Foit-Albert Associates, Architects & Engineers, P.C.

Plain-English summary

Foit-Albert provided engineering inspection services at a university construction project where concrete collapsed from one floor onto another. OSHA cited the firm under cast-in-place concrete standards. The Commission found that Foit-Albert's contract limited it to inspecting work for compliance with specifications and did not authorize it to direct contractors, stop work, or control safety measures. Its hazard reports, rejection of nonconforming concrete, and incidental work such as tying rebar were part of its inspection role and did not amount to supervisory control. Because the firm was not performing construction work within the scope of Part 1926, the two citations were vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.703
• Outcome: Both cast-in-place concrete citations were vacated.
• Key point: An engineering inspector without contractual or actual authority to direct trade contractors or control safety was not subject to the construction standards.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket No. 92-654
FOIT-ALBERT ASSOCIATES,
ARCHITECTS & ENGINEERS, P.C.,
Respondent.

                                     DECISION

Before: WEISBERG, Chairman; MONTOYA and GUTTMAN, Commissioners.
BY THE COMMISSION:
On July 29, 1991, concrete collapsed from the fourth floor onto the third floor of a
building under construction for the State University of New York (“SUNY”) in Amherst,
New York. Respondent, Foit-Albert Associates, Architects & Engineers, P.C. (“Foit-
Albert”), an engineering company having a contract with an architect to provide inspection
services at the project, was charged with two alleged serious violations of 29 C.F.R.
§ 1926.703, which governs cast-in-place concrete construction. Administrative Law Judge
Robert A. Yetman vacated the citations on the ground that Foit-Albert was not performing
construction work within the scope of the Secretary’s construction standards. We affirm.
This case involves the circumstances under which employers that provide professional
services for construction projects but not construction trade labor, such as engineers,
architects, and consultants, are subject to the Secretary’s construction standards set forth in
Part 1926 of Title 29, C.F.R. In CH2M Hill Central, Inc., No. 89-1712 (April 21, 1997)
(“CH2M”), issued this day,1 we found that the construction standards apply to an engineering

   1
    This case and CH2M were consolidated for oral argument.

2

firm which the project owner hired to provide a broad range of managerial services and
which exercised authority to direct and control the trade contractors with respect to safety
issues. The case now before us involves an engineering company whose contractual authority
is limited to inspecting the work for conformity with contract specifications and which,
unlike the employer in CH2M, has no authority itself to give any direction or instruction to
the trade contractors. We hold that this company is not subject to the construction standards
even though its inspection activities may unavoidably address safety issues and require its
employees to perform some incidental physical labor.
I. FACTS
Foit-Albert contracted with the building architect, Davis, Brody & Associates (“Davis,
Brody”), to review contract documents and drawings, to review and prepare any necessary
changes for approval by SUNY as the project owner, and to inspect the work of the various
trade contractors to ensure that it conformed to the contract specifications.2 The contract,
which is based on a form published by the American Institute of Architects, AIA Document
C727, Standard Form of Agreement Between Architect and Consultant for Special Services,
stated that “the Consultant [Foit-Albert] shall provide prompt written notice of any defect
in the work to the Architect and the Owner.” Article 2.5. It also provided that “the Consultant
shall not be responsible for the acts or omissions of the Architect, the Architect’s other
consultants, the Contractor(s), any Subcontractors, any of their agents or employees, or any
other persons performing any of the work.” Article 2.6. Also admitted into the record is AIA
Document B352, entitled Duties, Responsibilities and Limitations of Authority of the
Architect’s Project Representative, which states in pertinent part as follows:
3. LIMITATIONS OF AUTHORITY
The Project Representative shall NOT:

   2
    This description summarizes the scope of Foit-Albert’s contractual responsibility. It

also contracted to provide other incidental tasks such as preparing bulletins and field sketches
and signing contractor requisitions on behalf of Davis, Brody.
 3

   3.1 Authorize deviations from the Contract Documents.
   ....
   3.6 Advise on, or issue directions concerning, aspects of construction means,
   methods, techniques, sequences or procedures, or safety precautions and
   programs in connection with the Work.
   ....
   3.10 Reject Work or require special inspection or testing except as authorized
   in writing by the Architect.
   3.11 Order the Contractor to stop the Work or any portion thereof.

William Henderson, one of Foit-Albert’s two inspectors, testified that representatives of both
Davis, Brody and SUNY gave him a copy of AIA Document B352 and that these
representatives as well as Warren Wittek, Foit-Albert’s vice-president, also advised him that
he could not order work to be stopped.3
In the cast-in-place concrete process, a system of scaffolding referred to as “shoring”
was erected on each floor to support formwork, that is, the molds into which the concrete
would be poured to create the floor above. After the concrete had cured, both the shoring and
the formwork were removed. In the exercise of its inspection function, Foit-Albert found that
this process had two major deficiencies: the concrete was not being poured at the proper
time, and the shoring appeared inadequate to support the formwork.
Henderson notified Wittek in writing that the contractor had begun the pour
prematurely in an area known as 4A. Henderson’s chief problem with the scheduling of the
pour was that other trades were still placing rebar and completing the electrical and plumbing
installation. In Henderson’s view, this activity not only presented a hazard because workmen

   3
   Since AIA Document B352 was not shown to be part of the formal contract between

Foit-Albert and Davis, Brody, Judge Yetman concluded that it was probative only to the
extent that it reflects Henderson’s understanding of Foit-Albert’s role at the site. We agree
that the document is entitled to weight regarding Foit-Albert’s contractual authority. We also
note that, consistent with the terms of that document, the Secretary conceded at the outset
of the hearing that Foit-Albert did not have authority for safety at the worksite.
 4

unfamiliar with concrete placement were in close proximity to the concrete bucket as it
moved around the floor, but it also precluded Foit-Albert from properly inspecting the rebar
and electrical and plumbing connections. Wittek in turn relayed these concerns to Stanley
Galindo, project manager for the general contractor, Ciminelli/Walbridge, Joint Venture
(“Ciminelli”).
Thereafter, Jeffrey Kohler, Foit-Albert’s structural inspector, wrote to Galindo that
“this office remains on record as having noted several deviations from the approved shoring
details on this project.” Kohler urged Galindo to “review the configuration of approved
shoring details and the conditions on this site with your personnel without delay.”4 Two or
three days prior to the collapse, Kohler pointed out deficiencies in the shoring when he went
through the site with the president of the shoring subcontractor. Specifically, Kohler did not
think there was sufficient structural support for a horizontal “spandrel” beam because the

   4
    The parties agree that Foit-Albert was contractually obligated to inspect the

formwork. There is a dispute in the record, however, as to whether Foit-Albert had
contractual responsibility to inspect shoring. The shoring specifications were not prepared
by Davis, Brody but by a different engineer hired by the shoring subcontractor. Judge
Yetman found that Foit-Albert’s contractual obligation was limited to inspecting for
conformity to specifications prepared by Davis, Brody. We conclude that the judge properly
resolved this factual issue.

Although Foit-Albert was not mandated by contract to inspect shoring, the record
demonstrates that Foit-Albert did in fact address shoring in its inspections and reports and
comments resulting from those inspections. However, for the reasons set forth in the text of
this decision, we conclude that inspection activity alone is not a sufficient basis on which to
subject a non-trade employer to the construction standards.
 5

scaffolding did not match the drawings of the shoring contractor’s engineer.5 Subsequently,
Henderson observed the pour in area 4A as it occurred, although he denied that any
deflection appeared in the shoring during the pour. Henderson also testified that he had
consistently felt that the shoring was unstable because the ground on which it was placed was
too soft, that the shoring joints appeared “shabby,” and that the shoring deviated from the
specifications in other respects in addition to those identified by Kohler. Ciminelli corrected
all of these conditions after Henderson brought them to Ciminelli’s attention.
However, Foit-Albert was not able to exercise any inspection function with respect
to the next pour, in area 4B, the pour that collapsed. Ciminelli failed to notify Foit-Albert
that shoring had been installed over the weekend and that the 4B pour was going to
commence immediately when work started on the following Monday. As a result, Foit-Albert
was engaged in other tasks—inspecting electrical conduits, outlets, piping, duct work, rebar,
and other materials on the floor—on that Monday, and it did not have an opportunity to view
the shoring during the 4B pour.
In addition to inspecting and noting some deficiencies in the shoring process, there
is one instance in which Foit-Albert would not accept certain work because it did not
conform to contract specifications, specifically an occasion when Foit-Albert refused to
allow a concrete truck to make a delivery because Henderson observed water in the concrete.
Foit-Albert’s representatives had personally pulled debris out of the formwork during their
inspections for the purpose of directing Ciminelli’s attention to the presence of debris. In
order to protect the visual appearance of the building and prevent ultimate structural damage,
Foit-Albert personnel also tied rebar and installed metal brackets known as “chairs” to raise
the rebar off the formwork.

   5
       After Kohler participated in the walkaround with the shoring contractor, he told

Henderson that the shoring was being realigned and that a revised shoring specification
would be provided to Foit-Albert. Henderson testified that a revised plan showing the
supports for the spandrel beam had not been provided by the time the collapse occurred.
 6

                        II. DISCUSSION AND ANALYSIS
   In determining whether employers who are not construction trade contractors are

subject to the construction standards, we do not rely merely on the terminology generally
used to describe their business, such as “engineer” or “architect.” Rather, we focus
specifically on each employer’s relationship to the construction work, including its
contractual responsibilities and the nature of the activities which it actually performs at the
site. The distinction between those covered by the standards and those not within the purview
of the standards may be a matter of the degree rather than the kind of control over
construction activities. Here, Foit-Albert had no contractual or actual authority to direct the
activities of the trade contractors although during the course of its assigned work duties it
notified them of safety hazards of which it became aware.
The facts of this case, therefore, contrast sharply with those of CH2M. Foit-Albert’s
contractual role was to review the contract documents and project specifications, to prepare
change orders as necessary, and to inspect the work of the trade contractors to ensure that
it conformed to the contracts and specifications. Foit-Albert was not engaged in an extensive
range of activities as was CH2M and unlike CH2M it did not have overall managerial or
administrative responsibility for the building project. Rather, Foit-Albert’s contract with
Davis, Brody specifically provided that “the Architect [Davis, Brody] shall be the general
administrator of contractural [sic] services . . . for the project.”
Indeed, in terms of Foit-Albert’s contractual responsibility, this case is
indistinguishable from Simpson, Gumpertz & Heger, Inc., 15 BNA OSHC 1851,
1991-93 CCH OSHD ¶ 29,828 (No. 89-1300, 1992), aff'd, 3 F.3d 1 (1st Cir. 1993) (“SGH”),6
in which the Commission concluded that the construction standards do not apply to an entity

   6
    AIA Document C727, which formed the foundation for Foit-Albert’s contract, states

that portions of it “are derived from” AIA Document C141, Standard Form of Agreement
Between Architect and Engineer. The latter is same form on which the contract in SGH was
based. See 15 BNA OSHC at 1853, 1991-93 CCH OSHD at p. 40,665.
 7

which contracts to perform inspection services at a construction worksite and has no
contractual responsibility over safety means and measures.7
As our decision in SGH also indicates, a non-trade employer whose contractual
authority is limited to inspection for conformity to contract specifications may nevertheless
be held subject to the construction standards if, notwithstanding the restrictions of its
contract, it in fact exercises control over safety programs or safety precautions. 15 BNA
OSHC at 1867, 1991-93 CCH OSHD at p. 40,680. See also CH2M, slip op. at 25-27
(discussion of de facto assumption of safety authority). In this case, the pour that collapsed,
4B, was commenced without Foit-Albert’s knowledge and at a time when Foit-Albert was
occupied in other inspection activities. The fact that in the normal course of work on the
project, Foit-Albert did not have the opportunity to observe a critical aspect of the work is
consistent with the contractual evidence that Foit-Albert’s role in the project included little
if any actual responsibility to control or direct the manner of performance of that work.
On the other hand, we recognize, as the Secretary emphasizes in her brief, that
notwithstanding the limited scope of its contractual responsibilities, Foit-Albert did warn the
trade contractors of safety hazards in the shoring and of hazards in the manner in which the
concrete pour was being conducted in area 4A. However, we conclude that these activities
fail to demonstrate a control over safety issues sufficient to bring Foit-Albert within the
scope of the construction standards.

   7
       The Oregon Court of Appeals reached a similar conclusion in its decision holding

that a municipality which inspected work for compliance with contract terms and municipal
codes but which had no authority to review the adequacy of contractor’s safety measures was
not engaged in construction work under the state’s occupational safety and health
regulations. City of Portland v. Accident Prevention Div., 49 Ore. App. 1091, 621 P.2d 665
(Ct. App. 1980).
 8

    At least to some extent Foit-Albert’s concerns were based on discrepancies between

the shoring as installed by the shoring subcontractor and the engineer’s drawings.8 To the
extent that Foit-Albert raised safety issues beyond mere compliance with design
specifications, we cannot conclude on these facts that by so doing Foit-Albert exercised
substantial supervision over construction work within the meaning of SGH and CH2M. The
inspection of work being performed on a jobsite may implicate matters relating to safety, and
our decision here is not to be interpreted as a finding that no such relationship exists on the
facts of this case. In a case such as this where an accident occurred and injuries resulted, it
is reasonable to assume that a competent inspection would detect hazardous working
conditions or potential safety hazards. Our decision holds that by merely making known its
concerns about safety Foit-Albert did not manifest the ability to control or direct matters of
safety. We therefore concur with Judge Yetman’s findings that Foit-Albert’s warnings about
the shoring and the conduct of the 4A pour were an incidence of Foit-Albert’s inspection
responsibility and did not arise to the level of supervisory responsibility for the
implementation of safety measures and safety precautions at the site.

    8
    The same is true of Foit-Albert’s rejection of concrete deliveries and performance of

certain physical labor at the site: Foit-Albert took these measures in order to implement and
complete its contractual inspection obligation rather than as an attempt to control or direct
the work. Moreover, there is no evidence from which we could conclude that these actions
represented a substantial rather than an incidental portion of Foit-Albert’s overall activities
at the site.
 9

   For these reasons, we conclude that Judge Yetman properly concluded that the

construction standards prescribed in Part 1926 do not apply to Foit-Albert. The judge’s
decision is affirmed.

                                                 /s/
                                                 Stuart E. Weisberg
                                                 Chairman


                                                 /s/
                                                 Daniel Guttman
                                                 Commissioner

Dated: April 21, 1997
 10

MONTOYA, Commissioner, concurring:
For the reasons set forth in my separate opinion in CH2M Hill Central, Inc., No.
89-1712 (April 21, 1997) (“CH2M”), I do not find this case to be distinguishable from
CH2M in any substantive respect. Morever, as the majority itself indicates, this case is
controlled in any event by the Commission’s prior precedent in Simpson, Gumpertz & Heger,
Inc., 15 BNA OSHC 1851, 1867, 1991-93 CCH OSHD ¶ 29,828, p. 40,680 (No. 89-1300,
1992), aff’d, 3 F.3d 1 (1st Cir. 1993). I therefore join in the result.

                                                       /s/
                                                       Velma Montoya
                                                       Commissioner

Dated:April 21, 1997