general contractor failed to ask the electrical contractor or conduct
its own test of the box. It did not exercise due diligence in inspecting for the violative condition.
The general contractor at a construction project is presumed to have sufficient control over
its subcontractors to require them to comply with the safety standards and to abate violations. Gil
Haugan, d/b/a Haugan Construction Company, 7 BNA OSHC 2004, 2006 (Nos. 76-1512 & 1513,
1979).9 Under its contract with Kansas City Electric, CB&I reserved the right to take action against
a specialty contractor for unsafe conditions, including directing that the condition be fixed and the
contractor’s work stopped (Exh. R-1; Tr. 104-105). CB&I project manager Darwin Witte agreed that
if a CB&I supervisor observed an unsafe condition, he has the authority and is required to tell the
subcontractor to fix the problem and cease its work until abated (Tr. 104-105, 111). CB&I’s contract
with Kansas City Electric specifically reserves to CB&I the right to cease a subcontractor’s work if
it is unsafe. The Contract at paragraph 2.8 states, in part:
The Subcontractor shall be solely responsible for the prevention of
accidents on or in the vicinity of the Work. The Subcontractor shall
establish and maintain during the course of the Work a safety
program implementing safety measures, policies and standards
conforming to those required by governmental and quasi-
governmental authorities having jurisdiction and by the Contractor
and Owner including, but not limited to, requirements imposed on the
Contractor by the Prime Contractor. The Subcontractor shall comply
with the reasonable recommendations of insurance companies having
an interest in the Project, and shall stop any part of the Work which
the Contractor deems unsafe until corrective measures satisfactory to
the Contractor shall have been taken. The Contractor’s failure to stop
the Subcontractor’s unsafe practices shall not relieve the
Subcontractor of the responsibility to provide a safe work
environment.

     The Commission has concluded that there is sufficient supervisory authority and control

where a general contractor has “specific authority to demand a subcontractor’s compliance with
safety requirements, to stop a subcontractor’s work if safety violations were observed, and to remove

9
The D.C. Circuit Co urt of Appe als in a non-construction case, IBP, Inc. v. Herman, 144 F.3d 86 1, 866 (199 8),
made it clear that the Secretary has the burden to establish that a general contractor has sufficient control of a work
site and that the most a general contractor could be expected to do without express authority to do anything other
than to termina te a contract would be to point out safety violations when occu rring. T his was not sufficient contro l.
To date, the Review Commission has not applied the IBP reasoning to co nstruction cases.

                                                       -9-

a subcontractor from the worksite.” McDevitt Street Bovis, Inc., 19 BNA OSHC 1108, 1110
(No. 97-1918, 2000).
Because of the scheduling of the work, CB&I did not have employees generally present on
site during the subcontractor’s work performance (Tr. 128). CB&I considered it unsafe to employees
to have other contractors on site at the same time (Tr. 96). However, CB&I supervisors periodically
visited the site (Tr. 99). Also, CB&I received reports from contractors regarding work progress or
problems (Tr. 100).
The threader machine and extension cord did not belong to CB&I. CB&I employees never
used the equipment (Tr. 47, 58). Other than the lack of a GFCI, the equipment was in good
condition (Tr. 45). The electrical work was being done by a qualified speciality contractor. CB&I
had used Kansas City Electric on other projects and found their work of high quality and safe (Tr. 93,
136-137). CB&I did not have the expertise to perform such specialty work (Tr. 92, 97). The record
fails to show that CB&I did not exercise due diligence in ensuring that Kansas City Electric operated
a safe workplace. There was no reason offered for CB&I to foresee that Kansas City Electric would
fail to provide GFCI protection for the extension cord.
The threader machine was not shown to have been used on the day of OSHA’s inspection
(Tr. 28). It was not used during the inspection period (Tr. 57). Nor was it in use when Swanson
arrived at 7:00 a.m. (Tr. 143). There were no metal shavings on the floor around the threader
machine which might have indicated recent use (Tr. 74). The lack of a GFCI was the only safety
violation observed by CO Vezeau during his approximate one hour inspection of the site (Tr. 48).
CB&I supervisor Swanson was only present on site to conduct a hydro test of the water tank
for the city (Tr. 130, 134). He was not on site to oversee the electrical contractor’s progress or work.
The threader machine was not in use and there was no reason for Swanson to inspect the machine
or determine GFCI protection. Even if he had noted that the extension cord did not have a GFCI,
Swanson would have had to investigate further to determine if one was required. Based on the
record, CO Veseau determined that a GFCI was not on the extension cord but failed to determine
that one was required. He did not test the circuit, note whether it was single-phase, or determine the
amperage.

                                             -10-

Swanson was not reasonably able to detect the lack of a GFCI. Besides his lack of
knowledge regarding electrical equipment and also it was not part of his job duties, Swanson was
only on the ground level for approximately 10 minutes. Even if he crossed over the extension cord
to access the upper floors, it is noted that the GFCI could have been attached at either end of the 40-
foot extension cord (Tr. 56). Also, the compliance officer did not at first detect the lack of a GFCI
when he was on the ground level for 10 minutes waiting for Swanson (Tr. 44). The absence of a
GFCI was not readily apparent. He did not see the alleged violation until he “got closer to it”
(Tr. 21).
CB&I did not have employees exposed and did not create the lack of a GFCI. As general
contractor, the record fails to show that CB&I could have reasonably been expected to prevent or
detect and abate the lack of a GFCI.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW

    The foregoing decision constitutes the findings of fact and conclusions of law in accordance

with Rule 52(a) of the Federal Rules of Civil Procedure.
ORDER
Based upon the foregoing decision, it is ORDERED that:
1. Citation 1, Item 1, alleged serious violation of § 1926.404(b)(1)(ii), is vacated and no
penalty is assessed.

                                           /s/
                                           KEN S. WELSCH
                                           Judge

Date: June 25, 2003

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