Hensel Phelps Construction Co. (ALJ decision, March 25, 2019)

Plain-English summary

This supplemental decision followed a Fifth Circuit ruling that OSHA may cite controlling employers at multi-employer worksites for standards violations. Applying that ruling and the judge's earlier findings, the trench-protection citation against Hensel Phelps was affirmed. The item was reclassified from willful to other-than-serious under the parties' stipulation. A penalty of $12,471 was assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.652(a)(1)
• Outcome: Trench-protection item affirmed as other-than-serious; penalty of $12,471.
• Key point: A controlling employer may be cited for a standards violation that exposes another employer's workers at a multi-employer construction site.

Full text (OSHRC public release)


Hensel Phelps Construction Co. Docket No. 15-1638

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

S ECRETARY OF LABOR ,

Complainan t,

v.

HENSEL PHELPS
CONSTRUCTION CO. ,

Respondent.

DOCKET NO. 15-1638

Appearances:

Michael D. Schoen , Esq.,
Office of the Solicitor, U.S. Department of Labor,
Dallas, Texas

For Complainant

Michael V. Abcarian, Fisher & Phillips, LLC, Dallas, Texas

For Respondent

Before: Administrative Law Judge
Brian A. Duncan

DECISION AND ORDER

This
case
was
remanded by the Commission and the United States Court of Appeals for the 5 th
Circuit.
Acosta v. Hensel Phelps Construction Co ., 909 F.3d 723 (5 th
Cir. 2018). In that decision, the 5 th
Circuit reversed its
historical
position
on multi-employer liability under
the
Occupational Safety and Health Act of 1970, 29 U.S.C. §
651
et seq .,
established thirty-seven years
earlier in
Melerine
v. Avondale Shipyards, Inc ., 659 F.2d 706 (5 th
Cir. 1981). The 5 th
Circuit
has now
unequivocally held that “the Secretary of Labor has the authority under section 5(a)(2) of the Occupational Safety and Health Act, 29 U.S.C.
§ 654(a)(2), to issue citations to controlling employers at multi-employer worksites for violations of the Act’s standards.”

Accordingly, for the reasons stated in my
April 28, 2017
Decision and Order ,
Citation 1, Item 1 is
AFFIRMED as an
other-than-serious violation
of the Act, and a penalty of $12,471 is ASSESSED. 1

SO ORDERED .

/s/
Brian A. Duncan      

Judge Brian A. Duncan

U.S. Occupational Safety and Health Review Commission

Date:    February 20, 2019

Denver, Colorado

"

1
The parties agreed,
that should Citation 1, Item 1 be affirmed in this case, it should be reclassified to an other-than-serious violation with a revised penalty amount of $12,471.00. (Stip. 127).